SPACE SHARING AGREEMENT
This Space Sharing Agreement (the "Agreement") is effective as of the
1st day of August, 1999 by and between Xxxxxxx Computer Associates, Inc., a
Pennsylvania corporation ("SCAI"), and e-PROFILE, Inc., a Delaware corporation
(the "Company").
RECITALS
SCAI is a party to a sublease agreement with Profit Management Group,
Inc. (the "Sublease") pursuant to which SCAI leases approximately 5,913 square
feet of office space at 000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx (the
"Premises").
The Company desires to use the entire Premises and, subject to the
terms and provisions herein, SCAI agrees that the Company shall be permitted to
use the entire Premises.
NOW, THEREFORE, in consideration of the agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto hereby agree as follows:
1. PREMISES. SCAI agrees that the Company shall be permitted to use the
entire Premises for the purposes permitted under the Sublease subject to the
terms and conditions set forth in this Agreement. The Company's right to use the
entire Premises (and its obligation to pay consideration therefore as required
pursuant to Section 2 hereof) shall terminate on the expiration of the term of
the Sublease as currently provided in the Sublease; PROVIDED, HOWEVER, that the
parties may agree mutually to extend the term of this Agreement if Xxxxxxx
extends the current term of the Sublease.
2. CONSIDERATION. Through the termination of the sublease, the Company
shall pay to SCAI on the first day of each calendar month the amount required to
be paid by Xxxxxxx pursuant to the terms of the Sublease (the "Monthly Rent").
Such Monthly Rent shall be increased by the same percentage as any rent increase
(including without limitation, for rent adjustments based on increases in
operating expenses, common area maintenance charges and similar items) provided
under the terms of the Sublease, such increase to be effective as provided in
the Sublease. Payments for any partial calendar month shall be as provided in
the Sublease.
3. MODIFICATION AND TERMINATION.
(a) MODIFICATION. If either party hereto desires to increase or
decrease the portion of the Premises used pursuant to this Agreement, the
Company and SCAI will negotiate in good faith with respect to such increase and
decrease and the adjustment to the Monthly Rent resulting therefrom.
(B) TERM; TERMINATION RIGHTS. This Agreement shall become effective on
the date hereof and shall terminate as to the Premises on the effective date of
the termination contemplated by Section 1 hereof.
4. COMPLIANCE WITH SUBLEASE. SCAI has provided the Company with a copy
of the Sublease and the Company acknowledges receipt thereof. Each of SCAI and
the Company hereby agrees not to take any action or fail to take any action in
connection with its use of the Premises a result of which would be SCAI's
violation of any of the terms and conditions of the Sublease, the provisions of
which hereby are incorporated by reference. The Company agrees to comply with
the terms and provisions (other than with respect to payment of monies) of the
Sublease with respect to its use of the Premises, it being understood,
acknowledged and agreed, that the Company's obligations to make payments on
account of rent, additional rent, or operating expense or common area
maintenance surcharges with respect to the Premises shall be governed solely by
the terms of this Agreement.
5. MODIFICATION OF SUBLEASE. The Company acknowledges and agrees that
SCAI has the right to modify or otherwise amend the Sublease without the consent
of the Company; PROVIDED, HOWEVER, that in the event such modification results
in an increase in the rent or other amounts payable thereunder or a decrease or
diminution of the services or space provided therein, the Company's rights and
obligations with respect to the Premises nonetheless shall remain as they were
prior to such modification unless the Company consents, in writing, to any such
modifications. SCAI will provide the Company with prior notice of, and a copy
of, any such amendment.
6. INDEMNITY.
(A) BY THE COMPANY. The Company will indemnify and hold harmless SCAI
and SCAI's directors, officers, employees and agents (collectively, the "SCAI
Indemnities") from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against any one or more of the SCAI Indemnities by reason of (a) any accident,
injury to or death of persons, (b) any failure on the part of the Company to
perform or comply with any of the terms of this Agreement or the Sublease or (c)
SCAI's being held in default under the terms and provisions of the Sublease, in
any such case as a result of any act or omission on the part of the Company.
(B) BY SCAI. SCAI will indemnify and hold harmless the Company and the
Company's directors, officers, employees and agents (collectively, the "Company
Indemnities") from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against any one or more of the Company Indemnities by reason of (a) any
accident, injury to or death of persons, (b) any failure on the part of SCAI to
perform or comply with any of the terms of this Agreement or the Sublease or (c)
the Company's being held in default under the terms
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and provisions of the Sublease, in any such case as a result of any act or
omission on the part of SCAI.
7. INSURANCE. The parties acknowledge that SCAI presently maintains and
will continue to maintain, pursuant to the terms of that certain Services
Agreement entered into by and between SCAI and the Company (the "Services
Agreement"), insurance coverage with respect to SCAI's leasehold interests (and
as of the effective date of the Services Agreement, the Company's interests) in
any and all of the facilities of SCAI, including the Premises (the "SCAI
Facilities"), and the contents (whether owned by SCAI or the Company) of such
SCAI Facilities until the earlier to occur of (i) the termination of this
Agreement, (ii) notification in writing by the Company that such coverage is no
longer required or (iii) upon the mutual agreement of the parties. SCAI shall
continue to maintain in full force and effect (including, without limitation,
the timely payment of premiums therefor) such insurance coverage in amounts no
less than, and for coverages at least as comprehensive as, those maintained as
of the date hereof. Notwithstanding the foregoing, the Company shall reimburse
SCAI with respect to the Company's allocable share of the premiums for such
insurance coverage in accordance with the terms of the Services Agreement.
8. NOTICES. All notices given in connection with this Agreement shall
be in writing. Service of such notices shall be deemed complete (i) if hand
delivered, on the date of delivery, (ii) if by mail, on the fourth business day
following the day of deposit in the United States mail, by certified or
registered mail, first-class postage prepaid, (iii) if sent by FedEx or
equivalent courier service, on the next business day, or (iv) if by telecopier,
upon receipt by the sender of written confirmation of successful transmission.
Such notices shall be addressed to the parties at the following addresses or at
such other address for a party as shall be specified by like notice (except that
notices of change of address shall be effective upon receipt):
If to SCAI:
Xxxxxxx Computer Associates, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Operating Officer
Facsimile: (000) 000-0000
If to the Company:
e-PROFILE, Inc.
000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Operating Officer
Facsimile: (000) 000-0000
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9. GOVERNING LAW. This Agreement shall be governed by, and be construed
in accordance with, the substantive laws of the Commonwealth of Pennsylvania,
without giving effect to the principles of the conflict of laws thereof.
10. AMENDMENT. This Agreement may be amended or supplemented at any
time provided that any such amendment or supplement shall be made in writing and
signed by each of the parties hereto.
11. ASSIGNMENT. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Agreement and the rights, duties, obligations and
privileges hereunder may not be assigned by either party without the prior
written consent of the other party.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all which
together will constitute but one agreement.
14. SECTION HEADINGS. The section headings contained herein are for
convenience only and shall not affect in any way the interpretation of any of
the provisions contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Space Sharing
Agreement as of the date first above written.
XXXXXXX COMPUTER ASSOCIATES, INC.
By: /s/ X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Title: Senior Vice President and
Chief Financial Officer
e-PROFILE, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Corporate Executive Vice President
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