Exhibit 10.8
AGREEMENT
This Agreement, effective the 31st day of December 2001, between Xxxx
Interactive Services, Inc. ("Xxxx") and Jabber, Inc. ("Jabber").
WHEREAS, Xxxx has rented space to Jabber within its corporate offices
located at Suite 600, 1899 Xxxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Premises"), and
has provided to Jabber the services set forth on Schedule A hereto (the "Shared
Services");
WHEREAS, Xxxx desires to assign to Jabber the lease for the Premises, dated
November 22, 1999, as amended on the date hereof (the "Lease") with 1899
Xxxxxxx, LLC ("Landlord"); and
WHEREAS, Jabber is willing to accept such assignment and to assume the
Lease and all of Xxxx'x rights and obligations thereunder, subject to the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Sublease. Effective with the assignment of the Lease to Jabber, Xxxx
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shall sublease space in the Premises from Jabber as follows:
(a) During the period from January 1, 2002 to October 15, 2002, Xxxx
shall sublease from Jabber approximately 3,500 square feet in the
Northeast corner of the Premises which represents the space
currently occupied by the employees of Nextron Communications,
Inc. ("Nextron") pursuant to that Asset Purchase Agreement
between Xxxx and Nextron dated October 16, 2001, the rent for
such space being $10,000 per month and to include the Shared
Services. Xxxx shall be billed separately for long distance
telephone charges and parking costs incurred by Nextron's
employees occupying such space, such charges to be billed at
Jabber's cost thereof. Jabber may terminate the lease of this
space by giving Xxxx sixty (60) days' written notice thereof.
Rent for this space is payable in advance on the first day of
each month.
(b) During the period from January 1, 2002 to December 31, 2002, Xxxx
shall sublease from Jabber two offices within the Premises as
mutually agreed by the parties, the rent for the two offices to
be $1,300 per month and to include the Shared Services. Xxxx
shall be billed separately for long distance telephone charges
incurred by the occupants of such offices and for parking costs
for such employees, such charges to be billed at Jabber's cost
thereof. Either party may terminate this lease arrangement
commencing October 15, 2002, by giving the other party thirty
(30) days' written notice thereof. Rent for this space is payable
in advance on the first day of each month.
(c) Xxxx shall be responsible for insuring its property located in
the Premises. In no event shall Jabber have any liability to Xxxx
or any occupants of the space rented by Xxxx, except for Jabber's
gross negligence. In the event of any such liability, Jabber's
liability shall be limited to the amount paid by Xxxx to Jabber
pursuant to this sub-lease agreement. In no event will Jabber be
liable pursuant to this sub-lease agreement for indirect damages,
including, without limitation, consequential damages or lost
profits. Xxxx agrees to enter into a separate sub-lease agreement
with Jabber for the above leased space as may be required by the
Landlord.
2. Use of Equipment. During the term of the Lease, Xxxx shall make
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available to Jabber and shall permit Jabber to use any of the equipment owned or
leased by Xxxx which is located in the Premises and which is currently being
used to provide the Shared Services (the "Equipment"), provided that Jabber
shall pay all out-of-pocket costs associated with maintaining such equipment
during the term of the Lease and shall provide the personnel required to service
and operate such equipment, to the same extent as Xxxx has provided such
maintenance and services prior to the assignment of the Lease. For any such
equipment which is rented or leased by Xxxx or the services for which are being
provided pursuant to agreements between the vendor and Xxxx, Jabber
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shall, to the extent it is possible to do so, be substituted for Xxxx and assume
its rights and obligations thereunder within a reasonable period of time
following the assignment of the Lease. Further, the use of any such equipment by
Jabber shall be in accordance with and subject to the terms of any existing
lease or other agreement for the use of the equipment.
3. Improvements to Premises. Effective with the assignment of the Lease,
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Xxxx transfers and assigns to Jabber any and all of its right, title and
interest in the alterations, improvements and additions to the Premises.
4. Furniture. All furniture currently located in the Premises which is
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owned by Xxxx shall remain the property of Xxxx (the "Furniture"). During the
term of the Lease, Xxxx shall make available to Jabber, and shall permit Jabber
to use at no cost or charge to Jabber, such pieces of the Furniture as Jabber
reasonably requires to occupy and use the Premises. Within thirty (30) days of
the assignment of the Lease, Jabber and Xxxx shall identify any of the Furniture
that is not now-required or expected to be required by Jabber in the future in
connection with the occupancy of the Premises (the "Excess Furniture").
Following identification of the Excess Furniture, Xxxx shall have the right to
remove the Excess Furniture from the Premises and to sell or dispose of the
Excess Furniture.
5. Option to Acquire Furniture and Equipment. Upon termination of the
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Lease, Jabber shall have the option to acquire the Furniture, including any
Excess Furniture not previously sold by Xxxx, and the Equipment at the lesser of
the then book value for the Furniture and Equipment as reflected in Xxxx'x
financial statements or the then fair market value for the Furniture and
Equipment. If Xxxx and Jabber cannot
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agree on the fair market value for the Furniture and Equipment, they shall
mutually select an independent appraiser to determine the fair market value for
the Furniture and Equipment. The appraiser's determination of the fair market
value for the Furniture and Equipment shall be binding on both Xxxx and Jabber.
Xxxx and Jabber shall each pay 50% of the cost of the appraisal.
6. 2001 Operating Expenses. Xxxx shall promptly reimburse Jabber for any
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Operating Expenses (as defined in the Lease) for calendar year 2001 which Jabber
is required to pay in accordance with the Assignment and Assumption of the
Lease.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
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XXXX INTERACTIVE SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Its CEO
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JABBER, INC.
By /s/ Xxxxxxx Xxxxx
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Its CFO
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SCHEDULE A
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SHARED SERVICES
PBX circuit
PBX trunk lines
Modem pool trunk lines
Modem pool
T-3 facility charge
Analog circuit
Internet access
Frame relay circuit
Soda
Coffee
Water service
Office supplies
Office maintenance
Office equipment and copier usage
Copier supplies
Postage (excluding overnight mailings, bulk mailings and alike)
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