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Exhibit 10.17
RESOURCE SHARING AGREEMENT
AGREEMENT made the 1st day of October, 1996, between XXXXXXxx.xxx,
Inc., a New York corporation, having an office at 000 Xxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000-0000 (hereinafter referred to as "COM") and
XXXXXXxx.xxx, Inc., a New York corporation, having an office at 000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 (hereinafter referred to as "ORG").
WITNESSETH:
WHEREAS, COM, as lessee, entered into a lease with ___________________,
as lessor, dated ___________________, leasing certain space in a building
located at 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxx and into a lease with
___________________, as lessor, dated ___________________, leasing certain space
on the first floor of the building at ___________________, Great Neck, New York;
and
WHEREAS, COM may hereafter lease other space, either in addition to or
in substitution for the premises currently being leased by COM (such additional
or substituted space, together with the space currently leased by COM being
referred to herein as the COM Premises and each lease relating to the COM
Premises being referred to herein as a "Prime Lease"); and
WHEREAS, COM wishes to permit ORG to use so much of such the COM
Premises as ORG requires for the operation of its business, subject to the
business requirements of COM with respect to such premises, subject to payment
by ORG for the use of such space as provided herein and to the adherence by COM
to the provisions of this Agreement; and
WHEREAS, COM has, and will in the future have, certain computers,
furniture, fixtures, equipment and supplies on the COM Premises (the
"Equipment") and wishes to permit ORG to use the Equipment in connection with
the operation of its business, subject to the business requirements of COM with
respect to the Equipment, the payment by ORG for the use of the Equipment as
provided herein and the adherence by ORG to the provisions of this Agreement;
and
WHEREAS, certain of the personnel now or hereafter employed by COM are
able to perform services required by ORG in the operation of its business, and
COM wishes to provide such personnel to ORG to perform such services, subject to
payment by ORG for such services and to the adherence by COM to the provisions
of this Agreement;
NOW, THEREFORE, the parties hereto hereby covenant and agree as
follows:
1. Sharing of COM Premises.
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1.1. Availability of Premises. COM agrees that it shall provide ORG
with such office space within the COM Premises as ORG may reasonably require for
the conduct of its business. Such space shall be at such location within the COM
Premises as the parties may agree or, in the absence of such agreement, as COM
may in its sole judgment determine. Such space shall be exclusively dedicated to
the use of ORG or shared between ORG and COM, as the parties may agree or, in
the absence of such agreement, as COM may in its sole judgment determine.
Notwithstanding the foregoing, COM shall have no obligation to provide space to
ORG within the COM Premises to the extent that providing such space would unduly
interfere with the operation of the business of COM in the ordinary course. ORG
shall have no obligation to use any space within the COM Premises. Subject to
the foregoing, in the event COM shall provide to ORG and ORG shall use space
within the COM Premises, the terms and conditions set forth in this Section 1
shall apply to the payment for and use of such space.
1.2. Right to Use Premises. ORG shall have the right to use space
allocated within the COM Premises from and after the date upon which the parties
hereafter agree that it may do so, or from and after the date upon which it
actually occupies such space with the consent of COM, whichever is earlier. ORG
shall have the right to continue to use such space until the last day of the
month next succeeding the month in which ORG gives notice to COM that ORG will
not continue to occupy a portion of the COM Premises, specifying the portion of
the COM Premises which will no longer be occupied by ORG, and in the event such
notice is given, ORG's right to use such space and its obligation to pay
therefor shall terminate as of the date set forth in the notice given by ORG.
1.3. Payments. Each month, ORG shall pay COM its Pro Rata Share of all
rent, additional rent and other charges which COM is required to pay during such
month to the landlord of the COM Premises, or to any other person (including,
but not limited to, utility companies) with respect to the COM Premises. Such
payments shall be made at least five (5) days prior to the date upon which COM
must make such payments without incurring any penalty, provided that COM has
given ORG notice of the amount due at least ten (10) days prior to the date on
which it is obligated to make its payment to COM. For purposes of this Section
1.3, ORG's Pro Rata Share shall be calculated on a monthly basis, and shall be
determined by dividing the square footage occupied by ORG within the COM
Premises by the total number of square feet within the COM Premises. If any
portion of the COM Premises is occupied by both ORG and COM (or by employees of
COM who also render services to ORG pursuant to the provisions of Section 3 of
this Agreement), then the square footage in question shall be prorated based
upon the time during which each of them occupies such square footage (or, in the
case of shared employees, the time for which services are employed by each of
them), and the resulting amount attributable to ORG shall be employed in making
the calculation described in the preceding sentence. Notwithstanding the
foregoing, if any such rent or sums shall be due to additional use by ORG of
electrical current in excess's of ORG's proportionate use in of the COM
Premises, such excess shall be paid in entirety by ORG. If ORG shall procure any
additional services from the building, such as alterations or after-hour air
conditioning, ORG shall pay for same
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at the rates charged therefor by the person providing such services, and shall
make such payment to COM or the person providing such services, as COM shall
direct. If COM shall receive any refund of rent, based upon recalculation of
payments due, contest of assessment or otherwise, ORG shall be entitled to the
return of so much thereof as shall be attributable to prior payments by ORG.
1.4. Use of Premises. ORG may use that portion of the COM Premises
which it may from time to time occupy for its operation of a not-for-profit
business which, among other things, provides Internet access to non-profit and
other similar organizations and engages in research and educational activities
relating to computer networking. Its activities may include, but shall not
necessarily be limited to, computer programming, marketing, sales and general
administrative purposes. ORG's rights to use the COM Premises are subject and
subordinate to each Prime Lease, and ORG shall comply with the terms of each
Prime Lease in connection with its use of any COM Premises. Without limiting the
generality of the foregoing, ORG shall promptly observe and comply with all
present and future laws, ordinances, requirements, orders, directives, rules and
regulations of the Federal, State, County and Town governmental authorities
affecting the COM Premises; shall not use or permit the COM Premises to be used
for any illegal or unlawful purpose; and shall not do anything in, or bring
anything into, the COM Premises which will in any way increase the rate of fire
insurance. The only services or rights to which ORG is entitled hereunder are
those to which COM is entitled under a Prime Lease, but COM will not be liable
for any failure of a lessor under a Prime Lease to provide any services.
Provided that ORG has received a copy of each Prime Lease, ORG shall neither do
nor permit anything to be done which would cause a Prime Lease to be terminated
or forfeited, and ORG shall indemnify and hold COM harmless from and against all
claims of any kind whatsoever by reason of any action or inaction on the part of
ORG by reason of which a Prime Lease may be terminated or forfeited. ORG
acknowledges receipt of a copy of each Prime Lease relating to the premises
currently occupied by COM and enumerated in the first recital to this Agreement.
1.5. Modifications and Improvements. ORG shall at all times during the
term of this Agreement, at its own cost and expense, keep and maintain, or cause
to be kept and maintained, that portion of the COM Premises occupied by ORG. ORG
shall not make any changes, alterations and improvements to the COM Premises
without written approval and authorization by COM. If any changes, alterations
or improvements are authorized by COM, ORG shall be responsible for the payment
of the cost thereof. All such alterations authorized by COM and made by ORG
shall be made in conformity with applicable code and insurance requirements. All
capital improvements installed in or on the COM Premises by ORG shall be the
property of COM (unless they become the property of the Lessor pursuant to a
Prime Lease) from the time of construction or installation and shall not be
removed or injured by ORG. If permitted by the applicable Prime Lease, trade
fixtures belonging to ORG may be removed from the Leased Premises by ORG, and if
any damage is done to the COM Premises, ORG shall repair the same. If ORG fails
to make such repairs, COM may do so, in which event ORG shall reimburse COM for
the cost thereof.
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1.6. Indemnification. ORG shall indemnify COM from and against all
liability arising from any loss of life, personal injury or property damage
sustained in or about the COM Premises, to the extent such loss of life,
personal injury or property damage has been caused by the negligent or other
acts or ORG, its employees, agents or invitees. ORG shall maintain policies of
general liability insurance in amounts not less than One Million Dollars
($1,000,000.00) per person or occurrence for personal injury and Fifty Thousand
Dollars ($50,000.00) for property damage. COM shall be named as an additional
insured under said policies, and ORG shall furnish proof of such insurance
coverage to COM upon demand. Such policies shall provide for ten (10) days'
notice to COM of cancellation.
1.7. Insurance. ORG shall, throughout the term of this Agreement, keep
all of ORG's property located on or within the COM Premises insured against all
loss or damage by fire, with extended coverage, in an amount equal to the full
replacement cost thereof. ORG shall furnish COM with certificates evidencing
such insurance on demand. ORG shall use its best efforts to include in such fire
insurance policies appropriate clauses pursuant to which the insurance companies
waive all right of subrogation against COM and the lessors under each Prime
Lease with respect to losses payable under such policies and/or agree that such
policies shall not be invalidated should ORG waive in writing prior to a loss
any or all right of recovery against any party for losses covered by such
policies. If ORG is unable to obtain in such policies either of the clauses
described in the preceding sentence, ORG shall if possible have COM and the
lessor of each COM Premises named in such policies as an additional insured, at
ORG's own expense. Provided that ORG's right of full recovery under the
aforesaid policies is not adversely affected or prejudiced, ORG hereby waives
any and all right of recovery which it might otherwise have against COM or each
lessor of the COM Premises, their servants, agents and employees, for loss or
damage to ORG' property to the extent that same is covered by ORG' insurance,
notwithstanding that such loss or damage may result from the negligence or fault
of COM, such landlord or their servants, agents or employees. ORG shall notify
COM promptly of any cancellation or change of the terms of any policies referred
to in this Section 1.7. All such policies shall, to the extent available,
contain agreements by the insurers that such policies shall not be canceled
without at least ten (10) days' notice to COM, ORG and the applicable lessors of
the COM Premises. All such policies which name both COM and ORG as insureds
shall, to the extent available, contain agreements by the insurers to the effect
that no act or omission of any named insureds will invalidate the policies as to
the other named insureds.
1.8. Liability of COM. COM shall not be liable for any damage or injury
to any person, property or business or for any interruption of business of ORG
resulting from any condition relating to or event occurring in the COM Premises,
other than those conditions or events resulting from the gross negligence or
wilful conduct of COM, its agents, servants or employees.
1.9. Condemnation. In the event of the taking, condemnation, purchase
in lieu thereof or any similar proceeding with respect to any COM Premises, the
rights and obligations of ORG with respect to such COM Premises shall be the
same as the rights of
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COM thereto; provided, that without regard to the terms of any Prime Lease, ORG
shall have no right to receive any portion or any award of proceeds resulting
from such a proceeding.
1.10. Estoppel Certificates. ORG shall at any time and from time to
time during the term hereof execute, acknowledge and deliver to COM or to the
lessor of any COM Premises such estoppel certificates as may be required by any
such lessor pursuant to the provisions of any Prime Lease.
2. Use of Equipment.
2.1. Access to Equipment. COM agrees that ORG may use such of the
Equipment as may, from time to time, be located within the COM Premises, in
connection with the conduct of ORG's business. It may use such Equipment at such
times and for such purposes as the parties may agree or, in the absence of such
agreement, as COM may in its sole judgment determine. Any item of Equipment
shall be used exclusively by ORG or shared between ORG and COM, as the parties
may agree or, in the absence of such agreement, as COM may in its sole judgment
determine. Notwithstanding the foregoing, ORG shall have no right to use any of
the Equipment to the extent its doing so would unduly interfere with the
operation of the business of COM in the ordinary course.
2.2. Payments. Each month, ORG shall pay COM its Pro Rata Share of (a)
the fair rental value of all Equipment used by ORG during the preceding month
and (b) the actual cost to COM of maintaining, or keeping maintenance contracts
in effect with respect to, such Equipment. Such payments shall be made within
ten (10) days of the date upon which COM submits to ORG its invoice for such use
of the Equipment, calculated in accordance with this Section 2.2. For purposes
of this Section 2.2, (x) ORG's Pro Rata Share of the fair rental value of the
Equipment used by it shall be determined by multiplying number of hours such
Equipment is used by ORG by the total number of hours such Equipment is used by
both ORG and COM and (y) the fair rental value of each item of equipment shall
be based upon the charge made by commercial lessors to unrelated third parties
for the rental of the same equipment for a term equivalent to its anticipated
useful life.
2.3. Manner of Use. ORG shall use the Equipment in accordance with good
business practices, and shall honor both the instructions of the manufacturers
of the Equipment and the reasonable instructions of COM. If any damage is done
to the Equipment as a result of the use thereof by ORG (other than reasonable
wear and tear to the equipment resulting from its proper use in the ordinary
course of business), ORG shall repair the same. If ORG fails to make repairs,
COM may do so, in which event ORG shall reimburse COM for the cost thereof.
3. Sharing of Employees
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3.1. Availability of Employees. COM and ORG acknowledge that certain of
the employees or COM may be able to provide services which ORG requires. COM
agrees that it shall provide ORG with the services of such employees, at the
reasonable request of ORG, to render such services to or for the benefit of ORG
as ORG may reasonably require. ORG shall request the services of such employees
in advance of the dates upon, or periods for, which their services are required,
and COM shall promptly notify ORG whether such employees are available as
requested. During periods when services are being rendered by such employees for
either ORG or COM, they shall be under the exclusive control and direction or
ORG and COM, respectively. The parties acknowledge that there may be periods
when employees are rendering services to ORG and COM concurrently, and, for such
periods, ORG and COM shall use their best efforts to coordinate the services of
such employees. Notwithstanding the foregoing, COM shall have no obligation to
provide the services of any of its employees to ORG, to the extent that doing so
would unduly interfere with the operation of the business of COM in the ordinary
course. ORG shall have no obligation to use the services of any COM employee.
3.2. Compensation of Employees. COM shall be responsible for paying all
of the salary and benefits for each of its employees.
3.3. Payments to COM. ORG shall pay COM its Pro Rata Share of the
salary and benefits of each such employee who renders services to or for the
benefit of ORG. Such payments shall be made within ten (10) days of the date
upon which COM submits to ORG its invoice for the services of such employees,
calculated in accordance with this Section 3.3. For purposes of this Section
3.3, ORG's Pro Rata Share of the salary and benefits of each employee shall bear
the same relationship to the total salary and benefits of such employee as the
number of hours worked by such employee on matters for ORG bears to the total
number of hours worked by such employee for both ORG and COM during the period
in question.
4. General Terms.
4.1. Term and Termination. The term of this Agreement shall commence on
the date first set forth above and shall terminate on December 31, 1999. In the
event COM shall terminate this Agreement for any reason other than the failure
of ORG to make the payments required of it pursuant to the terms hereof, then,
in addition to such other remedies as ORG shall have resulting from such
termination, COM shall pay ORG, on demand, an amount equal to the sum of the
payments made by ORG to COM pursuant to this Agreement for the six (6) months
preceding the effective date of such termination.
4.2. Force Majeure. The period of time during which either party is
prevented or delayed in the performance of any obligation required under this
Agreement due to delays caused by fire, catastrophe, strikes or labor trouble,
civil commotion, acts of God or the public enemy, governmental prohibitions or
regulations, or inability or difficulty to obtain
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materials, or other causes beyond such party's control, shall be added to its
time for performance thereof, and such party shall have no liability by reason
thereof.
4.3. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their personal representatives, successors
and permitted assigns.
4.4. Assignment. This Agreement may not be assigned, in whole or in
part, by either party hereto without the prior written consent of all other
parties.
4.5. Entire Agreement. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior understanding, memoranda or
other written or oral agreements between them respecting the within subject
matter. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties relating to the subject
matter of this Agreement which are not fully expressed herein.
4.6. Modifications: Waiver. No modification or waiver of this Agreement
or any part hereof shall be effective unless in writing and signed by the party
sought to be charged therewith. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature. No course of dealing between the
parties hereto will be deemed effective to modify, amend or discharge any part
of this Agreement or the rights or obligations of either party hereunder.
4.7. No Third Party Beneficiary. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
not a party hereto.
4.8. Partial Invalidity. If any provision of this Agreement shall be
held invalid or unenforceable by competent authority, such provision shall be
construed so as to be limited or reduced to be enforceable to the maximum extent
compatible with the law as it shall then appear. The total invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
4.9. Arbitration. In the event that any disagreement or dispute should
arise between the parties hereto with respect to this Agreement, then such
disagreement or dispute shall be submitted to arbitration in accordance with the
rules then pertaining to the American Arbitration Association with respect to
commercial disputes. Judgment upon any resulting award may, after its rendering,
be entered in a court of competent jurisdiction by any party.
4.10. Notices. Any notice or other communication required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given (i) upon hand delivery, or (ii) on the third day following delivery to the
U.S. Postal Service as certified or registered mail, return receipt requested
and postage prepaid, or (iii) on the first day
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following delivery to a nationally recognized United States overnight courier
service, fee prepaid, return receipt or other confirmation of delivery
requested, or (iv) when telecopied or sent by facsimile transmission if an
additional notice is also given under (i), (ii) or (iii) above within three days
thereafter. Any such notice or communication shall be delivered or directed to a
party at its address set forth below or at such other address as may be
designated by a party in a notice given to all other parties hereto in
accordance with the provisions of this paragraph.
Notice to XXXXXXxx.xxx, Inc. shall be sent to: XXXXXXxx.xxx, Inc.
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
with a copy to: Xxxxxxxxx & Xxxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx,
Esq.
Notice to XXXXXXxx.xxx, Inc. shall be sent to: XXXXXXxx.xxx, Inc.
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
with a copy to: Xxxxxxxxx & Xxxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx,
Esq.
4.11. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York pertaining to contracts
made and to be wholly performed within such state, without taking into account
conflicts of laws principles.
4.12. Headings. The headings contained in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
4.13. Fair Meaning. This Agreement shall be construed according to its
fair meaning, the language used shall be deemed the language chosen by the
parties hereto to express their mutual intent, and no presumption or rule of
strict construction will be applied against either party hereto.
4.14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of said
counterparts together shall constitute but one and the same instrument.
4.15. Further Assurances. The parties hereto shall execute and deliver
any and all additional writings, instruments and other documents and shall take
all such further actions
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as shall be reasonably required in order to effect the terms and conditions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxxx
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XXXXXXxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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STATE OF NEW YORK)
COUNTY OF ONONDAGA) ss:
On this __________________ day of __________________, 1996, before me
personally came __________________ to me known, who, being by me duly sworn, did
depose and say that he is the __________________ of XXXXXXxx.xxx, Inc. and that
he executed the foregoing instrument for and on behalf of said Corporation.
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Notary Public
STATE OF NEW YORK)
COUNTY OF ONONDAGA) ss:
On this __________________ day of __________________, 1996, before me
personally came __________________ to me known, who, being by me duly sworn, did
depose and say that he is the __________________ of XXXXXXxx.xxx, Inc. and that
he executed the foregoing instrument for and on behalf of said Corporation.
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Notary Public
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