SUBLEASE
THIS SUBLEASE is made and entered into as of the 29th day of December, 1999, by
and between EXE Technologies, Inc., a Delaware corporation ("Sublessor"), and
xXxxx.xxx, LLC, a Delaware limited liability company ("Subtenant").
WITNESSETH, that Sublessor is leasing certain space (the "Main Premises") in an
office building located at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX (the "Building"),
pursuant to that certain Lease Agreement dated April 3, 1995, as amended,
between Xxxxxxx Office Associates, L.P. ("Master Lessor"), as landlord, and
Sublessor, as tenant, (the "Master Lease"), a copy of which has been furnished
to Subtenant. Subtenant desires to sublease from Sublessor 2,908 square feet of
rentable area on the sixth floor of the Building (the "Subleased Premises"). The
Subleased Premises are depicted as Area A on the floor plan attached hereto as
EXHIBIT A. Sublessor is agreeable to subleasing the Subleased Premises to
Subtenant upon the terms and conditions hereinafter set forth. This Sublease is
made in consideration of the execution and delivery of a Subscription Agreement
of even date herewith, between Sublessor and Subtenant (the "Subscription
Agreement"), and in conjunction with the execution and delivery of a Warrant of
even date herewith, issued by Subtenant to Sublessor (the "Warrant" and,
together with the Subscription Agreement, the "Transaction Documents").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and of the execution and delivery of the Subscription
Agreement, and intending to be legally bound, the parties hereto agree as
follows:
PREMISES. Sublessor hereby subleases the Subleased Premises to Subtenant upon
the terms and conditions set forth herein. Subtenant hereby rents the Subleased
Premises from Sublessor in accordance with the terms and conditions set forth
herein. This Sublease includes the right, together with Sublessor, other tenants
and subtenants of the Building, Master Lessor and members of the public, to use
the common and public areas within the Building to the extent such rights are
made available by Master Lessor pursuant to the Master Lease (the "Common
Areas") and subject to any rules and regulations promulgated by Master Lessor
with respect to such use, but includes no other rights not specifically set
forth herein. Sublessor and Subtenant agree that the rentable square footage of
the Subleased Premises for all purposes under this Sublease shall equal 2,908
square feet.
INITIAL TERM. The term of this Sublease (the "Initial Term") shall commence on
the date hereof and shall expire on December 31, 2000, unless sooner terminated
pursuant to any right of termination provision herein. Notwithstanding the
foregoing, if Subtenant commences beneficial use of the Subleased Premises for
the operation of its business prior to the Sublease Commencement Date, then the
Sublease Commencement Date shall be the date Subtenant commences such use. For
the purposes of this Sublease, the term "Sublease Year" shall mean a period of
twelve (12) consecutive months, commencing on the Sublease Commencement Date,
and each successive twelve (12) month period thereafter; except that, if the
Sublease
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Commencement Date is not the first day of a calendar month, then the first
Sublease Year shall consist of the twelve (12) month period beginning on the
first day of the month immediately following the month in which the Sublease
Commencement Date occurs and shall also include the period commencing on the
Sublease Commencement Date and ending on the first day of the following month.
RENEWAL TERM. Subtenant shall not have any option to renew the Initial Term or
otherwise extend the term of this Lease for any additional period (a "Renewal
Term") (the Initial Term and the Renewal Term are hereinafter collectively
referred to as the "Term") unless Sublessor and Subtenant shall sign a written
amendment hereto providing for such renewal or extension on or before August 15,
2000 (a "Renewal Amendment"). If Sublessor and Subtenant do not sign a Renewal
Amendment on or before August 15, 2000, Subtenant shall thereafter permit
Sublessor to enter the Subleased Premises during business hours, at times
pre-arranged in advance for the purposes of reletting.
RENT. As base rent for the entire initial term, Subtenant has paid, and
Sublessor has received, the sum of ten dollars ($10.00) ("Base Rent") and the
execution and delivery of the Subscription Agreement. Subtenant shall pay as
additional rent all other amounts which it is required to pay hereunder
("Additional Rent" and, together with Base Rent, "Rent"). If Subtenant installs
or uses in the Subleased Premises any electrically-operated machinery or
equipment other than that which is customarily used in operating an office, or
if Sublessor otherwise reasonably determines that Subtenant's electrical
consumption is excessive, Sublessor may, at its option, submeter or separately
meter the Subleased Premises at Subtenant's expense, or devise some other
reasonable method (reasonably acceptable to Subtenant) of determining
Subtenant's excess electricity consumption, and Subtenant shall thereafter pay
as Additional Rent its actual consumption of electricity, as so determined.
USE. Subtenant shall use and occupy the Subleased Premises solely for office
purposes and uses incidental thereto in accordance with the uses permitted under
applicable zoning regulations and shall not use the Subleased Premises for any
other purpose without the prior written consent of Sublessor. Subtenant shall
not use or occupy the Subleased Premises for any unlawful purpose and shall
comply with the laws, ordinances, regulations and orders of all governmental
agencies and other public authorities having jurisdiction over the Subleased
Premises relating to the manner of use of the Subleased Premises. Nothing herein
contained shall obligate Subtenant to make any structural or mechanical
alterations, additions or repairs to the Building or to the Subleased Premises
nor shall the Subtenant be required to make any other alternations, additions or
repairs which, pursuant to any provision of the Master Lease, are the obligation
of Master Lessor. Subtenant shall not use the Subleased Premises, or permit the
Subleased Premises to be used, in any manner that is impermissible under the
Master Lease, that constitutes a public or private nuisance or that interferes
with the lawful use of the Building by Master Lessor, Sublessor or any other
tenant of the Building. Subtenant shall observe and abide by all rules and
regulations that are established by Master Lessor with respect to the use of the
Subleased Premises or any part of the Building. Subtenant shall pay any business
taxes that are now or
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hereafter levied upon Subtenant's business at the Subleased Premises, or
Subtenant's equipment, fixtures or personal property. In the event that any such
taxes are enacted, changed or altered so that any of such taxes are levied
against Master Lessor or Sublessor, or the mode of collection of such taxes is
changed so that Master Lessor or Sublessor is responsible for collection or
payment of such taxes, Subtenant shall pay any and all such taxes to Master
Lessor or Sublessor, as the case may be, upon written demand from Sublessor.
IMPROVEMENTS. Subtenant agrees to accept the Subleased Premises in their current
"as is" condition, Sublessor having no obligation to make any improvements to
the Subleased Premises of any kind whatsoever. Occupancy of the Subleased
Premises by Subtenant shall constitute acceptance and approval by Subtenant of
the Subleased Premises. Subtenant shall not make or install any additions,
renovations, alterations, improvements or changes in or to the Subleased
Premises, including the walls, floors, ceilings and fixtures located therein
(collectively, "Improvements"), without first obtaining the prior written
approval of Sublessor, which approval may be withheld in Sublessor's sole
discretion and may be conditioned upon the satisfaction of any conditions or
restrictions that Sublessor deems appropriate, including without limitation,
obtaining the prior approval of Master Lessor, if, to the extent and in the
manner required pursuant to the Master Lease. All Improvements made to the
Subleased Premises shall remain upon and be surrendered with the Subleased
Premises at the end of the Term, unless Sublessor shall have notified Subtenant,
as a condition of granting consent thereto, that it will require Subtenant to
remove certain Improvements at the end of the Term, in which event such
Improvements shall be removed and the Subleased Premises restored to their
condition prior to the installation of the Improvements. All work done by or for
Subtenant with respect to the Subleased Premises, including, but not limited to,
any removal or restoration work done at the expiration or termination of the
Sublease, shall be at Subtenant's sole cost and expense.
REPAIRS AND MAINTENANCE. Throughout the Term, Subtenant shall, at its sole cost
and expense, keep and maintain the Subleased Premises, every part thereof and
all property located therein in good condition and repair, ordinary wear and
tear excepted but Subtenant's responsibility for repair and maintenance shall
not exceed with respect to the Subleased Premises, Sublessor's obligation with
respect to the Main Premises. Subject to the waiver of subrogation hereinafter
set forth, all damage or injury to the Subleased Premises which is caused by
Subtenant or any of its employees, agents, guests or invitees, or its or their
use of the Subleased Premises shall promptly be repaired by Subtenant at its
sole cost and expense. Sublessor shall have the right to make any repairs to the
Subleased Premises which Subtenant does not make within ten (10) days after
written notice from Master Lessor or Sublessor of the need for such repairs
(except in the event of emergencies, in which event Sublessor shall have the
right to make such repairs without prior notice other than oral notice or notice
by facsimile, if practicable), and Subtenant shall reimburse Sublessor for all
reasonable, documented costs and expenses incurred in connection with such
repairs. Upon the expiration or termination of this Sublease, Subtenant shall
surrender the Subleased Premises broom clean and in as good condition as they
were in at the Sublease Commencement Date, reasonable wear and tear, fire and
casualty and responsibilities of Sublessor or Master Lessor excepted.
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INSURANCE. Throughout the Term, Subtenant shall obtain and maintain, with a
company or companies licensed to do business in the Commonwealth of Pennsylvania
and reasonably approved by Sublessor, a broad form comprehensive general
liability insurance policy with minimum coverage amounts reasonably required by
Sublessor from time to time. On or before the Sublease Commencement Date,
Subtenant shall obtain such insurance in the minimum amount of One Million
Dollars ($1,000,000) combined single limit per occurrence. In addition,
Subtenant shall obtain and maintain fire and extended coverage insurance with a
company or companies approved by Sublessor covering all of Subtenant's personal
property and all of Subtenant's improvements in the Subleased Premises at full
replacement value. Each policy of liability insurance required to be maintained
by Subtenant hereunder shall name Master Lessor (and its property manager
Equivest Management, Inc.) and Sublessor as additional insureds thereunder and
shall contain an endorsement prohibiting cancellation or reduction of coverage
as it pertains to the Subleased Premises without first giving Master Lessor (and
its property manager Equivest Management, Inc.) and Sublessor at least thirty
(30) days' prior written notice. Receipts evidencing payment of the premiums for
such insurance shall be delivered to Sublessor on or before the Sublease
Commencement Date and thereafter upon request.
WAIVER AND INDEMNIFICATION. Subtenant hereby waives all rights of recovery
against Sublessor and its shareholders, partners and employees for any loss or
damage to any property of or harm to the business of Subtenant or its partners,
employees, agents, guests, or invitees which occurs in or arises out of the use
or occupancy of the Subleased Premises or the Common Areas by Subtenant or which
results from the action or inaction of Master Lessor or its agents or employees,
except to the extent such loss, damage or injury is the result of the gross
negligence or willful misconduct of Sublessor or Sublessor's shareholders,
partners or employees; provided, however, that in no event shall Sublessor have
any liability to Subtenant for any claims based on the interruption of or loss
to Subtenant's business. Furthermore, Subtenant agrees to indemnify and hold
Sublessor and its shareholders, partners and employees harmless from and against
any and all losses, damages, liabilities, actions, claims, costs and expenses,
including court costs and reasonable attorneys' fees, arising out of or relating
to: (i) Subtenant's use or occupancy of the Subleased Premises, or use of any
other portion of the Building; (ii) any act or omission by Subtenant or any of
its partners, employees, agents, guests or invitees; (iii) the making or
installation of Improvements in or to the Subleased Premises by or at the
direction of Subtenant; and (iv) any failure by Subtenant to observe or perform
any of the covenants or obligations required of Subtenant under this Sublease.
BUILDING SERVICES. Master Lessor has agreed to furnish certain utilities and
services to Sublessor, as set forth in the Master Lease. Sublessor agrees that,
to the extent any such utilities and services are furnished to the Main
Premises, Subtenant shall be entitled to the use and benefit of such utilities
and services; however, Sublessor shall not have any liability or responsibility
to Subtenant for the quality or quantity of such utilities and services
(including electricity and gas, even if Sublessor contracts directly with the
utility for them), for any interruption, failure or disruption in the provision
of such utilities and services or for any other action or omission of Master
Lessor. In the event that Master Lessor fails to furnish such utilities and
services to the
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Subleased Premises in accordance with the Master Lease, Sublessor agrees that it
will use its reasonable efforts to cause the Master Lessor to do so. In the
event Subtenant desires air-conditioning or heat beyond the normal hours of
operation of the Building, as established by Master Lessor or Sublessor,
Subtenant shall give Sublessor a reasonable amount of advance notice to enable
Sublessor to notify Master Lessor of Subtenant's request within the time frames,
if any, established by Master Lessor in connection with the provision of such
services. Subtenant shall reimburse Sublessor for such after-hours services in
accordance with the then current payment schedule established by Master Lessor
or Sublessor for such services. Subtenant shall contract and pay directly for
all other utilities, including without limitation telephone, internet and
additional cleaning services not provided by Master Lessor under the Master
Lease. To the extent that any such other utilities are not separately metered
from those consumed by Sublessor, Sublessee shall pay a pro rata portion to
reflect the portion of such utilities consumed on the Subleased Premises.
ASSIGNMENT AND SUBLETTING. Except as hereinafter provided, without the prior
written approval of Sublessor, which approval Sublessor may grant or withhold in
its sole discretion, Subtenant shall not assign, pledge, or encumber this
Sublease or any interest herein, further sublease the Subleased Premises or any
part thereof or permit anyone other than Subtenant's employees or invitees to
use the Subleased Premises. Except as hereinafter provided, any change in
control of Subtenant shall be deemed an assignment of this Sublease for purposes
of this Agreement. Except as hereinafter provided, any attempted assignment,
pledge or hypothecation of this Sublease or subletting of the Subleased
Premises, whether voluntary or involuntary, without Sublessor's approval shall
be void and shall, at the option of Sublessor, terminate this Sublease. Except
with respect to transactions not requiring Sublessor's consent, if any sublease
or assignment provides that the subtenant or assignee thereunder is to pay any
amount in excess of the rental and other changes due under this Sublease,
whether such excess be in the form of an increased rental or in any other form,
Sublessor shall be paid any such excess applicable to the sublease or
assignment. It is understood and agreed, however, that acceptance of any such
payments by Sublessor shall not be deemed to constitute approval by Sublessor of
any sublease or assignment, nor shall such acceptance waive any rights of
Sublessor hereunder. Notwithstanding anything contained in this Sublease to the
contrary, nothing in this Sublease shall limit or prohibit (a) the contemplated
conversion of Subtenant from a Delaware limited liability company to a Delaware
corporation, or (b) the initial public offering or subsequent trading of
Subtenant's stock or other equity interests on a recognized securities exchange
or market, or any change in stock ownership or control resulting therefrom.
SUBLEASE SUBJECT TO MASTER LEASE. Notwithstanding anything to the contrary in
this Sublease, Subtenant acknowledges that the rights it is hereby acquiring in
and to the Subleased Premises are derived from the Master Lease and that the
rights, terms and conditions of this Sublease are in all respects subordinate
and subject to the terms and conditions of the Master Lease. Subtenant agrees to
be bound by each term, condition and covenant of the Master Lease that governs
the use of the Subleased Premises, and to perform with respect to the Subleased
Premises each and every obligation of Sublessor pursuant to the Master Lease
(other than the
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payment of rent), as if each such term, condition, covenant and obligation were
set forth in full in this Sublease. Notwithstanding anything to the contrary
herein, it is further agreed that, in the event the Master Lease terminates for
any reason, this Sublease and all rights of Subtenant in and to the Subleased
Premises shall automatically terminate on the date the Master Lease terminates,
and Sublessor shall not have any liability to Subtenant whatsoever as a result
of such termination; provided, that Sublessor shall not terminate, or by its act
or omission cause the termination of the Master Lease with respect to the
Subleased Premises, unless satisfactory arrangements are made for Subtenant to
continue to occupy, on an uninterrupted basis, the Subleased Premises in
accordance with this Sublease or on financial terms no less favorable to
Subtenant than this Sublease. Master Landlord's consent to this Sublease shall
not relieve Sublessor of any of its obligations under the Master Lease.
SUCCESSORS AND ASSIGNS. Subject to the restrictions of assignment and subletting
by Subtenant, this Sublease shall be binding upon and shall inure to the benefit
of the parties hereto and their successors, assigns and legal representatives
(including, without limitation, the corporation resulting from the contemplated
conversion of Subtenant from a Delaware limited liability company into a
Delaware corporation).
DEFAULT. The following events shall each constitute a default by Subtenant
hereunder: (a) Subtenant's failure to pay, when due, any payment required to be
paid by Subtenant hereunder, which failure continues for five (5) days after
notice from Sublessor that the same is past due, in the instance of any
regularly recurring charges in the same amount, and for thirty (30) days after
notice in all other instances; (b) Subtenant's failure to observe or perform any
covenant, obligation or condition required to be observed or performed by
Subtenant hereunder, which is not also a violation of any term, condition,
covenant or obligation of Sublessor under the Master Lease, if such failure
continues for thirty (30) days after written notice thereof from Sublessor to
Subtenant unless such default cannot be cured within such thirty (30) day
period, in which case Subtenant shall be entitled to a reasonable time to cure
such default provided that Subtenant promptly commences to cure such default
within such thirty (30) day period and proceeds diligently thereafter to
complete such cure; (c) Subtenant's failure to observe or perform any covenant,
obligation or condition required to be observed or performed by Subtenant
hereunder, which is also a violation of any term, condition, covenant or
obligation of Sublessor under the Master Lease, if such failure continues for
five (5) business days after written notice thereof from Sublessor to Subtenant
(provided, however, that Sublessor may at any time after notice to Subtenant
elect to cure such failure); (d) if Subtenant, any of its members or any
guarantor of Subtenant's obligations hereunder makes an assignment for the
benefit of creditors, or if a receiver shall be appointed for any such parties,
or if any of such parties is the subject of a bankruptcy, reorganization or
insolvency proceeding (voluntarily or involuntarily) and, in the case of an
involuntary proceeding under the Federal Bankruptcy Code, if such proceeding
shall not be dismissed within thirty (30) days after the commencement thereof;
or (e) Subtenant's material breach of any representation or warranty, or failure
to observe or perform (after the giving of any applicable notice and the
expiration of any applicable cure period) any covenant, obligation or condition
required to be observed or performed by Subtenant, under any other
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agreement between Subtenant and Sublessor, or any other document or instrument
executed by Subtenant payable to or for the benefit of Sublessor (including,
without limitation, the Transaction Documents).
REMEDIES. In the event of any default by Subtenant, Sublessor shall have all of
the rights and remedies set forth in the Master Lease with respect to a default
by "Tenant" thereunder, in addition to all other rights and remedies available
to Sublessor at law and in equity. In the event that Subtenant fails to observe
or perform any covenant, obligation or condition required to be observed or
performed by Subtenant, subject to the delivery of any required notice and the
expiration of any applicable grace period, Sublessor may cure such failure and
by written notice to Subtenant, charge to Subtenant all reasonable, documented
costs and expenses (including but not limited to, attorneys' fees) incurred in
curing such failure of Subtenant as Additional Rent hereunder. Such Additional
Rent, if not paid on the date specified in Sublessor's notice to Subtenant
(which shall in no event be fewer than five (5) days for regularly recurring
charges of a like amount; thirty (30) days in all other instances), shall be
subject to the late charge (defined in the next paragraph), and with such late
charge shall bear interest until paid, as provided herein. Sublessor and
Subtenant agree that Sublessor shall have the right to injunctive or other
equitable relief in the event of a breach or threatened breach by Subtenant of
any of the agreements, conditions, covenants or terms hereof. All rights and
remedies of Sublessor shall be cumulative, and the exercise of any one or more
of such rights or remedies shall not impair Sublessor's right to exercise any
other right or remedy, either concurrently or at any later time. Subtenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future law in the event this Sublease is terminated or Subtenant is
evicted or dispossessed by reason of violation by Subtenant of any of the
provisions of this Sublease.
LATE CHARGE. If Subtenant fails to make any payment hereunder on or before the
date such payment is due and payable (without regard to any grace periods
specified herein) (but which due date shall in no event be fewer than five (5)
days for regularly recurring charges of a like amount; thirty (30) days in all
other instances), Subtenant shall pay to Sublessor, as Additional Rent
hereunder, a late charge equal to five percent (5%) of the amount of such late
payment. In addition, such payment shall bear interest at an interest rate equal
to two (2) whole percentage points above the prime rate published from time to
time in the Money Rates Section of the Wall Street Journal from the date such
payment or late charge, respectively, became due and payable through the date of
payment thereof by Subtenant; provided, however, that nothing contained herein
shall be construed as permitting Sublessor to charge or receive interest in
excess of the maximum rate then allowed by law.
CONFESSION OF JUDGMENT FOR POSSESSION. UPON THE EXPIRATION OF THE THEN CURRENT
TERM OF THIS SUBLEASE OR THE EARLIER TERMINATION OR SURRENDER HEREOF AS PROVIDED
IN THIS SUBLEASE, IT SHALL BE LAWFUL FOR ANY ATTORNEY TO APPEAR AS ATTORNEY FOR
SUBTENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER SUBTENANT AND
TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION
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IN EJECTMENT AGAINST SUBTENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER
SUBTENANT AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY SUBLESSOR OF
POSSESSION OF THE HEREIN SUBLEASED PREMISES, FOR WHICH THIS SUBLEASE SHALL BE
ITS SUFFICIENT WARRANT, WHEREUPON, IF SUBLESSOR SO DESIRES, A WRIT OF POSSESSION
OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY
ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS; PROVIDED, HOWEVER, IF
FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE
DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE
RESTORED TO SUBTENANT, SUBLESSOR SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS
SUBLEASE UNDER ANY OF THE TERMS OF THIS SUBLEASE TO BRING ONE OR MORE FURTHER
AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF
THE SAID SUBLEASED PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION
OF THE SUBLEASED PREMISES AS HEREINABOVE PROVIDED.
GENERAL PROVISIONS RELATING TO CONFESSION OF JUDGMENT. IN ANY AMICABLE ACTION OF
EJECTMENT, SUBLESSOR SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT
MADE BY IT OR SOMEONE ACTING FOR IT, SETTING FORTH THE FACTS NECESSARY TO
AUTHORIZE THE ENTRY OF JUDGMENT, AND, IF A TRUE COPY OF THIS SUBLEASE (AND OF
THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN
SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF
ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING.
SUBTENANT HEREBY RELEASES TO SUBLESSOR AND TO ANY AND ALL ATTORNEYS WHO MAY
APPEAR FOR SUBTENANT ALL PROCEDURAL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY
THEREOF. IF PROCEEDINGS SHALL BE COMMENCED BY SUBLESSOR TO RECOVER POSSESSION
UNDER THE ACTS OF ASSEMBLY AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF
THE TERM OR EARLIER TERMINATION OF THIS SUBLEASE, SUBTENANT WAIVES THE RIGHT TO
ANY NOTICE WHICH MAY BE REQUIRED UNDER APPLICABLE LAW AND AGREES THAT 30 DAYS
NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE.
ACCESS. In addition to Master Lessor's rights of access pursuant to the Master
Lease, at all times during the Term, Sublessor and its employees and
representatives shall have the right, upon reasonable notice, and during
business hours to enter the Subleased Premises for the purposes of inspecting or
making repair, alterations or additions to the Subleased Premises or to any
other portion of the Building. In addition, Sublessor shall have the right to
enter the Subleased Premises to exhibit same to prospective subtenants after
July 15, 2000, if the parties have not signed a Renewal Amendment. Subtenant
shall at all times have the right to have a
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representative of Subtenant accompany Sublessor during the course of any entry
on or at the Premises.
DAMAGE TO SUBLEASED PREMISES. In the event of any damage to or destruction of
the Subleased Premises which does not render the Subleased Premises wholly or
partially untenantable, this Sublease shall not terminate and the rent and other
sums payable hereunder shall not be abated or reduced. Any such damage or
destruction to the Subleased Premises shall be repaired by Sublessor or by
Master Lessor, if the Master Lease requires Master Lessor to make such repairs,
but in no event shall either Sublessor or Master Lessor have any responsibility
for repairing, replacing or compensating Subtenant for any damage to or loss of
any decorations, trade fixtures, furniture, equipment or other property of
Subtenant. In the event of any damage to or destruction of the Subleased
Premises renders the Subleased Premises so untenantable that they cannot be made
tenantable within one hundred sixty (60) days after the date of such damage, as
determined by Master Lessor in accordance with the Master Lease, Sublessor and
Subtenant each shall have the right, in its sole discretion, to terminate this
Sublease by written notice to the other party within thirty (30) days after
receipt of Master Lessor's determination. If either party delivers written
notice of termination within said thirty (30) day period, or if Master Lessor
exercises its right of termination pursuant to the Master Lease, this Sublease
shall terminate as of the date of such damage or destruction and any rent and
other sums payable by Subtenant hereunder shall be prorated as of such date of
termination. If Master Lessor does not terminate the Master Lease and neither
Sublessor nor Subtenant elects to terminate this Sublease within said thirty
(30) day period, this Sublease shall continue in full force and effect and
Sublessor shall have such damage or destruction repaired either by itself or by
Master Lessor under the Master Lease. In such an event, all rent and other sums
payable hereunder shall be abated (or, in case the Subleased Premises are only
partially untenantable, abated on a pro rata basis) until such time as the
Subleased Premises are rendered tenantable. In repairing such damage or
destruction, Sublessor or Master Lessor, as the case may be, shall be required
to restore the Subleased Premises to their condition prior to such damage or
destruction; provided, however, that neither Sublessor nor Master Lessor shall
have any responsibility for repairing, replacing or compensating Subtenant for
any damage to or loss of any decorations, trade fixtures, furniture, equipment
or other property of Subtenant. In the event of any damage to or destruction of
the Subleased Premises which renders the Subleased Premises untenantable but
under such circumstances that the Subleased Premises can be made tenantable
within sixty (60) days, as determined by Master Lessor in accordance with the
Master Lease, neither party shall have the right to terminate this Sublease, and
Sublessor shall have such damage or destruction repaired either by itself or by
Master Lessor under the Master Lease. In such an event, this Sublease shall
continue in full force and effect and all rent and other sums payable hereunder
shall be abated (or, in case the Subleased Premises are only partially
untenantable, abated on a pro rata basis) until such time as the Subleased
Premises are rendered tenantable. In repairing such damage or destruction,
Sublessor or Master Lessor, as the case may be, shall be required to restore the
Subleased Premises to their condition prior to such damage or destruction;
provided, however, that neither Sublessor nor Master Lessor shall have any
responsibility for repairing, replacing or
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compensating Subtenant for any damage to or loss of any decorations, trade
fixtures, furniture, equipment or other property of Subtenant.
WAIVER OF SUBROGATION. Each party, for itself and its insurers, waives all
rights of recovery against the other party, its shareholders, partners and
employees, to the extent of any insurance either maintained by such party or
required to be maintained by such party pursuant to this Sublease.
CONDEMNATION. If the whole or any substantial part of the Subleased Premises, or
the use or occupancy thereof, shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including a sale thereof under threat of such a taking), then this Sublease
shall terminate on the date title thereto vests in such governmental or
quasi-governmental authority, and all rent payable hereunder shall be
apportioned as of such date. If less than a substantial part of the Subleased
Premises, or the use or occupancy thereof, is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi-public use
or purpose, then provided Subtenant finds the remaining portion to be suitable
for the continued normal operation of Subtenant's business this Sublease shall
continue in full force and effect as to the portion of the Subleased Premises
not so taken or condemned, except that, as of the date title vests in the
governmental or quasi-governmental authority, Subtenant shall not be required to
pay Base Rent or Additional Rent with respect to the portion of the Subleased
Premises taken or condemned. For purposes of this paragraph, a substantial part
of the Subleased Premises shall be considered to have been taken if such taking
has the effect of preventing Subtenant from efficiently utilizing the remaining
portion of the Subleased Premises for the normal conduct of its business. All
awards, damages and other compensation paid by the condemning authority on
account of such taking or condemnation shall belong to Sublessor, and Subtenant
hereby assigns to Sublessor all rights to such awards, damages and compensation.
Subtenant agrees not to make any claim against Master Lessor, Sublessor or the
condemning authority for any portion of such award or compensation attributable
to damages to property, the value of the unexpired Term, the loss of profits or
goodwill, leasehold improvements or severance damages. Nothing contained herein,
however, shall prevent Subtenant from pursuing a separate claim against the
condemning authority for relocation expenses and the value of furnishings,
equipment and trade fixtures installed in the Subleased Premises at Subtenant's
expense and which Subtenant is entitled pursuant to the provisions hereof to
remove at the expiration or earlier termination of the Term, provided that such
claim shall in no way diminish the award or compensation payable to or
recoverable by Master Lessor and Sublessor in connection with such taking or
condemnation.
TERMINATION DUE TO DAMAGE OR CONDEMNATION. Anything herein to the contrary
notwithstanding, in the event that this Sublease shall be terminated by any
party due to damage or condemnation as hereinabove provided, then in that event,
Sublessor shall: (a) immediately make available to Subtenant office space
reasonably equivalent to the Subleased Premises on the terms set forth herein;
or (b) immediately remit to Subtenant an amount equal to $150 per day multiplied
by the aggregate number of days that the Initial Term shall have been diminished
by reason of such
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termination; such sum to accrue interest at the default rate hereinabove
specified under the caption "Late Charge," to the extent not paid in full within
thirty (30) days next following Subtenant's demand therefor.
HOLDING OVER. Any holding over by Subtenant after the expiration or termination
of the Term shall be subject to the prior written approval of Sublessor, which
approval may be granted or withheld in Sublessor's sole discretion. If Sublessor
shall consent to Subtenant's holding over, such holding over shall be construed
as a month-to-month tenancy subject to the rental terms and all other terms,
conditions and obligations set forth in this Sublease. Sublessor may terminate
any such month-to-month tenancy by giving Subtenant written notice to vacate,
which notice may be given on any day during a month, and Subtenant shall vacate
the Subleased Premises within thirty (30) days after receipt of such notice.
Sublessor hereby advises Subtenant of, and Subtenant acknowledges, the
importance to Sublessor of regaining possession of the Subleased Premises
promptly at the expiration of this Sublease. Therefore, in the event Subtenant
shall fail to vacate the Subleased Premises at the expiration or earlier
termination of this Sublease without having obtained Sublessor's prior written
approval, or if Subtenant shall hold over with Sublessor's approval and
subsequently shall fail to vacate the Subleased Premises within thirty (30) days
after receipt of Sublessor's notice to vacate the Subleased Premises, then, in
either such event, Sublessor, at its option, shall have the right to re-enter
forthwith and take possession of the Subleased Premised without process or to
institute proceedings for the eviction or removal of Subtenant and the recovery
of possession of the Subleased Premises. In addition, at Sublessor's option,
Subtenant's holding over shall be construed as a month-by-month tenancy subject
to all the terms, conditions and obligations set forth in this Sublease, except
that Base Rent payable by Subtenant shall equal 125% of the rent payable by
Sublessor for the Subleased Premises under the Master Lease. Nothing in this
paragraph or in this Sublease to the contrary shall limit Sublessor's remedies
hereunder or Sublessor's right to recover damages from the Subtenant in the
event Subtenant holds over in the Subleased Premises after the expiration of the
Term, including, without limitation, any rent obligations for the ENTIRE Main
Premises which Sublessor may incur pursuant to the Master Lease as a result of
Sublessor's inability to surrender the Main Premises to Master Lessor because of
Subtenant's holdover.
DIRECTORY SPACE. Sublessor shall use all reasonable efforts to cause Master
Lessor to display the name of Subtenant on the directory of the Building;
providing that, Subtenant shall reimburse Sublessor for any costs that may be
incurred by Sublessor in connection therewith.
BROKER'S COMMISSIONS. Sublessor represents and warrants that Sublessor has
employed no broker, and Subtenant represents and warrants that Subtenant has
employed no broker in connection with this Sublease. Sublessor and Subtenant
each agrees to indemnify and hold harmless the other party from any claims,
damages and expenses, including reasonable attorneys' fees, incurred by the
other party as a result of any alleged breach by such party of its
representation and warranty set forth in this paragraph.
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SECURITY DEPOSIT. Simultaneously with the execution of this Sublease, Subtenant
shall deposit with Sublessor a security deposit in the amount of five thousand
dollars ($5,000.00), to be commingled with Sublessor's other funds in an
interest bearing bank account. Such security deposit shall be security for the
performance by Subtenant of all of Subtenant's obligations, covenants,
conditions and agreements under this Sublease. Within approximately thirty (30)
days after the later of (a) the expiration or earlier termination of the Term of
this Sublease, or (b) Subtenant's vacating the Subleased Premises, Sublessor
shall return such security deposit to Subtenant with interest, less such portion
thereof as Sublessor shall have appropriated to satisfy any default under this
Sublease by Subtenant, as hereinafter provided. If there shall be any default
under this Sublease by Subtenant, then Sublessor shall have the right, but shall
not be obligated, after notice to Subtenant and Subtenant's failure to timely
cure to use, apply or retain all or any portion of the security deposit for the
payment of any (a) Base Rent, Additional Rent or any other sum as to which
Subtenant is in default, or (b) amount Sublessor may spend or become obligated
to spend, or for the compensation of Sublessor for any losses incurred, by
reason of Subtenant's default, including, but not limited to, any damage or
deficiency arising in connection with the reletting of the Subleased Premises.
If any portion of the security deposit is so used or applied, then within three
(3) business days after written notice to Subtenant of such use or application,
Subtenant shall deposit with Sublessor cash in an amount sufficient to restore
the security deposit to its original amount, and Subtenant's failure to do so
shall constitute a default under this Sublease.
EQUIPMENT, FURNITURE AND SUPPORT. Sublessor shall supply to Subtenant, at not
cost to Subtenant, with the following, in "as is" condition: (i) Sublessor's
furniture and chairs currently in the Subleased Premises; (ii) the use if six
telephones on Sublessor's telephone system, three of which shall be direct dial
telephone numbers and three of which shall be extensions, all of which shall be
supported in the same manner as other similar telephones on Sublessor's
telephone system. Sublessor shall not supply any other equipment, furniture or
support to Subtenant. Subtenant shall return all such equipment and furniture to
Sublessor in the same condition as on the date hereof, reasonable wear and tear
excepted, at the expiration or earlier termination of the Term of this Sublease.
QUIET ENJOYMENT. Subtenant, upon paying all rent and other charges required
hereunder and observing and keeping all covenants, agreements and conditions of
this Sublease, shall quietly have and enjoy the Subleased Premises during the
Term without hindrance or molestation by anyone claiming by or through
Sublessor, subject, however, to the exceptions, reservations and conditions of
this Sublease.
GENERAL PROVISIONS. The waiver by either party of a breach of any covenant,
obligation or condition set forth herein shall not be deemed to be a waiver of
any subsequent breach of any covenant, obligation or condition of this Sublease.
This Sublease shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania without reference to principles of conflicts of
law. This Sublease constitutes the entire agreement between the parties hereto
and may not be modified except by a written instrument executed by the parties
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hereto. If any provision of this Sublease is declared invalid or unenforceable,
the remainder of the Sublease shall continue in full force and effect. All
notices required or permitted to be given to Sublessor hereunder shall be
hand-delivered, delivered by a nationally recognized overnight courier, or
mailed by certified mail, return receipt requested to such individual at such
address as Sublessor shall from time to time designate. All notices required or
permitted to be given to Subtenant hereunder shall be hand delivered, delivered
by a nationally recognized overnight courier, or mailed by certified mail,
return receipt requested to such individual at such address as Subtenant shall
from time to time designate. Paragraph headings are used herein solely for
reference purposes and are not to be construed as part of this Sublease. This
Sublease may be executed in counterpart copies, each of which shall constitute
an original but all of which together shall constitute one and the same
instrument. Time is of the essence under this Sublease. Sublessor and Subtenant
each hereby waives trial by jury in any action, proceeding or counterclaim
brought by either party against the other in connection with any matter arising
out of or connected with the Sublease, Subtenant's use or occupancy of the
Subleased Premises and/or any claim of injury or damage. In the event of
litigation between the parties to resolve any dispute arising under this
Sublease or otherwise in connection with Subtenant's use or occupancy of the
Subleased Premises, the losing party shall pay reasonable attorneys fees and
court costs incurred by the prevailing party in connection with the dispute. If
any payment hereunder is due after the end of the Term, such payment shall be
made by Subtenant to Sublessor not later than fifteen (15) days after Sublessor
notifies Subtenant of the amount of such payment to be made by Subtenant. Any
liability of Sublessor or Subtenant to the other party existing hereunder at the
expiration or earlier termination of the Sublease shall survive such expiration
or termination. Wherever the consent or approval of either party is requested or
required hereunder, such consent shall not, in the absence of an alternative
standard for consent being expressly set forth in this Sublease, be unreasonably
withheld, delayed or conditioned.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of the day
and year first above written.
EXE Technologies, Inc.
By: /S/ XXXXXXX XXXXXXXX
------------------------
Name: XXXXXXX XXXXXXXX
Title: Vice President - CFO
xXxxx.xxx, LLC,
By: /S/ XXXXXXX X. XXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager and President
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EXHIBIT A
DIAGRAM OF SUBLEASED PREMISES
[to be attached]
A-1
