EXHIBIT 10.16
SUB-SUBLEASE
THIS SUB-SUBLEASE is made and entered into as of the 14th day of March,
2002, by and between PHILADELPHIA STOCK EXCHANGE, INC., a Delaware corporation
with principal offices located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
("Sub-Sublessor") and UNIVERSAL TRADING TECHNOLOGIES CORPORATION, a Delaware
corporation with principal offices located at 00 Xxxx Xxxxxx, Xxxxx 000, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("Sub-Subtenant").
RECITALS
This Sub-Sublease is made with reference to the following:
A. WHEREAS, Sub-Sublessor is subleasing certain space (the "Main
Premises") in an office building located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000 (the "Building") pursuant to:
(1) That certain Lease Agreement dated August 7, 1992, between
Institutional Property Assets ("Master Lessor"), as landlord, and Federal
National Mortgage Association ("FNMA"), as tenant (as amended from time to time,
the "Master Lease"), which is incorporated herein by reference, and;
(2) That certain Sublease Agreement dated June 27, 2000, between FNMA
and Sub-Sublessor, as subtenant, as amended by that certain First Amendment to
Sublease dated as of March 14, 2002, between FNMA and Sub-Sublessor (as amended
from time to time, the "Sublease"), which is incorporated herein by reference.
B. WHEREAS, Sub-Subtenant desires to sub-sublease from Sub-Sublessor
approximately one thousand six hundred seventy-five (1,675) square feet of
rentable area in Suite 701 on the seventh floor of the Building (the
"Sub-Subleased Premises"). The Sub-Subleased Premises is depicted as area A on
the floor plan attached hereto as Exhibit A.
C. AND WHEREAS, Sub-Sublessor is agreeable to sub-subleasing the
Sub-Subleased Premises to the Sub-Subtenant upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the rent and other sums herein
agreed to be paid to Sub-Sublessor and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Premises and Sub-Subtenants Proportionate Share.
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(a) Sub-Sublessor hereby subleases the Sub-Subleased Premises to
Sub-Subtenant for the rent and upon the terms and conditions set forth
herein. Sub-Subtenant hereby rents the Sub-Subleased Premises from Sub-Sublessor
in accordance with the terms and conditions set forth herein. This Sub-Sublease
includes the right, together with Sub-Sublessor, to use the restrooms, elevator
lobby, and common hallways located on the 7th floor within the Main Premises, or
other common areas in the Building, 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. Sub-Sublessor and Sub- Subtenant agree
that the rentable square footage of the Sub-Subleased Premises for all purposes
under this Sub-Sublease shall be deemed to be one thousand six hundred
seventy-five (1,675) square feet encompassing the area depicted as area A
attached hereto as Exhibit A.
(b) The Commencement Date (hereinafter defined) and
Sub-Subtenant's obligations with respect to the Sub-Subleased Premises shall be
postponed to the extent Sub-Subtenant is unable to occupy the Sub-Subleased
Premises because Sub-Sublessor fails to deliver possession of the Sub-Subleased
Premises for any reason, except to the extent that Sub-Subtenant, its
contractors, agents or employees causes such failure. Any delay in the
Commencement Date shall not subject Sub-Sublessor to liability for loss or
damage resulting therefrom and Sub-Subtenant's sole recourse with respect
thereto shall be the postponement of Sub-Subtenant's obligations with respect to
the Sub-Subleased Premises.
2. Term. The term of this Sub-Sublease (the "Term") shall be for a
period of three (3) years, two (2) months and seventeen (17) days. The term
shall commence on March 15, 2002 (the "Commencement Date") and shall expire on
May 31, 2005.
3. Rent.
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(a) Sub-Subtenant shall pay to the Sub-Sublessor as rent (the
"Rent") for the Sub-Subleased Premises during the Term of the Sub-Sublease the
amount of $72,312.50. The forgoing sum represents rent of $18.75 per rentable
square foot per year for 1,200 square feet of the Sub-Subleased Premises during
this time period. The monthly Rent payable during this time period shall be
$1,875.00, which shall be pro rated for the partial month during which the Term
commences. Sub-Sublessor acknowledges and agrees that no rent shall be due from
Sub-Subtenant for 475 square feet of the Sub-Subleased Premises (the "eVWAP
Space") so long as such space is used only to house the components of
Sub-Subtenant's eVWAP system. If at any time during the Term any portion of the
eVWAP Space is used for any other purpose, then Sub-Subtenant shall pay Rent for
such portion at the rate of $18.75 per square foot per year for so long as such
portion is not being used to house the components of Sub-Subtenant's eVWAP
system. In such event, Sub-Subtenant shall provide written notice to
Sub-Sublessor of the number of square feet located in the eVWAP Space being used
for purposes other than to house the components of Sub-Subtenant's eVWAP system
and the Rent payment shall be adjusted accordingly.
(b) Rent shall be divided into twelve equal monthly installments
and shall be payable by Sub-Subtenant in advance on the Commencement
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Date and thereafter on the first day of the month of each calendar month of the
Term. All rent and other sums payable by Sub-Subtenant hereunder shall be paid
to Sub-Sublessor in lawful money of the United States, without any prior demand
therefor and without any deduction, abatement or setoff whatsoever, at such
place as Sub-Sublessor shall from time to time designate.
(c) Sub-Subtenant covenants and agrees to pay Sub-Sublessor as
additional rent (i) electric energy costs as more particularly described below,
and (ii) Sub-Subtenant's Proportionate Share (as hereinafter defined) of the
Expenses in excess of the Expense Stops (as both terms are defined in the
Sublease). Sub-Subtenant acknowledges and agrees that such Expenses are based on
Master Lessor's estimate and in the event Sub-Sublessor is required to make any
payment to FNMA on account of any shortfall in such estimate (or is provided a
refund or credit for any overpayment), then Sub-Subtenant shall promptly pay
Sub-Subtenant's Proportionate Share of such shortfall (or shall be entitled to a
refund or credit of Sub-Subtenant's Proportionate Share of such overpayment) .
As used herein, "Sub-Subtenant's Proportionate Share" means 0.3675%. All such
additional rent shall be included in the term "Rent" hereunder. Sub-Subtenant
acknowledges and agrees that it shall be responsible for and pay to the
Sub-Sublessor the electric energy costs attributable and provided to the
Sub-Subleased Premises as recorded on Meter #67187929 and Meter #98050201J plus
an additional $100 per month which represents a portion of the electric energy
costs attributable to the Main Premises.
(d) Sub-Sublessor shall forward to Sub-Subtenant all monthly
utility bills for electric costs relating to the Sub-Subleased Premises and
Sub-Subtenant shall pay such amounts to Sub-Sublessor within fifteen (15) days
after receipt.
(e) Notwithstanding anything to the contrary contained herein,
Sub-Subtenant has a $30,000 credit against the payment of Rent and expenses,
including energy costs (the "Rent Credit"). Sub-Sublessor shall apply the Rent
Credit against the Rent and other expenses due hereunder from the Sub-Subtenant
commencing on the Commencement Date and continuing thereafter until the Rent
Credit has been exhausted. Sub-Sublessor shall use its best efforts to give no
less than ten (10) days written notice to Sub-Subtenant of the date on which the
Rent Credit will be exhausted, which notice shall also provide any amount that
will be due from Sub-Subtenant on such date in the event that the remaining Rent
Credit will not be sufficient to pay the entire Rent due on such date (the "Rent
Credit Exhaustion Notice"). Sub-Subtenant shall pay any such amount on or before
the date on which Rent is next due and shall thereafter make Rent payments in
accordance with the terms of this Sub-Sublease. Sub-Sublessor's failure to
provide the Rent Credit Exhaustion Notice shall not be deemed a waiver of any of
Sub-Sublessor's rights hereunder nor shall such failure excuse Sub-Subtenant
from its obligation to pay the Rent due hereunder in accordance with the terms
hereof.
4. Intentionally Omitted
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5. Use.
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(a) Sub-Subtenant shall use and occupy the Sub-Subleased Premises
solely as a computer room subject to all applicable zoning, building, health and
other similar regulations and shall not use the Sub-Subleased Premises for any
other purpose without the prior written consent of Sub-Sublessor. Sub-Subtenant
shall not use or occupy the Sub-Subleased Premises in a manner which will
violate any applicable laws, orders or regulations or any federal, state, county
or municipal governments or authorities or any order or direction of any act or
thing upon the Subleased Premises which will invalidate or be in conflict with
any of Master Lessor's fire insurance policies covering the Building or which
would violate any regulation, requirement or directive of the Board of Fire
Underwriters, or any similar body, nor shall it do any act or thing upon the
Sub-Subleased Premises or in the Building which would or might subject Master
Lessor to any liability or responsibility for injury to any person or persons or
to property by reason of any business or operation being carried on by
Sub-Subtenant in the Sub-Subleased Premises or for any other reason. If by
reason of Sub-Subtenant's failure to comply with the provisions of this
paragraph, the fire insurance rate for Master Lessor's policies at the beginning
of the Term of this Sublease or any time thereafter is higher than it otherwise
would be, then Sub-Subtenant shall reimburse Sub-Sublessor as additional rent
hereunder, for that part of all such fire insurance premiums thereafter required
to be paid by Sub-Sublessor to Master Lessor under the Master Lease on account
of such failure to comply.
(b) Sub-Subtenant shall not use the Sub-Subleased Premises, or
permit the Sub-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, Sub-Sublessor or any other tenant of the Building. Subtenant shall
observe and comply with Master Lessor's Rules and Regulations attached to the
Master Lease and such other rules and regulations as may be established by
Master Lessor pursuant to the Master Lease.
6. Improvements.
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(a) Sub-Subtenant agrees to accept the Sub-Subleased Premises in
its current "as is" condition, Sub-Sublessor having no obligation to make any
improvements to the Subleased Premises of any kind whatsoever. Sub-Subtenant
shall, at its own cost and expense, (i) separate its computer room cables, and
(ii) provide to Sub-Sublessor an existing dedicated communications rack as
agreed by the parties in the Sub-Subleased Premises for Sub-Sublessor's data and
voice requirements. Occupancy of the Sub-Subleased Premises by Sub-Subtenant
shall constitute acceptance and approval by Sub-Subtenant of the condition of
the Sub-Subleased Premises.
(b) Sub-Subtenant shall not make or install any additions,
renovations, alterations, improvements or changes in or to the Sub-Subleased
Premises, including the walls, floors, ceilings and fixtures located therein
(collectively, "Improvements"), without first obtaining the prior written
approval of Sub-Sublessor, which approval shall not unreasonably be withheld but
which may be conditioned upon the satisfaction of any reasonable conditions or
restrictions that Sub-Sublessor deems appropriate, including without limitation,
obtaining the prior approval of Master Lessor
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and/or FNMA, if, to the extent and in the manner required pursuant to the Master
Lease and/or the Sublease. All Improvements made to the Sub-Subleased Premises
shall remain upon and be surrendered with the Sub-Subleased Premises at the end
of the Term in good order and repair except for ordinary wear and tear and
repairs made necessary by fire or other casualty. Any work done by or for
Sub-Subtenant with respect to the Sub-Subleased Premises shall be at
Sub-Subtenant's sole cost and expense.
7. Repairs and Maintenance. Throughout the Term, Sub-Subtenant
shall, at its sole cost and expense, keep and maintain the Sub-Subleased
Premises, every part thereof and all property located therein in neat and
orderly condition and shall promptly make all repairs thereto which are made
necessary as a result of any misuse or neglect by Sub-Subtenant, its agents,
employees, contractors, workmen, or invitees, excepting any repairs made
necessary by fire or other casualty and ordinary wear and tear. Sub-Sublessor
shall have the right to make any repairs to the Subleased Premises which
Sub-Subtenant does not make within ten (10) days after receipt of written notice
from Master Lessor or Sub-Sublessor of the need for such repairs (except in the
event of emergencies, in which event Sub-Sublessor shall have the right to make
such repairs without prior notice), and Sub-Subtenant shall within five (5) days
reimburse Sub-Sublessor for all actual costs and expenses incurred in connection
with such repairs. Upon the expiration or termination of this Sub-Sublease,
Sub-Subtenant shall surrender the Sub-Subleased Premises broom clean, free of
Sub-Subtenant's personal property and in good order and repair except for
ordinary wear and tear and damage caused by fire or other casualty.
8. Insurance. Throughout the Term, Sub-Subtenant shall obtain and
maintain, with a company or companies licensed to do business in the
Commonwealth of Pennsylvania and approved by Sub-Sublessor, a broad form
comprehensive general liability insurance policy against bodily and personal
injury or death and property damage in or upon the Sub-Subleased Premises or the
Building with minimum coverage amounts as reasonably required by Sub-Sublessor
from time to time. On or before the Commencement Date, Sub-Subtenant shall
obtain such insurance with a comprehensive single limit of not less than Three
Million Dollars ($3,000,000). In addition, Sub-Subtenant shall obtain and
maintain fire and extended coverage insurance with a company or companies
approved by Sub-Sublessor covering Sub-Sublessor's Personalty (hereinafter
defined) all of Sub-Subtenant's personal property and all improvements in the
Sub-Subleased Premises at full replacement value. Each policy required to be
maintained by Sub-Subtenant hereunder shall name Master Lessor, FNMA and
Sub-Sublessor as additional insureds thereunder and shall contain an endorsement
prohibiting cancellation or a material change in coverage as it pertains to the
Sub-Subleased Premises without first giving Sub-Sublessor at least thirty (30)
days' prior written notice. Certificates evidencing such insurance shall be
delivered to Sub-Sublessor on or before the Commencement Date and thereafter at
least forty-five (45) days prior to such policy expiration date.
9. Waiver and Indemnification. Sub-Subtenant hereby waives all
rights of recovery against Master Lessor, FNMA, Sub-Sublessor and their
officers, agents and employees for any loss or damage to any property of or
injury to Sub-Subtenant or its
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officers, employees, agents, guests, or invitees which occurs in or arises out
of the use, condition or occupancy of the Sub-Subleased Premises or any other
part of the Building or which results from the action or inaction of Master
Lessor, FNMA, Sub-Sublessor or their agents or employees, except to the extent
such loss, damage or injury is the result of the negligence or willful
misconduct of Master Lessor, FNMA, Sub-Sublessor or any of their respective
officers, employees or agents. In addition, Sub-Subtenant hereby waives all
rights of recovery against Sub-Sublessor and its officers and employees to the
extent of any insurance either maintained or required to be maintained by
Sub-Subtenant pursuant to this Sub-Sublease, whichever is greater. Furthermore,
Sub-Subtenant agrees to indemnify and hold Sublessor and its officers 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) Sub-Subtenant's use or occupancy of the
Sub-Subleased Premises, or use of any other portion of the Building; (ii) any
act or omission by Sub-Subtenant or any of its officers, employees, agents,
guests or invitees; (iii) the making or installation of Improvements in or to
the Sub-Subleased Premises by or at the direction of Sub-Subtenant; or (iv) any
failure by Sub-Subtenant to observe or perform any of the covenants or
obligations required of Sub-Subtenant under this Sublease, including, without
limitation, Sub-Subtenant's obligations to comply with the requirements of the
Master Lease and the Sublease as set forth in Paragraph 12 hereof unless such
failure to comply is the result of the willful or grossly negligent actions of
Sub-Sublessor or Sub-Sublessor's officers, agents, employees, contractors,
guests or invitees. Sub-Subtenant's obligations under this Paragraph 9 shall
survive the expiration or termination of this Sub-Sublease.
10. Building Services. Master Lessor has agreed to furnish certain
utilities and services to FNMA, as set forth in Section 14 of the Master Lease,
which in turn shall be provided by FNMA to Sub-Sublessor by the Sublease, and by
the Sub-Sublessor to the Sub-Subtenant under this Sub-Sublease. Sub-Sublessor
agrees that, to the extent any utilities and services are furnished to the
Sub-Subleased Premises, Sub-Subtenant shall be entitled to the use and benefit
of such utilities and services without any additional charge to Sub-Subtenant,
except as set forth in Section 3(c) hereof; however, Sub-Sublessor shall not
have any liability or responsibility to Sub-Subtenant for the quality or
quantity of such utilities and services, for any interruption, failure or
disruption in the provision of such utilities and services or for any other
action or omission of Master Lessor or FNMA unless such interruption, failure or
disruption of utilities is the result of the willful or grossly negligent
actions of Sub-Sublessor or Sub-Sublessor's officers, agents, employees,
contractors, guests or invitees. In the event that Master Lessor fails-to
furnish such utilities and services to the Sub-Subleased Premises in accordance
with the Master Lease, Sub-Sublessor agrees that it will use its reasonable
efforts through FNMA to cause the Master Lessor to do so.
11. Sale of Personal Property. Concurrent with the execution of this
Sub-Sublease, Sub-Subtenant, in consideration of $20,000 and the Rent Credit,
shall sell, convey, assign and transfer to Sub-Sublessor, all of those items of
personal property, including but not limited to office furniture, cubicles,
chairs, desks, conference room furniture and kitchen furniture, listed on
Exhibit B attached hereto (the "Personal Property"). Sub-Subtenant shall execute
and deliver a xxxx of sale conveying the Personal
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Property to Sub-Sublessor in the form attached hereto as Exhibit C.
Sub-Subtenant represents and warrants that it has good and marketable title to
the Personal Property, free of any liens or claims of third parties, and
Sub-Subtenant has the authority to sell the Personal Property to Sub-Sublessor.
12. Master Lease and Sublease.
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(a) This Sub-Sublease is conditioned upon (i) the consent of FNMA
and shall not be effective until such consent is obtained as evidenced by the
execution by FNMA of the consent attached hereto, and (ii) the receipt by
Sub-Sublessor and Sub-Subtenant of a copy of the letter from Master Lessor to
FNMA consenting to the Sublease and shall not be effective until Sub-Sublessor's
and Sub-Subtenant's receipt of same.
(b) Sub-Subtenant acknowledges that the rights it is hereby
acquiring in and to the Sub-Subleased Premises are derived from the Master Lease
and the Sublease and that the rights, terms and conditions of this Sub-Sublease
are in all respects subordinate to the Master Lease and the Sublease.
Sub-Subtenant agrees to be bound by the terms of the Master Lease and the
Sublease, and to perform with respect to the Sub-Subleased Premises each and
every obligation of Sub-Sublessor pursuant to the Master Lease and the Sublease,
(other than the obligation to pay Rent which shall be determined solely by
reference to this Sub-Sublease) as if each such term, condition, covenant and
obligation were set forth in full in this Sub-Sublease. In the event of any
conflict between the Master Lease, Sublease and this Sub-Sublease, the terms of
this Sub-Sublease shall govern the relationship between Sub-Sublessor and
Sub-Subtenant. Notwithstanding anything to the contrary herein, it is further
agreed that, (i) in the event the Master Lease terminates for any reason, this
Sub-Sublease and all rights of Sub-Subtenant in and to the Sub-Subleased
Premises shall automatically terminate on the date the Master Lease terminates,
and Sub-Sublessor shall not have any liability to Sub-Subtenant whatsoever as a
result of such termination, and (ii) in the event the Sublease terminates for
any reason (but the Master Lease stays in effect), this Sub-Sublease and all
rights of Sub-Subtenant in and to the Sub-Subleased Premises shall be governed
by Section 11 of the Sublease, and Sub-Sublessor shall not have any liability to
Sub-Subtenant whatsoever as a result of any termination or assignment of this
Sub-Sublease.
(c) Notwithstanding anything to the contrary herein or in the
Master Lease or Sublease, Sub-Sublessor shall have no obligation to perform any
of the terms, covenants and conditions contained in the Master Lease to be
performed by the Master Lessor or in the Sublease to be performed by FNMA.
Without limiting the foregoing, Sub-Sublessor shall have no obligation to
provide any or all of the services, utilities, insurance, work, alterations,
repairs or maintenance to be provided by the Master Lessor under the Master
Lease, and Sub-Sublessor shall in no way be liable to Sub-Subtenant for any
failure of the Master Lessor to provide such services, utilities, insurance,
work, alterations, repairs or maintenance unless such failure is the result of
the willful or grossly negligent actions of Sub-Sublessor or Sub-Sublessor's
officers, agents, employees, contractors, guests or invitees.
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(d) Sub-Sublessor shall provide a copy of any notice of default
received by Sub-Sublessor from FNMA under the Sublease within two (2) business
days of Sub-Sublessor's receipt of any such notice.
13. Successors and Assigns. Subject to the restrictions on
assignment and subletting by Sub-Subtenant, this Sub-Sublease shall be binding
upon and shall inure to the benefit of the parties hereto and their successors,
assigns and legal representatives.
14. Default.
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(a) The following events shall each constitute a default by
Sub-Subtenant hereunder:
(i) Sub-Subtenant's failure to pay, when due, any Rent or
other payment required to be paid by Sub-Subtenant hereunder, including electric
utility costs set forth in Paragraph 3 herein.
(ii) Sub-Subtenant's failure to observe or perform any
covenant, obligation or condition required to be observed or performed by
Sub-Subtenant hereunder, which is not also a violation of any term, condition,
covenant or obligation of Sub-Sublessor under the Master Lease or the Sublease,
if such failure continues for fifteen (15) days after receipt of written notice
thereof from Sub-Sublessor to Sub-Subtenant unless such default cannot be cured
within such fifteen (15) day period, in which case Sub-Subtenant shall be
entitled to a reasonable time to cure such default provided that Sub-Subtenant
promptly commences to cure such default within such fifteen (15) day period and
proceeds diligently thereafter to complete such cure;
(iii) Sub-Subtenant's failure to observe or perform any
covenant, obligation or condition required to be observed or performed by
Sub-Subtenant hereunder, which is also a violation of any term, condition,
covenant or obligation of Sub-Sublessor under the Master Lease or the Sublease,
if such failure continues for five (5) days after receipt of written notice
thereof from Sub-Sublessor to Sub-Subtenant (provided, however, that
Sub-Sublessor may at any time elect to cure such failure); or
(iv) if Sub-Subtenant, or any subsidiary, parent or affiliate
of Sub-Subtenant 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.
(b) In the event of any default by Sub-Subtenant and in the event
of a failure by Sub-Subtenant under Paragraph 14 (a)(iii)), Sub-Sublessor shall
have all of the rights and remedies set forth in Sections 21 and 22 of the
Master Lease with respect to a default by "Tenant" thereunder, in addition to
all other rights and remedies available to Sub-Sublessor at law and in equity.
In the event that Sub-Subtenant fails to observe or perform any covenant,
obligation or condition required to be observed
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or performed by Sub-Subtenant, subject to any applicable grace period (except
that Sub-Sublessor may elect to take action prior to the grace period applicable
to a failure under Paragraph 14 (a)(iii)), Sub-Sublessor may cure such failure
and by written notice to Sub-Subtenant, charge to Sub-Subtenant all actual costs
and expenses (including but not limited to, reasonable attorneys' fees) incurred
in curing such failure of Sub-Subtenant as additional rent hereunder. Such
additional rent, if not paid on the date specified in Sublessor's notice to
Subtenant, shall be subject to the late charge, and with such late charge shall
bear interest until paid, as provided in Paragraph 14(c) hereof. Sub-Sublessor
and Sub-Subtenant agree that Sub-Sublessor shall have the right to injunctive or
other equitable relief in the event of a breach or threatened breach by
Sub-Subtenant of any of the agreements, conditions, covenants or terms hereof,
including but not limited to, Paragraph 12 hereof. All rights and remedies of
Sub-Sublessor shall be cumulative, and the exercise of any one or more of such
rights or remedies shall not impair Sub-Sublessor's right to exercise any other
right or remedy, either concurrently or at any later time.
(c) If Sub-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), Sub-Subtenant shall pay to Sub-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
through the date of payment thereof by Sub-Subtenant; provided, however, that
nothing contained herein shall be construed as permitting Sub-Sublessor to
charge or receive interest in excess of the maximum rate then allowed by law.
(d) UPON THE OCCURRENCE OF ANY DEFAULT, SUB-SUBTENANT HEREBY
EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
SUB-SUBTENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR RENT, ADDITIONAL
RENT, OR OTHER CHANGES OR EXPENSES AGREED TO BE PAID BY SUB-SUBTENANT HEREUNDER
AND TO SIGN FOR SUB-SUBTENANT AN AGREEMENT FOR ENTERING INTO ANY COMPETENT COURT
AN ACTION OR ACTIONS FOR THE RECOVERY OF RENT, ADDITIONAL RENT OR OTHER CHARGES
OR EXPENSES AND, IN SAID SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT
AGAINST SUB-SUBTENANT FOR ALL OR ANY PART OF SUCH RENT, ADDITIONAL RENT,
INCLUDING, AT SUB-SUBLESSOR'S OPTION, THE RENT FOR THE LESSER OF ONE YEAR OR THE
ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS SUB-SUBLEASE, AND ANY OTHER
CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS
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RENT OR AGREED TO BE PAID BY SUB-SUBTENANT DURING SUCH PERIOD, AND FOR INTEREST
AND COSTS TOGETHER WITH AN ATTORNEY'S COMMISSION OF FIVE PERCENT (5%) THEREOF.
SAID AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE EXERCISE THEREOF, BUT JUDGMENT
MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AND AS OFTEN AS ANY OF SAID
RENT, ADDITIONAL RENT OR OTHER CHARGES RESERVED AS RENT SHALL FALL DUE OR BE IN
ARREARS AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE
ORIGINAL TERM. IN ANY AMICABLE ACTION FOR RENT OR CHARGES HEREUNDER,
SUB-SUBLESSOR SHALL CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT SETTING FORTH
THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT AND IF A TRUE COPY OF
THIS SUB-SUBLEASE (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE
SUFFICIENT PROOF) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL AS A WARRANT OF ATTORNEY, ANY LAW, RULE OF COURT, CUSTOM OR PRACTICE TO
THE CONTRARY NOTWITHSTANDING.
(e) IF SUB-SUBLESSOR SHALL EXERCISE ITS RIGHT TO TERMINATE THIS
SUB-SUBLEASE DUE TO A DEFAULT BY SUB-SUBTENANT, AND ALSO WHEN AND AS SOON AS THE
TERM SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR THE
SUB-SUBTENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION
AND JUDGMENT IN EJECTION AGAINST SUB-SUBTENANT AND ALL PERSONS OR ENTITIES
CLAIMING UNDER SUB-SUBTENANT FOR THE RECOVERY BY SUB-SUBLESSOR OF POSSESSION OF
THE SUB-SUBLEASED PREMISES, FOR WHICH THIS SUB-SUBLEASE SHALL BE SUFFICIENT
WARRANT; WHEREUPON, IF SUB-SUBLESSOR SO DESIRES, A WRIT OF POSSESSION MAY ISSUE
FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, AND PROVIDED THAT,
IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE
DETERMINED AND THE POSSESSION OF THE SUB-SUBLEASED PREMISES SHALL REMAIN IN OR
BE RESTORED TO SUB-SUBTENANT, SUB-SUBLESSOR SHALL HAVE THE RIGHT, UPON ANY
SUBSEQUENT DEFAULT OR UPON THE TERMINATION OR EXPIRATION OF THIS SUB-SUBLEASE,
TO BRING ONE (1) OR MORE ACTION OR ACTIONS TO RECOVER POSSESSION OF THE
SUB-SUBLEASED PREMISES. IN ANY AMICABLE ACTION OF EJECTMENT, SUB-SUBLESSOR SHALL
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 SUB-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.
(f) Sub-Subtenant releases to Sub-Sublessor, and to any and all
attorneys who may appear for Sub-Subtenant, all errors in any proceedings taken
by Sub-Sublessor, whether by virtue of the powers of attorney contained in this
Sub-Sublease or not, and all liability therefor. Sub-Subtenant expressly waives
the benefits of all laws, now or thereafter in force, exempting any property
within the Sub-Subleased Premises or elsewhere from distraint, levy or sale.
Sub-Subtenant further waives the right to any notice to remove as may be
specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951,
as amended, or any similar or successor provision of law, and
10
agrees except as otherwise provided herein that five (5) days notice shall be
sufficient in any case where a longer period may be statutorily specified.
(g) In the event the Sub-Sublessor institutes legal action to
enforce its remedies and obtains a final judgment under this Paragraph 14,
Sub-Subtenant shall be required to pay as additional rent, all costs of such
action together with all reasonable attorney fees.
15. Access. In addition to Master Lessor's rights of access pursuant
to the Master Lease, at all times during the Term, FNMA and its officers,
employees and representatives and Sub-Sublessor and its officers, employees and
representatives shall have the right, upon reasonable notice and only if
accompanied by a representative of Sub-Subtenant, to enter the Sub-Subleased
Premises for the purposes of inspecting or making repairs, alterations or
additions to the Sub-Subleased Premises, including the communications rack
dedicated to Sub-Sublessor described in Section 6(a)(ii) hereof.
16. Fire and Casualty.
-----------------
(a) Sub-Subtenant shall promptly notify Sub-Sublessor if the
Sub-Subleased Premises are damaged by fire or other casualty.
(b) If the Master Lease is terminated by Sub-Sublessor, Sublessor
or Master Lessor pursuant to Section 22 of the Master Lease as a result of a
fire or other casualty, this Sub-Sublease shall terminate as of the date that
the Master Lease terminates.
(c) If the Master Lease is not terminated by Sub-Sublessor,
Sublessor or Master Lessor as a result of fire or casualty, the rights of
Sub-Sublessor shall be determined in accordance with this Subparagraph 16(c) and
Subparagraphs 16(d) and 16(e). If the Sub-Subleased Premises are damaged by fire
or other casualty not occurring through the negligence or willful misconduct of
Sub-Subtenant, Sub-Sublessor shall through FNMA seek to have such damage
repaired by Master Lessor in accordance with the Master Lease. If the Master
Lessor fails to repair such damage (unless such damage occurs through the
negligence or willful misconduct of Sub-Subtenant in which event subparagraph
16(e) shall govern) within a reasonable time after receiving notice of the
damage and in any event, not later than such length of time as would be required
with the exercise of due diligence and dispatch, Sub-Subtenant, as its exclusive
remedy for such failure shall have the right to terminate this Sub-Sublease
after thirty days notice to Sub-Sublessor.
(d) If the Sub-Subleased Premises are so damaged by fire or other
casualty that they cannot reasonably be used by Sub-Subtenant or if damage
occurs to other parts of the Building which renders the Sub-Subleased Premises
not reasonably usable by Sub-Subtenant for Sub-Subtenant's business purposes,
and if as a result of such damage the Master Lease or Sublease is terminated
and/or Sub-Sublessor's obligation to pay
11
rent under the Sublease is abated with respect to all or a portion of the
Sub-Subleased Premises, this Sub-Sublease shall be terminated and/or
Sub-Subtenant's obligation to pay rent under the Sub-Sublease shall likewise be
abated with respect to the corresponding portion of the Sub-Subleased Premises
until such time as Sub-Sublessor's obligation to pay rent is reinstated under
the Sublease.
(e) In the event of any damage to or destruction of the
Sub-Subleased Premises which is caused by the negligence or willful misconduct
of Sub-Subtenant or any of its officers, employees, guests or invitees, whether
or not the Sub-Subleased Premises are thereby rendered untenantable, this
Sub-Sublease shall continue in full force and effect, Rent and other sums
payable hereunder shall not be abated or reduced and Sub-Subtenant shall be
liable for all costs and expenses of repairing such damage or destruction and
restoring the Sub-Subleased Premises to their condition on the Commencement
Date, reasonable wear and tear excepted.
17. Condemnation.
------------
(a) If the Master Lease is terminated by Sub-Sublessor, Subleasor
or Master Lessor pursuant to Section 23 of the Master Lease as a result of a
taking or condemnation under the power of eminent domain, this Sublease shall
terminate as of the date that the Master Lease terminates.
(b) If the Master Lease is not terminated by Master Lessor,
Sublessor or Sub-Sublessor pursuant to Section 23 and a taking or condemnation
under the power of eminent domain has occurred, Subtenant's rights shall be
determined in accordance with this Subparagraph 17 (b) and Subparagraph 17(c).
If the whole or any substantial part of the Subleased Premises shall be taken or
condemned under the power of eminent domain, then this Sublease shall terminate
as of the date possession thereof is taken by the condemning authority and all
rent payable hereunder shall be apportioned as of such date. If less than a
substantial part of the Subleased Premises is taken or condemned under the power
of eminent domain, then 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 possession thereof is taken by the condemning authority,
Subtenant shall not be required to pay Rent with respect to the portion of the
Subleased Premises taken or condemned. For purposes of this Paragraph 17, 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 conduct of its
business.
(c) All awards, damages and other compensation paid by the
condemning authority on account of any taking or condemnation shall belong to
Sub-Sublessor, and Sub-Subtenant hereby assigns to Sub-Sublessor all rights to
such awards, damages and compensation; provided, however, that nothing herein
shall preclude Sub-Subtenant from claiming or receiving payment for business
dislocation damages, unamortized Sub-Subtenant improvements actually paid for by
Sub-Subtenant, damages to Sub-Subtenant's trade fixtures and moving expenses
("Sub-Subtenant Damages") so long as the amount of same specifically relates to
Sub-Subtenant and the Sub-Subleased Premises and the amount of same is not
subtracted from the award, other than Sub-Subtenant Damages, which Sublessor or
Master Lessor is entitled to receive. Sub-
12
Subtenant agrees not to make any claim against Master Lessor, FNMA 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.
18. Holding Over. Sub-Sublessor hereby advises Sub-Subtenant of, and
Sub-Subtenant acknowledges, the importance to Sub-Sublessor of regaining
possession of the Sub-Sub Subleased Premises promptly at the expiration of this
Sub-Sublease. Therefore, in the event Sub-Subtenant shall fail to vacate the
Sub-Subleased Premises at the expiration or earlier termination of this
Sub-Sublease without having obtained Sub-Sublessor's prior written approval,
then Sub-Sublessor, at its option, (and without any way limiting or abridging
Sub-Sublessor's other remedies hereunder) shall have the right to re-enter
forthwith and take possession of the Sub-Subleased Premised without process or
to institute proceedings for the eviction or removal of Sub-Subtenant and the
recovery of possession of the Sub-Subleased Premises. In addition, at
Sub-Sublessor's option, Sub-Subtenant's holding over shall be construed as a
tenancy at sufferance subject to all the terms, conditions and obligations set
forth in this Sub-Sublease, except that Rent payable by Sub-Subtenant shall
equal twice the Rent that would have been payable with respect to such hold-over
period under this Sub-Sublease during the Term, together with all other damages
incurred by Sub-Sublessor as a result of Sub-Subtenant's holding over.
19. Broker's Commission. Sub-Sublessor represents and warrants that
it has employed no broker, and Sub-Subtenant represents that it has employed no
broker, in connection with this Sub-Sublease. However, Sublessor and Subtenant
each agree 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 19.
20. Security Deposit. Simultaneously with the execution of this
Sub-Sublease, Sub-Subtenant shall deposit with the Sub-Sublessor a security
deposit in the amount of $1,000.00. Such security deposit shall be security for
the performance by Sub-Subtenant of all of Sub-Subtenant's obligations,
covenants, conditions and agreements under this Sublease. Provided that
Sub-Subtenant has not at any time been in default of any monetary obligations
under this Sub-Sublease, within approximately thirty (30) days after the later
of (a) the expiration or earlier termination of the Term of this Sub-Sublease,
or (b) Sub-Subtenant's vacating the Sub-Subleased Premises, Sub-Sublessor shall
return the security deposit to Sub-Subtenant, less such portion thereof as
Sub-Sublessor shall have appropriated to satisfy any default under this
Sub-Sublease by Sub-Subtenant. If there shall be any default under this
Sub-Sublease by Sub-Subtenant, then Sub-Sublessor shall have the right, but
shall not be obligated, to use, apply or retain all or any portion of the
security deposit for the payment of any (a) Rent, additional rent or any other
sum as to which Sub-Subtenant is in default, or (b) amount Sub-Sublessor may
spend or become obligated to spend, or for the compensation of Sub-Sublessor for
any losses incurred, by reason of Sub-Subtenant's default, including, but not
limited to, any damage or deficiency arising in connection with the reletting of
the Sub-Subleased Premises. If any portion of
13
the security deposit is so used or applied, then within three (3) business days
after receipt of written notice to Sub-Subtenant of such use or application,
Sub-Subtenant shall deposit with Sub-Sublessor cash in an amount sufficient to
restore the security deposit to its original amount, and Sub-Subtenant's failure
to do so shall constitute a default under this Sub-Sublease. Sub-Sublessor shall
not be required to pay or forward to Sub-Subtenant any interest accrued with
respect to the security deposit and any interest earned thereon shall be
retained by Sub-Sublessor.
21. ERISA Representations. Sub-Subtenant agrees to be bound by the
representations, warranties and covenants set forth in paragraph 41 of the
Master Lease.
22. Quiet Enjoyment. Sub-Sublessor represents and warrants that it
has full right and authority to enter into this Sub-Sublease and that
Sub-Subtenant, while paying Rent and performing its other covenants and
agreements herein set forth, shall peaceably and quietly have, hold and enjoy
the Sub-Subleased Premises for the Term without hindrance or molestation from
Sub-Sublessor or parties claiming under or through Sub-Sublessor, subject to the
terms and provisions of this Sub-Sublease.
23. Assignment and Subletting. Sub-Subtenant shall not assign,
pledge or otherwise encumber this Sub-Sublease, nor shall Sub-Subtenant Sublease
all or any portion of the Sub-Subleased Premises.
24. General Provisions.
------------------
(a) The waiver by Sub-Sublessor 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
Sub-Sublease.
(b) This Sub-Sublease shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(c) This Sub-Sublease constitutes the entire agreement between
the parties hereto and may not be modified except by a written instrument
executed by the parties hereto.
(d) If any provision of this Sub-Sublease is declared invalid or
unenforceable, the remainder of the Sub-Sublease shall continue in full force
and effect.
(e) All notices required or permitted to be given to
Sub-Subtenant hereunder shall be hand-delivered or mailed by certified mail,
return receipt requested to:
Universal Trading Technologies Corporation
c/o The Ashton Technology Group, Inc.
00 Xxxx Xxxxxx, Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
Chief Financial Officer
14
or to such other individual at such address as Sub-Sublessor shall from time to
time designate in writing.
All notices required or permitted to be given to Sub-Sublessor
hereunder shall be hand delivered, or mailed by certified mail, return receipt
requested to:
Philadelphia Stock Exchange, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Vice President - Administration
with a copy to:
Philadelphia Stock Exchange, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
or to such other individual at such address as Subtenant shall from
time to time designate in writing.
(f) Paragraph headings are used herein solely for reference
purposes and are not to be construed as part of this Sublease.
(g) This Sub-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.
(h) Time is of the essence under this Sub-Sublease.
(i) Sub-Sublessor and Sub-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
Sub-Sublease, Sub-Subtenant's use or occupancy of the Sub-Subleased Premises
and/or any claim of injury or damage.
15
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the day and year first above written.
SUB-SUBLESSOR:
PHILADELPHIA STOCK EXCHANGE, INC.
By: /s/ Xxxxxxx X. Will
-----------------------
Name: Xxxxxxx X. Will
----------------------
Title: Vice Presiden
---------------------
THE UNDERSIGNED SUB-SUBTENANT ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE
CONFESSIONS OF JUDGEMENT CONTAINED IN THE FOREGOING SUB-SUBLEASE , AND
KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERS INTO THIS SUB-SUBLEASE FULLY
COMPREHENDING THE RELINQUISHMENT OF CERTAIN RIGHTS BY VIRTUE OF SUCH CONFESSIONS
OF JUDGMENT.
SUB-SUBTENANT:
UNIVERSAL TRADING TECHNOLOGIES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx x. Xxxxxxx
-------------------
Title: Chief financial Officer
-----------------------
This Sub-Sublease consented to this 14th day of March, 2002:
FNMA:
FEDERAL NATIONAL MORTGAGE ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx for
-----------------------
Name: Xxxx Xxxxxxxxxxx
----------------
Title: Vice President
---------------
16
EXHIBIT A
SUB-SUBLEASED PREMISES
A-1
EXHIBIT B
LIST OF PERSONAL PROPERTY
B-1
EXHIBIT C
XXXX OF SALE
This Xxxx of Sale is executed and delivered as of the 14th day of
March, 2002 by Universal Trading Technologies Corporation, a Delaware
corporation ("Seller") to Philadelphia Stock Exchange, Inc., a Delaware
corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller has agreed to sell to Purchaser and Purchaser has
agreed to purchase from Seller all those items of personal property described in
Exhibit A, attached hereto and incorporated herein by this reference (the
"Personal Property");
NOW, THEREFORE, for and in consideration of the sum of Fifty Thousand
and No/100 Dollars ($50,000.00) to consist of (i) Twenty Thousand and No/100
Dollars ($20,000) in cash to be paid upon execution of Sub-Sublease (the
"Sub-Sublease") between Seller, as Sub-Subtenant, and Purchaser, as
Sub-Sublessor, for premises located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, and
(ii) Thirty Thousand and No/100 Dollars ($30,000) as a credit to be received by
Seller , as Sub-Subtenant, for future rent and expenses as set forth in the
Sub-Sublease therein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, Seller hereby agrees as
follows:
1. Sale and Conveyance. Seller hereby sells, transfers and conveys the
Personal Property unto Purchaser, its successors and assigns.
2. Representations and Warranties.
-------------------------------
A. Seller represents and warrants (i) all of the Personal Property is
free and clear of financing statements, chattel mortgages, security agreements,
title retention agreements, liens or other encumbrances and (ii) Seller has the
right, power and authority to sell the Personal Property to Purchaser without
obtaining the consent of any third party whose consent has not been obtained and
written evidence thereof furnished to Purchaser. Seller, for itself, its
successors and assigns, does hereby warrant and will forever defend title to the
Personal Property unto Purchaser, its successors and assigns against the lawful
claims of all persons, claiming by, through or under Seller.
B. SELLER REPRESENTS THAT THE PERSONAL PROPERTY HEREIN IS SOLD,
TRANSFERRED AND CONVEYED "AS IS", AND EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 2.A. ABOVE, SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
C-1
3. Governing Law. This Xxxx of Sale shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
4. Binding Effect. This Xxxx of Sale shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
personal representatives, successors and assigns.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed as
of the day and year first above written.
UNIVERSAL TRADING
TECHNOLOGIES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
------------------------
Title: Chief Financial Officer
-----------------------
C-2
