EXHIBIT 10.43
SUBLEASE
between
FEDERAL NATIONAL MORTGAGE ASSOCIATION
and
UNIVERSAL TRADING TECHNOLOGIES CORP.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx
TABLE OF CONTENTS
-----------------
Part Page
---- ----
1. Premises................................................. 1
2. Term..................................................... 2
3. Rent..................................................... 2
4. Use and Occupancy Tax.................................... 4
5. Use...................................................... 4
6. Improvements............................................. 5
7. Repairs and Maintenance.................................. 5
8. Insurance................................................ 6
10. Building Services........................................ 7
11. Assignment and Subletting................................ 7
12. Sublease Subject to Master Lease......................... 8
13. Successors and Assigns................................... 8
14. Default.................................................. 9
15. Access................................................... 12
16. Fire and Casualty........................................ 12
17. Condemnation............................................. 13
18. Holding Over............................................. 14
19. Broker's Commissions..................................... 14
20. Security Deposit......................................... 15
21. Lease Purchase of Sublessor's Personalty................. 15
22. Right to Relocate........................................ 17
23. Right of First Notification Regarding Contiguous Space... 17
24. ERISA Representations.................................... 18
25. Quiet Enjoyment.......................................... 18
-i-
Part Page
---- ----
26. Guaranty................................................. 18
27. General Provisions....................................... _18__
Exhibits
--------
Exhibit A -- Diagram of Subleased Premises
Exhibit B -- Pertinent Portions of Master Lease
Exhibit C -- Consent to Sublease
Exhibit D -- Sublessor's Personalty
-ii-
UNIVERSAL TRADING TECHNOLOGIES CORP.
SUBLEASE
--------
THIS SUBLEASE is made and entered into as of the 15th day of July,
1996, by and between the FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally
chartered corporation ("Sublessor"), and UNIVERSAL TRADING TECHNOLOGIES CORP., a
Delaware corporation ("Subtenant").
RECITALS:
--------
This Sublease is made with reference to the following:
A. Sublessor is leasing certain space (the "Main Premises") in an office
building located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (the
"Building"), pursuant to that certain Lease Agreement dated August 7, 1992,
between Institutional Property Assets ('Master Lessor"), as landlord, and
Sublessor, as tenant (as amended from time to time, the "Master Lease"),
pertinent portions of which have been furnished to Subtenant and are attached
hereto as Exhibit B.
---------
B. Subtenant desires to sublease from Sublessor approximately nine
thousand eight hundred ninety six (9,896) square feet of rentable area on the
7th floor of the Building (the "Subleased Premises"). The Subleased Premises are
depicted as Area A on the floor plan attached hereto as Exhibit A.
---------
C. Sublessor is agreeable to subleasing the Subleased Premises to
Subtenant upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the rents and other sums herein
agreed to be paid to Sublessor and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Premises and Subtenant's Proportionate Share. Sublessor hereby
--------------------------------------------
subleases the Subleased Premises to Subtenant for the rent and 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, 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. It is expressly agreed that
notwithstanding anything contained in this- Sublease, between July 15, 1996 and
July 31, 1996, Subtenant shall have the right to occupy only the space marked
"Proposed Computer Area" in the attached Exhibit A (and such reasonable adjacent
----------
space as
Subtenant shall reasonably require) for the purposes of constructing a computer
room, and shall not have the right to occupy the entire Subleased Premises until
August 1, 1996. Subtenant shall use reasonable efforts to minimize any
disturbance to Sublessor during construction of the computer room. Sublessor and
Subtenant agree that the rentable square footage of the Subleased Premises for
all purposes under this Sublease shall be deemed nine thousand eight hundred
ninety six (9,896) square feet. Notwithstanding the foregoing, in the event of
any variance in actual area, the Rent shall not change, subject to the
provisions of section 3(a)(ii) hereof.
2. Term. The term of this Sublease (the "Term") shall be for a
----
period of 8 years 10 1/2 months. The Term shall commence on July 15, 1996 (the
"Sublease Commencement Date"), and shall expire on May 31, 2005, unless sooner
terminated pursuant to any provision herein. Subtenant shall have no right to
renew or extend the term of this Sublease.
3. Rent.
----
(a) Subtenant shall pay to Sublessor as rent (the "Rent") for
the Subleased Premises during the Term the following amounts:
(i) During the period commencing August 1, 1996 through
July 31, 2001, Subtenant shall pay the amount of $717,460.00. The forgoing sum
represents rent of $14.50 per rentable square foot per year for the Subleased
Premises during the referenced time period (5 years). The monthly Rent payable
during this time period shall be $11,957.67.
(ii) During the time period commencing August 1, 2001
through May 31, 2005, Subtenant shall pay the amount of $606,954.67 plus the
"Rent Adjustment" as defined below. The foregoing sum of $606,954.67 represents
rent of $16.00 per rentable square foot per year for the Subleased Premises
during the referenced time period (4 years, 10 months). The monthly Rent payable
during this time period shall be $13,194.67 plus the monthly share of the Rent
Adjustment. The "Rent Adjustment" shall equal the rentable square feet
comprising the Subleased Premises as of August 1, 2001 multiplied by the sum of
the increases in the annual Building "Expenses" (as that term is defined in the
Master Lease) per square foot between the Sublease Commencement Date and July
31, 2001. For the purposes of calculating the Rent Adjustment, the base year
Expenses as of the Sublease Commencement Date shall be deemed to equal $8.33 per
square foot and the Expenses shall be subject to a cap on annual increases equal
to 40 of the base year Expenses (i.e., $0.33 per square foot). The Rent payable
by Subtenant may not decrease as a result of a decrease in the Expenses.
-2-
(b) Rent shall be divided into twelve equal monthly installments
and shall be payable by Subtenant in advance on the fifth day of the month of
each calendar month of the Term. There shall be no Rent due for the period
commencing on July 15, 1996 and ending on July 31, 1996. All rent and other sums
payable by Subtenant hereunder shall be paid to Sublessor in lawful money of the
United States, without any prior demand therefor and without any deduction or
setoff whatsoever, at such place as Sublessor shall from time to time designate.
Notwithstanding the foregoing, Subtenant shall pay the first full month's
installment of Rent payable hereunder at the time it executes this Sublease.
(c) Subtenant covenants and agrees to pay Sublessor as
additional rent (i) electric energy costs as more particularly described below,
and (ii) the charges of Sublessor or Master Lessor for any services other than
basic utilities provided by Sublessor or Master Lessor to Subtenant upon the
express written request of Subtenant to Sublessor and at the election of
Sublessor or Master Lessor. Subtenant acknowledges and agrees that electric
energy costs shall be separately metered (such separate metering to be installed
at Sublessor's expense) for the Subleased Premises. Sublessor shall cause the
submeter to be installed as soon as possible on or after July 15, 1996.
Subtenant's responsibility for payment of the electric costs shall commence upon
installation of the submeter. Sublessor shall forward to Subtenant all bills for
electric costs relating to the Subleased Premises which Subtenant shall pay to
Sublessor as provided in Subsection (d) below.
(d) Except as otherwise provided in this Sublease, any
additional rent owed by Subtenant to Sublessor, and any cost, expense, damage or
liability incurred by Sublessor for which Subtenant is liable under this
Sublease, shall be paid by Subtenant to Sublessor on or before the later of (i)
fifteen (15) days after the date Sublessor notifies Subtenant of the amount of
such additional rent or such cost, expense, damage or liability, or (ii) the day
the next monthly installment of Rent is due after the date Sublessor notifies
Subtenant of the amount of such additional rent or such cost, expense, damage
or. liability. 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 Subtenant receives written notification from Sublessor 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.
(e) All Rent, additional rent and other sums payable by
Subtenant hereunder shall be paid to Sublessor in lawful money of the United
States, without any prior demand therefor and without any deduction, abatement
or setoff
-3-
whatsoever, at such place as Sublessor shall from time to time designate. Except
for the Rent Adjustment, Subtenant shall not be responsible for any additional
increase in base Rent or Building operating expenses.
4. Use and Occupancy Tax. Subtenant shall be responsible for payment
---------------------
of the Business Use and Occupancy Tax imposed by the School District of
Philadelphia (Philadelphia Code Section 19-1806) as amended from time to time,
and any similar taxes, charges or impositions (together "taxes") of a taxing
authority to the extent that such taxes are assessed with respect to Subtenant's
use or occupancy of the Subleased Premises. Notwithstanding the foregoing
Subtenant shall not be responsible for any portion of ad valorem real estate
taxes assessed by the City of Philadelphia against the Building, except as
included in the Expenses and chargeable to Subtenant as part of the Rent
Adjustment.
5. Use.
---
(a) Subtenant shall use and occupy the Subleased Premises solely
as general offices and computing facilities subject to all applicable zoning,
building, health and other similar 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 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
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 Subtenant in
the Subleased Premises or for any other reason. If by reason of 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 Subtenant shall
reimburse Sublessor as additional rent hereunder, for that part of all such fire
insurance premiums thereafter required to be paid by Sublessor to Master Lessor
under the Master Lease on account of such failure to comply.
(b) 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
-4-
the lawful use of the Building by Master Lessor, 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 as Exhibit B and such other rules
---------
and regulations as may be established by Master Lessor pursuant to the Master
Lease.
6. Improvements.
------------
(a) 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, except for the
construction of a demising wall (to be completed on or before August 1, 1996) in
the location shown on Exhibit A and the installation of a separate electric
---------
utility submeter. Subtenant understands and agrees that Sublessor will remove
all furniture, fixtures, appliances and built-in cabinets and seating from the
lunch room area only prior to August 1, 1996. Occupancy of the Subleased
Premises by Subtenant shall constitute acceptance and approval by Subtenant of
the condition of the Subleased Premises.
(b) 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 shall not unreasonably be withheld but
which may be conditioned upon the satisfaction of any reasonable 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 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 Subtenant with respect to the Subleased Premises shall be at
Subtenant's sole cost and expense including, without limitation, any changes or
upgrades to the HVAC system (heat pump, heat pump distribution, air balancing,
etc.) with respect to the Subleased Premises necessary as a result of this
Sublease and Subtenant's use of the Subleased Premises as a computing facility.
7. 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 neat and orderly condition and shall
promptly make all repairs thereto which are made necessary as a result of any
misuse or neglect by Subtenant, its agents, employees, contractors, workmen, or
invitees, excepting any repairs made necessary by fire or other casualty and
ordinary wear and tear. Sublessor shall have the right to make any repairs to
the
-5-
Subleased Premises which Subtenant does not make within ten (10) days after
receipt of 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), and Subtenant shall
reimburse Sublessor for all actual 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, free of
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, Subtenant shall obtain and
---------
maintain, with a company or companies licensed to do business in the
Commonwealth of Pennsylvania and approved by Sublessor, a broad form
comprehensive general liability insurance policy against bodily and personal
injury or death and property damage in or upon the Subleased Premises or the
Building with minimum coverage amounts as reasonably required by Sublessor from
time to time. On or before the Sublease Commencement Date, Subtenant shall
obtain such insurance with a comprehensive single limit of not less than Three
Million Dollars ($3,000,000). In addition, subtenant shall obtain and maintain
fire and extended coverage insurance with a company or companies approved by
Sublessor covering Sublessor's Personalty (hereinafter defined) all of
Subtenant's personal property and all improvements in the Subleased Premises at
full replacement value. Each policy required to be maintained by Subtenant
hereunder shall name Master Lessor and Sublessor as additional insureds
thereunder and shall contain an endorsement prohibiting cancellation or a
material change in coverage as it pertains to the Subleased Premises without
first giving Sublessor at least thirty (30) days' prior written notice.
Certificates evidencing such insurance shall be delivered to Sublessor on or
before the Sublease Commencement Date and thereafter at least forty-five (45)
days prior to such policy expiration date.
9. Waiver and Indemnification. Subtenant hereby waives all rights of
--------------------------
recovery against Sublessor and its officers, agents and employees for any loss
or damage to any property of or injury to Subtenant or its officers, employees,
agents, guests, or invitees which occurs in or arises out of the use, condition
or occupancy of the Subleased Premises or any other part of the Building 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
negligence or willful misconduct of Sublessor or Sublessor's officers or
employees. In addition, Subtenant hereby waives all rights of recovery against
Sublessor and its officers and employees to the extent of any insurance either
maintained or required to be maintained by Subtenant pursuant to this Sublease,
whichever is greater. Furthermore, Subtenant agrees to indemnify and hold
Sublessor and
-6-
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) 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 officers, 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; or (iv) any failure by
Subtenant to observe or perform any of the covenants or obligations required of
Subtenant under this Sublease, including, without limitation, Subtenant's
obligations to comply with the requirements of the Master Lease as set forth in
Paragraph 12 hereof unless such failure to comply is the result of the willful
or grossly negligent actions of Sublessor or Sublessor's officers, agents,
employees, contractors, guests or invitees. Subtenant's obligations under this
Paragraph 9 shall survive the expiration or termination of this Sublease.
10. Building Services. Master Lessor has agreed to furnish certain
-----------------
utilities and services to Sublessor, as set forth in Section 14 of the Master
Lease. Sublessor agrees that, to the extent any utilities and services are
furnished to the Subleased Premises, Subtenant shall be entitled to the use and
benefit of such utilities and services without any additional charge to
Subtenant; however, Sublessor shall not have any liability or responsibility to
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 unless such
interruption, failure or disruption of utilities is the result of the willful or
grossly negligent actions of Sublessor or Sublessor's officers, agents,
employees, contractors, guests or invitees. In the event that Master Lessor
fails-to furnish such utilities and services to the 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.
11. Assignment and Subletting. 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 (collectively referred to herein as a
"Transfer"). Any attempted Transfer of Subleased Premises, whether voluntary or
involuntary, shall constitute a default hereunder for which Sublessor shall have
all of the remedies set forth in Paragraph 14 hereof. In addition, any such
attempted Transfer shall be void and shall, at the option of Sublessor,
terminate this Sublease.
-7-
12. Sublease Subject to Master Lease.
--------------------------------
(a) 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 to the Master Lease. Subtenant agrees to be bound by the terms of
Articles 2, 7, 8, 9, 10A, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25,
26, 30, 31, 33, 34, 35, 37, 38, 39, 40, 41 and 42 of the Master Lease, and to
perform with respect to the Subleased Premises each and every obligation of
Sublessor pursuant to the aforementioned Articles of the Master Lease, (other
than the obligation to pay rent and additional rent which obligations shall be
determined solely by reference to this Sublease) as if each such term,
condition, covenant and obligation were set forth in full in this Sublease. In
the event of any conflict between the Master Lease and this Sublease, the terms
of this Sublease shall govern the relationship between Sublessor and Subtenant.
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.
(b) Notwithstanding anything to the contrary herein or in the
Master Lease, 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. Without limiting the foregoing, 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 Sublessor shall in no way be liable to 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 Sublessor or Sublessor's officers,
agents, employees, contractors, guests or invitees.
(c) Attached hereto as Exhibit C is a copy of the Consent to
---------
Sublease executed by Master Lessor, Sublessor and Subtenant, the terms of which
are incorporated herein and made a part hereof.
13. Successors and Assigns. Subject to the restrictions on 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.
-8-
14. Default.
-------
(a) The following events shall each constitute a default by
Subtenant hereunder:
(i) Subtenant's failure to pay, when due, any rental or
other payment required to be paid by Subtenant hereunder, including, without
limitation, the lease payments for the furniture as set forth in Paragraph 21
hereof;
(ii) 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 fifteen (15) days after receipt of written notice thereof from
Sublessor to Subtenant unless such default cannot be cured within such fifteen
(15) 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 fifteen (15) day period and proceeds diligently thereafter
to complete such cure;
(iii) 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) days after receipt of written notice thereof from Sublessor to
Subtenant (provided, however, that Sublessor may at any time elect to cure such
failure); or
(iv) if Subtenant, or any subsidiary, parent or affiliate
of 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 Subtenant (and in the event
of a failure by Subtenant under Paragraph 14 (a)(iii)), 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 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 any applicable
grace period (except that Sublessor may elect to take action prior to the
-9-
grace period applicable to a failure under Paragraph 14 (a)(iii)), Sublessor may
cure such failure and by written notice to Subtenant, charge to Subtenant all
actual costs and expenses (including but not limited to, reasonable 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, shall be subject to the late charge, and with such late charge shall
bear interest until paid, as provided in Paragraph 14(c) hereof. 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, including but not
limited to, Paragraph 11 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.
(c) 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), 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 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.
(d) UPON THE OCCURRENCE OF ANY DEFAULT, SUBTENANT HEREBY
EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
SUBTENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR RENT, ADDITIONAL RENT,
OR OTHER CHANGES OR EXPENSES AGREED TO BE PAID BY SUBTENANT HEREUNDER AND TO
SIGN FOR SUBTENANT AN AGREEMENT FOR ENTERING INTO ANY COMPETENT COURT AN
AMICABLE ACTION OR ACTIONS FOR THE RECOVERY OF RENT, ADDITIONAL RENT OR OTHER
CHARGES OR EXPENSES AND, IN SAID SUITS OR IN SAID AMICABLE ACTION OR ACTIONS TO
CONFESS JUDGMENT AGAINST SUBTENANT FOR ALL OR ANY PART OF SUCH RENT, ADDITIONAL
RENT, INCLUDING, AT SUBLESSOR'S OPTION, THE RENT FOR THE LESSER OF ONE YEAR OR
THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS SUBLEASE, AND ANY OTHER
CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BE PAID BY
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
-10-
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,
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
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 SUBLESSOR SHALL EXERCISE ITS RIGHT TO TERMINATE THIS
SUBLEASE DUE TO A DEFAULT BY SUBTENANT, AND ALSO WHEN AND AS SOON AS THE TERM
SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR THE
SUBTENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE
ACTION AND JUDGMENT IN EJECTION AGAINST SUBTENANT AND ALL PERSONS OR ENTITIES
CLAIMING UNDER SUBTENANT FOR THE RECOVERY BY SUBLESSOR OF POSSESSION OF THE
SUBLEASED PREMISES, FOR WHICH THIS SUBLEASE SHALL BE SUFFICIENT WARRANT;
WHEREUPON, IF 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 SUBLEASED PREMISES SHALL REMAIN IN OR BE RESTORED TO
SUBTENANT, SUBLESSOR SHALL HAVE THE RIGHT, UPON ANY SUBSEQUENT DEFAULT OR UPON
THE TERMINATION OR EXPIRATION OF THIS SUBLEASE, TO BRING ONE (1) OR MORE
AMICABLE ACTION OR ACTIONS TO RECOVER POSSESSION OF THE SUBLEASED PREMISES. IN
ANY AMICABLE ACTION OF EJECTMENT, .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
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) Subtenant releases to Sublessor, and to any and all
attorneys who may appear for subtenant, all errors in any proceedings taken by
Sublessor, whether by virtue of the powers of attorney contained in this
Sublease or not, and all liability therefor. Subtenant expressly waives the
benefits of all laws, now or thereafter in force, exempting any property within
the Subleased Premises or elsewhere from distraint, levy or sale. 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 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.
-11-
(g) In the event the Sublessor institutes legal action to
enforce its remedies and obtains a final judgment under this Paragraph 14,
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, Sublessor and its officers,
employees and representatives shall have the right, upon reasonable notice, to
enter the Subleased Premises for the purposes of inspecting or making repairs,
alterations or additions to the Subleased Premises or to any other portion of
the Main Premises.
16. Fire and Casualty.
-----------------
(a) Subtenant shall promptly notify Sublessor if the Subleased
Premises are damaged by fire or other casualty.
(b) If the Master Lease is terminated by Sublessor or Master
Lessor pursuant to Section 22 of the Master Lease as a result of a fire or other
casualty, this Sublease shall terminate as of the date that the Master Lease
terminates.
(c) If the Master Lease is not terminated by Sublessor or Master
Lessor as a result of fire or casualty, the rights of Sublessor shall be
determined in accordance with this Subparagraph 16(c) and Subparagraphs 16(d)
and 16(e). If the Subleased Premises are damaged by fire or other casualty not
occurring through the negligence or willful misconduct of Subtenant, Sublessor
shall 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 Sublessor in which
event subparagraph 17(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, Subtenant, as
its exclusive remedy for such failure shall have the right to terminate this
Sublease after thirty days notice to Sublessor.
(d) If the Subleased Premises are so damaged by fire or other
casualty that they cannot reasonably be used by Subtenant or if damage occurs to
other parts of the Building which renders the Subleased Premises not reasonably
usable by Subtenant for Subtenant's business purposes, and if as a result of
such damage the Master Lease is terminated and/or Sublessor's obligation to pay
rent under the Master Lease is abated with respect to all or a portion of the
Subleased Premises, this Sublease shall be terminated and/or Subtenant's
obligation to pay rent under the Sublease shall likewise be abated with respect
to the corresponding portion of the Subleased Premises until such
-12-
time as Sublessor's obligation to pay rent is reinstated under the Master Lease.
(e) In the event of any damage to or destruction of the
Subleased Premises which is caused by the negligence or willful misconduct of
Subtenant or any of its officers, employees, guests or invitees, whether or not
the Subleased Premises are thereby rendered untenantable, this Sublease shall
continue in full force and effect, rent and other sums payable hereunder shall
not be abated or reduced and Subtenant shall be liable for all costs and
expenses of repairing such damage or destruction and restoring the Subleased
Premises to their condition on the Sublease Commencement Date, reasonable wear
and tear excepted.
17. Condemnation.
------------
(a) If the Master Lease is terminated by Sublessor 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 or
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
Sublessor, and Subtenant hereby assigns to Sublessor all rights to such awards,
damages and compensation; provided, however, that nothing herein shall preclude
Subtenant from claiming or receiving payment for
-13-
business dislocation damages, unamortized Subtenant improvements actually paid
for by Subtenant, damages to Subtenant's trade fixtures and moving expenses
("Subtenant Damages") so long as the amount of same specifically relates to
Subtenant and the Subleased Premises and the amount of same is not subtracted
from the award, other than Subtenant Damages, which Sublessor or Master Lessor
is entitled to receive. However, to the extent Subtenant can clearly
substantiate that a portion of an award paid to Sublessor constitutes payment
for Subtenant Damages, then Sublessor shall pay such portion over to Subtenant.
Subtenant agrees not to make any claim against P-caster Lessor 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. 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 five (5) days after receipt of Sublessor's notice to vacate the
Subleased Premises, then, in either such event, Sublessor, at its option, (and
without any way limiting or abridging Sublessor's other remedies hereunder)
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 Rent payable by Subtenant shall equal
the greater of (i) the total of all Base Rent and all additional rent payable by
Sublessor for the Main Premises during Subtenant's period of holding over; or
(ii) twice the Rent that would have been payable with respect to such hold-over
period under this Sublease during the Term.
19. Broker's Commissions. Sublessor represents and warrants that
--------------------
Sublessor has employed no broker other than Xxxxxxx-Xxxxx Company, and Subtenant
represents and warrants that Subtenant has employed no broker other than Xxxx-
Xxxx Commercial Real Estate Advisors ("Xxxx-Xxxx"), in connection with this
Sublease. Sublessor agrees to be responsible for payment of a brokerage
commission to Xxxxxxx-Xxxxx Company on account of this Sublease in accordance
with Sublessor's separate agreement with Xxxxxxx-Xxxxx Company. The fee payable
to Xxxx-Xxxx shall not be the responsibility of Sublessor or Subtenant and is
covered by separate agreement between Xxxx-Xxxx and Xxxxxxx-Xxxxx Company.
-14-
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
----------------
Sublease, Subtenant shall deposit with Sublessor a security deposit in the
amount of $23,915.34. Such security deposit shall be security for the
performance by Subtenant of all of Subtenant's obligations, covenants,
conditions and agreements under this Sublease. Provided that Subtenant has not
at any time been in default of any monetary obligations under this Sublease,
within thirty days of the written request of Subtenant, (such notice not to be
delivered before July 31, 2000), Sublessor shall return the sum of $11,957.67 to
Subtenant. 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 the
remaining balance of such security deposit to Subtenant, less such portion
thereof as Sublessor shall have appropriated to satisfy any default under this
Sublease by Subtenant. If there shall be any default under this Sublease by
Subtenant, then 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 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 receipt of 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. Subject to the rights of
Sublessor with respect to the security deposit as set forth herein, Sublessor
shall hold the security deposit in trust for Subtenant in an FDIC insured
banking institution. Sublessor shall not be required to pay or forward to
Subtenant any interest accrued with respect to the security deposit and any
interest earned thereon shall be retained by Sublessor.
21. Lease-Purchase of Sublessor's Personalty. Subtenant agrees to
----------------------------------------
lease from Sublessor, for a term of 61 months, certain items of Sublessor's
personal property as set forth on Exhibit D attached hereto ("Sublessor's
---------
Personalty") subject to the following terms and conditions:
-15-
(a) The total rent payable with respect to Sublessor's
Personalty shall be $201,400.00. Upon execution of this Sublease, Subtenant
shall pay an initial installment of rent for the Sublessor's Personalty in the
amount of $25,000.00. On the fifth day of each month thereafter for 60 months,
Subtenant shall pay to Sublessor monthly installments of rent for Sublessor's
Personalty in the amount of $2,940.00 each. All payments of rent for the
Sublessor's Personalty shall be payable to Sublessor as provided in section 3 of
this Sublease.
(b) Subtenant agrees to accept the Sublessor's Personalty in
"as-is" condition and Sublessor makes no representation or warranty of any kind
whatsoever as to the condition of Sublessor's Personalty or as to its
suitability for any particular purpose. Subtenant shall not remove Sublessor's
Personalty from the Subleased Premises.
(c) Subtenant agrees to maintain Sublessor's Personalty in
substantially the same condition as it exists as of the date of this Sublease,
reasonable wear and tear excepted. Subtenant agrees to assume the risk of loss
of Sublessor's Personalty until it is returned to Sublessor. Subtenant shall
maintain insurance against all risks of loss in an amount not less than the
replacement cost, and will list Sublessor as the loss payee and additional
insured. Such policy shall contain an endorsement prohibiting cancellation or a
material change in coverage without first giving Sublessor at least thirty (30)
days' prior notice. Certificates evidencing such insurance shall be delivered to
Sublessor on or before the Sublease Commencement Date and at least forty-five
(45) days prior to such policy expiration date. Failure to maintain such
insurance shall constitute a default under this Sublease.
(d) In the event Subtenant fails to make any payment under this
Sublease for Rent or otherwise, or fails to make any payment set forth in this
section with respect to rent for Sublessor's Personalty, Subtenant shall be
deemed to be in default under this Sublease and, Sublessor shall be entitled to
exercise any and all remedies set forth under Section 14 hereof.
(e) Subject to the provisions of subparagraph (f) below,
Subtenant agrees that Sublessor will have sole title to Sublessor's Personalty
during the Term, and Subtenant agrees that this is a "true lease" with respect
to Sublessor's Personalty and not one intended as security for purposes of
Section 1-201 (37) of the Uniform Commercial Code. Subtenant hereby agrees to
execute such documents, including, without limitation, UCC-1 Financing
Statements, as are necessary to evidence and perfect Sublessor's interest in
Sublessor's Personalty and Subtenant agrees to pay all actual filing fees in
connection therewith. If the provisions of this Section 21 are ever determined
to be other than a true lease, Subtenant hereby grants to Sublessor a
-16-
security interest in Sublessor's Personalty and agrees that the Financing
Statements will create a perfected security interest in Sublessor's favor. The
Sublessor's Personalty is considered personal property, and Subtenant will not
permit any liens or encumbrances to be placed against Sublessor's Personalty.
(f) Provided Subtenant is not in monetary default under this
Sublease and has made all rent payments required under this Section 21,
Sublessor agrees that Subtenant may purchase Sublessor's Personalty on August 1,
2001 for the sum of $1.00. After such purchase has been consumated, this Section
21 shall be of no further force and effect, and Sublessor agrees to release any
security interest or other lien Subtenant may have granted to Sublessor with
respect to Sublessor's Personalty.
22. Right to Relocate. At any time during the Term, Sublessor shall
-----------------
have the right, in its sole discretion, to relocate Subtenant, at Sublessor's
expense, to comparable space on the 7th floor of the Building. Such right to
relocate Subtenant shall not include any right to relocate Subtenant from the
space marked "Proposed Computer Room" on the attached Exhibit A. Sublessor
---------
agrees that any relocation shall include, without limitation, at Sublessor's
sole expense, Subtenant's phone system and phone wiring, non-computer room
computers and cabling, furnishings, alarm systems and stationary. Sublessor
shall exercise such option by delivery of written notice to Subtenant at least
sixty (60) days prior to the date Sublessor wishes to relocate Subtenant.
Following Sublessor's election to relocate, as aforesaid, Sublessor and
Subtenant shall promptly amend this Sublease in order to (i) properly identify
the Subleased Premises and the rentable square footage of the same; and (ii)
make any other changes necessary to reflect such relocation.
23. Right of First Notification Regarding Contiguous Space. In the
------------------------------------------------------
event Sublessor at any time during the Term, desires to sublease vacant space on
the seventh (7th) floor of the Building which is contiguous to the Subleased
Premises (the '-Contiguous Space"), Sublessor, prior to notification of any
third party other than Master Lessor, shall notify Subtenant in writing of such
available space, on each occasion that Sublessor desires to sublease the
Contiguous Space, provided that Subtenant is not in default under this Sublease.
If Subtenant desires to sublease the space in question, Subtenant may so notify
Sublessor, provided that neither Subtenant nor Sublessor shall have any
liability or obligation to the other regarding the Contiguous Space, including
no obligation to engage in negotiations, unless and until a mutually acceptable
written sublease covering the Contiguous Space shall be fully executed, if ever,
between Sublessor and Subtenant.
-17-
24. ERISA Representations. Subtenant agrees to be bound by the
---------------------
representations, warranties and covenants set forth in paragraph 41 of the
Master Lease attached hereto as Exhibit B.
---------
25. Quiet Enjoyment. Sublessor represents and warrants that it has
---------------
full right and authority to enter into this Sublease and that Subtenant, while
paying Rent and performing its other covenants and agreements herein set forth,
shall peaceably and quietly have, hold and enjoy the Subleased Premises for the
Term without hindrance or molestation from Sublessor or parties claiming under
or through Sublessor, subject to the terms and provisions of this Sublease.
26. Guaranty. Contemporaneously herewith, and as a condition
--------
precedent hereto, Ashton Technology Group has executed and delivered to
Sublessor a Guaranty Agreement guaranteeing all of Subtenant's obligations under
this Sublease.
27. General Provisions.
------------------
(a) The waiver by 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 Sublease.
(b) This Sublease shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(c) This 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 Sublease is declared invalid or
unenforceable, the remainder of the Sublease shall continue in full force and
effect.
(e) All notices required or permitted to be given to Sublessor
hereunder shall be hand-delivered or mailed by certified mail, return receipt
requested to Federal National Mortgage Association, Xxxxx 000, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Assistant Vice President, Regional
Finance and Resource Management, with a copy to Vice President - Counsel, 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 or to such other individual(s)
at such address(es) as Sublessor shall from time to time designate. All notices
required or permitted to be given to Subtenant hereunder shall be hand
delivered, or mailed by certified mail, return receipt requested to the
Subtenant at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 or to such
other individual at such address as Subtenant shall from time to time designate
in writing.
-18-
(f) Paragraph headings are used herein solely for reference
purposes and are not to be construed as part of this Sublease.
(g) 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.
(h) Time is of the essence under this Sublease.
(i) 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 WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the day and year first above written.
Sublessor:
ATTEST: FEDERAL NATIONAL MORTGAGE ASSOCIATION
By: /s/ Xxxxxxxx XxXxxx By: /s/ Xxxxxx Xxxxx
--------------------------- ----------------------------------
Title: Assistant Secretary Its:
[SEAL]
ATTEST: Subtenant:
UNIVERSAL TRADING TECHNOLOGIES CORP.
By: /s/ By: /s/ Xxxxxx Xxxxxx
--------------------------- ----------------------------------
Title: Secretary Its: President
[SEAL]
-19-
