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EXHIBIT 10.18
SUBLEASE
Between
XXXXXXXXXXX FINANCIAL SERVICES, INC.,
as Sublessor
and
THE XXXXXXXXXXX TRUST COMPANY,
as Sublessee
Premises: The Public Areas and Certain Areas Located on the First
and Fourth Floors
Building No. Two of Radnor Corporate Center
000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
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TABLE OF CONTENTS
Section
1. Demised Premises............................................................................. 1
2. Term......................................................................................... 2
3. Rent......................................................................................... 3
4. Use.......................................................................................... 4
5. Master Leases................................................................................ 5
6. Services..................................................................................... 6
7. Alterations and Repairs...................................................................... 7
8. Insurance.................................................................................... 8
9. Assignment, Subletting and Encumbrances...................................................... 8
10. Default...................................................................................... 9
11. Indemnification.............................................................................. 10
12. Remedies Cumulative.......................................................................... 11
13. Quiet Enjoyment.............................................................................. 11
14. Release...................................................................................... 11
15. Surrender of Premises........................................................................ 12
16. Notices...................................................................................... 12
17. Landlord's Consent Required.................................................................. 13
18. Time Limits.................................................................................. 14
19. Miscellaneous................................................................................ 15
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SUBLEASE
SUBLEASE, dated as of August 31, 1997, between XXXXXXXXXXX FINANCIAL
SERVICES, INC., a Delaware corporation having an xxxxxx xx Xxx Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000-0000 ("Sublessor"), and THE XXXXXXXXXXX
TRUST COMPANY, a trust company and commercial bank organized under the laws of
the Commonwealth of Pennsylvania, having an xxxxxx xx Xxx Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000-0000 ("Sublessee").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Radnor Corporate Center Office and
Storage Space Leases, dated June 27, 1996, between Radnor Center Associates
("Landlord"), as Landlord and Sublessor, as Tenant, as amended by that certain
Amendment to Lease, dated December 21, 1996 (as may be further amended,
modified, renewed, extended or otherwise supplemented from time to time, the
"Master Office Lease"), Landlord has leased to Sublessor certain public areas
and certain other space located on the fourth floor of the building (the
"Building") known as, and located at, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx
00000, all as more particularly described in the Master Office Lease; and
WHEREAS, pursuant to that certain Storage Space Lease, dated December 21,
1996, between Landlord, as Landlord and Sublessor, as Tenant (as amended,
modified, renewed, extended or otherwise supplemented from time to time, the
"Master Storage Lease"), Landlord has leased to Sublessor certain space located
on the first floor of the Building, as more particularly described in the
Master Storage Lease (the Master Office Lease and the Master Storage Lease each
being referred to herein as a "Master Lease" and collectively as the "Master
Leases"); and
WHEREAS, Sublessor desires to sublet to Sublessee, and Sublessee desires to
hire from Sublessor, a portion of the premises, facilities and property demised
under the Master Leases, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
provided, Sublessor and Sublessee hereby agree as follows:
1. DEMISED PREMISES.
1.1. Sublessor hereby sublets to Sublessee, and Sublessee hereby sublets
and hires from Sublessor, (i) that portion of the premises, facilities and
property leased or subleased by Sublessor pursuant to the Master Office Lease
as set forth on the attached Exhibit A, representing the portion of such
premises, facilities and property occupied by Sublessee as of the date hereof
(the "Master Office Subleased Area"), and (ii) that portion of the premises,
facilities and property leased or subleased by Sublessor pursuant to the Master
Storage Lease as set forth on the attached Exhibit B, representing the portion
of such premises, facilities and property occupied by Sublessee as of the date
hereof (the "Master Storage Subleased Area"; the Master Office Subleased Area
and the Master Storage Subleased Area are collectively, the "Exclusive
Prem-
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ises"), for the sublease term hereinafter stated and for the Base Rent and
Additional Rent (as hereinafter defined) set forth herein, upon and subject to
all of the terms and provisions hereinafter provided or incorporated in this
Sublease by reference.
1.2. Sublessee and its agents, employees and invitees, shall additionally
have the right to use, in a proper and lawful manner, (i) the common sidewalks,
(ii) access roads, (iii) parking areas and other outdoor areas within the
Corporate Center (as defined in the Master Office Lease), (iv) the common
entranceways, (v) lobbies and elevators furnishing access to the Exclusive
Premises, and (if the Exclusive Premises includes less than a full floor) (vi)
the common lobbies, hallways and toilet rooms on the floor on which the
Exclusive Premises is located (clauses (i) through (vi) above are collectively,
the "Common Facilities", and the Exclusive Premises and the Common Facilities
shall hereinafter be collectively, the "Premises"), all to the extent that
Sublessor has such rights to the Common Facilities as set forth in Section 1.3
of the Master Office Lease. Such use of the Common Facilities shall be subject
to the terms of this Sublease and to the Master Leases, and to such reasonable
rules, regulations, limitations and requirements as each of Landlord and
Sublessor may from time to time prescribe with respect thereto.
1.3. Sublessee agrees to accept the Premises on the Commencement Date (as
hereinafter defined) in its "as is" condition and Sublessor shall not be
obligated to perform any work or furnish any materials in, to or about the
Premises in order to prepare the Premises for occupancy by Sublessee or
otherwise. Sublessee hereby releases Sublessor from any and all liability
resulting from (i) any latent or patent defects in the Premises, (ii) the
failure of the Premises to comply with any legal requirements applicable
thereto or (iii) the status of the title to the Premises. Sublessee
acknowledges that, except as expressly set forth herein, Sublessor has made no
statements, representations, covenants or warranties with respect to (x) the
condition or manner of construction of the Building or any improvements
constructed in the Premises, (y) the uses or purposes for which the Premises
may be lawfully occupied or (z) any encumbrances, covenants, restrictions or
agreements affecting title to the Building or the Premises. Sublessee also
agrees that, in executing this Sublease, it has not relied upon or been induced
by any statements, representations, covenants or warranties of any person other
than those, if any, set forth expressly in this Sublease.
2. TERM.
2.1. The term of this Sublease shall commence as of 12:00 a.m. on September
1, 1997 (the "Commencement Date") and, unless earlier terminated or extended as
herein provided, shall expire on November 29, 2002. As used in the Sublease,
(i) "Term" shall mean the term of this Sublease, and (ii) "Expiration Date"
shall mean November 29, 2002; provided that (A) in no event shall the
Expiration Date occur later than 11:59 p.m. on the day immediately preceding
the expiration of the term of any unexpired Master Lease (as such term may be
extended pursuant to the Master Leases), and (B) in the event of a termination
of this Sublease pursuant to the terms hereof prior to a scheduled Expiration
Date, the "Expiration Date" shall mean such date of termination of this
Sublease.
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2.2. Notwithstanding anything to the contrary in this Sublease, the Term of
this Sublease shall be immediately terminated if the Term of any Master Lease
is terminated for any reason prior to the scheduled Expiration Date hereof.
2.3. References in this Sublease to the "termination" of this Sublease
include the stated expiration of the Term and any earlier termination thereof
pursuant to the provisions of this Sublease, the Master Leases or by any
applicable law. Except as otherwise expressly provided in this Sublease with
respect to those obligations of Sublessee which by their nature or under the
circumstances can only be, or under the provisions of this Sublease may be,
performed after the termination of this Sublease, the Term and estate granted
hereby shall end at noon on the date of termination of this Sublease as if such
date were the Expiration Date, and neither party shall have any further
obligation or liability to the other after such termination. Notwithstanding
the foregoing, any liability of Sublessor or Sublessee to make any payment
under this Sublease, including, without limitation, amounts payable by
Sublessee as Base Rent or Additional Rent hereunder (both as hereinafter
defined), which shall have accrued prior to the termination of this Sublease
shall survive the termination of this Sublease.
3. RENT.
3.1. The rent ("Rent") payable during the Term under this Sublease shall
consist of the following:
(a) base rent ("Base Rent") in an amount equal to the percentage calculated
by dividing the Master Office Subleased Area by the square footage of the total
space leased by Sublessor pursuant to the Master Office Lease (the "Master
Office Lease Percentage") of any minimum rent, increases in minimum rent and
any other fees, charges and amounts payable by Sublessor, as tenant, to
Landlord pursuant to Section 3 of the Master Office Lease, and the percentage
calculated by dividing the Master Storage Subleased Area by the square footage
of the total space leased by Sublessor pursuant to the Master Storage Lease
(the "Master Storage Lease Percentage") of any minimum rent, increases in
minimum rent and any other fees, charges and amounts payable by Sublessor, as
tenant, to Landlord pursuant to Section 2 of the Master Storage Lease (the term
"Sublease Percentage" shall hereinafter be used to collectively refer to (i)
the Master Office Lease Percentage with respect to that portion of the Premises
being leased by Sublessor pursuant to the Master Office Lease, and (ii) the
Master Storage Lease Percentage with respect to that portion of the Premises
being leased by Sublessor pursuant to the Master Storage Lease), which amounts
described in this Section 3.1(a) shall be payable and calculated on a monthly
basis and shall be payable by Sublessee to Sublessor. In the event that the
size of the premises leased by Sublessor pursuant to the Master Office Lease
and/or the size of the premises leased by Sublessor pursuant to the Master
Storage Lease are expanded, decreased or otherwise altered, the Master Office
Lease Percentage and the Master Storage Lease Percentage (as applicable) shall
be recalculated as follows: (i) with respect to any alteration in the size of
the premises leased by Sublessor pursuant to the Master Office Lease, by
dividing the Master Office Subleased Area by the square footage of the total
space leased by Sublessor pursuant to the Master Office Lease as so altered,
and (ii) with respect to any alteration in the size of the premises leased by
Sublessor pursuant to the Master Storage Lease, by dividing the Master Storage
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Subleased Area by the square footage of the total space leased by Sublessor
pursuant to the Master Storage Lease as so altered;
(b) additional rent ("Additional Rent") in an amount equal to (i) the
Sublease Percentage of Tenant's Share of Taxes and Operating Expenses (as such
term is defined in the Master Leases), payable and calculated at such times, in
the manner and in accordance with the terms and provisions of Section 4 of the
Master Office Lease and Section 14 of the Master Storage Lease, including,
without limitation, payment of the Sublease Percentage of Tenant's Estimated
Share (as such term is defined in the Master Leases) on the first day of each
calendar month, (ii) The Sublease Percentage of any and all other sums payable
by Sublessor to Landlord under the Master Leases, and (iii) any and all other
sums payable by Sublessee to Sublessor under this Sublease.
3.2. Base Rent shall be payable by Sublessee on the first day of each
calendar month in an amount, calculated in accordance with Section 3.1(a)
above. Additional Rent shall be payable by Sublessee at such times provided for
under Section 3.1(b) above. The Base Rent and Additional Rent shall be paid by
Sublessee to Sublessor at the office of Sublessor set forth above or such other
place as Sublessor may designate, without prior notice or demand therefor and
without any abatement, deduction or setoff. Sublessor may at any time and from
time to time by notice direct Sublessee to pay all or any portion of the Base
Rent and Additional Rent described in Section 3.1 on Sublessor's behalf
directly to the Landlord at such address as Sublessor may at any time and from
time to time direct.
3.3. Sublessee shall pay all Rent when due, in lawful money of the United
States which shall be legal tender for the payment of all debts, public and
private, at the time of payment. All sums due and payable as Rent shall from
and after three (3) days of the due date thereof bear interest at the higher of
(i) 5% above the prime rate published in the Wall Street Journal, if available
(and if not available, then such comparable substitute rate as may be selected
by Sublessor), from time to time, and (ii) the maximum legal rate of interest
permitted from time to time under law to be charged, provided, however, that no
further interest shall be payable upon such interest. All interest accrued
under this subsection as hereinabove provided shall be deemed to be Additional
Rent payable hereunder and due at such time or times as the rent with respect
to which such interest shall have accrued shall be payable under this Sublease.
4. USE.
4.1. Sublessee shall occupy and use (i) the premises leased to Sublessor by
Landlord pursuant to the Master Office Lease only for the uses permitted under
the Master Office Leases and for no other purpose, and (ii) the premises leased
to Sublessor by Landlord pursuant to the Master Storage Lease only for the uses
permitted under the Master Storage Lease and for no other purpose, and
Sublessee shall otherwise occupy and use the Premises in all respects only as
permitted under the terms and provisions of this Sublease and each of the
Master Leases, and in accordance with any and all laws, statutes, ordinances,
orders, regulations and requirements of all federal, state and local
governmental, public or quasi-public authorities, whether now or hereafter in
effect, which may be applicable to or in any way affect the Building or the
Premises or
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any part thereof and all requirements, obligations and conditions of all
instruments of record on the date of this Sublease affecting the Building or
the Premises (collectively, "Legal Requirements").
5. MASTER LEASES.
5.1. This Sublease and all of Sublessee's rights hereunder are and shall
remain in all respects limited by, and subject and subordinate to (i) all of
the terms and provisions of the Master Leases, true and complete copies of
which have been delivered to and reviewed by Sublessee, including, without
limitation, the rules and regulations listed on Exhibit E attached to the
Master Office Lease, (ii) any and all amendments to the Master Leases or
supplemental agreements relating thereto hereafter made between Landlord and
Sublessor, provided that such amendments or supplemental agreements shall have
been made in accordance with Section 5.4 hereof, and (iii) any and all matters
to which the tenancy of Sublessor, as tenant under the Master Leases, is or may
be subordinate. Sublessee shall in no case have any rights under this Sublease
greater than Sublessor's rights as tenant under the Master Leases, and
Sublessee hereby assumes all of Sublessor's obligations as Tenant under the
Master Leases, insofar as such obligations pertain to the Premises. The
foregoing provisions shall be self-operative and no further instrument shall be
necessary to effectuate such provisions unless required by Landlord or
Sublessor, in which event Sublessee shall, upon demand by Landlord or Sublessor
at any time and from time to time, execute, acknowledge and deliver to
Sublessor and Landlord any and all such instruments that Sublessor or Landlord
may reasonably require regarding such subordination.
5.2. Sublessee agrees that it shall neither act, nor omit to act, in such a
manner as to result in a default under the Master Leases, provided that in no
event shall Sublessee be responsible for acts and omissions of Sublessor or
Sublessor's agents, employees or contractors. Except as otherwise specifically
provided in this Sublease, (i) all of the terms, covenants, conditions and
agreements which Sublessor is required to observe or perform with respect to
the Premises as Tenant under the Master Leases are hereby incorporated herein
by reference and Sublessee shall observe and perform all of such terms,
covenants, conditions and agreements insofar as such terms, covenants,
conditions and agreements pertain to the Premises, as if such terms, covenants,
conditions and agreements were set forth herein at length, and (ii) Sublessor
may exercise all of the rights, powers, privileges and remedies reserved to
Landlord under the Master Leases to the same extent as if fully set forth
herein at length, including, without limitation, all rights and remedies
arising out of or with respect to any default by Sublessee in the payment of
Rent hereunder or the observance or performance of the terms, covenants,
conditions and agreements of this Sublease and the Master Leases.
Notwithstanding the foregoing, any inconsistencies between the terms of the
Master Leases incorporated by reference hereunder and the other terms of this
Sublease shall be resolved in favor of such other terms of this Sublease,
provided, however, that if such construction of terms would cause Sublessor to
be in default under the terms of the Master Leases, then such inconsistency
shall be resolved in favor of the Master Leases.
5.3. Sublessor agrees that it shall neither act, nor omit to act, in such a
manner as to result in a default under the Master Leases, provided that in no
event shall Sublessor be re-
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sponsible for acts and omissions of Sublessee or Sublessee's agents, employees
or contractors. Provided that Sublessee is not then in default under the terms
of this Sublease beyond any applicable grace periods, Sublessor agrees that,
during the Term hereof, without the prior written consent of Sublessee,
Sublessor will not consent to a termination of the Master Leases (to the extent
that Sublessor's consent is required pursuant to the Master Leases) or amend or
modify the Master Leases in any way which would materially reduce, materially
interfere with or otherwise materially impair any rights, powers or remedies of
Sublessee, decrease in any material respect the obligations of Landlord or
Sublessor which, under the terms of this Sublease, run to the benefit of
Sublessee or increase the monetary obligations of Sublessee (unless required by
Landlord as a condition to Landlord consenting to this Sublease) or increase in
any material respect any other obligations of Sublessor for which Sublessee is
responsible hereunder.
5.4. Sublessee hereby acknowledges that pursuant to Section 23 of the
Master Office Lease, Landlord may require Sublessor under certain circumstances
described therein either to elect to relocate from the premises being leased
pursuant to the Master Office Lease to other premises of comparable size within
the Corporate Center (as defined in the Master Office Lease), or to terminate
the Master Office Lease in lieu of agreeing to such relocation. Nothing in this
Sublease is intended or shall be construed to limit Sublessor's ability to make
such election using its sole and absolute discretion. Sublessor shall notify
Sublessee of its receipt of the Relocation Notice (as described in the Master
Lease) within three (3) days after receipt thereof. Sublessor shall notify
Sublessee in writing within thirty (30) days after receipt of the Relocation
Notice as to whether Sublessor shall elect to relocate to such premises or
terminate the Master Office Lease. If Sublessor elects to relocate to such
premises, upon such relocation Sublessor shall sublease a portion of such new
premises to Sublessee (which new premises shall be of reasonably comparable
size to the Premises and which shall be located within the Corporate Center).
Use and occupancy by Sublessee of the new premises shall be under and pursuant
to the same terms, conditions and provisions of this Sublease (provided that
the Master Office Lease Percentage and the Master Storage Lease Percentage are
adjusted accordingly pursuant to Section 3.1(a) hereof), and Sublessee shall
execute any and all amendments to this Sublease as Sublessor shall deem
necessary to effectuate the provisions of this Section 5.5. Sublessor shall, to
the extent Sublessor receives reimbursement for such expenses from Landlord
pursuant to Section 23 clauses (i) through (iii) of the Master Office Lease,
pay such expenses of Sublessee in connection with any such relocation as are
enumerated in said Section 23 clauses (i) through (iii). If Sublessor elects to
terminate this Sublease, this Sublease shall terminate at 11:59 p.m. on the day
immediately preceding the termination of the Master Office Lease or the
relocation of such Premises, pursuant to Section 23 of the Master Office Lease.
6. SERVICES.
6.1. (a) Except as otherwise specifically provided in this Sublease,
Sublessee shall be entitled during the Term to receive all services, utilities,
repairs and facilities which Landlord is required to provide pursuant to the
Master Leases, insofar as such services, utilities, repairs and facilities
pertain to the Premises.
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(b) Notwithstanding any provision to the contrary contained herein,
Sublessor shall not be liable, nor shall Sublessee's obligations under this
Sublease be impaired or the performance thereof excused, as a consequence of
Landlord's failure or delay in the performance of any of its obligations under
the Master Leases.
(c) If Landlord shall default in any of its obligations to Sublessor with
respect to the Premises or shall breach any of its representations or
warranties affecting the Premises, Sublessor, at Sublessee's request, shall use
all reasonable efforts to endeavor to cause Landlord to perform Landlord's
obligations under the Master Leases and, in addition, Sublessee shall be
entitled to participate, in a manner mutually agreed upon by the parties (each
in the exercise of its reasonable discretion) with Sublessor in the enforcement
of Sublessor's rights against Landlord. Any out-of-pocket costs and expenses
incurred by Sublessor in connection with the foregoing shall be reimbursed by
Sublessee promptly following notice thereof from Sublessor.
(d) The provisions of this Section 6 shall survive the expiration or
earlier termination of this Sublease.
7. ALTERATIONS AND REPAIRS.
7.1. Sublessee shall make no alterations, installations, additions or
improvements (collectively, "Alterations") in or about the Premises without the
prior written consent of Sublessor in each instance, which consent shall not be
unreasonably withheld for nonstructural interior alterations provided that
Sublessee complies with all of the provisions of the Master Leases, including,
without limitation, the provisions requiring (i) Landlord's prior written
consent, (ii) the deliverance to Landlord of reasonably detailed plans and
specifications, and (iii) that the Alterations be performed in a good and
workmanlike manner and otherwise comply with all Governmental Requirements (as
defined in the Master Office Lease), such other reasonable requirements of
Sublessor, and be performed in strict compliance with Landlord's requirements
set forth in Exhibit F of the Master Office Lease. Any Alterations consented to
by Sublessor shall be performed by Sublessee, at its sole cost and expense, and
upon termination of the Term shall be removed without damage to the Premises
upon surrender.
7.2. Sublessor shall have no obligations whatsoever to Sublessee to make
any repairs or Alterations in the Premises to any systems serving the Premises
or to any equipment, fixtures or furnishings in the Premises, or to comply with
any violations of law with respect thereto, or to restore the Premises in the
event of a fire or other casualty therein or to perform any other duty with
respect to the Premises which Landlord is required to perform under the Master
Leases. Notwithstanding the foregoing, if Landlord shall default on any of its
obligations to Sublessor under the Master Leases with respect to the Premises,
Sublessor, at Sublessee's request, shall use all reasonable efforts to endeavor
to cause Landlord to perform Landlord's obligations under the Master Leases
and, in addition, Sublessee shall be entitled to participate, in a manner
mutually agreed upon by the parties (each in the exercise of its reasonable
discretion) with Sublessor in the enforcement of Sublessor's rights against
Landlord. Any out-of-pocket costs and expenses incurred by Sublessor in
connection with the foregoing shall be reimbursed by Sublessee promptly
following notice thereof from Sublessor.
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8. INSURANCE.
8.1. Sublessee, at Sublessee's sole expense, shall maintain for the benefit
of Sublessor and Landlord such policies of insurance (and in such form) as are
required by the Master Leases with respect to the Premises which shall be
reasonably satisfactory to Sublessor and which shall contain such coverage
amounts equal to the Sublease Percentage of such coverage amounts as are
provided for under Section 9.3 of the Master Office Lease and which shall
otherwise contain terms and provisions as are set forth in said Section 9.3
(including, without limitation, the requirement that such policies shall not be
cancellable without at least thirty (30) days prior written notice to
Landlord), provided, however, that all terms and provisions contained in said
Section 9.3 which run to the benefit of Landlord shall be required herein to be
made to, and shall run to the benefit of both Landlord and Sublessor. Each such
policy shall name Landlord, Landlord's agent and Sublessor as an additional
insured.
8.2. Each party hereto hereby waives any and every claim which arises or
which may arise in its favor and the other party hereto during the Term for any
and all loss of, or damage to, any of its property located within or upon or
constituting a part of the Building, to the extent that such loss or damage is
recovered under an insurance policy or policies and to the extent such policy
or policies contain provisions permitting such waiver of claims. Each party
agrees to request its insurers to issue policies containing such provisions and
if any extra premium is payable therefor, the party which would benefit from
the provision shall have the option to pay such additional premium in order to
obtain such benefit as to coverage.
9. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
9.1. Sublessee shall not assign, sell, transfer, pledge, mortgage or
encumber this Sublease or further sublet all or any portion of the Premises or
grant to any third party any use or occupancy rights with respect to the
Premises, without first obtaining Sublessor's prior written consent thereto,
which consent may be granted, withheld or conditioned in Sublessor's sole and
absolute discretion, and which consent, if given, will not release Sublessee
from its obligations hereunder, except as provided for in Section 14.2 hereof,
and will not be deemed a consent to any further subletting or assignment. Not
in any way in limitation of the foregoing, Sublessor may withhold its consent
to any proposed assignment by Sublessee of this Sublease if Sublessor in its
sole and absolute discretion determines that any such proposed assignee has a
net worth or has available liquidated assets or otherwise has a financial
capacity which is insufficient for such proposed assignee to meet its
obligations (contingent or otherwise) under this Sublease (including, but not
limited to, such sections of the Master Leases which are incorporated herein by
reference). Sublessee shall provide Sublessor with any financial information of
such proposed assignee as may be requested by Sublessor in making its
determination hereunder.
9.2. If Sublessee is a corporation, any sale, assignment, transfer, pledge
or other disposition of the capital stock of such corporation, whether pursuant
to a single transaction or pursuant to a series of related or unrelated
transactions, or any merger, consolidation, liquidation or other transfer by
operation of law or otherwise, resulting in any such case in a change in the
effective voting control of Sublessee as it exists on the date hereof, or if
Sublessee is a part-
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nership, any sale, assignment, transfer, pledge or other disposition of a
controlling interest in such partnership whether pursuant to a single
transaction or pursuant to a series of related or unrelated transactions, or
the admission of additional general partners, resulting in any such case in a
change in the effective control of Sublessee as it exists on the date hereof,
shall be deemed to constitute an assignment of this Sublease. Notwithstanding
the foregoing, Sublessee may, without the consent of Sublessor, transfer any
and all of its stock to "Permitted Transferees" as defined in the Inter-Company
Agreement, dated as of the date hereof, between Sublessee and Sublessor.
9.3. If Sublessor assigns, sells or transfers this Sublease, or further
subleases or assigns a Material Portion (as defined below) of the premises
leased by it (other than the Premises) pursuant to the Master Leases, Sublessee
shall, within thirty (30) days of Sublessee's receipt of notice from Sublessor
of such assignment, sale or transfer, have the right to terminate this Sublease
by providing Sublessor with thirty (30) days' written notice of such
termination. For purposes hereof, a "Material Portion" shall mean thirty-five
percent (35%) or more.
10. DEFAULT.
10.1. Each of the following shall constitute an event of default by
Sublessee under this Sublease, upon the occurrence of any such event of default
Sublessor shall have, without need of any notice, the rights and remedies
contained hereunder for events of default: (i) the commencement of levy,
execution or attachment proceedings against Sublessee, any principal (which
shall be defined as any individual or entity having a direct or indirect
ownership interest in Sublessee of more than 25%) thereof or any partner
therein or any surety or guarantor thereof (hereinafter a "Surety") or any of
the assets of Sublessee, or the application for or appointment of a liquidator,
receiver, custodian, sequester, conservator, trustee, or other similar judicial
officer; or (ii) the insolvency, under either the bankruptcy or equity
definition, of Sublessee or any principal thereof or partner therein or any
Surety; or (iii) the assignment for the benefit of creditors, or the admission
in writing of an inability to pay debts generally as they become due, or the
ordering of the winding-up or liquidation of the affairs of Sublessee or any
principal thereof or partner therein or any Surety; or (iv) the commencement of
a case by or against Sublessee or any principal thereof or partner therein or
any Surety under any insolvency, bankruptcy, creditor adjustment, debtor
rehabilitation or similar laws, state or federal, or the determination by any
of them to request relief under any insolvency, bankruptcy, creditor
adjustment, debtor rehabilitation or similar proceeding, state or federal,
including, without limitation, the consent by any of them to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequester or similar official for it or for any of its respective property or
assets (unless, in the case of involuntary proceedings, the same shall be
dismissed within thirty (30) days after institution).
10.2. If Sublessee shall fail to take possession of the Premises on the
Commencement Date, or if Sublessee fails to pay Rent or any other sums payable
to Sublessor hereunder when due and such default shall continue for three (3)
days after it is due, or if Sublessee shall fail to perform or observe any of
the other covenants, terms or conditions contained in this Sublease or in the
Master Leases within ten (10) days (or such longer period as is reasonably
re-
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quired to correct any such default, provided Sublessee promptly commences and
diligently continues to effectuate a cure, but in any event within twenty (20)
days) after written notice thereof by Sublessor, provided, however, that
Sublessor shall not be required to give any such notice more than once within
any twelve (12) month period, and provided that the events hereinafter
enumerated shall be deemed events of default under this Sublease without any
notice, grace or cure period: (a) if any of the events occur that are specified
in Section 10.1 above, or (b) if Sublessee fails to take actual bona-fide
occupancy of the Premises or manifests an intention not to take actual,
bona-fide occupancy of the Premises, or if Sublessee vacates or abandons the
Premises during the term hereof or removes or manifests an intention to remove
any of Sublessee's goods or property therefrom other than in the ordinary and
usual course of Sublessee's business, or (c) if any corporate surety or
guarantor of this Sublease merges with another entity, or liquidates or
dissolves or changes control or if any surety or guarantor of this Sublease
fails to comply with all of the provisions of its suretyship or guaranty
agreement, then, and in any of such cases (notwithstanding any former breach of
covenant or waiver thereof in a former instance) (each of the foregoing an
"Event of Default"), Sublessor, in addition to all other rights and remedies
available to it by law or equity or by any other provisions hereof, shall have
the same rights and remedies with respect to such default as are given to
Landlord under the Master Leases with respect to defaults by Sublessor under
the Master Leases, all with the same force or effect as though the provisions
of the Master Leases with respect to defaults and the rights and remedies of
Landlord thereunder in the event thereof were set forth at length herein.
11. INDEMNIFICATION.
11.1. Sublessee shall indemnify and hold harmless Sublessor, its affiliates
and the respective employees, agents, shareholders, officers and directors of
each of the foregoing, from and against any and all loss, cost, liability,
claims, damage and expenses, including, without limiting the generality of the
foregoing, reasonable attorneys' fees and expenses and court costs, penalties
and fines, whether or not due to third party claims, suits or proceedings,
incurred in connection with or arising from (i) any default by Sublessee in the
observance or performance of, or compliance with, any of the terms, covenants
or conditions of this Sublease or the terms of the Master Leases incorporated
herein on Sublessee's part to be observed, performed or complied with, (ii) any
acts, omissions or negligence of Sublessee or any of its agents, employees or
contractors, in or about the Premises or the Building either prior to, during,
or after the termination of this Sublease (including, without limitation, any
such acts, omissions or negligence relating to, or arising in connection with,
Sublessee's use or occupancy of the Premises), or (iii) the condition of the
Premises. If any action or proceeding shall be brought against Sublessor by
reason of any such claim, Sublessee shall be given prompt notice thereof and,
upon notice from Sublessor, shall resist and defend such action or proceeding
at Sublessee's sole expense and employ counsel therefor reasonably satisfactory
to Sublessor. Sublessee shall pay to Sublessor on demand all sums which may be
owing to Sublessor by reason of the provisions of this subsection. Sublessee's
obligations under this subsection shall survive the Expiration Date or earlier
termination of this Sublease.
11.2. Sublessor shall indemnify and hold harmless Sublessee, its affiliates
and the respective employees, agents, shareholders, officers and directors of
each of the foregoing,
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from and against any and all loss, cost, liability, claims, damage and
expenses, including, without limiting the generality of the foregoing,
reasonable attorneys' fees and expenses and court costs, penalty and fines,
whether or not due to third party claims, suits or proceedings (collectively,
"Losses", and each a "Loss"), incurred in connection with or arising from (i)
any default by Sublessor in the observance or performance of, or compliance
with, any of the terms, covenants or conditions of this Sublease on Sublessor's
part to be observed, performed or complied with, (ii) any default by Sublessor
in the observance or performance of, or compliance with, any of the terms,
covenants or conditions of the Master Leases on Sublessor's part to be
observed, performed or complied with which default results in a Loss incurred
by Sublessee under the Lease Guarantee executed by Sublessee and guaranteeing
Sublessor's performance under the Master Leases, or (iii) any acts, omissions
or negligence of Sublessor or any of its agents, employees or contractors, in
or about the Premises or the Building either prior to, during, or after the
termination of this Sublease. If any action or proceeding shall be brought
against Sublessee by reason of any such claim, Sublessor shall be given prompt
notice thereof and, upon notice from Sublessee, shall resist and defend such
action or proceeding at Sublessor's sole expense and employ counsel therefor
reasonably satisfactory to Sublessee. Sublessor shall pay to Sublessee on
demand all sums which may be owed to Sublessee by reason of the provisions of
this subsection. Sublessor's obligations under this subsection shall survive
the Expiration Date or earlier termination of this Sublease.
11.3. Notwithstanding anything herein to the contrary, nothing in Sections
11.1, 11.2 and 11.3 hereof shall require either party to indemnify any person
(an "indemnitee") against the indemnitee's own negligence or wilful misconduct.
12. REMEDIES CUMULATIVE.
12.1. Each right and remedy of Sublessor under this Sublease shall be
cumulative and be in addition to every other right and remedy of Sublessor
under this Sublease and now or hereafter existing at law or in equity, by
statute or otherwise.
13. QUIET ENJOYMENT.
13.1. Sublessor covenants that, as long as Sublessee shall pay the Base
Rent and Additional Rent and all other amounts Sublessee shall be required to
pay hereunder and shall duly observe, perform and comply with all of the terms,
covenants and conditions of this Sublease on its part to be observed, performed
or complied with, Sublessee shall, subject to all of the terms of the Master
Leases and this Sublease, peaceably have, hold and enjoy the Premises during
the Term without molestation or hindrance by Sublessor.
14. RELEASE.
14.1. In the event of any transfer or transfers of the tenant's interest in
the Master Leases, Sublessor herein named (and in case of any subsequent
transfer or conveyance, the then transferor of the tenant's interest in the
Master Leases) shall be automatically freed and relieved of all liability with
respect to the performance of any covenants or obligations on the part
14
of Sublessor contained in this Sublease, to the extent that the performance of
any such covenants or obligations are assumed by the transferee thereunder.
14.2. In the event of any permitted transfer or transfers of Sublessee's
interest in this Sublease pursuant to and in compliance with the provisions of
Section 9 hereof, Sublessee herein named (and in case of any subsequent
permitted transfer or conveyance pursuant to and in compliance with the
provisions of Section 9 hereof, the then transferor of Sublessee's interest in
this Sublease) shall be automatically freed and relieved of all liability with
respect to the performance of any covenants or obligations on the part of
Sublessee contained in this Sublease, to the extent that the performance of any
such covenants or obligations are assumed by the transferee thereunder.
15. SURRENDER OF PREMISES.
15.1. Sublessee shall, no later than the termination of this Sublease and
in accordance with all of the terms of this Sublease and the Master Leases,
vacate and surrender to Sublessor the Premises, together with all Alterations,
in good order, condition and repair, and broom clean, reasonable wear and tear
excepted. Sublessee's obligation to observe or perform this covenant shall
survive the termination of this Sublease.
16. NOTICES.
16.1. Except as may otherwise be provided in this Sublease, all notices,
demands, statements, requests, consents, approvals and other communications
(collectively, "Notices") required or permitted to be given hereunder, or which
are to be given with respect to this Sublease, shall be in writing, duly
executed by an authorized officer or agent of the party so giving such Notice,
and either personally delivered to any duly authorized representative of the
party receiving such Notice or sent by facsimile transmission, registered or
certified mail, or by courier service, return receipt requested, addressed:
If to Sublessor, to:
Xxxxxxxxxxx Financial Services, Inc.
Two Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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With a copy to:
The Xxxx Nuveen Company
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
If to Sublessee, to:
The Xxxxxxxxxxx Trust Company
Two Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
All Notices shall be effective for all purposes upon personal delivery thereof
or, if sent by facsimile transmission, shall be effective on the date of
transmission duly shown on the confirmation slip, or, if sent by mail or air
freight or courier service, shall be effective on the date of delivery duly
shown on the return receipt. Any party may at any time change the addresses for
Notices to such party by providing a Notice in the manner set forth in this
Section 16.
17. LANDLORD'S CONSENT REQUIRED.
17.1. (a) This Sublease shall be of no force or effect unless and until
Sublessor shall have (i) obtained Landlord's written consent to this Sublease
and delivered to Sublessee an executed copy of such consent, executed by
Landlord, Sublessor and Sublessee, and (ii) have otherwise complied with the
requirements for subleasing provided for in Section 7 of the Master Office
Lease.
(b) Whenever in this Sublease the consent or approval of Sublessor is
required for any act or thing and the consent or approval of Landlord is
required under the Master Leases
16
for the same act or thing, if Sublessor is required or willing to give its
consent or approval to Sublessee when such consent or approval is required
hereunder, Sublessor agrees that it will promptly forward Sublessee's request
for such a consent or approval to Landlord. If Sublessor is required or has
determined to give its consent or approval, Sublessor shall cooperate
reasonably with Sublessee in endeavoring to obtain Landlord's consent or
approval (including commencing and prosecuting an appropriate legal action if,
in Sublessor's judgment, Landlord wrongfully withholds or delays its approval
or consent) upon and subject to the following terms and conditions: (i)
Sublessee shall reimburse Sublessor for any out-of-pocket costs incurred by
Sublessor in connection with seeking such consent or approval, (ii) Sublessor
shall not be required to make any payments to Landlord or to enter into any
agreements or to modify the Master Leases or this Sublease in order to obtain
any such consent or approval and (iii) if Sublessee agrees or is otherwise
obligated to make any payments to Sublessor or Landlord in connection with such
request for such consent or approval, Sublessee shall have made arrangements
for such payments which are satisfactory to Sublessor. Except as hereinafter
expressly provided, nothing contained in this Section 17 shall be deemed to
require Sublessor to give any consent or approval because Landlord has given
such consent or approval. Whenever either party to this Sublease expressly
agrees not to unreasonably withhold its consent, such consent shall also not be
unreasonably delayed or conditioned.
18. TIME LIMITS.
18.1. Except with respect to actions to be taken by Sublessee for which
time limits are specifically set forth in this Sublease, which time limits
shall control for the purposes of this Sublease, the time limits provided in
the Master Leases for the giving or making of any Notice by Sublessor to
Landlord insofar as such Notices pertain to the Premises, or for the
performance of any act, condition or covenant by Sublessor thereunder insofar
as such act, condition or covenant by Sublessor pertains to the Premises, or
for the exercise of any right, remedy or option by Sublessor thereunder insofar
as such right, remedy or option by Sublessor pertains to the Premises, are
changed for the purposes of this Sublease, by shortening the same in each
instance by three (3) days, so that any Notice may be given or made, or any
act, condition or covenant performed, or option hereunder exercised, by
Sublessor within the time limit relating thereto contained in the Master
Leases.
18.2. Except with respect to actions to be taken by Sublessor for which
longer time limits are specifically set forth in this Sublease, which time
limits shall control for the purposes of this Sublease, the time limits
provided in the Master Leases for the giving or making of any Notice by
Landlord insofar as such Notices pertain to the Premises, or the performance of
any act, covenant or condition by Landlord thereunder insofar as such act,
covenant or condition by Landlord pertains to the Premises, or the exercise of
any right, remedy or option by Landlord thereunder insofar as such right,
remedy or option by Landlord pertains to the Premises are changed for the
purposes of this Sublease, by lengthening the same in each instance by three
(3) days, so that any Notice may be given or made, or any act, condition or
covenant performed or option hereunder exercised by Landlord within the number
of days respectively set forth above, after the time limits relating thereto
contained in the Master Leases.
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19. MISCELLANEOUS.
19.1. This Sublease shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania without regard to the
conflicts of law principles thereof.
19.2. The section headings in this Sublease and the table of contents are
inserted only as a matter of convenience for reference and are not to be given
any effect in construing this Sublease.
19.3. If any of the provisions of this Sublease or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Sublease, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby,
and every provision of this Sublease shall be valid and enforceable to the
fullest extent permitted by law.
19.4. All of the terms and provisions of this Sublease shall be binding
upon and inure to the benefit of the parties hereto and, subject to the
provisions of Section 9 hereof, their respective successors and assigns.
19.5. Sublessor has made no representations, warranties or covenants to or
with Sublessee with respect to the subject matter of this Sublease except as
expressly provided herein and all prior negotiations and agreements relating
thereto are merged into this Sublease. This Sublease may not be amended or
terminated, in whole or in part, nor may any of the provisions be waived,
except by a written instrument executed by the party against whom enforcement
of such amendment, termination or waiver is sought and unless the same is
permitted under the terms and provisions of the Master Leases.
19.6. Sublessee agrees to be bound and obligated under the confidentiality
provisions contained in Section 29 of the Master Office Lease, and all
confidentiality provisions contained therein shall apply equally to this
Sublease.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as
of the day and year first above written.
SUBLESSOR:
XXXXXXXXXXX FINANCIAL SERVICES, INC.
By:/s/ XXXXXX X. XXXXXXX
--------------------------------------
Name:
Title:
SUBLESSEE:
THE XXXXXXXXXXX TRUST COMPANY
By:/s/ XXXXXX X. XXXXXXX
--------------------------------------
Name:
Title:
