EXHIBIT 10.43
FIRST AMENDMENT TO SUBLEASE
This First Amendment to Sublease (this "Amendment") dated as
of the 5th day of June, 2002 by and between XXXXXXX XXXXXX & CO., INC.
("Sublandlord"), having an office at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, and INSTINET GROUP INCORPORATED ("Subtenant"), having an
office at 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, Sublandlord, as sublandlord, and Subtenant, as subtenant, are
parties to that certain Sublease (the "Sublease"), dated as of December 18,
2001, for a portion of the Ground Floor Space, a portion of the Mezzanine Space
and the entire rentable space on floors 9, 10, 11 and 15 (being the 14th level
without regard to the Mezzanine Space, there being no 13th floor designated in
the Building) in the building known as Plaza X, Harborside, Jersey City, New
Jersey (the "Building"); and
WHEREAS, Sublandlord and Subtenant desire to amend the Sublease as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sublandlord and Subtenant hereby agree as follows:
A. All capitalized terms used herein without definition and defined in the
Sublease are used herein with the meaning assigned to such terms in the
Sublease.
B. The Subleased Mezzanine Space shall be relocated, and there shall be
substituted for Exhibit B to the Sublease relating to the Subleased
Mezzanine Space a revised Exhibit B, dated May 15, 2002, relating to the
Subleased Mezzanine Space, in the form attached hereto as Exhibit B. As a
result of the change in the RSF of the Subleased Mezzanine Space, (i)
there shall be substituted for Exhibit B-1 to the Sublease a revised
Exhibit B-1, in the form attached hereto as Exhibit B-1, and (ii) there
shall be substituted for the schedule of Subleased Mezzanine Space Fixed
Rent Rates in Exhibit C to the Sublease a revised schedule of Subleased
Mezzanine Space Fixed Rent Rates in Exhibit C, in the form attached hereto
as Exhibit C.
C. The last sentence of Section 2.1(g) of the Sublease shall be replaced by
the following:
"Based on such usage of the Ground Floor Space and Mezzanine Space by
Subtenant, the parties agree that the Subleased Ground Floor Space
constitutes 1.79% thereof, or 347 RSF of the 19,368 RSF of the entire
Ground Floor Space and Subleased Mezzanine Space constitutes 33.04%
thereof, or 5,436 RSF of the 16,455 RSF of the entire Mezzanine Space."
D. In connection with the relocation of the Subleased Mezzanine Space,
Subtenant's
emergency generators and certain other related equipment shall be
relocated, and there shall be substituted for Exhibit D to the Sublease a
revised Exhibit D (last revised April 22, 2002), in the form attached
hereto as Exhibit D. Subtenant shall, as part of Subtenant's Work,
construct (i) a demising wall surrounding the common generator room, (ii)
at its sole cost and expense, a cage separating Subtenant's emergency
generator from the remainder of the common generator room, and (iii) a
common supply air plenum, all as shown on Exhibit D. Sublandlord shall
reimburse Subtenant for two-thirds of the reasonable, actual,
out-of-pocket cost of construction for the demising wall and common supply
air plenum within thirty (30) days after receipt of a detailed invoice
therefor. Subtenant shall use as the generator flue for Subtenant's
emergency generator the flue as shown on such Exhibit D. Sublandlord and
Subtenant agree to coordinate with each other in connection with the
construction, maintenance, operation and use of the generator room and
their respective equipment located therein.
E. There shall be substituted for Exhibit F to the Sublease (Rest Room
Design) a revised Exhibit F (last revised April 12, 2002), in the form
attached hereto as Exhibit F. Subtenant hereby acknowledges and agrees
that when the Rest Room Facilities are constructed by Sublandlord pursuant
to Section 5(d) of the Sublease and in accordance with Exhibit F hereto,
such Rest Room Facilities are in compliance with the Sublease and
Subtenant shall not assert either to Sublandlord, Overlandlord or any
Governmental Authority that same are not in compliance with Laws.
F. There shall be substituted for Exhibit G to the Sublease (Equipment
Location (Ground Floor)) a revised Exhibit G (last revised April 22,
2002), in the form attached hereto as Exhibit G.
G. INTENTIONALLY OMITTED.
H. Sublandlord and/or its subtenants shall have the right, at its sole cost
and expense, to use the risers designated for their use as shown on
Exhibit L, dated April 12, 2002, in and through the Subleased Premises to
connect communications and data transmission services in other portions of
the Premises, provided that (i) such risers shall be concealed behind or
within partitioning or columns and there shall be no pull boxes or other
means of access thereto in the Subleased Premises, (ii) such risers shall
be installed at the location(s) within the Building as shown on Exhibit L
hereto on or before (A) as to the 9th, 10th and 11th Floors of the
Subleased Premises, July 1, 2002, and (B) as to the 15th Floor of the
Subleased Premises, the date which is thirty (30) days after receipt of
notice from Subtenant of the commencement of construction by Subtenant of
improvements on the 15th Floor of the Subleased Premises, and (iii)
Subtenant shall not be entitled to an abatement or reduction in the
Sublease Fixed Rent on account thereof.
I. Subject to compliance by Subtenant with all Laws and with the terms and
provisions of the Xxxxxxxxx and the Sublease, Subtenant shall have the
right, at Subtenant's sole cost and expense, to use the risers designated
for its use as shown on Exhibit L in and through the 12th and 14th Floors
of the Premises (there being no 13th Floor in the Building) to connect
Subtenant's communications and data transmission services in
non-contiguous
2
floors of the Subleased Premises, provided that (i) such risers shall be
concealed behind or within partitioning or columns and there shall be no
pull boxes or other means of access thereto in the Premises other than the
Subleased Premises, (ii) such risers shall be installed at the location(s)
within the Building as shown on Exhibit L hereto on or before the date
which is thirty (30) days after receipt of notice from Sublandlord or its
subtenant of the commencement of construction by Sublandlord or its
subtenant of improvements on the 12th and/or 14th Floors of the Premises,
and (iii) Subtenant shall not be charged Rent for this right of access
into and through the 12th and 14th Floor risers.
J. Supplementing the provisions of Section 2.1(g) of the Sublease, the
reciprocal licenses of twenty-four hour (24) hour access to the other's
area in the Mezzanine Space and Ground Floor Space and use of commercially
reasonable efforts not to interfere with the other's equipment in the
Mezzanine Space and Ground Floor Space in connection with access thereto
shall include, without limitation, caging with entrance gates or doors by
Subtenant of Subtenant's equipment in the Subleased Mezzanine Space and
Subleased Ground Floor Space, and caging with entrance gates or doors by
or on behalf of Sublandlord of its equipment and that of its other
subtenants elsewhere in the Mezzanine Space and Ground Floor Space. Each
party may require, as a condition to such access, that, except in case of
emergency, each party be accompanied by a representative of the other
party (or in the case of another subtenant of Sublandlord, by a
representative of such subtenant) who shall be made available upon
reasonable notice. Notwithstanding the foregoing, Sublandlord and/or its
subtenants shall have the right to install ducts, cabling, conduits and
wiring in the Subleased Mezzanine and Ground Floor Space for horizontal
transportation of services and utilities to the Premises, provided
Sublandlord and its subtenants shall use commercially reasonable efforts
not to interfere with Subtenant's equipment in the Subleased Mezzanine
Space and Subleased Ground Floor Space.
K. Notwithstanding the provisions of Section 5(c) of the Sublease, Subtenant
acknowledges that Overlandlord shall not make the man-hoist available to
Subtenant and that the man-hoist has been removed from the Building.
L. Upon not less than thirty (30) days prior written notice from Sublandlord,
Sublandlord shall, in Sublandlord's sole discretion, have the right to
recapture for its own or its subtenant's use one (1) of the
telecommunications conduits utilized by Subtenant in each of the conduit
banks entering the Building from the North and the West, so that Subtenant
shall only have the right to utilize three (3) such conduits in each such
conduit bank, including the conduit bank referred to in Section 2.5(b) of
the Sublease, as shown on Exhibits D and G. In the event Sublandlord
exercises such right, Subtenant shall, at Subtenant's sole cost and
expense, promptly remove all installations and wiring located therein.
Upon such removal, the pro rata reduction in the cost to Subtenant to
install the West bank conduits shall apply thereto, so that Sublandlord
shall reimburse Subtenant for 1/12th of the reasonable, actual,
out-of-pocket cost thereof within thirty (30) days after receipt of a
detailed invoice therefor. In no event shall Subtenant be entitled to
reimbursement of such costs for the North bank conduit.
M. The path of travel for all of Subtenant's electrical and
telecommunications conduits
3
located within the Mezzanine Space shall be constructed in locations to be
mutually determined by Subtenant and Sublandlord in their commercially
reasonable judgment. The general parameters of the locations thereof are
shown on Exhibit D hereto. Upon final determination of the location
thereof, such location shall be set forth on a revised exhibit to be
prepared by Subtenant, and, upon review and approval by Sublandlord and,
if required by the Xxxxxxxxx, by Overlandlord, in accordance with the
Sublease, such exhibit shall be added to Exhibit D.
N. Notwithstanding anything contained in Section 2.1(g) of the Sublease to
the contrary, Subtenant shall not have, and hereby waives and
relinquishes, the right to install a make-up water tank in the Subleased
Mezzanine Space as referred to in Section 2.1(g) of the Sublease. That
portion of the Subleased Mezzanine Space designated in the Sublease for
Subtenant's make-up water tank has been exchanged for a comparable amount
of space in the Mezzanine Space, as shown on Exhibit B attached hereto
consisting of 360 rentable square feet (the "Substitute Space"), which
Substitute Space shall be used in the manner otherwise permitted by the
Xxxxxxxxx as incorporated into the Sublease.
O. (i) Upon Subtenant's making the Alterations constituting a separate
stand-by power system as contemplated by Section 5(f) of the Sublease
(which Alteration shall constitute the respective property of Sublandlord
and Overlandlord as provided in the Sublease and Xxxxxxxxx, respectively),
the automatic transfer switch ("ATS") serving Distribution Panel 18B and
its connections to the Building's electrical feeder to be so used to
back-up the Building's cooling towers, condenser water pumps, heat
exchangers, condenser water supply system, air handling units and heaters,
all as shown on Subtenant's plans approved by Sublandlord in accordance
with Section 5(f) of the Sublease (the "18B-ATS"), shall constitute a
secondary portion of the back-up system, and therefore, Subtenant agrees
may be used by Overlandlord and Sublandlord (and their other respective
tenants and subtenants) as provided in this paragraph O, as part of any
separate stand-by power system utilizing the Building's cooling towers
which they may, respectively, elect to install in the Building.
Notwithstanding such present grant of rights in and to the 18B-ATS,
Subtenant shall have the exclusive right to use the 18B-ATS until such
time as Overlandlord or Sublandlord shall provide written notice (the "ATS
Notice") to Subtenant that Overlandlord or Sublandlord (or their other
respective tenants and/or subtenants) require the use thereof for purposes
of a separate stand-by power system. In the event Overlandlord or
Sublandlord delivers the ATS Notice to Subtenant, Sublandlord shall pay to
Subtenant a sum equal to the then unamortized reasonable out-of-pocket
cost incurred by Subtenant for the 18B-ATS (exclusive of any other portion
of Subtenant's stand-by power system), such amortization to be the period
used for such purpose on Subtenant's books maintained in accordance with
generally accepted accounting principles. In the event of a dispute as to
the amount to be so paid by Sublandlord, such dispute shall be subject to
arbitration, but shall not affect the right to use the 18B-ATS in
accordance with the ATS Notice.
(ii) In the event Overlandlord or Sublandlord delivers the ATS
Notice, the management system for the Building (the "BMS") shall be
reprogrammed by Overlandlord or Sublandlord to equitably divide the
emergency electrical power demand
4
to the Building cooling system (including the condenser water system and
air handling system) based upon the respective connected cooling loads of
the parties having a stand-by power system utilizing the Building's
cooling towers, and Subtenant shall cooperate with such reprogramming. The
BMS shall also be so reprogrammed to determine which base building
equipment shall be turned on when such parties' generators are operational
and so as to cause each party's generator to operate the base building
HVAC equipment so that power consumption from the generators is
proportional to each party's allocated cooling capacity. Overlandlord or
Sublandlord shall, in its commercially reasonable judgment, determine the
power load to be allocated to each party in connection with the operation
of their generators for emergency power based upon such parties'
respective connected cooling load.
(iii) Subtenant and, in the event Overlandlord or Sublandlord
delivers the ATS Notice, Overlandlord or Sublandlord (or their other
respective tenants or its subtenants, as applicable) shall be responsible
for maintaining, repairing and replacing, in a commercially reasonable
manner, its respective ATS and the connections thereto. Subtenant agrees
that neither Overlandlord nor Sublandlord (or their other respective
tenants or subtenants) shall have any obligation to install any such
stand-by power system to service portions of the Premises or to operate
such system if installed by Overlandlord or Sublandlord (or their other
respective tenants or subtenants), nor shall Overlandlord or Sublandlord
(or their other respective tenants or subtenants) have any liability to
Subtenant should Overlandlord or Sublandlord (or their other respective
tenants or subtenants) not install, repair, operate or activate such
system, or if activated by either Overlandlord or Sublandlord (or their
other respective tenants or subtenants) or Subtenant (or another party)
should either or both fail to operate. Without limiting the provisions of
the previous sentence, in the event of a failure of either ATS, the party
with the operational ATS shall use reasonable efforts to provide emergency
power to the Building's cooling system for the benefit of the other
party(ies) having a stand-by power system utilizing the Building's cooling
towers in an amount not to exceed the cooling capacity of one cooling
tower, provided, however, neither Overlandlord nor Sublandlord (or their
other respective tenants or subtenants) shall have any liability for
failure of any such party to comply with the provisions of this sentence.
In the event the cooling demand of such party exceeds such limit, the BMS
shall be programmed to automatically decrease the cooling load available
to the party with the non-functioning ATS. Overlandlord or Sublandlord
shall equitably allocate the cost of operating the stand-by power system
in accordance with each party's allocated cooling capacity. Subtenant
hereby agrees to pay such allocated cost as Sublease Additional Charges
within twenty (20) days after Subtenant's receipt of a xxxx therefor,
accompanied by reasonably detailed back-up information.
(iv) Overlandlord shall have the rights provided in this paragraph O
but shall not have any obligations hereunder unless expressly assumed by
Overlandlord in writing.
P. Subtenant acknowledges that the security plan for the lobby of the
Building has not been formalized as yet by Overlandlord, so that the card
access procedures to restrict access to the lobby of the Building may or
may not include turnstiles, and the security desk (or
5
desks) may be provided by either or both of Sublandlord and Overlandlord.
Q. Except as otherwise expressly set forth herein, the Sublease is hereby
ratified and confirmed and the terms, covenants, conditions and agreements
therein contained remain in full force and effect.
R. It is understood that any Alterations which shall be made by Subtenant
pursuant to this Amendment, shall be subject to compliance by Subtenant
with all Laws and with the terms and provisions of the Xxxxxxxxx and the
Sublease (including, without limitation, the delivery to Overlandlord and
Sublandlord for their approval of plans and specifications), and, except
as may be otherwise expressly provided herein, shall be at Subtenant's
sole cost and expense.
S. This Amendment is subject to and conditioned upon the consent thereto by
Overlandlord, which consent shall be evidenced by Overlandlord's signature
appended hereto or by a separate consent in substantially the form
utilized by Overlandlord in connection with its consent to the Sublease.
[THE REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK]
6
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
ATTEST: XXXXXXX XXXXXX & CO., INC.
Sublandlord
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- --------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President
Corporate Real Estate & Facilities
ATTEST: INSTINET GROUP INCORPORATED
Subtenant
By: /s/ Xxxxx Xxxxxxx
------------------------ --------------------------
Xxxxx Xxxxxxx
Senior Vice President
Corporate Services
APPROVED IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THAT
CERTAIN CONSENT TO SUBLEASE, DATED JANUARY 16, 2002, ISSUED BY OVERLANDLORD IN
CONNECTION WITH THE SUBLEASE.
PLAZA X LEASING ASSOCIATES L.L.C.
By: Plaza X Realty L.L.C., sole member
By: American Financial Exchange L.L.C., sole member
By: M-C Harsimus Partners L.L.C., member
By: Xxxx-Xxxx Realty, L.P., sole member
By: Xxxx-Xxxx Realty Corporation, general partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chief Executive Officer
7
Exhibit B
8
Exhibit B-1
EXHIBIT B-1
RENTABLE SQUARE FEET OF SUBLEASED PREMISES
AND PREMISES
15th Floor 35,219 RSF
11th Floor 34,099 RSF
10th Floor 34,781 RSF
9th Floor 34,781 RSF
Subleased Mezzanine Space 5,436 RSF
Subleased Ground Floor Space 347 RSF
Subleased Premises (total) 144,663 RSF
Premises 594,030 RSF
9
Exhibit C
EXHIBIT C
[SUBLEASED MEZZANINE SPACE FIXED RENT RATES]
Exhibit D
12
Exhibit F
13
Exhibit G
14
Exhibit L
15
