SUBLEASE
SUBLEASE AGREEMENT dated as of December __, 1999 between CANTOR
XXXXXXXXXX SECURITIES, a New York general partnership having an office at Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Tenant") and eSPEED, INC., a Delaware corporation, having an office at Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Subtenant"):
W I T N E S S E T H
WHEREAS, Tenant has leased certain space, more particularly described
in the "Lease" (as hereinafter defined) [the "Demised Premises"] located in the
building known as One World Trade Center, New York, New York (the "Building"),
pursuant to the provisions of a lease dated October 12, 1978, as amended (the
"Lease") between The Port Authority of New York and New Jersey ("Landlord") and
Tenant's predecessor-in-interest; and
WHEREAS, Subtenant is an affiliate of Tenant (with Tenant owning in
excess of 50% of the outstanding shares of Subtenant); and
WHEREAS, Subtenant, and its wholly owned subsidiaries, have been formed
to provide certain services formerly provided by a division of Tenant in
portions of the Demised Premises; and
WHEREAS, Subtenant desires to sublease from Tenant such portions of the
Demised Premises consisting of the entire rentable area of the 103rd floor of
the Building (which space is hereinafter called the "Space").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Term, Rent, Late Charges.
a. Tenant hereby sublets the Space to Subtenant, and
Subtenant hereby hires the same from Tenant, for the term (the "Term")
commencing on the date hereof (the "Commencement Date"), and ending on March 15,
2012 (the "Expiration Date"), subject to the provisions of paragraph 9 hereof
(unless sooner terminated pursuant to the terms hereof).
b. During the Term, Subtenant shall pay to Tenant, on the
first day of each calendar month, an amount equal to the product obtained by
multiplying (x) the rate per rentable square foot then being paid by Tenant for
rent and all items of additional rent with respect to the Space pursuant to the
Lease, by (y) the number of rentable square feet constituting the Space, which,
for all purposes, the parties agree is 50,395. Subtenant agrees to pay such rent
as provided herein, without any set-off or deduction whatsoever, except as
otherwise expressly provided herein. To the extent that Tenant shall be entitled
to an abatement of rent and/or additional rent accruing under the Lease during
the Term, and arising from a condition which, if Subtenant were the tenant under
the Lease, and assuming the Space were the only space demised hereunder, would
have entitled Subtenant to such an abatement, then Subtenant shall be entitled
to an abatement of rent and/or additional rent hereunder to the extent of the
lesser of (x) the amount of the abatement to which Tenant is entitled, or (y)
the rent and additional rent payable by Subtenant hereunder during the period of
such abatement. Payments for any partial calendar month shall be prorated on a
per diem basis.
2. Use. Subtenant shall use and occupy the Space only as offices
and trading facilities, for providing to institutional and retail broker-dealer,
other financial services firms and other sellers of goods or services direct,
electronic access to certain proprietary hardware, software, trading
technologies and systems designed to enable such firms to electronically match,
execute and settle trades in a wide variety of fixed income, futures products
and other products, subject, in any event, to the provisions of the Lease.
Subtenant acknowledges that the Space may be used only for uses which the
Landlord determines, acting in a non-arbitrary and non-capricious manner, are in
accordance with Chapter 5 of Title 17 of the Unconsolidated Laws of the State of
New York.
3. Incorporation of the Lease, Quiet Enjoyment. This Sublease is
expressly made subject and subordinate to the terms and conditions of the Lease
and to any and all mortgages and/or ground leases to which the Lease may be or
become subject and subordinate. Subtenant hereby agrees to perform all
obligations of Tenant under the Lease and to comply with and abide by the terms
and conditions thereof, insofar as the same relate to the Space and to
Subtenant's use and occupancy thereof arising and accruing during the Term,
except for the payment of Tenant's rent and additional rent owing thereunder,
other than as set forth in paragraph 1.b hereof. Tenant agrees that Subtenant,
upon paying all rent and other charges to be paid by it hereunder, and observing
the covenants and conditions hereof on its part to be performed, shall peaceably
and quietly enjoy the Space, subject, nevertheless, to the terms and conditions
of the Lease. Subtenant shall be entitled to and shall receive, and Tenant shall
cooperate with Subtenant at its request in securing for Subtenant, all of the
rights, privileges, elections, benefits and services available to Tenant under
the Lease, insofar as the same relate to the Space and Subtenant's use and
occupancy thereof, except that Subtenant shall not be entitled to any portion of
the construction contribution provided for under the Lease with respect to the
Space. However, Tenant will not be liable to Subtenant for any failure of
Landlord in providing such rights, privileges, elections, benefits and services.
4. Assignment and Subletting. Subtenant will not assign this
Sublease or allow the same to be transferred by operation of law or otherwise,
and will not further sublet the Space or any part thereof, or allow the Space,
or any part thereof, to be used by others, except with the prior written consent
of Tenant and Landlord in accordance with the provisions of the Lease. Any
attempted assignment or subletting which is contrary to the provisions of this
paragraph shall be void. Notwithstanding the foregoing, Tenant acknowledges that
portions of the Space shall be used by eSpeed Securities, Inc., eSpeed Markets,
Inc. and eSpeed Government Securities, Inc. for the uses contemplated by, and
subject to the provisions of, paragraph 2 hereof. Subtenant represents and
warrants to Tenant that each of such entities is a wholly owned subsidiary of
Subtenant. In reliance upon such representation, Tenant hereby approves such
use, so long as such entities shall remain wholly owned subsidiaries of
Subtenant.
5. Alterations. Subtenant has examined the Space and agrees to
accept the Space in its existing condition and state of repair. Any alterations
or remodeling that Subtenant may desire to effect shall be subject to the prior
written consent of Tenant and Landlord in accordance with the provisions of the
Lease, and shall be at the sole expense of Subtenant.
6. Fixtures and Installations. All alterations, decorations,
installations and improvements made in the Space, including all paneling,
partitioning and the like, made by either Tenant or Subtenant, shall become the
property of Tenant and shall remain upon and be surrendered with the Space as
part thereof at the end of the term hereof. Trade fixtures, furnishings,
decorations which are not an integral part of the Space and all items of
Subtenant's personal property (collectively, "Subtenant's Property"), shall
remain the property of Subtenant, and shall be removed from the Space by and at
the expense of Subtenant prior to the expiration or other termination of the
Term. Any repairs that may be necessitated by the removal of Subtenant's
Property shall be promptly made by and at the expense of Subtenant.
7. Signs. Tenant shall cooperate with Subtenant with respect to
requesting that Landlord place Subtenant's name in any building directory
serving the Building. Any expense incurred with respect to such request or
listing shall be paid by Subtenant. No signs may be put on or in any window nor
on the exterior of the Building. Any signs or lettering in the public corridors
or on the doors must be submitted to Tenant and Landlord for approval before
installation. Tenant agrees that so long as Landlord shall approve such
installation, Tenant shall not unreasonably withhold or delay its consent to
same.
8. End of Term, Holdover.
a. Upon the expiration or other termination of the Term,
Subtenant shall quit and surrender to Tenant the Space, broom clean, in good
order and condition, ordinary wear and tear and damage by casualty excepted, and
otherwise in the condition required under the Lease, and Subtenant shall remove
all of Subtenant's Property, and shall repair all damage to the Building
occasioned by such removal. Any property not removed from
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the Space shall be deemed abandoned by Subtenant and may be disposed of in any
manner deemed appropriate by the Tenant.
b. In no event shall Subtenant have any right to remain in
possession of any part of the Space after the expiration or other termination of
this Sublease, and Subtenant agrees and understands that (i) it is affirmatively
obligated to surrender possession of the Space to Tenant on or before the
expiration or other termination of this Sublease, and (ii) any such continued
occupation of the Space beyond such date may cause Tenant to sustain
consequential damages. Subtenant shall be subject not only to summary
proceedings, but also to all costs, losses and damages (consequential or
otherwise) related thereto, including, without limitation, any damages arising
out of any lost opportunities (and/or new subleases) by Tenant to re-let the
Space or any part thereof, in addition to any other remedy provided in this
Sublease (as if the same had not expired or terminated) or at law. All damages
to Tenant by reason of such holding over by Subtenant may be the subject of a
separate action and need not be asserted by Tenant in any summary proceedings
against Subtenant.
c. The aforesaid provisions of this paragraph 8 shall survive
the expiration or sooner termination of this Sublease.
9. Early Termination. Tenant and Subtenant acknowledge and agree
that the parties intend that the Term of this Sublease shall end one (1) day
prior to the term of the Lease, which day is set forth as the Expiration Date in
paragraph 1.a hereof. Subtenant further acknowledges that Tenant has an option
(the "Early Termination Option"), as set forth in the Lease, to cancel the Lease
prior to the expiration date thereof (which date may be earlier than the
Expiration Date hereunder). Anything contained herein to the contrary
notwithstanding (including, without limitation, the provisions of paragraphs 1.a
and 15.f hereof), Subtenant agrees that in the event Tenant shall exercise its
Early Termination Option under the Lease, and as a result thereof, the Lease
shall terminate prior to the Expiration Date hereunder, then the Expiration Date
hereunder shall be one (1) day prior to the date on which the Lease shall
terminate, and this Sublease shall terminate and expire on such date with the
same force and effect as if such date were the Expiration Date originally
provided for herein. Tenant shall send Subtenant a copy of Tenant's notice
exercising the Early Termination Option simultaneously with Tenant sending such
notice to the Landlord. Subtenant further agrees that Tenant shall have no
liability to Subtenant by reason of Tenant's exercise of the Early Termination
Option and the early termination of this Sublease as a result thereof.
10. Choice of Laws, Jurisdiction. This Sublease shall be construed
in accordance with the laws of the State of New York. Each party hereby consents
to the jurisdiction and venue of the courts of the State of New York and the
United States District Court for the Southern District of New York in connection
with any claim or controversy arising out of or relating to this Agreement.
11. Indemnity, Insurance.
a. Unless caused by Tenant's negligent acts, or the negligent
acts of Tenant's employees, agents, representatives and contractors, Tenant
shall not be liable for any damage to persons or property sustained by Subtenant
and others by reason of Subtenant's use and occupancy of the Space. Subtenant
agrees to indemnify and save Tenant harmless from and against any and all claims
arising from Subtenant's use and occupancy of the Space, and will carry
liability insurance for bodily injury, death and property damage having limits
in the amount of $3,000,000 combined single limit, naming Tenant and Landlord as
additional insureds. At or before the Commencement Date, Subtenant will furnish
Tenant with a certificate evidencing such insurance coverage for the benefit of
Subtenant, Tenant and Landlord, as their respective interests may appear.
b. Neither Tenant nor its agents shall be liable for any
damage to property of Subtenant or of others entrusted to employees of the
Building or of Tenant, nor for the loss of or damage to any property of
Subtenant by theft or otherwise. Neither Tenant nor its agents shall be liable
for any injury or damage to persons, property or business resulting from fire,
explosion, falling plaster, steam, gas, electricity, electrical disturbance,
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water, rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
caused by or due to the negligence of Tenant, its agents, servants,
representatives, contractors or employees; nor shall Tenant or its agents be
liable for any such damage caused by Landlord, other tenants or persons in the
Building or caused by operations in construction of any private, public or quasi
public work; nor shall Tenant be liable for any latent defect in the Space or in
the Building. Subtenant shall reimburse and compensate Tenant as additional rent
for all expenditures made by, or damages or fines sustained or incurred by
Tenant due to, non-performance or non-compliance with or breach or failure to
observe any term, covenant or condition of this Sublease upon Subtenant's part
to be kept, observed, performed or complied with. Subtenant shall give immediate
notice to Tenant in case of fire or accidents in the Space or in the Building or
of defects therein or in any fixtures or equipment. Each party shall give the
other party copies of any notices received from Landlord with respect to the
Space during the Term, promptly upon such party's receipt of such notices.
12. Casualty/Condemnation. With respect to the Space, Subtenant
shall have the same rights and obligations as Tenant under the Lease, as if the
Space were the only space demised to Tenant thereunder, in the case of damage to
or destruction of the Space by fire or other causes or in the case of
condemnation.
13. Default. Any material violation by Subtenant of any of the
terms, provisions, covenants or conditions of the Lease, or of any rules or
regulations promulgated and enforced by Landlord, which violation continues
beyond any applicable grace or notice period provided for the cure thereof,
shall constitute a violation of this Sublease. In the event of any such
violation or of any default in the payment of rent or any other material
violation of this Sublease, Tenant, after giving Subtenant ten (10) days' prior
written notice of any payment default and twenty (20) days' written notice for
nonpayment defaults, shall have and may exercise against Subtenant all the
rights and remedies available to the Landlord under the Lease, as though the
same were expressly reiterated herein as the rights of Tenant, unless within the
applicable cure period Subtenant has cured the specified default or violation or
if the specified default or violation is of such a nature that it cannot be
cured within said period, Subtenant has commenced the curing thereof within said
period, and diligently prosecutes such curing to completion. No waiver of any
such violation by either Tenant or its Landlord shall be deemed a waiver of the
term, provisions, covenant, condition, rule or regulation in question or any
other subsequent violation.
14. Notices. All payments and notices made or given hereunder shall
be deemed sufficiently made or given if sent by registered or certified mail,
return receipt requested, or by recognized overnight courier as follows:
To Tenant: Cantor Xxxxxxxxxx Securities
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
To Subtenant: eSpeed, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
000xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
or to such other address as may be specified by either party hereto by written
notice to the other party hereto.
15. Miscellaneous.
a. The term "Tenant" as used in this Sublease means only the
person to whom Subtenant is required by law to attorn, so that, for example, in
the event of any assignment by Tenant of the Lease, Tenant shall
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be and hereby is freed and relieved of all terms, covenants, conditions,
provisions and agreement of the Tenant thereafter accruing and it shall be
deemed and construed, without further agreement between the parties hereto, or
their successors and interests, or between the parties hereto and the Assignee,
that the Assignee has assumed and agreed to carry out any and all covenants and
obligations of Tenant thereafter accruing hereunder.
b. Subtenant shall look solely to the estate and property of
Tenant in the Lease for the satisfaction of Subtenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money by Tenant in the event of any default or breach by Tenant with respect to
any of the terms, covenants and/or conditions of this Sublease to be observed
and/or performed by Tenant, and no other property or assets of such Tenant shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Subtenant's remedies.
c. With respect to any provision of this Sublease which
provides for Tenant's approval and/or consent, Subtenant, in no event, shall be
entitled to make, nor shall Subtenant make any claim, and Subtenant hereby
waives any claim, for money damages, nor shall Subtenant claim any money damages
by way of set-off, counterclaim or defense, based upon any claim or assertion by
Subtenant that Tenant has unreasonably withheld or unreasonably delayed any such
consent or approval.
d. Any obligation of Tenant which is contained in this
Sublease may be observed or performed by Tenant using reasonable efforts to
cause the Landlord under the Lease to observe and/or perform the same. In the
event of a default by Landlord in the observance and/or performance of any of
its obligations under the Lease relating to the Space, or the use thereof by
Subtenant, Tenant agrees that it shall, upon notice from Subtenant, make demand
upon Landlord to perform its obligations under the Lease and, provided that
Subtenant specifically agrees to pay its pro-rata share (based on the ratio of
the affected area of the Space to the affected area of the entire Demised
Premises), of all costs and expenses of Tenant, Tenant shall take all
appropriate action (including commencement and prosecution of appropriate legal
proceedings, provided Subtenant agrees to indemnify [on a pro-rata basis, as
provided above] Tenant for any loss, damages, costs and expenses, including
reasonable attorneys' fees and disbursements, that Tenant may incur as a result
of commencing such legal proceedings) to enforce the Lease. Tenant shall pay the
rent and additional rent due under the Lease, and perform all other covenants of
Tenant thereunder.
e. Tenant shall promptly deliver to Subtenant all written
notices of default, and notices relating in any material way to the Space, that
Tenant receives from Landlord under the Lease.
f. Tenant hereby represents, warrants and covenants to
Subtenant that: (i) Tenant has provided Subtenant with a true, correct and
complete copy of the Lease, as amended, and the Lease represents the entire
agreement between Tenant and Landlord with respect to the Lease of the Demised
Premises, (ii) the Lease is in full force and effect, (iii) neither Landlord nor
Tenant has exercised any option or right to (x) cancel or terminate the Lease or
shorten the term thereof or (y) reduce or relocate the Demised Premises (except
as set forth in the Lease), (iv) the expiration date of the Lease is March 16,
2012, and (v) Tenant agrees that it shall not amend, terminate, modify, waive,
surrender the Lease, without the prior written consent of Subtenant (except as
contemplated in paragraph 9 hereof), if such amendment, termination,
modification, waiver or surrender shall adversely affect Subtenant's rights and
privileges under this Sublease.
16. Broker. Tenant and Subtenant each, as indemnitor, warrants and
represents to the other, as indemnitee, that insofar as indemnitor knows, no
brokers negotiated this Sublease or are entitled to a commission in connection
therewith. Indemnitor does hereby agree to indemnify, defend and hold
indemnitee, harmless of and from any claim, damages, judgment, cost and/or
expense (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the indemnitee by reason of any claim of any broker,
person or entity who claims to have dealt with the indemnitor in connection with
the Space or this Agreement.
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17. Landlord's Consent. Simultaneously with the execution hereof,
Tenant and Subtenant are executing a Consent to Sublease Agreement substantially
in the form annexed hereto as Exhibit 1, which, pursuant to the terms of the
Lease, is a condition to obtaining the consent of the Landlord to this Sublease.
Tenant shall promptly deliver such Consent to Sublease Agreement to Landlord for
its signature, and shall deliver a fully executed copy thereof to Subtenant
promptly upon receipt by Tenant of same from Landlord. Subtenant acknowledges
that pursuant to the terms of the Lease, Landlord is required to grant its
consent to this Sublease by reason of the fact that Subtenant is and maintains a
relationship with Tenant, as more fully described in paragraph 2 of that certain
Supplemental No. 2 to the Lease. Subtenant further acknowledges that if at any
time during the Term, such required relationship is no longer in effect, the
Landlord shall have the right, inter alia, to revoke its consent to this
Sublease, in which event this Sublease shall immediately terminate and expire
and Subtenant shall immediately vacate the Space and surrender same to Tenant.
Subtenant agrees that Tenant shall have no liability to Subtenant for any
damages, losses, liability or expense in the event of any such termination.
18. Entire Agreement. Except only as to references to the Lease
contained herein, this Agreement contains the entire agreement of the parties
relating to the subject matter hereof and supersedes all prior negotiations,
conversations, correspondence and agreements. There are no representations or
warranties not set forth herein. No waiver or modification hereof shall be valid
or effective unless in writing signed by the party or parties thereby affected.
19. Successors and Assigns. This Sublease shall bind and inure to
the benefit of the parties hereto and their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
duly executed as of the day and year first above written.
TENANT: Cantor Xxxxxxxxxx Securities
By:
-----------------------
Name:
Title:
SUBTENANT: eSpeed, Inc.
By:
-----------------------
Name:
Title:
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