EXHIBIT 10.5.5
SECOND SUPPLEMENTAL AGREEMENT
SECOND SUPPLEMENTAL AGREEMENT (hereinafter called this
"Agreement"), dated as of the 25th day of November, 1997, between SPARTAN
MADISON CORP., a Delaware corporation, having an address c/o HRO
International Ltd., Tower 56, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "Landlord"), and INVESTMENT TECHNOLOGY GROUP,
INC., a Delaware corporation, having an address at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS:
A. Landlord and Tenant heretofore entered into a certain lease
dated as of October 4, 1996, as amended by that certain First Supplemental
Agreement dated January 29, 1997 and Added Space Agreement dated as of
September 4, 1997 (such lease, as the same has been and may hereafter be
amended, is hereinafter called the "Lease") with respect to the entire fourth
(4th) floor and a portion of the basement (hereinafter called the "demised
premises") in the building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereinafter called the "Building"), for a term ending on January 31, 2013,
or on such earlier date upon which said term may expire or be terminated
pursuant to any conditions of limitation or other provisions of the Lease or
pursuant to law; and
B. The parties hereto desire to modify the Lease to provide for
the inclusion therein of additional space, upon the terms, provisions and
conditions as are more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree to modify said Lease as follows:
1. All capitalized terms contained in this Agreement shall, for
the purposes hereof, have the same meanings ascribed to them in the Lease
unless otherwise defined herein.
2. Effective as of January 1, 1998 (hereinafter called the
"Adjustment Date"), and for the remainder of the term of the Lease, there
shall be added to and included in the demised premises, the following
additional space in the Building, to wit:
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The portion of the fifth (5th) floor of the Building substantially as
shown unhatched on the floor plan annexed hereto as Exhibit A
(hereinafter called the "First Additional Space"), which the parties
hereto agree for purposes of this Agreement shall be deemed to contain
approximately 12,726 rentable square feet.
Landlord does hereby lease to Tenant and Tenant does hereby hire from
Landlord, the First Additional Space subject and subordinate to all superior
leases and superior mortgages as provided in the Lease and upon and subject
to all the covenants, agreements, terms and conditions of the Lease, as
supplemented by this Agreement, other than the provisions of Sections 1.05,
2.02, 2.03, 2.05, 25.06 and Articles 24, 42, 43 of the Lease and Schedules N
and Q which shall be deemed inapplicable to the First Additional Space. The
parties agree that the First Additional Space constitutes Portion A of the
First Offering Space as defined in Article 40 of the Lease.
3. Effective during the period commencing on the Adjustment Date
and ending on the Expiration Date:
(a) The fixed annual rent payable by Tenant to Landlord pursuant
to Section 1.01(b) of the Lease shall be increased on account of the
inclusion of the First Additional Space, by the following amounts during the
following periods:
(i) FOUR HUNDRED SEVENTY THOUSAND EIGHT HUNDRED SIXTY-TWO AND 00/100
($470,862.00) DOLLARS per annum during the period beginning on
the Adjustment Date and ending on December 31, 2002;
(ii) FIVE HUNDRED NINE THOUSAND FORTY AND 00/100 ($509,040.00) DOLLARS
per annum during the period beginning on January 1, 2003 and
ending on December 31, 2007; and (iii) FIVE HUNDRED FORTY
SEVEN THOUSAND TWO HUNDRED EIGHTEEN AND 00/100 ($547,218.00)
DOLLARS per annum during the period beginning on January 1, 2008
and ending on the Expiration Date.
(b) With respect to the adjustments of rent set forth in Article 3
of the Lease (hereinafter called the "Basic Escalations") there shall be
computed, in addition to the Basic Escalations, adjustments of rent with
respect to increases of Taxes and Expenses attributable to the First
Additional Space. Adjustments of rent with respect to Taxes and Expenses with
respect to the First Additional Space will be computed in the same manner as
adjustments of rent with respect to Taxes and Expenses for the purpose of the
Basic Escalations under the Lease, except that for the purpose of such
computations with respect to the First Additional Space only:
(i) The term "Base Tax" (as defined in subsection 3.01.A(a) of the
Lease) with respect to the First Additional Space shall mean the Taxes for
the Tax Year commencing July 1, 1998;
(ii) The term "Tenant's Tax Share" (as defined in subsection
3.01.A(d) of the Lease) with respect to the First Additional Space shall
mean 1.7721 %, calculated as a fraction, the numerator of which is 12,726,
reflecting the number of rentable square feet which Landlord and Tenant
agree comprises the First Additional Space and the denominator of which is
718,110, reflecting the number of rentable square feet which Landlord and
Tenant
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agree comprises the rentable square footage of the office and retail
area of the Building. If the physical size of the rentable area of the
Building shall increase, Tenant's Tax Share shall be appropriately
recalculated;
(iii) The term "Expense Base Factor" (as defined in subsection
3.02.A(a) of the Lease) with respect to the First Additional Space shall
mean the Expenses for the Operating Year 1998;
(iv) The term "Tenant's Expense Share" (as defined in subsection
3.02.A(c) of the Lease) with respect to the First Additional Space shall
mean 1.8362 %, calculated as a fraction, the numerator of which is 12,726,
reflecting the number of rentable square feet which Landlord and Tenant
agree comprises the First Additional Space and the denominator of which is
693,076, reflecting the number of rentable square feet which Landlord and
Tenant agree comprises the rentable square footage of the office and retail
area of the Building. If the physical size of the rentable area of the
Building shall increase, Tenant's Expense Share shall be appropriately
recalculated;
(v) The date "July 1, 1997" set forth in the third line of
subsection 3.01.B of the Lease shall be changed to "July 1, 1999" with
respect only to the First Additional Space; and
(vi) The term "Base Operating Year" (as defined in subsection
3.02.A(b) of the Lease) with respect only to the First Additional Space shall
mean the calendar year 1998.
(vii) Landlord confirms that the representation with respect to
the definition of Expenses set forth in the final paragraph of Section 3.02A
of the Lease is true and accurate as of the date hereof.
(c) The provisions of Article 4 of the Lease shall apply with
respect to the furnishing of electricity to the First Additional Space,
including, without limitation, the provisions of Section 4.07 thereof with
respect to the electrical capacity of the First Additional Space, provided
that in accordance with Section 4.03(a) thereof, Landlord shall charge Tenant
its proportionate share of the charges for Common Area Electric with respect
to the fifth (5th) floor of the Building, plus any sales tax and the
administrative fee referred to therein.
(d) For purposes of this Agreement, subsection 21.01(b) of the
Lease shall not apply with respect to HVAC service to the First Additional
Space and in lieu thereof, the following provisions shall apply with respect
thereto:
"Maintain in good repair the air conditioning, heating and ventilating
systems installed by Landlord. Air conditioning, heating and ventilation
systems will function when seasonably required (subject to the design
criteria, including occupancy and connected electric load design criteria,
set forth on Schedule O of the Lease) on Business Days from 7:00 a.m. to
6:00 p.m. in compliance with, and subject to the conditions of, the
specifications set forth in Schedule O of the Lease. Landlord has
informed Tenant that windows of the First Additional Space and the Building
are sealed, and that the First Additional Space may become uninhabitable
and the air therein may become unbreathable during the hours or days when
the aforesaid systems do not function automatically as described herein.
Any use or occupancy of the First Additional Space under the conditions set
forth in the immediately preceding sentence shall be at the sole risk,
responsibility and hazard of Tenant, and Landlord shall have no
responsibility or liability therefor.
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Such condition of the First Additional Space shall not constitute nor be
deemed to be a breach or a violation of this Lease or of any provision
thereof, nor shall it be deemed an actual or constructive eviction nor
shall Tenant claim or be entitled to claim any abatement of rent nor make
any claim for any damages or compensation by reason of such condition of
the First Additional Space. Tenant shall cause and keep entirely
unobstructed all the vents, intakes, outlets and grilles, at all times
and shall comply with and observe all regulations and requirements
prescribed by Landlord for the proper functioning of the heating,
ventilating and air-conditioning systems serving the First Additional
Space. Nothing contained herein shall be deemed to require Landlord to
furnish at Landlord's expense such electric energy as is required to
operate the air conditioning, heating and ventilating systems serving the
First Additional Space. Subject to the provisions of Article 4 of this
Lease, all such electric energy for the systems (to the extent they serve
the First Additional Space) shall be furnished to Tenant at Tenant's cost
and expense. In the event that Tenant shall require air conditioning
from the core system during the hours or days when the core system does
not function automatically as described herein, Tenant shall give Landlord
reasonable advance notice of such requirement and Landlord shall provide
same and Tenant shall pay the Landlord's then standard charges therefor as
additional rent hereunder, which is $350 per hour, as of the date hereof,
subject to increases from time to time. Such charge shall be prorated
among Tenant and any other tenants of the Building which shall request
such overtime service during any time that Tenant shall also have
requested such service.
At Tenant's request, Landlord will permit Tenant to tap into the Building
condenser water system, without charge to Tenant (except that the initial
hook-up shall be performed by Tenant at Tenant's expense) for up to thirty
(30) additional tons of condenser water to operate supplemental
air-conditioning units installed by Tenant in or serving the First
Additional Space. Such units shall be installed in accordance with the
provisions of this Lease. In the event Tenant installs supplementary
air-conditioning units serving the First Additional Space, Tenant covenants
and agrees, at its sole cost and expense, to maintain in full force and
effect for so long as such air-conditioning unit remains in the Building, a
maintenance agreement for the periodic maintenance of such unit on
customary terms with a contractor reasonably acceptable to Landlord and to
furnish a copy of said contract and all extensions thereof to Landlord
within ten (10) days after demand. Landlord shall perform routine testing
and maintenance of such Building condenser water tower and shall give
Tenant reasonable prior notice of such testing. Landlord shall cooperate
with Tenant in order to schedule such testing so as to minimize material
interference with the conduct of Tenant's business.
In addition, Landlord shall permit Tenant to penetrate the facade of
the Building for the purposes of installing louvers for supplemental
air-cooled air-conditioning units installed in the First Additional Space
provided and on condition that such louvers shall be installed in the same
locations on the fifth (5th) floor facade as those installed by Tenant on
the fourth (4th) floor facade of the Building in accordance with Schedule P
of the Lease, and such installation shall be performed in accordance with
the provisions of the Lease."
(e) Section 25.06 of the Lease shall be deemed inapplicable to the
First Additional Space and shall be replaced by the following:
"25.06. (a) Landlord represents that as of the date hereof the
following is a comprehensive list of all Superior Instruments:
(i) a certain mortgage, as modified by a certain Mortgage
Modification Agreement, dated as of June 20, 1991 between Mortgagee
and Landlord's predecessor in interest and a further Project Loan
Agreement, dated December 20, 1991 between Mortgagee and Landlord,
(ii) a certain ground lease dated January 26, 1989 between
ComMet 380, Inc. ("Ground Lessor"), as ground lessor and Landlord's
predecessor in interest, as ground lessee,
(iii) a certain Agreement of Consolidation, Extension and
Modification of Mortgages, dated as of July 1, 1997 between GMAC
Commercial Mortgage Corporation and Ground Lessor."
(b) Landlord represents that as of the date hereof all the
Superior Instruments are in full force and effect and Landlord has received
no notices of defaults thereunder which have remained uncured beyond the
applicable grace period set forth in the applicable Superior Instrument."
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(f) Pursuant to Section 44.01 of the Lease (as modified by
Paragraph 2 of the First Supplemental Agreement), Tenant shall be entitled to
an additional thirty (30) kilovolt amperes (KVA) of the Generator's capacity
on account of the inclusion of the First Additional Space from the generator
to which Tenant's equipment is currently connected, provided that any work to
provide such increased capacity to the Generator shall be performed by Tenant
at Tenant's sole cost and expense, in accordance with the terms of the Lease
including without limitation Paragraph 2 of the First Supplemental Agreement.
(g) Notwithstanding anything to the contrary contained in the
Lease, including without limitation Section 8.01 thereof, (i) Landlord shall
have no liability for, and Tenant shall be solely responsible for compliance
with, the Disabilities Act in the First Additional Space to the extent that
the requirement for such compliance arises from a condition existing in the
First Additional Space as of the date hereof and/or to the extent that Tenant
shall make any alterations or improvements in the First Additional Space, and
(b) the provisions of the third sentence of such Section 8.01 shall not apply
to the First Additional Space, but, as of the date hereof, Landlord
represents that Landlord has received no notice of any violation of Legal
Requirements in the First Additional Space which remains uncured.
(h) Tenant, at Tenant's cost and expense, shall have the right to
furnish and install in the demised premises a private stairway connecting the
4th and 5th floor portions of the demised premises, provided, however, that
the location, style, design and quality of said stairway (to be shown on
final working drawings and final field sketches to be submitted by Tenant to
Landlord) and the field procedures shall, except to the extent otherwise
provided in the Lease, be subject to the prior written approval of Landlord,
which approval will not be unreasonably withheld. Tenant covenants and
agrees that said stairway shall be removed by Tenant from the Building, at
Tenant's cost and expense, prior to the expiration or other termination of
the term of this Lease, and Tenant, at Tenant's cost and expense, shall
promptly seal up and restore the floor slab to a finished level condition and
repair any and all damage to the demised premises and the Building resulting
from such removal of said stairway. Prior to any such removal and
restoration, Tenant, at Tenant's cost and expense, shall submit to Landlord,
for Landlord's approval which shall not be unreasonably withheld or delayed,
working drawings, field sketches and field procedures for such removal and
restoration. Any such removal of such stairway and restoration shall be done
in a good and workmanlike manner and in accordance with said working
drawings, fixed sketches and filed procedures, as so approved by Landlord,
and in such manner as shall be reasonably satisfactory to Landlord. Tenant
shall not be entitled to any diminution, abatement of rent or other
compensation under this Lease by reason of discomfort, inconvenience,
annoyance, injury or damage to business or property incidental to or
connected with any such removal of said stairway or restoration.
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(i) Landlord shall not unreasonably withhold or delay its consent
to a request from Tenant to soundproof the MER room which is located adjacent
to (*) the First Additional Space provided and on condition that (1) in
Landlord's reasonable judgment, such soundproofing shall be reasonably
necessary and shall not interfere with the operation of the Building or
require any alterations to other parts of the Building (unless Tenant shall
agree to be liable for the cost of such alterations), (2) such soundproofing
(and any ancillary alterations) shall be performed in accordance with the
provisions of the Lease governing the making of alterations by Tenant
including, without limitation, Article 6 of the Lease, and (3) all costs and
expenses of such soundproofing shall be borne by Tenant.
4. Tenant agrees to accept the First Additional Space on the
Adjustment Date in the "as is" condition in which it exists on the date
hereof (except that the existing tenant shall remove its property prior to
the Adjustment Date or Landlord will remove such property promptly after the
Adjustment Date) and understands and agrees that Landlord is not obligated to
perform any work, supply any materials or incur any expense in connection
with preparing the First Additional Space for Tenant's occupancy. Landlord
shall deliver the First Additional Space to Tenant in broom clean condition.
5. Tenant covenants, represents and warrants that Tenant has had
no dealings or communications with any broker or agent other than Landlord's
leasing agent, if any, and Newmark & Company Real Estate, Inc. (hereinafter
called the "Broker") in connection with the consummation of this Agreement.
Landlord and Tenant covenant and agree to pay, hold harmless and indemnify
each other from and against any and all cost, expense (including reasonable
attorneys' fees and court costs), loss and liability for any compensation,
commissions or charges claimed by any broker or agent, other than the brokers
specifically set forth in this Paragraph, with respect to this Agreement or
the negotiation thereof if such claim or claims by any such broker or agent
are based in whole or in part on dealing with the indemnifying party or its
representatives. Landlord agrees to pay to Landlord's leasing agent and the
Broker such compensation, commissions or charges to which they are entitled
pursuant to a separate agreement between said broker and Landlord.
6. Except as modified by this Agreement, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full
force and effect and are hereby in all respects ratified and confirmed.
7. The covenants, agreements, terms and conditions contained in
this Agreement shall bind and inure to the benefit of the parties hereto and
except as otherwise provided in the Lease as hereby supplemented, their
respective legal successors and assigns.
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* To be confirmed.
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8. This Agreement may not be changed or terminated orally but
only by a writing signed by the party against whom enforcement thereof is
sought.
9. This Agreement shall not be binding upon Landlord unless and
until it is signed by Landlord and a fully executed counterpart thereof is
delivered to Tenant.
10. (a) Tenant is executing and delivering this Agreement subject
to and conditioned upon the approval of this Agreement (hereinafter
collectively referred to as the "APPROVALS") from (i) the Mortgagee, and (ii)
ComMet 380, Inc., which Landlord represents is the successor-in-interest to
the Ground Lessor, as defined in Section 25.05(b) of the Lease. Promptly
after this Agreement shall have been executed by Landlord and Tenant and
delivered in escrow to the escrow agent to be held pursuant to that certain
Escrow Agreement dated of even date herewith among Landlord, Tenant and
Bachner, Tally, Xxxxxxx & Xxxxxx LLP, as escrow agent, Landlord shall make
written request for the Approvals. If Landlord has not obtained both
Approvals on or before December 31, 1997, then this Agreement shall terminate
as of December 31, 1997 unless Tenant shall, on or before December 23, 1997,
have given Landlord written notice that Tenant waives the condition set forth
in the first sentence of this subparagraph 10(a) (the "Waiver Notice").
(b) In the event of the termination of this Agreement pursuant to
subparagraph 10(a) hereof, and upon such termination, all obligations of the
parties under this Agreement shall end with respect to the First Additional
Space; and the Lease shall continue in full force and effect with respect to
the Demised Premises as originally demised and neither Landlord nor Tenant
shall have any liability to the other with respect to the First Additional
Space.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
Witness: SPARTAN MADISON CORP., Landlord
By: X. X. Xxxxx
----------------------- ----------------------------
Name: X.X. Xxxxx
Title: President
Witness: INVESTMENT TECHNOLOGY GROUP, INC.,
Tenant
Xxxx X. XxxXxxxxx By: Xxxxxxx X. Xxxxxxx
----------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 25th day of November, 1997, before me personally came
Xxxxxxx X. Xxxxxxx, to be known, who, being duly sworn by me, did depose and
say that he resides at171 Xxxx 00xx Xxxxxx, Xxx Xxxx XX; that he is the
Senior V.P. and General Counsel and Secretary of INVESTMENT TECHNOLOGY GROUP,
INC., the corporation described in and which executed the above instrument;
and that he signed his name thereto by order of the board of directors of
said corporation.
Xxxxxx Xxxx
-----------
Notary Public
Xxxxxx Xxxx
Notary Public - State of New York
No. 01PA5035228
Qualified in Queens County
Commission Expires October 31, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
: ss.:
COUNTY OF SUFFOK )
On this 9th day of December, 1997, before me personally came X.X.
Xxxxx, to be known, who, being duly sworn by me, did depose and say that he
resides at Wellesley; that he is the President of SPARTAN MADISON CORP., the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the board of directors of said
corporation.
Xxxxx X. Mailboux
Notary Public
My commission Expires march 25, 1999
EXHIBIT A
Floor Plan of First Additional Space
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