Delaware
(State or other jurisdiction of incorporation or organization) |
6221
(Primary Standard Industrial Classification Code Number) |
20-4568600
(I.R.S. Employer Identification Number) |
Andrew P. Gilbert, Esq.
Morgan, Lewis & Bockius LLP 502 Carnegie Center Princeton, New Jersey 08540 Tel: (609) 919-6600 Fax: (609) 919-6701 |
Joseph A. Hall, Esq.
Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 Tel: (212) 450-4500 Fax: (212) 450-3500 |
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
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SEC registration fee
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$ | 6,975 | ||
FINRA filing fee
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* | |||
NASDAQ Global Market listing fee
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* | |||
Accountants fees and expenses
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* | |||
Legal fees and expenses
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* | |||
Blue Sky fees and expenses
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* | |||
Transfer Agent and Registrars fees and expenses
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* | |||
Printing and engraving expenses
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* | |||
Miscellaneous
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* | |||
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Total
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$ | * |
* | To be filed by amendment. |
II-1
Exhibit No. | Description | |||
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1.1 | * |
Underwriting Agreement.
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3.1 | ** |
Second Amended and Restated Certificate of Incorporation to be superseded by the Third Amended and Restated
Certificate of Incorporation to be effective upon the closing of the offering.
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3.2 | * |
Amended and Restated By-laws to be effective upon the closing of the offering.
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3.3 | * |
Form of Third Amended and Restated Certificate of Incorporation to be effective upon the closing of the offering.
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4.1 | * |
Specimen Certificate evidencing shares of common stock.
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II-2
Exhibit No. | Description | |||
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4.2 |
Investor Rights Agreement, dated January 11, 2008, by and among the Company, the Investors and the Founding
Stockholder, as defined therein.
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5.1 | * |
Opinion of Morgan, Lewis & Bockius LLP.
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10.1 | ** |
2006 Equity Compensation Plan (amended and restated, effective December 31, 2006).
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10.2 | * |
2009 Omnibus Incentive Compensation Plan.
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10.3 | * |
2009 Employee Stock Purchase Plan.
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10.4 | * |
Form of Incentive Stock Option Agreement.
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10.5 | * |
Form of Nonqualified Stock Option Agreement.
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10.6 | * |
Form of Restricted Stock Agreement.
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10.7 | * |
Form of Restricted Stock Unit Agreement (Time Vesting).
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10.8 | * |
Form of Restricted Stock Unit Agreement (Performance Vesting).
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10.9 | * |
Form of Restricted Stock Unit Agreement (Immediate Vesting).
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10.10 |
Form
of Indemnification Agreement with the Companys Non-Employee
Directors.
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10.11 | ** |
Loan and Security Agreement, dated as of March 29, 2006, by and among GAIN Capital Holdings, Inc., Silicon
Valley Bank and JPMorgan Chase Bank, N.A.
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10.12 | ** |
Pledge and Security Agreement, dated as of March 29, 2006, by and among GAIN Capital Holdings, Inc., Silicon
Valley Bank and JPMorgan Chase Bank, N.A.
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10.13 | ** |
Unconditional Guaranty, dated as of March 29, 2006, by and among GAIN Holdings, LLC, Silicon Valley Bank and
JPMorgan Chase Bank, N.A.
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10.14 | ** |
First Loan Modification Agreement, dated as of October 16, 2006, by and among GAIN Capital Holdings, Inc.,
Silicon Valley Bank and JPMorgan Chase Bank, N.A.
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10.15 | ** |
Second Loan Modification Agreement, dated as of March 20, 2007, by and among GAIN Capital Holdings, Inc.,
Silicon Valley Bank and JP Chase Bank, N.A.
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10.16 | ** |
Third Loan Modification Agreement, dated June 6, 2007, by and among GAIN Capital Holdings, Inc., Silicon Valley
Bank and JPMorgan Chase Bank, N.A.
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10.17 | ** |
Fourth Loan Modification Agreement, dated as of March 18, 2008, by and among GAIN Capital Holdings, Inc.,
Silicon Valley Bank and JPMorgan Chase Bank, N.A.
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10.18 | ** |
Fifth Loan Modification Agreement, dated as of June 18, 2009 and effective as of March 17, 2009, by and among
GAIN Capital Holdings, Inc., Silicon Valley Bank and JPMorgan Chase Bank, N.A.
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10.19 |
Employment Agreement, dated as of January 1, 2008, by and between GAIN Capital Holdings, Inc. and Glenn Stevens.
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10.20 |
Employment Letter, dated as of August 26, 2009, by and between GAIN Capital Holdings, Inc. and Christopher
Calhoun.
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10.21 |
Employment Letter, dated as of March 23, 2009, by and between GAIN Capital Holdings, Inc. and Henry Lyons.
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10.22 |
Employment Letter, dated as of March 8, 2000, by and between GAIN Capital Holdings, Inc. and Timothy OSullivan.
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10.23 |
Separation Agreement, dated as of January 11, 2008, by and between Mark Galant and GAIN Capital Holdings, Inc.
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10.24 | |
FX Prime Brokerage Master Agreement, dated as of December 6, 2006, by and between GAIN Capital Group, LLC and
The Royal Bank of Scotland, plc.
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10.25 | |
FX Prime Brokerage Agreement, dated as of July 8, 2005, by and between UBS AG and GAIN Capital, Inc.
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10.26 | |
Foreign Exchange Prime Brokerage Agency Agreement, dated as of July 12, 2006, by and between GAIN Capital Group,
LLC and The Royal Bank of Scotland, plc.
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10.27 | |
Foreign Exchange Prime Brokerage Agreement, dated October 18, 2005, by and between Deutsche Bank AG, London
Branch and GCAM, LLC.
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II-3
Exhibit No. | Description | |||
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10.28 |
Amendment to Foreign Exchange Prime Brokerage Agreement, dated January 26, 2006, by and between Deutsche Bank
AG, London Branch and GCAM, LLC.
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10.29 | * |
Form of ISDA Master Agreement, 1992 edition.
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10.30 |
Form of Introducing Broker Agreement.
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10.31 |
Form of Agreement for White Label Services.
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10.32 |
Sublease, dated March 31, 2005, by and between GAIN Capital, Inc. and NUI Corporation.
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10.33 |
Agreement of Sublease, dated November 14, 2005, by and between Mellon Investor Services LLC and GAIN Capital,
Inc.
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10.34 |
First Amendment to Sublease, dated July 20, 2006, by and between Mellon Investor Services LLC and GAIN Capital,
Inc.
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10.35 |
Services Agreement, dated February 1, 2008, by and between GAIN Capital Group, LLC and Scivantage, Inc.
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10.36 |
Schedule 1(b) to Services Agreement, dated February 15, 2009, by and between GAIN Capital Group, LLC and
Scivantage, Inc.
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10.37 |
Lease and Lease Agreement, dated August 18, 2009, by and between S/K Bed One Associates LLC and GAIN Capital
Holdings, Inc.
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10.38 | |
Access Agreement, dated December 1, 2004, by and between Questrade, Inc. and GAIN Capital, Inc.
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10.39 |
Agreement for Lease, dated May 5, 2009, by and between Pontsarn Investments Limited and GAIN Capital Forex.com
U.K., Ltd.
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10.40 | |
Addendum to Access Agreement, dated July 23, 2007, by and between GAIN Capital Group, LLC and Questrade, Inc.
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10.41 | |
Addendum to Access Agreement, dated October 12, 2007, by and between GAIN Capital Group, LLC and Questrade, Inc.
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10.42 | |
Software Licensing and Services Agreement, dated December 1, 2004, by and between Questrade, Inc. and GAIN
Capital, Inc.
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10.43 | |
License Agreement, dated August 9, 2007, by and between GAIN Capital Group, LLC and Metaquotes Software Corp.
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10.44 | * |
Agreement, dated November 22, 2004, by and between esignal, a division of Interactive Data Corporation, and GAIN
Capital, Inc.
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10.45 | |
Sales Lead Agreement, dated October 9, 2006, by and between GAIN Capital Group, LLC and Trading Central.
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10.46 | |
Forex Introducing Broker Agreement, dated April 20, 2005, by and between GAIN Capital Group, Inc. and
TradeStation Securities, Inc.
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10.47 | |
Addendum to Introducing Broker Agreement, dated October 1, 2007, by and between GAIN Capital Group, LLC and
TradeStation Securities, Inc.
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10.48 | |
Second Addendum to Introducing Broker Agreement, dated April 1, 2009, by and between GAIN Capital Group, LLC and
TradeStation Securities, Inc.
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21.1 | ** |
Subsidiaries of the Registrant.
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23.1 | ** |
Consent of Deloitte & Touche LLP.
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23.2 | * |
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1).
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23.3 | ** |
Consent of Aite Group, LLC.
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24.1 | ** |
Power of Attorney.
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* | To be filed by amendment. | |
** | Previously filed. | |
| Confidential treatment requested. Confidential materials omitted and filed separately with the Securities and Exchange Commission. |
II-4
II-5
II-6
GAIN CAPITAL HOLDINGS, INC.
By:
/s/ Glenn H. Stevens
Glenn H. Stevens
President and Chief Executive Officer
Table of Contents
II-7
Signature
Title
Date
President, Chief Executive Officer and
Director (Principal Executive Officer)
November 13, 2009
Chief Financial Officer and Treasurer
(Principal Financial and Accounting
Officer)
November 13, 2009
Chairman of the Board of Directors
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
Director
November 13, 2009
/s/ Glenn H. Stevens
Attorney-in-Fact
Table of Contents
Exhibit No.
Description
1.1
*
3.1
**
3.2
*
3.3
*
4.1
*
4.2
5.1
*
10.1
**
10.2
*
10.3
*
10.4
*
10.5
*
10.6
*
10.7
*
10.8
*
10.9
*
10.10
10.11
**
10.12
**
10.13
**
10.14
**
10.15
**
10.16
**
10.17
**
10.18
**
10.19
10.20
10.21
10.22
Table of Contents
Exhibit No.
Description
10.23
10.24
10.25
10.26
10.27
10.28
10.29
*
10.30
10.31
10.32
10.33
10.34
10.35
10.36
10.37
10.38
10.39
10.40
10.41
10.42
10.43
10.44
*
10.45
10.46
10.47
10.48
21.1*
*
23.1*
*
Table of Contents
Exhibit No.
Description
23.2*
23.3*
*
24.1*
*
*
To be filed by amendment.
**
Previously filed.
Confidential treatment requested. Confidential materials omitted and
filed separately with the Securities and Exchange Commission.
-2-
-3-
-4-
-5-
-6-
-7-
-8-
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COMPANY:
GAIN CAPITAL HOLDINGS, INC. |
||||
By: | /s/ Glenn Stevens | |||
Glenn Stevens | ||||
Chief Executive Officer | ||||
FOUNDING STOCKHOLDER:
|
||||
By: | /s/ Mark E. Galant | |||
Mark Galant | ||||
The Mark E. Galant 2007 GRAT
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||||
By: | /s/ Mark E. Galant | |||
Name: | Mark E. Galant | |||
Title: | Trustee | |||
SERIES D INVESTORS:
VANTAGEPOINT VENTURES PARTNERS IV (Q), L.P. |
||||
By: | VantagePoint Venture Associates IV, | |||
L. L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VANTAGEPOINT VENTURE PARTNERS IV, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L.L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L.L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VP NEW YORK VENTURE PARTNERS, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L.L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
SERIES C INVESTORS:
TUDOR VENTURES II, L.P. |
||||
By: | Tudor Ventures Group, L.P. | |||
its General Partner | ||||
By: | /s/ Carmen J. Scarpa, Jr. | |||
TUDOR VENTURES II L.P. | ||||
By: | Tudor Ventures Group L.P., general partner | |||
By: | Carmen J. Scarpa, Jr. | |||
Managing Director, Tudor Ventures Group LLC | ||||
THE RAPTOR GLOBAL PORTFOLIO, LTD. | ||||
By: | Tudor Investment Corporation, | |||
as Investment Advisor | ||||
By: | /s/ Carmen J. Scarpa, Jr. | |||
Carmen J. Scarpa, Jr. | ||||
Managing Director
Tudor Investment Corporation as Investment Advisor The Raptor Global Portfolio Ltd. |
||||
ALTAR ROCK FUND L.P. | ||||
By: | Tudor Investment Corporation, | |||
its General Partner | ||||
By: | /s/ Carmen J. Scarpa, Jr. | |||
Carmen J. Scarpa, Jr. | ||||
Managing Director
Tudor Investment Corporation as General Partner Altar Rock Fund L.P. |
||||
SERIES B INVESTORS:
EDISON VENTURE FUND IV SBIC, L.P. |
||||
By: | Edison Partners IV, SBIC, LLC, | |||
its General Partner | ||||
By: | /s/ Chris Sugden | |||
Name: | Chris Sugden | |||
Title: | General Partner | |||
CROSS ATLANTIC TECHNOLOGY FUND, L.P. | ||||
By: | XATF Management, LP, its General Partner, | |||
by Cross Atlantic Capital Partners, its General | ||||
Partner | ||||
By: | /s/ Gerry McCrory | |||
Gerry McCrory | ||||
Partner | ||||
BLUE ROCK CAPITAL, L.P. | ||||
By: | Blue Rock Partners, L.P., its General Partner, | |||
by Blue Rock, Inc., its General Partner | ||||
By: | /s/ Virginia Breen | |||
Virginia Breen | ||||
President | ||||
SERIES A INVESTORS:
CROSS ATLANTIC TECHNOLOGY FUND, L.P. |
||||
By: | XATF Management, LP, its General Partner, | |||
by Cross Atlantic Capital Partners, its General Partner | ||||
By: | /s/ Gerry McCrory | |||
Gerry McCrory | ||||
Partner | ||||
BLUE ROCK CAPITAL, L.P. | ||||
By: | Blue Rock Partners, L.P., its General Partner, | |||
by Blue Rock, Inc., its General Partner | ||||
By: | /s/ Virginia Breen | |||
Virginia Breen | ||||
President | ||||
SERIES E INVESTORS:
3I U.S. GROWTH PARTNERS L.P. |
||||
By: | 3i U.S. Growth Corporation, its general partner | |||
By: | /s/ Whitney Bower | |||
Name: Whitney Bower | ||||
Title: Partner | ||||
3I TECHNOLOGY PARTNERS III L.P. | ||||
By: | 3i Technology Corporation, its general partner | |||
By: | /s/ David Silverman | |||
Name: David Silverman | ||||
Title: Senior Vice President | ||||
SERIES E INVESTORS:
VANTAGEPOINT VENTURE PARTNERS IV (Q), L.P. |
||||
By: | VantagePoint Venture Associates IV, | |||
L. L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VANTAGEPOINT VENTURE PARTNERS IV, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L. L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L. L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
VP NEW YORK VENTURE PARTNERS, L.P.
|
||||
By: | VantagePoint Venture Associates IV, | |||
L. L.C., its General Partner | ||||
By: | /s/ Alan E. Salzman | |||
Name: | Alan E. Salzman | |||
Title: | Managing Member | |||
Name: | ||||
Title: | ||||
2
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5
6
7
8
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GAIN CAPITAL HOLDINGS, INC. | |||||||
|
|||||||
By:
|
/s/ Mark E. Galant | ||||||
|
|
||||||
Name: Mark Galant | |||||||
Title: Chairman of the Board | |||||||
/s/ Glenn Stevens
|
|||||||
GLENN STEVENS |
-2-
Sincerely,
GAIN Capital Holdings, Inc. |
||||
/s/ Glen Stevens | ||||
Glen Stevens | ||||
President and Chief Executive Officer | ||||
Agreed and accepted:
|
||||
/s/ Christopher Calhoun | ||||
Christopher Calhoun | ||||
8-26-09 | ||||
Date | ||||
-3-
-2-
-3-
GAIN Capital Holdings, Inc.
|
||||
/s/ Glen Stevens | ||||
Glen Stevens | ||||
President and Chief Executive Officer | ||||
Agreed and accepted:
|
||||
/s/ Henry Lyons | ||||
Henry Lyons | ||||
3/23/09 | ||||
Date | ||||
-4-
1.
|
Salary | $130,000 | ||
|
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2.
|
Bonus | Part of the trading bonus pool, if company generates sufficient profit. Amount available for year 2000 is 10% of all trading revenues less all expenses except advertising. Actual dollar amount given to an individual trader will be at managements discretion. Factors in determining specific traders amount will be: traders P&L, amount of risk taken, teamwork and other value added given to the firm. | ||
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3.
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Options | 80,000 out of a current 10,000,000 shares outstanding following GAINs first completed venture round. Strike price to be set between $.80 - $1.10 per share. Three year vest straight line (ie. You get 1/3 of your options on your first anniversary date). After closing, you will receive a detailed option agreement. Your options are part of an employee options pool that covers yourself and all other GAIN employees. The grant of options will be subject to approval by the Companys Board of Directors. On top of the 15% employee pool dilution, GAIN will actively be looking for a strategic partner(s) to invest in GAIN and give us additional credibility. This amount is likely to be at least 10% of existing shares. | ||
|
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4.
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Right to Purchase Preferred Stock | Before the second closing of GAINs first venture round, you also have the ability to purchase 40,000 shares of participating preferred stock at a price of $1.10 each. In connection with the purchase of preferred stock, you will be required to execute documents customary for transactions of this nature, together with a voting agreement. | ||
|
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5.
|
Benefits | At this time we are anticipating health insurance 75% funded by GAIN, long- term disability insurance (60% of salary after 180 days), short-term disability insurance, life insurance (equal to salary), workmans compensation, and a 401k package. | ||
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6.
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Legal | All GAIN employees must sign a confidentiality, non-compete and non-hire agreement. All GAIN employees are employees at will. | ||
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7.
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Vacation | Three weeks per year. All vacations during the first 6 months of the year 2000 must be approved in advance by the CEO. |
/s/ Mark E. Galant | /s/ Tim OSullivan | |||||
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|||||
CEO
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||||||
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||||||
March 8, 2000 | March 8, 2000 | |||||
Date | Date |
1
2
3
Very truly yours, | ||||||
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Mark Galant | |||||
/s/ Mark E. Galant | ||||||
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GAIN CAPITAL HOLDINGS, INC. | |||||||
|
|||||||
By:
|
/s/ Glenn Stevens | ||||||
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|
||||||
Name: Glenn Stevens | |||||||
Title: Chief Executive Officer |
4
Clause | Page | |||
1. Interpretation
|
3 | |||
2. Appointment of Customer as Agent of Prime Broker
|
5 | |||
3. Prime Broker Counterparty Transactions
|
6 | |||
4. Customer Transactions
|
7 | |||
5. Unauthorised Transactions
|
7 | |||
6. Representations and Undertakings
|
8 | |||
7. Indemnity and Exclusions of Liability
|
8 | |||
8. Commission
|
9 | |||
9. Material Interests
|
10 | |||
10. Confidentiality
|
10 | |||
11. Instructions
|
10 | |||
12. Notices
|
11 | |||
13. Termination
|
11 | |||
14. Conflict of Agreements and Inconsistency
|
11 | |||
15. Amendments
|
12 | |||
16. General
|
12 | |||
17. Governing Law
|
13 | |||
|
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Schedule
|
||||
|
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1. Platform Provider
|
14 | |||
2. Eligibilty Criteria, Spread and Commission
|
15 |
2
(1) | The Royal Bank of Scotland pIc, a company incorporated under the laws of Scotland, whose registered office is 36 St Andrew Square, Edinburgh EH2 2YB acting through its Global Banking & Markets division situated at 135 Bishopsgate, London EC3M 3UR (the Prime Broker ); and | |
(2) | Gain Capital Group, LLC incorporated under the laws of Delaware whose registered office/principal place of business is at 550 Hills Drive Bedminster, NJ 07921 (the Customer ). |
(A) | The Customer may utilise the Platform Trading Service (as defined below) subject to compliance with the terms of the User Agreement, including having in place an FX Prime Brokerage Master Agreement with the Prime Broker. | |
(B) | This Agreement is an FX Prime Brokerage Master Agreement. | |
(C) | The Prime Broker may establish dealing relationships with various Counterparties (as defined below) setting out the basis upon which the Prime Broker may appoint an agent to engage in Transactions on behalf of the Primer Broker with each Counterparty on the Platform Trading Service. | |
(D) | The Prime Broker hereby wishes to appoint the Customer as its agent in respect of certain Counterparties for the purposes set out in (C) above, and to trade with the Customer as principal, strictly on the terms, conditions and limits expressly stated below. |
(i) | entered into by the Customer within its authority under clause 2; or | |
(ii) | in the case of a Prime Broker Counterparty Transaction, entered into in accordance with the Customers undertakings under clause 3.3. |
3
4
2.1 | Subject to its compliance with the terms of this Agreement, the Customer may from time to time enter into Counterparty Transactions as agent of the Prime Broker. | |
2.2 | The authorisation of the Customer under clause 2.1 is expressly limited as follows: |
(a) | the Customer shall only have authority to enter into Counterparty Transactions fulfilling the following criteria: |
(i) | each Counterparty Transaction shall be with a Counterparty; | ||
(ii) | each Counterparty Transaction shall be made utilising the Platform Trading Service; | ||
(iii) | each Counterparty Transaction shall be entered into in accordance with such terms as may be agreed between the Platform Provider and the Customer, if any; and | ||
(iv) | each Counterparty Transaction shall be an Eligible Transaction and for the avoidance of doubt, the Customer shall have no authority under this Agreement to enter into any transaction as agent for or in any way bind the Prime Broker, or to hold itself out as having authority to enter into any transaction as agent for the Prime Broker or in any way bind the Prime Broker other than in accordance with this sub-clause (a). |
(b) | the Customer shall not have authority (and shall not hold itself out as having authority): |
(i) | to vary the terms of, terminate, novate, assign or otherwise amend a Counterparty Master Agreement; or | ||
(ii) | to vary the terms of a pre-existing Counterparty Transaction. |
(c) | the Customers authority shall be suspended if and for so long as the Customer is in breach of the User Agreement or the Customer Master |
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Agreement; and |
(d) | the Prime Broker may suspend, limit or terminate, the Customers authority under this clause at any time by notice to any of the Customer, the Platform Provider, or a Counterparty (in respect of the Customers authority in respect of that Counterparty) provided that the Prime Broker may dispense with the giving of such notice in case of emergency. |
2.3 | The Customer shall not make any representation or warranty relating to the Prime Broker or the Customers authorisation under this Agreement, or hold itself out as agent of the Prime Broker: |
(a) | to any Counterparty (except to the extent such representation, warranty or holding out accurately reflects the authority of the Customer under this Agreement in relation to such Counterparty); or | ||
(b) | to any other person |
2.4 | The Prime Broker may amend the Eligibility Criteria at any time. Any such amendment shall take effect immediately irrespective of whether the Customer is aware of such amendment. If it is reasonably practicable to do so, the Prime Broker shall use reasonable commercial endeavours to notify the Customer in advance of any amendment to the Eligibility Criteria. If it is not practicable to provide advance notification of an amendment, the Prime Broker shall notify the Customer of the amendment as soon as reasonably practicable after the change is made. | |
3. | PRIME BROKER COUNTERPARTY TRANSACTIONS | |
3.1 | In the course of dealing on certain Platform Trading Services, as advised to the Customer by Prime Broker, the Customer may enter into Counterparty Transactions to which the Prime Broker is Counterparty (a Prime Broker Counterparty Transaction ). | |
3.2 | Where the Customer enters into a Prime Broker Counterparty Transaction, the parties agree that: |
(a) | the Customer acts as principal and not as agent for the Prime Broker in relation to the negotiation and agreement of the Prime Broker Counterparty Transaction; and | ||
(b) | the resultant Prime Broker Counterparty Transaction shall be deemed to be a Transaction between the Prime Broker acting in its capacity as Prime Broker under this Agreement and the Prime Broker acting in the capacity of Counterparty, and such Transaction shall constitute a Counterparty Transaction for all purposes of this Agreement (including without limitation for the purpose of forming the terms of a Customer Transaction pursuant to clause 4). |
3.3 | The Customer undertakes that: |
(a) | each Prime Broker Counterparty Transaction shall be entered into in accordance with the terms of the User Agreement; and |
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(b) | each Prime Broker Counterparty Transaction shall be an Eligible Transaction. |
4. | CUSTOMER TRANSACTIONS |
4.1 | On entry by the Customer into a Counterparty Transaction, a Customer Transaction shall arise. | |
4.2 | The terms of a Customer Transaction shall be as follows: |
(a) | the Prime Broker shall undertake obligations to and rights against the Customer such that the Prime Broker has rights and obligations equivalent to those of the Counterparty under the Counterparty Transaction, subject to paragraphs (c) and (d); | ||
(b) | the Customer shall undertake obligations to and rights against the Prime Broker such that the Customer has rights and obligations equivalent to those of the Prime Broker under the Counterparty Transaction, subject to paragraphs (c) and (d); | ||
(c) | if any Spread is set out in Schedule 2, the Spread shall be added to the payment obligation of the Customer under paragraph (a), and the right to payment of the Prime Broker under paragraph (b); and | ||
(d) | the Customer Trans,action shall be subject to and governed by the terms of the Customer Master Agreement. |
4.3 | Notwithstanding the provisions of clause 4.2, if the Customer enters into an Unauthorised Counterparty Transaction, the Unauthorised Customer Transaction which arises pursuant to such Unauthorised Counterparty Transaction shall be subject to the terms of clause 5 (Unauthorised Transactions), and the Prime Broker shall have all rights and remedies relating to the Unauthorised Counterparty Transaction and the Unauthorised Customer Transaction set out in this Agreement or otherwise arising at law or in equity. | |
5. | UNAUTHORISED TRANSACTIONS | |
5.1 | If the Customer enters into an Unauthorised Counterparty Transaction, the Prime Broker may (but shall not be obliged to) take such steps as it considers desirable or necessary acting in its sale discretion to discharge, offset, cancel or hedge its rights and obligations under the Unauthorised Counterparty Transaction. Such steps may include (without limitation): |
(a) | entering into one or more Transactions or other transactions with a third party to reduce or offset its obligations under the Unauthorised Counterparty Transaction (an Offsetting Transaction ); | ||
(b) | entering into an agreement with the Counterparty to compromise, settle or cancel (in whole or in part) the Unauthorised Counterparty Transaction (a Settlement Transaction ); | ||
(c) | amending the terms of or cancelling the Unauthorised Customer Transaction to which the Unauthorised Counterparty Transaction relates; or | ||
(d) | amending the terms of or cancelling any unsettled Authorised Customer Transaction. |
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5.2 | The Customer hereby gives its consent to the amendment or cancellation of any Customer Transaction under clause 5.1. | |
5.3 | This Clause 5 shall survive termination of this Agreement | |
6. | REPRESENTATIONS AND UNDERTAKINGS | |
6.1 | Each party represents and warrants to the other that: |
(a) | it is duly authorised and empowered to enter into and perform its obligations under or in connection with this Agreement, the Transactions contemplated hereby; | ||
(b) | this Agreement is a legally binding obligation binding on it and enforceable in accordance with its terms; | ||
(c) | all necessary authorities and authorisations (including without limitation any regulatory or governmental consents or approvals) to enable or entitle it enter into this Agreement and to perform its obligations hereunder are in full force and effect and will remain in full force and effect at all times during the term hereof; | ||
(d) | all information supplied to the other party is true, complete and accurate in all material respects and it will advise the other party forthwith of any material change to any information previously provided; and | ||
(e) | it will comply with all applicable legal and regulatory requirements in each jurisdiction in which it carries on business. |
6.2 | The representations and warranties set out in clause 6.1 shall be deemed to be repeated on each occasion on which the Customer acts as agent of the Prime Broker under this Agreement. | |
6.3 | The Customer undertakes that it will act as principal and not as agent for any other person in performing its duties and obligations under this Agreement (including without limitation the entry into and performance of Customer Transactions), except as provided in clause 2. | |
7. | INDEMNITY AND EXCLUSIONS OF LIABILITY | |
7.1 | Neither the Prime Broker nor any of its directors, officers, employees, nominees, delegates or agents will be liable for any loss suffered or for any action taken or not taken pursuant to or in the course of this Agreement, any Transaction or in connection with the Platform Trading Service unless the Prime Broker or such other person is negligent or guilty of willful misconduct or fraud. | |
7.2 | The Customer shall fully and promptly indemnify the Prime Broker and any of its directors, officers, employees, nominees, delegates or agents and will keep the Prime Broker and each of them indemnified from and against any claims, proceedings, expenses, costs, losses, damages and liabilities of every description (including legal fees, accountants fees, fines and penalties), direct or consequential in nature, which may be sustained or incurred by, or asserted against them directly or indirectly in connection with or arising out of: |
(a) | any act or omission of the Prime Broker in accordance with a request from the Customer under or in connection with this Agreement (including without |
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limitation any act or omission relating to the Prime Brokers participation on the Platform Trading Service) unless the Prime Broker is negligent or guilty of willful misconduct or fraud; | |||
(b) | the negligence, willful default, intentional misconduct, or fraud of the Customer; | ||
(c) | any breach of this Agreement (including the entry by the Customer into an Unauthorised Counterparty Transaction or Unauthorised Customer Transaction) (including any use of the Platform Trading Service in breach of applicable law) by the Customer; or | ||
(d) | any liability or obligation of the Prime Broker to the Platform Provider arising by virtue of or in connection with any of paragraphs (b) or (c). |
7.3 | The Prime Broker shall not incur any liability for any loss, cost, expense or liability suffered by the Customer resulting from any act or omission (including a default or misconduct) of the Platform Provider or any participant on the Platform Trading Service (including any Counterparty). In particular (but without limiting the generality of the foregoing) the Prime Broker is not responsible for the operation of the Platform Trading Service, or the form, accuracy or content of any data, notice, report, communication or material generated or communicated by the Platform Trading Service. | |
7.4 | The Prime Broker shall not incur any liability for failure to perform its obligations under this Agreement or for any loss, cost, expense or liability suffered by the Customer as a result of any act of God, war, riot, natural or other disaster, fire, industrial dispute, breakdown or failure of transmission, communication or computer facilities, change in any law or regulation, or any other cause beyond the reasonable control or anticipation of the Prime Broker. | |
7.5 | For the avoidance of any doubt, it is agreed that the Prime Broker shall in no circumstances be liable to the Customer for special, indirect and consequential damages arising as a result of any breach by the Prime Broker of any proviSion of this Agreement | |
7.6 | Nothing in this Agreement shall limit or exclude the liability of the Prime Broker for fraud, death or personal injury or otherwise to the extent prohibited under applicable law or regulation. | |
8. | COMMISSION | |
8.1 | This clause 8 shall apply if Schedule 2 specifies that Commission shall be payable. | |
8.2 | The Customer shall pay the Commission in accordance with the terms of Schedule 2 as amended from time to time. | |
8.3 | The Customer shall pay the Commission to the Prime Broker within thirty (30) days after it has received the relevant invoice from the Prime Broker in the place of the account specified by the Prime Broker in freely transferable funds and in the manner customary for payments in the required currency. If the Customer fails to make, when due, any payment under this Agreement the Prime Broker shall be entitled to take any action necessary in its sole and absolute discretion, including but not limited to deducting from any collateral or margin that Customer has pledged or given to Prime Broker or debiting any account maintained with the Prime Broker, in the amount of fees owed. |
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8.4 | All payments under this clause shall be exclusive of any applicable value added, sales, use, withholding or other tax or duty (which tax or duty shall be paid by the Customer). | |
9. | MATERIAL INTERESTS |
(a) | required to do so by any court, market or regulatory authority having jurisdiction over the party or any applicable law or regulation; | ||
(b) | such disclosure is necessary to carry out its obligations under this Agreement; | ||
(c) | the Confidential Information so disclosed is already in the public domain; or | ||
(d) | such disclosure is to, or use is by, the Platform Provider in accordance with the User Agreement or any agreement between the Prime Broker and the Platform Provider. |
10.3 | Notwithstanding clauses 10.1 and 10.2, the Prime Broker may disclose Confidential Information to Affiliates. The Customer hereby consents to and authorises such disclosure of Confidential Information and acknowledges that any duty of confidentiality owed by the Prime Broker, howsoever arising, will not be regarded as being breached by any such disclosure. | |
11. | INSTRUCTIONS | |
11.1 | The Prime Broker may rely conclusively on, and the Customer shall be bound by, any communication received through the Platform Trading Service which purports to originate from the Customer. For the purposes of this Agreement all such communications shall be deemed to be at the Customers request for all purposes of this Agreement. The Prime Broker is not obliged to do anything to establish the authority or identify of the person sending a communication through the Platform Trading Service. |
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11.2 | The Prime Broker is not responsible for errors or omissions made by the Customer or the Platform Provider in communicating instructions under this Agreement or resulting from fraud or the duplication of any communication by the Customer. | |
12. | NOTICES | |
12.1 | All written notices under this Agreement shall be delivered to the address of the recipient set out below (or such other address as it may specify in writing from time to time) unless otherwise specified by hand, courier, mail, facsimile or electronic means including where available through the Platform Trading Service and subject to clause 12.2 shall be effective upon receipt. | |
12.2 | Any notice sent by first class post (air mail in the case of international communications) shall be deemed to be received on the second day following the date of posting in the case of communications within the United Kingdom and the seventh day following the date of posting in the case of international communications. | |
12.3 | The addresses for the sending of notices under this Agreement shall be as follows: |
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issued by the Prime Broker and relating to the matters covered by this Agreement, and in the event of any conflict between this Agreement and the Prime Brokers standard terms of business, this Agreement shall prevail. |
14.2 | This Agreement shall not be deemed to vary or amend the Customer Master Agreement and, in the event of any inconsistency between this Agreement and the provisions of the Customer Master Agreement, the provision of the Customer Master Agreement shall prevail. | |
15. | AMENDMENTS | |
15.1 | The Prime Broker may amend this Agreement with immediate effect or such later date as it determines if it is, or reasonably believes it is, obliged to do so under applicable law or regulation. | |
15.2 | In any other circumstance including where such amendments are required as a result of amendments made by the Platform Provider to the terms upon which the Platform Trading Service is provided to the Prime Broker or the Customer, the Prime Broker may amend this Agreement by sending the Customer a written notice describing the relevant changes: such changes will become effective on a date to be specified in the notice, which must be at least ten (10) Business Days after the notice is sent to the Customer. | |
16. | GENERAL | |
16.1 | Nothing in this Agreement shall be deemed to constitute a partnership between the parties, nor constitute either party the agent of the other party, for any purpose except as set out in clause 2. | |
16.2 | This Agreement may be executed in any number of counterparts. This has the same effect as if the Signatures on the counterparts were on a single copy of this Agreement. | |
16.3 | The rights of each party under this Agreement: |
(a) | may be exercised as often as necessary; | ||
(b) | are cumulative and not exclusive of rights or remedies provided by law; and | ||
(c) | may be waived only in writing and specifically. | ||
Delay in exercising or non-exercise of any such right is not a waiver of that right. The rights and remedies provided under this Agreement are cumulative and not exclusive of those provided by law. The Prime Broker shall be under no obligation to exercise any right or remedy either at all or in a manner or at a time beneficial to the Customer. |
16.4 | If any term of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect: |
(a) | the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or | ||
(b) | the legality, validity or enforceability in other jurisdictions of that or any other provision of this Agreement. |
16.5 | Each party shall pay the costs and expenses incurred by it in connection with the entering into of this Agreement. |
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16.6 | Any notice or other communication given in connection with this Agreement must be in English. | |
16.7 | A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. | |
16.8 | This Agreement and the documents referred to in it contain the whole agreement between the parties relating to the transactions contemplated by this Agreement and supersede all previous agreements between the parties relating to those transactions. | |
16.9 | Subject to clause 16.10, each party acknowledges that in entering into this Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement and the documents referred to in it) made by or on behalf of the other party before the date of this Agreement. Each party waives all rights and remedies which, but for this clause 16.9, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance. | |
16.10 | Nothing in clause 16.9 limits or excludes any liability for fraud. | |
16.11 | Neither party may assign this Agreement or any right or obligation under it without the prior written consent of the other. | |
16.12 | Each Customer Transaction shall be subject to a written confirmation which shall be delivered by the Prime Broker (and the Customer at its option) in accordance with the Prime Brokers standard confirmation procedure which shall include the use of electronic means, including but not limited to SWIFT. All settlements in respect of Customer Transactions shall be made to each partys nostro account as specified in their respective standard settlement Instructions. | |
17. | GOVERNING LAW | |
This Agreement is governed by and shall be construed in accordance with English law, and the Customer hereby irrevocably submits to the non-exclusive jurisdiction of the English courts in respect of any dispute arising out of this Agreement and each Transaction effected pursuant to the Agreement. |
SIGNED
for and on behalf of
GAIN CAPITAL GROUP, LLC |
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/s/
Glenn H. Stevens
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Glenn H. Stevens | ||||
Managing Director |
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(i) | FX Transactions; | ||
(ii) | Currency Option Transactions | ||
(iii) | Exotic Options. |
1. | Definitions Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the CP ISDA Master Agreement. | |
Authorized Transactions means foreign exchange transactions of a type that UBS has authorized the Customer to enter into with Dealer. | ||
CP ISDA Master Agreement means the ISDA Master Agreement dated October 19, 2000 by and between Customer and UBS and the Credit Support Annex to the CP ISDA Master Agreement. | ||
Currency Option Transaction shall have the meaning ascribed in the 1998 FX and Currency Option Definitions, as amended from time to time (as published by the International Swaps and Derivatives Association, Inc., the Emerging Markets Traders Association (EMTA) and The Foreign Exchange Committee) ( FX Definitions ) and for the avoidance of doubt, shall not include an option that would otherwise be deemed to be an Exotic Option. | ||
Dealer means those banks and dealers authorized by UBS, pursuant to a Master FX Give-Up Agreement, with whom Customer can enter into Authorized Transactions. Customer shall be notified of such Dealers by UBS in writing from time to time, specifying the type of Authorized Transactions and limits therefor. | ||
Deliverable Currency Option Transaction shall have the meaning ascribed in the FX Definitions. | ||
Deliverable FX Transaction shall have the meaning ascribed in the FX Definitions. | ||
Delta means, in respect of each Currency Option Transaction, the amount calculated by UBS to be the change in option price for a change in the underlying price (as determined by UBS) for such Currency Option Transaction. | ||
Delta Equivalent Position means, for each Currency Option Transaction, the Delta multiplied by the U.S. dollar equivalent (as calculated by UBS in a commercially reasonable manner) of each currency to be received by UBS if such Currency Option Transaction were exercised, as calculated by UBS. |
Exotics Net Open Position shall be calculated in the manner specified in Attachment 1. | ||
Exotic Notional Limit means the maximum notional quantity (calculated in the manner specified in Attachment 1) of Exotic Options that Customer can trade with each Dealer on a trade date, such limit to be advised to Customer by UBS from time to time. | ||
Exotic Options means barrier options (and such other non-vanilla options as approved by UBS from time to time). | ||
FX Transaction shall have the meaning ascribed in the FX Definitions. | ||
Master FX Give-Up Agreement means an agreement by and between UBS and each of the various Dealers. | ||
Net Currency Position means, for any value date, with respect to each currency of a FX Transaction, the net U.S. dollar equivalent (as calculated by UBS in a commercially reasonable manner) of the amount of such currency owed to UBS by the Customer as calculated by UBS in good faith and in a commercially reasonable manner. | ||
Net Open Position means for the aggregate amount owed to UBS by Customer, as calculated by UBS in the manner specified in Attachment 1 hereto (which may be modified from time to time by UBS in its reasonable discretion). | ||
Net Open Position Limit means, the maximum Net Open Position and Exotic Net Open Position, as an aggregate across all Tiers, that a Customer is authorized to have outstanding at any time with UBS, as determined by UBS and advised to the Customer (such amount may be amended from time to time by UBS upon reasonable notice to the Customer). | ||
Netted Option means, a Currency Option Transaction sold by Prime Broker and owned by the Customer which may be discharged and terminated together with a Currency Option Transaction sold by the Customer and owned by Prime Broker upon satisfying the following criteria: |
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2. | The Facility | |
(a) | UBS may {in its sole discretion} establish and maintain dealing lines for use by Customer in trading Transactions in the name of UBS with one or more Dealers. UBS will provide each Dealer with such authorization and other agreements and instruments as it deems appropriate in order to permit Customer to execute Authorized Transactions with the Dealers in the name of UBS in accordance with the terms hereof. | |
(b) | Customer acknowledges and agrees that the establishment and maintenance of dealing lines by UBS under the Facility is subject to UBSs sole discretion, including but not limited to, discretion regarding credit, documentation, available currencies, size or tenor of lines (which may vary according to currency) and UBSs line usage for business outside of the Facility. Customer |
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further acknowledges and agrees that such dealing lines may be changed by UBS in its sole discretion at any time without prior notice. UBS is not and shall not be responsible for and does not warrant the sufficiency or availability of the dealing lines for any purpose. In the event that UBS does not establish or maintain adequate dealing lines for the Facility, Customers only remedy shall be to terminate this Agreement. In this respect, Customer waives all other claims and remedies against UBS. | ||
(c) | UBS will establish trading limits for each Dealer, and advise Customer of those limits. Customer agrees to limit the Authorized Transactions with each Dealer in such a manner as UBS may from time to time specify. Customer acknowledges and agrees that Transactions exceeding such limits shall not be binding on UBS unless and until UBS accepts such Transactions. UBS maintains the right to refuse to accept any Transactions which exceed the Net Open Position Limit, Notional Exotic Limit or for which Customer has not satisfied all of the requirements of the Credit Support Annex (including any obligation to deliver the Independent Amount relating to any Transaction) and Customer will indemnify UBS for any claims by Dealer as a result of UBSs exercise of its rights under this clause 2(c), except to the extent that such claim results from the gross negligence, willful misconduct or fraud of UBS. In the event that UBS accepts a Transaction which exceeded the Net Open Position Limit or the Exotic Notional Limit, Customer agrees that UBS may, in its sole and absolute discretion and without notice, liquidate all or part of the corresponding Customer Contract (as defined below) for the account of the Customer, in order to reduce Customers Net Open Position to below the agreed Net Open Position Limit or reduce Customers utilization of Exotic Notional Limit. | |
(d) | Customer agrees to promptly pay UBS such commissions and other fees set forth in the attached Fee Schedule (as such Schedule may be amended from time to time by UBS and Customer). | |
3. | Transaction Confirmations | |
(a) | When Customer enters into an Authorized Transaction with a Dealer in the name of UBS under the Master FX Give-up Agreement, Customer and UBS will be deemed to have automatically entered into a Transaction (the Customer Contract) on identical terms, except that UBSs position as buyer or seller of the Transaction will be the reverse of its position with Dealer. The foregoing is subject to UBSs right to refuse to accept a trade under the terms of this Agreement and any Master FX Give-Up Agreement. | |
(b) | The Authorized Transactions made between Dealer(s) and UBS shall be subject to and be governed by the ISDA Master Agreements entered into between the respective Dealers and UBS or if any Dealers have not entered into an ISDA Master Agreement with UBS, such other master agreements as such Dealers and UBS may agree from time to time. | |
The Customer Contracts shall be governed by the CP ISDA Master Agreement. | ||
(c) | Customer agrees to promptly respond to trade notices provided by Dealer via UBSs online automated system. In the event that such system is not available for any reason, Customer will notify UBS by Reuters Direct Dealing or telephone, immediately after entering into a Transaction in UBSs name with a Dealer. Such notice shall be made in accordance with the procedures to be set forth in Schedule 2. By 5pm (New York time) each New York business day, Customer will give electronic, telephone or other acceptable notice to UBS of all Authorized |
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Transactions entered into that day in the name of UBS or that no Authorized Transactions occurred on that day. |
(d) | Except as otherwise provided in clause 3(f), once an Authorized Transaction with a Dealer is entered into in the name of UBS and accepted by UBS, Customer shall have no right to amend, cancel or otherwise affect or interfere with any such transactions, which shall be the sole responsibility of UBS. | |
(e) | Customer acknowledges and agrees that Dealer will be the calculation agent/determination agent for Exotic Options and any dispute that Customer may have as to the occurrence of a barrier event (e.g. knock-out, kick-in, binary, however described,) shall be solely between Customer and Dealer and Customer acknowledges and agrees that Prime Broker shall have no role therein and shall be entitled to act, and Customer shall not prevent in any way Prime Broker from taking any action, upon the Notice of Barrier Event as if no dispute existed. Solely for the purpose of calculation agent/determination agent as defined in a Confirmation for an Exotic Option transacted between Customer and Dealer and given-up in accordance with this Agreement and notwithstanding anything to the contrary stated in such Confirmation, the calculation agent/determination agent shall be Dealer. | |
(f) | Notwithstanding any terms of a Confirmation or Master Agreement that may be to the contrary, if Customer has entered into a transaction on behalf of UBS in which UBS is the buyer of an Option, such Option may be exercised by delivery of a Notice of Exercise by Customer to Dealer which executed such Option which shall constitute exercise by UBS. If Customer has entered into a transaction on behalf of UBS in which UBS is the seller of an Option, such Option will only be exercised by the simultaneous delivery of a Notice of Exercise by Dealer which executed such Option to each of Customer and UBS. | |
(g) | For the purposes of Non-Deliverable FX Transactions and Non-Deliverable Currency Options Transactions, the calculation agent for the transaction between UBS and Customer shall be as detailed on the relevant Confirmation. |
4. | Representations | |
Each party represents to the other party (which representations will be deemed to be repeated by each party on each date on which a transaction is entered into) that: |
(a) | It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; | ||
(b) | It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that is required by this Agreement to deliver and perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance; | ||
(c) | Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; |
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(d) | All governmental and other consents that are required to have been obtained by it with respect to this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and | ||
(e) | Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)). |
5. | Indemnification | |
Customer agrees to indemnify, hold harmless and defend UBS, its affiliates and their respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, damages, costs, losses and liabilities (including reasonable attorneys fees), which may at any time be asserted against or incurred by UBS based upon, arising from or in connection with this Agreement, the Facility and any action or inaction on the part of Customer under this Agreement, including but not limited to, (i) any material breach of any representation, warranty, covenant or agreement of Customer contained in this Agreement; (ii) any failure of Customer to comply with applicable law; (iii) Customers negligence or willful misconduct; (iv) any claim by a Dealer in respect of an Authorized Transaction; and (v) any indemnification which UBS has given to a Dealer; except to the extent that the claim, damages, costs, losses and liabilities are due to the gross negligence, willful misconduct or fraud by UBS. | ||
6. | General Provisions | |
(a) | This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment or performance of any liabilities is rescinded or must otherwise be returned or unwound by UBS upon insolvency, bankruptcy, or reorganization of Customer, or otherwise, all as though such payment had not been made. | |
(b) | This Agreement may be terminated by either party without cause, upon prior written notice. Termination will not affect any outstanding rights and obligations under this Agreement or any Transactions and such rights and obligations shall continue to be governed by this Agreement and the particular terms agreed between UBS and Customer in relation to such Transactions until all obligations have been fully performed. | |
(c) | No indulgence or concession granted by either party and no omission or delay on the part of a party in exercising any right. power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. | |
(d) | The provisions of the FX Definitions are hereby incorporated in their entirety and shall apply to all Transactions entered into or deemed to be entered into between (i) UBS and Dealers and (ii) UBS and Customer, whether or not so stated in a confirmation of any such Transaction. Authorized Transactions and Customer Contracts are Transactions under the relevant ISDA Master Agreements and any trade confirmation is a Confirmation under such ISDA Master Agreements. |
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(e) | Customer hereby consents to UBS effecting such disclosure as UBS may deem appropriate, to enable UBS to transfer Customers records and information, to process and execute Customers instructions. | |
(f) | In the event Customer is trading Non-Deliverable FX Transactions, Non-Deliverable Currency Option Transactions and/or Exotic Options, Customer consents to the use of confirms substantially in the form of the confirmation template for each such transaction as published by The Foreign Exchange Committee (FXC), the Financial Markets Lawyers Group or EMTA, as appropriate. Customer also agrees, hereby, to abide by such best practices as may be published by the FXC from time to time, and such recommended market practice as may be published by EMTA from time to time. | |
(g) | In the event anyone or more of the provisions contained in this Agreement is held invalid, illegal, or unenforceable in any respect under the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions under the law of such jurisdiction, and the validity, legality, and enforceability of such and any other provisions under the law of any other jurisdiction, shall not in any way be affected or impaired thereby. | |
(h) | No amendment, modification, or waiver of this Agreement will be effective unless in writing executed by each of the parties. | |
(i) | The parties agree that each party may electronically record all telephonic conversations between them relating to the subject matter of this Agreement and that any such tape recordings may be submitted in evidence in any suit, action, or other proceeding relating to this Agreement ( Proceedings ). | |
7. | Notices |
8. | Governing Law and Jurisdiction | |
(a) | This Agreement and the rights and obligations of UBS and of Customer hereunder shall be governed by, and construed in accordance with the laws of the State of New York. | |
(b) | With respect to any suit, action or proceedings relating to this Agreement, each party irrevocably 0) submits to the non-exclusive jurisdiction of the State and Federal courts located in New York City, Borough of Manhattan and (ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have jurisdiction over such party. Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction nor will the bringing of Proceedings in anyone or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction. | |
(c) | Waiver of Jury Trial- Each party hereby irrevocably waives any and all right to trial by jury in any suit, action or Proceeding arising our of or relating to this Agreement or any transaction and acknowledges that this waiver is a material inducement to |
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the other partys entering into this Agreement. |
UBS AG
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GAIN CAPITAL, INC. | ||||
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By:
|
/s/ Sandra M. Gutierrez | By: | /s/ Glenn Stevens | ||
Name: Sandra M. Gutierrez
|
Name: Glenn Stevens | ||||
Title: Director and Counsel
|
Title: Managing Director | ||||
Region Americas Legal
|
Date: 7/26/05 | ||||
Fixed Income Section
|
|||||
|
|||||
By:
|
/s/ Sam Hooker | ||||
Name: Sam Hooker
|
|||||
Title: Director
|
|||||
Region Americas Legal
|
|||||
Fixed Income Section
|
8
9
1. | Upon receipt of trade details from Dealer, Customer will accept or reject trade on UBSs Webpage. URL and password to be advised in separate mailing. | |
2. | If procedure 1 is unavailable, trade details to be communicated via Reuters; | |
UBPB New York time-zone,
7:30am-7pm
UBPB Singapore time-zone, 7am-6pm UBPB Zurich time-zone, 8am-6pm |
||
3. | If Both 1 and 2 are unavailable, trade details to be communicated via telephone; | |
+ 203 719 4066 New York time-zone, 7:30am-7pm
+ 01 6568365216 Singapore time-zone, 7am-6pm + 41 1 239 5040 Zurich time-zone, 8am-6pm |
10
1) The Net Open Position shall be calculated by UBS in a commercially reasonable manner by determining the sum of the following: |
(A) | for each Tier 1 Currency, UBS shall identify Transactions that have the same value date, and: |
(B) | for Transactions involving Tier 1 Currencies that do not have the same value date,: |
(ii) | for Transactions involving Tier 2 Currencies, UBS shall: | ||
(A) | ***; | ||
and | |||
(B) | UBS shall aggregate the amounts calculated in clause (ii)(A). |
(iii) | for Transactions involving Tier 3 Currencies, UBS shall: |
(A) | ***; | ||
and | |||
(B) | ***. |
(i) | ***. | |
(ii) | ***. |
11
(i) | ***; | |
(ii) | ***; and | |
(iii) | aggregate such notional quantities. |
12
1. | The Royal Bank of Scotland plc, acting through its Financial Markets division (the Bank); and | |
2. | Gain Capital Group, LLC whose address is at 550 Hills Drive Bedminster, NJ 07921 (the Agent) |
2
3
THE ROYAL BANK OF SCOTLAND
|
GAIN CAPITAL, INC | ||||
By:
|
/s/ Clan McHugh | By: | /s/ Mark E. Galant | ||
Clan McHugh
|
Title: CEO | ||||
Title: Global Head of Prime Brokerage Sales
|
4
5
Settlement Limit | Maximum Counterparty Net Open Position | |
USD [
]
|
USD [ ] |
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||||||||||
By
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By |
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|||||||
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||||||||
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||||||||||
Title:
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Title: |
6
(A) | for each FX Transaction, determine the Dollar Countervalue for each currency (including U.S. Dollars) owed by such Counterparty or Give Up Party to DBAG or such Counterparty or Give Up Party owed by DBAG to Counterparty under such FX Transaction; |
(B) | for each currency (including U.S. Dollars), determine the net Dollar Countervalue amount owed by such Counterparty or Give Up Party to DBAG or owed by DBAG to such Counterparty or Give Up Party by sUl1ll1ing the Dollar Countervalue of all long and short positions in such currency as determined in clause (A) above; | ||
(C) | for each Option purchased or sold by the Counterparty, determine the Dollar Countervalue of the foreign exchange delta equivalent of such Option; | ||
(D) | determine the difference of (i) the sum of the Dollar Countervalue amounts determined pursuant to clause (C), minus (ii) the sum of the Dollar Countervalues of the foreign exchange delta equivalents of the Netted Options; and | ||
(E) | aggregate (i) the Dollar Countervalue amounts determined pursuant to clause (B) above for each currency with respect to which such Counterparty or Give Up Party owes a net aggregate amount to DBAG and (ii) the Dollar Countervalue amount determined pursuant to clause (D) above. | ||
Dollar Countervalue means, with respect to an amount of currency at any time (i) if such currency is U.S. Dollars, such amount and (ii) in all other cases, the amount of U.S. dollars which could be purchased at the market rate prevailing at such time against delivery of such amount of currency on a specified settlement date. Such rate shall be determined by DBAG (in good faith and in a commercially reasonable manner) to be the market rate available to DBAG at such time in the New York foreign exchange market (or, at the sole option of DBAG, in the foreign exchange market of any other financial center which is then open for business) for the purchase or, as the case may be, sale of one currency against another currency for delivery on a specified date. | |||
Netted Option means an Option sold by DBAG and owned by the Counterparty which may be discharged and terminated together with all Option sold by the Counterparty and owned by DBAG pursuant to the applicable master agreement upon satisfying the following criteria: |
(i) | each Option being with respect to the same Put Currency and Call Currency | ||
(ii) | each having the same Expiration Date and Expiration Time; | ||
(iii) | each being of the same style, i.e. either both being American Style Options or both being European Style Options; | ||
(iv) | each having the same Strike Price; | ||
(v) | each being transacted by the same pair of Offices of Buyer |
2
and Seller; and | |||
(vi) | neither of which shall have been exercised by delivery of a Notice of Exercise. |
In the case of a partial discharge and termination (i.e., where the relevant Currency Option Transactions are for different amounts of the Currency Pair), only the portion discharged and terminated shall be considered a Netted Option. |
3
4
5
6
7
8
DEUTSCHE BANK AG LONDON | GCAM, LLC | |||||||
|
||||||||
By:
|
By: | /s/ Glenn Stevens | ||||||
|
||||||||
Name:
|
[illegible] | Name: | Mr. Glenn Stevens | |||||
Title:
|
[illegible] | Title: | Managing Director | |||||
|
||||||||
By:
|
/s/ Gayor Wood | |||||||
Name:
|
|
|||||||
Title:
|
Legal Counsel |
9
Counterparty Maximum | ||||
Settlement Limit | Net Open Position | |||
Counterparties | (in millions) | (in millions) | ||
***
*** *** *** *** *** *** *** *** |
***
*** *** *** *** *** *** *** *** |
n/a
n/a n/a n/a n/a n/a n/a n/a n/a |
Give Up Counterparty | ||||
Give Up Settlement Limit | Maximum Net Open Position | |||
Give Up Counterparties | (in millions) | (in millions) | ||
|
10
11
12
13
(i) | each Option being with respect to the Same Put Currency and Call Currency | ||
(ii) | each having the same Expiration Date and Expiration Time; | ||
(iii) | each being of the same style, i.e. either both being American Style Options or both being European Style Options; | ||
(iv) | each having the same Strike Price; | ||
(v) | each being transacted by the same pair of Offices of Buyer and Seller; and | ||
(vi) | neither of which shall have been exercised by delivery of a Notice of Exercise. |
In the case of a partial discharge and termination (i.e., where the relevant Option Transactions me for different amounts of the Currency Pair), only the portion discharged and terminated shall be considered a Netted Option. |
14
15
By
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Title:
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By
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Title:
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16
Transactions | Maximum Tenor |
Settlement Limit | Maximum Counterparty Net Open Position |
Very truly yours, | ||||||||||
|
||||||||||
DEUTSCHE BANK AG LONDON | ||||||||||
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||||||||||
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By | |||||||||
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Title: |
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||||||||
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|||||||||
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By | |||||||||
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Title: |
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||||||||
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Acknowledged and agreed: | ||||||||||
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||||||||||
[Counterparty] | ||||||||||
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||||||||||
By
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||||||||||
Title:
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|||||||||
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17
1. | Annex D of the FXPB Agreement shall be amended to include the following as a Fund thereunder: | ||
Frontier Trading Company, LLC (Spread Basis) | |||
2. | This Amendment Agreement is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the FXPB Agreement. | ||
3. | This Amendment Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of executed counterparts shall be lodged with DBAG and Agent. | ||
4. | This Amendment Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the law of England and Wales. | ||
5. | This Amendment Agreement shall become effective on the date when DBAG and Agent shall have signed a copy hereof (whether the same or different copies) and delivered (including by way of facsimile transmission) the same to each other. |
DEUTSCHE BANK AG LONDON
|
GCAM, LLC | ||||
|
|||||
By:
|
/s/ John Moody | By: | /s/ Thomas Quinn | ||
Name: John Moody
|
Name: Thomas Quinn | ||||
Title: Legal Counsel
|
Title: Chief Operation Officer | ||||
|
|||||
|
|||||
By:
|
[illegible] | ||||
Name: [illegible]
|
|||||
Title: [illegible]
|
1
a. | Each is duly organized and validly exists under the applicable laws of the jurisdiction of their organization; | ||
b. | Execution and delivery of this Agreement and all contracts and other transactions contemplated hereunder and performance of all obligations contemplated under this Agreement and all contracts and other transactions contemplated hereunder have been duly authorized by their respective organizations; | ||
c. | All persons executing and delivering this Agreement and all contracts and other transactions contemplated hereunder for or on behalf of GAIN Capital and Your Company have been duly authorized by their respective organizations to do so; | ||
d. | All persons performing the obligations contemplated under this Agreement have been duly authorized by their respective organizations to do so; | ||
e. | Execution and delivery by Your Company and GAIN Capital of this Agreement and all contracts and other transactions contemplated hereunder, performance of all of Your Companys and GAIN Capitals obligations contemplated under this Agreement, and any contract or other transaction contemplated hereunder, will not violate any statute, rule, regulation, ordinance, charter, by-law or policy applicable to said organizations. |
Page 1 of 9
A. | Service Level Qualifications |
1. | Premier |
a. | Entry Service Level |
2. | Gold |
a. | Volume of 25M to 300M per month or | ||
b. | 100 Active Accounts per quarter |
3. | Platinum |
a. |
Volume of 301M to 750M per month or
|
||
b. | 250 Active Accounts per quarter |
4. | Black |
a. | Volume of over 751M per month or | ||
b. | 500 Active Accounts per quarter |
B. | General Parameters |
1. | A all figures are based on sustained quarterly performance averages (90-Days) | ||
2. | A client may opt into a higher services level but most meet the service level qualifications after a 90-Day evaluation period. | ||
3. | If a client opts into a higher service level and after 90-days does not meet selected service level requirements the clients control account will be debited by the amount of IB paid on volume equal to 1 / 2 the amount of the shortfall. |
C. | Services Included & IB shortfall example |
1. | Please see Appendix B below |
Page 2 of 9
Page 3 of 9
Your Company | GAIN Capital Group, LLC | |||||||
|
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By:
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By: | |||||||
|
||||||||
Print Name: | Print Name: | |||||||
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||||||||
Title:
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Title: | |||||||
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||||||||
Date:
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Date: | |||||||
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Page 4 of 9
Name:
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Address:
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||
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City, State, Country:
|
||
|
||
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||
Telephone Number:
|
||
|
||
|
||
For payments by wire:
|
||
|
||
Bank Name
|
||
|
||
|
||
US Intermediary Bank
(required for intl transfers) |
||
|
||
|
||
ABA # or Swift Code
|
||
|
||
|
||
Bank Account #
|
||
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||
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||
Bank Address
|
||
|
||
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||
City, State, Country
|
||
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Date:
|
||||
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Signature:
|
||||
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Print Name:
|
||||
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Page 5 of 9
Contact Information | ||||
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|
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Primary Contact: | ||||
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Title:
|
||||
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Telephone Number: | ||||
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Email Address: | ||||
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|
||||
Technology Contact: | ||||
Title:
|
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|
||
|
|
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Telephone Number: | ||||
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|
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Email Address: | ||||
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|
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Additional Contact: | ||||
Title:
|
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|
||
|
|
|
||
Telephone Number: | ||||
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|
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Email Address: | ||||
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|
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Additional Contact: | ||||
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|
|||
Title:
|
||||
|
|
|
||
Telephone Number: | ||||
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|
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Email Address: | ||||
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|
||||
Additional Contact: | ||||
Title:
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Telephone Number: | ||||
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Email Address: | ||||
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Page 6 of 9
1. | If Service level calls for 25M per month and client does 19M in said month the control account will be debited 3M (1/2 of the 6M shortfall) worth of IB paid per their partner agreement | ||
2. | $75 per million x 3 (as per example) = $225 for shortfall |
II. | IB Services Rendered by Service Level |
Page 7 of 9
1. | (a) Do you solicit Forex customers, directly or indirectly by way of a website? If yes, kindly provide the URL to your website: | |
|
||
(b) If you maintain more than one website utilized to solicit Forex customers, directly or indirectly, please disclose additional websites: | ||
|
||
|
||
2. | Provide contact information for the appropriate individual to be contacted by GAIN for any potential comments and/or changes concerning promotional material. |
|
Contact name: | |||
|
||||
|
Phone Number: | |||
|
||||
|
E-mail address: | |||
|
3. | Do you employ other forms of advertising other than website(s)? (i.e. print ads, radio spots, tv commercials, seminars, cold calling, etc.) | |
|
||
|
||
|
||
4. |
Do you plan to solicit US clients or only Non-US? Please disclose target markets by
geographical region.
o US o NON US o BOTH |
|
If NON US, Please disclose geographical region | |||
|
5. | Are you currently registered with any regulatory agency, including but not limited to: CFTC, NFA, SEC, NASD? If yes, specify the agency and provide identification number(s). | |
|
||
|
||
6. | Do you have any 3 rd party solicitors not directly employed by your company soliciting customers on your companys behalf for forex services and products? If yes, please disclose each individual 3rd party solicitor/entity. | |
|
||
|
Page 8 of 9
7. | If you have answered No to Item #1 and #3 above, please indicate the manner or method you plan to use in soliciting accounts: | |
|
||
|
||
8. | Did you at any point hold an Introducing Broker and/or Authorized Trader relationship with another Forex Dealer Member? If yes, please indicate the firm and whether the relationship is still active. If the relationship is no longer active, indicate the reasons for leaving and the dates reflecting when the relationship first commenced and when it effectively ended. | |
|
||
|
||
9. | Please affirm by initialing below you are not currently holding a Guaranteed Introducing Broker relationship with another Futures Commission Merchant (FCM) or have any intention of pursuing such a relationship. Please be advised this type of relationship with another FCM would service as immediate grounds for termination of this Agreement. | |
Initials: |
Signature: | ||||
|
|
|||
Name:
|
||||
|
|
|
||
Title:
|
||||
|
|
|
Page 9 of 9
| Additional Pip Spread : a pip spreading mechanism that allows YOUR COMPANY to add pips onto GAINs normal bid/ask spread. YOUR COMPANY will earn revenue generated from the additional pip capture according to the following schedule: |
CURRENCY | ADDL PIPS ON | ADDL PIPS ON | ||
PAIR | BID | ASK | ||
AUD/JPY
|
||||
AUD/USD
|
||||
CAD/JPY
|
||||
CHF/JPY
|
||||
EUR/AUD
|
||||
EUR/CAD
|
||||
EUR/CHF
|
||||
EUR/GBP
|
||||
EUR/JPY
|
||||
EUR/USD
|
||||
GBP/CHF
|
||||
GBP/JPY
|
||||
GBP/USD
|
||||
NZD/JPY
|
Page 1 of 13
CURRENCY | ADDL PIPS ON | ADDL PIPS ON | ||
PAIR | BID | ASK | ||
NZD/USD
|
||||
USD/CAD
|
||||
USD/CHF
|
||||
USD/JPY
|
| Control Account for Earned Fees and Other Payments Upon receipt of a completed and executed GAIN Capital Customer Application in the name of YOUR COMPANY, a Control Account in YOUR COMPANYs name will be established to hold funds, if any, resulting from a sweep of pips, commissions, fees or other applicable credits owed to you. Funds are held in YOUR COMPANY Ls Control Account until GAIN Capital receives a withdrawal request. All withdrawal requests must be in writing and submitted to GAIN Capital. Withdrawal requests are normally processed within two (2) business days of receipt. | |
| Customer and bank account information MUST match the information provided on Appendix A of this Agreement. GAIN will not make or receive payment via third party. At this time, there is no fee for withdrawal requests via check. Withdrawal requests via wire transfer will be charged GAIN Capitals normal wiring fee, which will be deducted directly from the withdrawal amount. | |
| Partner Service Levels |
A. | Service Level Qualifications |
1. | Premier |
a. | Entry Service Level |
2. | Gold |
a. | Volume of 25M to 300M per month or | ||
b. | 100 Active Accounts per quarter |
3. | Platinum |
a. | Volume of 301M to 750M per month or | ||
b. | 250 Active Accounts per quarter |
4. | Black |
a. | Volume of over 751M per month or | ||
b. | 500 Active Accounts per quarter |
B. | General Parameters |
1. | A all figures are based on sustained quarterly performance averages (90-Days) | ||
2. | A client may opt into a higher services level but most meet the service level qualifications after a 90-Day evaluation period. | ||
3. | If a client opts into a higher service level and after 90-days does not meet selected service level requirements the clients control account will be debited by the amount of IB paid on volume equal to 1 / 2 the amount of the shortfall. |
C. | Services Included & IB shortfall example |
1. | Please see Appendix B below |
Page 2 of 13
Page 3 of 13
Page 4 of 13
YOUR COMPANY | GAIN Capital Group, LLC. | |||||||||
|
||||||||||
Signature:
|
Signature: | |||||||||
Print Name:
|
|
Print Name: |
|
|||||||
Title:
|
|
Title: |
|
|||||||
Date:
|
|
Date: |
|
|||||||
|
|
|
Page 5 of 13
For payments by check:
|
||||
|
||||
Name:
|
||||
|
|
|||
Address:
|
||||
|
|
|||
City, State, Country:
|
||||
|
|
|||
Telephone Number:
|
||||
|
|
|||
For payments by wire:
|
||||
|
||||
Bank Name
|
|
|||
|
|
|||
US Intermediary Bank
(required for intl transfers) |
|
|||
|
|
|||
ABA # or Swift Code
|
|
|||
|
|
|||
Bank Account #
|
|
|||
|
|
|||
Bank Address
|
|
|||
|
|
|||
City, State, Country
|
|
|||
|
|
Date:
|
||||
|
|
|||
Signature:
|
||||
|
|
|||
Print Name:
|
||||
|
|
Page 6 of 13
Primary Contact:
|
||||
Title:
|
|
|||
Telephone Number:
|
|
|||
Email Address:
|
|
|||
|
|
|||
|
||||
Technology Contact:
|
||||
Title:
|
|
|||
Telephone Number:
|
|
|||
Email Address:
|
|
|||
|
|
|||
|
||||
Additional Contact:
|
||||
Title:
|
|
|||
Telephone Number:
|
|
|||
Email Address:
|
|
|||
|
|
|||
|
||||
Additional Contact:
|
||||
Title:
|
|
|||
Telephone Number:
|
|
|||
Email Address:
|
|
|||
|
|
|||
|
||||
Additional Contact:
|
||||
Title:
|
|
|||
Telephone Number:
|
|
|||
Email Address:
|
|
|||
|
|
Page 7 of 13
A. | Referenced from Partner Services Levels Section B.3 above |
1. | If Service level calls for 25M per month and client does 19M in said month the control account will be debited 3M (1/2 of the 6M shortfall) worth of IB paid per their partner agreement | ||
2. | $75 per million x 3 (as per example) = $225 for shortfall |
Page 8 of 13
| By making ForexTrader available to you, Company is not providing you with any investment, tax or other form of advice, and ForexTraders sole purpose. | ||
| Your use of ForexTrader will be in a manner not inconsistent with applicable laws and regulations. | ||
| ForexTrader incorporates market data and other information (collectively Market Data) that GAIN Capital receives from our agents, vendors or partners (Third Party Providers). GAIN Capital does not endorse or approve the Market Information and makes it available to you only as a service and convenience. GAIN Capital and our Third Party Providers do not (1) guarantee the accuracy, timeliness, completeness or correct sequencing of the Market Information, or (2) warrant any results from your use or reliance on the Market Information. Market Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither GAIN Capital nor the Third Party Providers are obligated to update any information or opinions contained in any Market Information, and we may discontinue offering Market Information at any time without notice. You agree that neither GAIN Capital nor the Third Party Providers will be liable in any way for the termination, interruption, delay or inaccuracy of any Market Information. You will not redistribute or facilitate the redistribution of Market Information, nor will you provide access to Market Information to anyone who is not authorized by GAIN Capital to receive Market Information. | ||
| Licensee agrees that from time to time, ForexTrader may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment (hardware) malfunctions, (b) software malfunctions, (c) periodic maintenance procedures or repairs which Company may undertake from time to time, or (d) causes beyond the reasonable control of Company or which causes are not reasonably foreseeable by Company. Company is not responsible, directly or indirectly, for the performance and/or reliability of the Third Party Providers or Users Internet Service Provider (ISP). | ||
| Licensee and each individual customer shall be solely responsible for providing, maintaining and ensuring compatibility with the Software, all hardware, electrical and other physical requirements for Users use of the Software including, without limitation, telecommunications and Internet connection(s), ISP, web browsers and/or other equipment, programs and services required to access and use the Software. |
Page 9 of 13
Page 10 of 13
YOUR COMPANY | GAIN Capital Group, LLC | |||||||||
|
||||||||||
Signature:
|
Signature: | |||||||||
Print Name:
|
|
Print Name: |
|
|||||||
Title:
|
|
Title: |
|
|||||||
Date:
|
|
Date: |
|
|||||||
|
|
|
Page 11 of 13
1. | (a) Do you solicit Forex customers, directly or indirectly by way of a website? If yes, kindly provide the URL to your website: | ||
|
|||
(b) If you maintain more than one website utilized to solicit Forex customers, directly or indirectly, please disclose additional websites: | |||
|
|||
|
|||
2. | Provide contact information for the appropriate individual to be contacted by GAIN for any potential comments and/or changes concerning promotional material. | ||
Contact name: | |||
Phone Number: | |||
E-mail address: | |||
3. | Do you employ other forms of advertising other than website(s)? (i.e. print ads, radio spots, tv commercials, seminars, cold calling, etc.) | ||
|
|||
|
|||
|
|||
4. | Do you plan to solicit US clients or only Non-US? Please disclose target markets by geographical region. | ||
o US o NON US o BOTH | |||
If NON US, Please disclose geographical region | |||
5. | Are you currently registered with any regulatory agency, including but not limited to: CFTC, NFA, SEC, NASD? If yes, specify the agency and provide identification number(s). | ||
|
|||
|
|||
6. | Do you have any 3 rd party solicitors not directly employed by your company soliciting customers on your companys behalf for forex services and products? If yes, please disclose each individual 3 rd party solicitor/entity. | ||
|
|||
|
|||
7. | If you have answered No to Item #1 and #3 above, please indicate the manner or method you plan to use in soliciting accounts: | ||
|
|||
|
Page 12 of 13
8. | Did you at any point hold an Introducing Broker and/or Authorized Trader relationship with another Forex Dealer Member? If yes, please indicate the firm and whether the relationship is still active. If the relationship is no longer active, indicate the reasons for leaving and the dates reflecting when the relationship first commenced and when it effectively ended. | ||
|
|||
|
|||
9. | Please affirm by initialing below you are not currently holding a Guaranteed Introducing Broker relationship with another Futures Commission Merchant (FCM) or have any intention of pursuing such a relationship. Please be advised this type of relationship with another FCM would service as immediate grounds for termination of this Agreement. | ||
Initials: |
Signature:
|
||||
|
|
|||
Name:
|
||||
|
|
|||
Title:
|
||||
|
|
Page 13 of 13
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13
14
15
16
ATTEST: [illegible]
|
SUBTENANT: | |||
|
GAIN CAPITAL | |||
|
||||
|
By: | /s/ Mark E. Galant | ||
|
Name: Mark Galant | |||
|
Title: CEO | |||
|
||||
ATTEST: [illegible]
|
SUBLANDLORD: | |||
|
NUI Corp | |||
|
By: | /s/ Paul R. Shlanta | ||
|
Name: Paul R. Shlanta | |||
|
Title: Sr. Vice
President, General Counsel
and Chief Corporate Compliance Officer |
17
18
19
PERIOD | FIXED RENT | MONTHLY FIXED RENT | ||
From the Effective
Date through August
31, 2006
|
One Million Three Hundred Seventy-six Thousand Three Hundred Fifty and 75/100 Dollars ($1,376,350.75) | One Hundred Fourteen Thousand Six Hundred Ninety-five and 89/100 Dollars ($114,695.89) | ||
|
||||
From September 1,
2006 through the
Expiration Date
|
One Million Five Hundred Nine Thousand Six Hundred Sixty-six and 00/100 Dollars ($1,509,666.00) | One Hundred Twenty-five Thousand Eight Hundred Five and 68/100 Dollars ($125,805.68) |
20
21
WITNESS:
|
THE OFFICES AT BEDMINSTER, LLC | ||||
[illegible]
|
By: Gale & Wentworth, LLC, | ||||
|
Authorized Management Agent | ||||
|
|||||
|
By: |
/s/ Mark Yeaser
|
|||
|
Name: Mark Yeaser | ||||
|
Title: President | ||||
|
Dated: November 14, 2001 | ||||
|
|||||
ATTEST:
|
NUI CORPORATION | ||||
/s/ Carol A. Sliker
|
By: |
/s/ James r. Van Horn
|
|||
Assistant Secretary |
Name: James r. Van Horn
Title: Chief Administrative Officer, General Counsel and Secretary |
||||
|
Dated: |
22
23
24
25
Period | Fixed Rent | Monthly Fixed Rent | ||
From the effective
Date through August
31, 2001
|
One Million One Hundred Sixty-one Thousand Five Hundred Two and 00/100 Dollars ($1,161,502.00) | Ninety-six Thousand Seven Hundred Ninety-one and 83/100 Dollars ($96,791.83) | ||
|
||||
From September 1,
2001 through August
31, 2006
|
One Million One Hundred Ninety-nine Thousand Four Hundred Fifty-two and 00/100 Dollars ($1,199,452.00) | Ninety-six Thousand Nine Hundred Fifty-four and 33/100 Dollars ($99,954.33) | ||
|
||||
From September 1,
2006 through the
Expiration Date
|
One Million Three Hundred Fifteen Thousand Eight Hundred Forty-six and 50/100 Dollars ($1,315,846.50) | One Hundred Nine Thousand Six Hundred Fifty-four and 05/100 Dollars ($109,654.05) |
26
27
28
29
30
31
Period | Firex Rent | Monthly Fixed Rent | ||
From the Effective
Date through
September 1, 2001
|
Nine Hundred Forty-six Thousand Three Hundred Eight and 25/100 ($946,308.25) | Seventy-eight Thousand Eight Hundred Fifty-nine and 02/100 ($78,859.02) | ||
|
||||
From September 1,
2001 through August
31, 2006
|
Nine Hundred Eighty-four Thousand Two Hundred Fifty-eight and 25/100 Dollars ($984,258.25) | Eighty-two Thousand Twenty-one and 52/100 Dollars ($82,021.52) | ||
|
||||
From August 31, 2006
through the
Expiration Date
|
One Million Eighty Thousand Seventy-one and 00/100 Dollars ($1,080,071.00) | Ninety Thousand Five and 92/100 Dollars ($90,005.92) | ||
|
32
33
34
35
36
WITNESS: | THE OFFICES AT BEDMINSTER, LLC | |||||
|
||||||
By: Gale & Wentworth, LLC Authorized Management Agent | ||||||
[illegible]
|
By: | [illegible] | ||||
Vice
President
|
Name: |
[illegible]
|
||||
|
Title: |
|
||||
|
|
|||||
|
Dated: | 8/5/99 | ||||
|
||||||
ATTEST | NUI CORPORATION | |||||
|
By: | [illegible] | ||||
[illegible]
|
Name: |
|
||||
|
Title: |
|
||||
|
Dated: | 8/4/99 |
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
WITNESS: | LANDLORD: | |||||||
SAMMIS PLUCKEMIN ASSOCIATES
a California partnership |
||||||||
|
||||||||
[illegible]
|
By: | [illegible] | ||||||
|
[illegible]
|
|||||||
|
||||||||
ATTEST: | TENANT: | |||||||
NUI ASSOCIATES
a New Jersey Corporation |
||||||||
[illegible]
|
By: | [illegible] | ||||||
|
|
52
53
54
55
56
57
58
59
60
61
62
(aa) | All supplies, materials, salary, wages and equipment used in or directly related to the operation, maintenance, repair and management of the Project; including, but not limited to, uniforms for employees that are required and the cleaning thereof; expenses imposed on Landlord pursuant to any collective bargaining agreement with respect to such employees; workmens compensation insurance, payroll, social security and unemployment insurance, reasonable legal. bookkeeping and accounting costs; | ||
(bb) | All utilities, including without limitation, water, electricity, gas, heating, lighting, sewer waste disposal, security, air conditioning and ventilating costs and all charges directly relating to the use, ownership or operation of the Project; |
63
(cc) | All maintenance, management, janitorial and service agreements related to the Project including, but .not limited to, wages, salaries, disability benefits, pensions, hospitalization. retirement plans, group insurance and other employee benefits, respective employees of Landlord, up to and including the building manager, providing that any management or supervisory costs shall not exceed three percent (3%) of the total gross rent for any given year; | ||
(dd) | All insurance premiums and costs, including but not limited to the premiums and costs of fire, casualty and other extended coverage risks related to the Project, plate glass insurance, any insurance required by a mortgagee and rent insurance up to one (1) years coverage. |
(ee) | Amortization of capital improvements made to the Project which will improve the operating efficiency of the Project (provided. however, that the amount of such amortization for improvements shall not exceed in any year the amount of costs saved by the expenditure either through the reduction or minimization of increases which would have otherwise occurred); and | ||
(ff) | Real Property Taxes including all taxes, assessments (general and special) and other impositions or charges which may be taxed, charged, levied, assessed or imposed upon all or any portion of the Project and expenses in connection with tax appeals. Landlord represents that it has no knowledge of any pending special assessments as of the date of this Lease. All special assessments shall be amortized over a ten (10) year period. | ||
(gg) | landlord agrees that with respect to all maintenance and repair expenses listed above involving contracts or individual expenditures exceeding Twenty-five Thousand Dollars ($25,000), other than emergency repairs, Landlord shall obtain at least two (2) competitive bids and shall utilize the 101-lest responsible bidder for such work. | ||
(2) | Expense Exclusions. The term Expenses does not include any capital improvement to the Project, nor shall it include repairs, restoration or other work occasioned by fire, windstorm or other casualty, income and franchise taxes of landlord, expenses incurred in leasing to or procuring of tenants, leasing commissions, salaries for executives above the grade of building manager, building start-up or opening expenses, advertising expenses, expenses for the renovating of space for new tenants, interest or principal payments on any mortgage or other indebtedness of landlord (other than Subparagraph 1 (ee) of this Article 3) nor depreciation allowance or expense. The term Expenses also does not include any type of repairs to the Premises or other tenant repairs; the costs of such repairs shall be borne as described in Article 5 of this Lease Agreement. |
64
65
66
67
68
69
70
71
72
73
To Landlord:
|
Sammis Pluckemin Associates | |||
|
c/o Sammis Company | |||
|
17922 Fitch Avenue | |||
|
Irvine, California 92714 | |||
|
Attn: William Thormaline | |||
|
||||
|
Peter L. Berkley, Esq. | |||
|
Riker, Danzig, Scherer, Hyland & Perretti | |||
|
One Speedwell Avenue | |||
|
Headquarters Plaza | |||
|
Morristown; New Jersey 07960 | |||
|
||||
To Tenant: | at its address stated above until and including the Commencement Date and at the following address thereafter: | |||
|
||||
|
NUI Corporation | |||
|
350 Route-206 | |||
|
Bedminster, New Jersey 0797B |
74
75
76
77
78
79
WITNESS:
|
LANDLORD: | |||
|
||||
|
SAMMIS PLUCKEMIN ASSOCIATES | |||
|
||||
[illegible]
|
[illegible]
|
|||
|
General Partner | |||
|
||||
ATTEST: | TENANT: | |||
|
||||
|
N.U.I. CORPORATION | |||
|
||||
[illegible]
|
[illegible]
|
|||
|
Senior Vice President |
80
81
82
83
1. | No sign, placard, picture, advertisement, name or notice shall be installed or displayed on any part of the outside or inside of this Building without the prior written consent of Landlord. Landlord shall have the right to remove, at Tenants expense and without notice, any sign installed or displayed in violation of this rule. All approved signs or lettering on doors and walls shall be printed, painted, affixed or inscribed at the expense of Tenant by a person chosen by Landlord. | |
2. | In Landlord objects in writing to any curtains, blinds, shades, screens or hanging plants or other similar objects attached to or used in connection with any window or door of the Premises, Tenant shall immediately discontinue such use. No [illegible] shall be permitted on any part of the Premises. Tenant shall not place anything against or near glass partitions or doors or windows which may appear unsightly from outside the Premises. | |
3. | Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances, elevators, escalators or stairways of the Building. The halls, passages, exits, entrances, shopping malls, elevators, escalators and stairways are not for the general public, and Landlord shall in all cases retain the right to control and prevent access thereto of all persons whose presence in the judgment of Landlord would be prejudicial to the safety, character, reputation and interest of the Building and its tenants; provided that nothing herein contained shall be construed to prevent such access to persons with whom any tenant normally deals in the ordinary course of its business, unless such persons are engaged in illegal activities. No tenant and no employee or invitee of any tenant shall go upon the roof of the Building. | |
4. | The directory of the Building will be provided exclusively for the display of the name and location of Tenants only, and Landlord reserves the right to exclude any other names therefrom. | |
5. | All cleaning and janitorial services for the Building and the Premises shall be provided exclusively through Landlord, and except with the written consent of Landlord, no person or persons other than those approved by Landlord shall be employed by Tenant or permitted to enter the Building for the purpose of cleaning the same. Tenant shall not cause any unnecessary labor by carelessness or indifference to the good order and cleanliness of the Premises. | |
6. | Landlord will furnish Tenant, free of charge, with two keys to each door lock in the Premises. Landlord may make a reasonable charge for any additional keys. Tenant shall not make or have made additional keys, and Tenant shall not alter any lock or install a new additional lock or bolt on any door of its Premises. Tenant, upon the termination of its tenancy, shall deliver to Landlord the keys of all doors which have been furnished to Tenant, and in the event of loss of any keys so furnished, shall pay Landlord therefor. | |
7. | If Tenant requires telegraphic, telephonic, burglar alarm or similar services, it shall first obtain, and comply with, Landlords instructions in their installation. | |
8. | Tenant shall not place a load upon any floor of the Premises which exceeds the load per square foot which such floor was designed to carry and which is allowed by law. Landlord shall have the right to prescribe the weight, size and position of all equipment, materials, furniture or other property brought into the Building. |
84
Heavy objects shall, if considered necessary by Tenant, stand on such platforms as determined by Landlord to be necessary to property distribute the weight. Business machines and mechanical equipment belonging to Tenant, which cause noise or vibration that may be transmitted to the structure of the Building or to any space herein to such a degree as to be objectionable to Landlord or to any tenants in the Building, shall be placed and maintained by Tenant, at Tenants expense, on vibration eliminators or other devices sufficient to eliminate noise or vibration. The persons employed to move such equipment in or out of the Building must be acceptable to Landlord. Landlord will not be responsible for loss of, or damage to, any such equipment or other property from any cause, and all damage done to the Building by maintaining or moving such equipment or other property shall be repaired at the expense of Tenant. | ||
9. | Tenant shall not use or keep in the Premises any kerosene, gasoline or inflammable or combustible fluid or material other than those limited quantities necessary for the operation or maintenance of office equipment. Tenant shall not use or permit to be used in the Premises any foul or noxious gas or substance, or permit or allow the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Building by reason of noise, odors or vibrations, nor shall Tenant bring into or keep in or about the Premises any birds or animals. | |
10. | Tenant shall not use any method of heating or air-conditioning other than that supplied by Landlord. | |
11. | Tenant shall not waste electricity, water or air-conditioning and agrees to cooperate fully with Landlord to assure the most effective operation of the Buildings heating and air-conditioning and to comply with any governmental energy-saving rules, laws or regulations of which Tenant has actual notice, and shall refrain from attempting to adjust controls other than room thermostats installed for Tenants use. Tenant shall keep corridor doors closed, and shall close window coverings at the end of each business day. | |
12. | Landlord reserves the right, and without liability to Tenant, to change the name and street address of the Building. | |
13. | Landlord reserves the right to exclude from the Building between the hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be established from time to time by Landlord, and on Sundays and legal holidays, any person unless that person is known to the person or employee in charge of the Building and has a pass or is properly identified. Tenant shall be responsible for all persons for whom it requests passes and shall be liable to Landlord for all acts of such persons. Landlord shall not be liable for damages for any error with regard to the admission to or exclusion from the Building of any person. Landlord reserves the right to prevent access to the Building in case of invasion, mob, riot, public excitement or other commotion by closing the doors or other appropriate action. | |
14. | Tenant shall close and lock the doors of its Premises and entirely shut off all water faucets or other water apparatus and electricity, gas or air outlets before tenant and its employees leave the Premises. Tenant shall be responsible for any damage or injuries sustained by other tenants or occupants of the Building or by Landlord for noncompliance with this rule. | |
15. | Tenant shall not obtain for use on the Premises ice, drinking water, food, beverage, towel or other similar services or accept barbering or bootblacking services upon the Premises, except at such hours and under such regulations as may be fixed by Landlord. | |
16. | The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be thrown therein. The expense of any breakage, stoppage or damage resulting from he violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have caused it. | |
17. | Tenant shall not sell, or permit the sale at retail, of newspapers, magazines, periodicals, theater tickets or any other goods or merchandise to the general public in or on the Premises. Tenants shall not make any room-to-room solicitation of business from other tenants in the Building. Tenant shall not use the Premises for any business or activity other than that specifically provided for in Tenants Lease. |
85
18. | Tenant shall not interfere with radio or television broadcasting or reception from or in the Building or elsewhere. | |
19. | Tenant shall not mark, drive nails, screws or drill into the partitions, woodwork or plaster or in any way deface the Premises or any part thereof. Landlord reserves the right to direct electricians as to where and how [illegible] introduced to the Premise. Tenant shall not cut [illegible] of the Premises in any manner except as approved by Landlord. Tenant shall repair any damage resulting from noncompliance with this rule. | |
20. | Tenant shall not install, maintain or operate upon the Premises any vending machine without the written consent of Landlord. | |
21. | Canvassing, soliciting and distribution of handbills or any other written material, and peddling in the Building are prohibited, and each tenant shall cooperate to prevent same. | |
22. | Landlord reserves the right to exclude or expel from the Building any person who, in Landlords judgment, is intoxicated or under the influence of liquor or drugs or who is in violation of any of the Rules and Regulations of the Building. | |
23. | Tenant shall store all its trash and garbage within its Premises. Tenant shall not place in any trash box or receptacle any material which cannot be disposed of in the ordinary and customary manner of trash and garbage disposal. All garbage and refuse disposal shall be made in accordance with directions issued from time to time by Landlord. | |
24. | The Premises shall not be used for the storage of merchandise held for sale to the general public, or for lodging or for manufacturing of any kind, nor shall the Premises be used for an y improper, immoral or objectional purpose. No cooking shall be done, except microwave cooking, or permitted by any tenant on the Premises, except that use by Tenant of Underwriters Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar beverages shall be permitted, provided that such equipment and use is in accordance with all applicable federal, state, county and city laws, codes, ordinances, rules and regulations. | |
25. | Tenant shall not use in any space or in the public halls of the building any hand trucks except those equipped with rubber tires and side guards or such other material-handling equipment as Landlord may approve. Tenant shall not bring any other vehicles of any kind in to the Building. | |
26. | Without the written consent of Landlord, Tenant shall not use the name of the Building in connection with or in promoting or advertising the business of Tenant except as Tenants address. | |
27. | Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any governmental agency. | |
28. | Tenant assumes any and all responsibility for protecting its Premises from theft, robber and pilferage, which includes keeping doors locked and other means of entry to the Premises closed.? | |
29. | The requirements of Tenant will be attended to only upon appropriate application to the office of the Building by and authorized individual. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from landlord, and no employee of Landlord will admit any person (Tenant or otherwise) to any office without specific instructions from Landlord. | |
30. | Tenant shall not park its vehicles in any parking areas designated by Landlord as areas of parking by visitors to the Building. Tenant shall not leave vehicles in the Building parking areas overnight nor park any vehicles in the Building parking areas other than automobiles, motorcycles, motor driven or non-motor driven bicycles or four-wheeled trucks. |
86
31. | Landlord may waive any one or more of these Rules and Regulations for the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Building. | |
32. | These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of premises in the Building. | |
33. | Landlord reserves the right to make such other and reasonable Rules and Regulations as, in its judgment, may from time to time be needed for safety and security, for care and cleanliness of the Building and for the preservation of good order therein. Tenant agrees to abide by all such Rules and Regulations herein above stated and any additional rules and regulations which are adopted. | |
34. | Tenant shall be responsible for the observance of all of the foregoing rules by Tenants employees, agents, clients, customers, invitees and guests. |
87
88
a. | Empty and clean all waste receptacles removing waste to a designated central location for disposal. Landlord is to provide for disposal of waste. | |
b. | Empty and clean all ash trays and receptacles. | |
c. | Remove all fingerprints, smudges and other marks from metal. partitions, doors and other surfaces. |
d. | Hand dust and clean all office furniture that has been cleared of papers, boxes, and/or personal items. ledges, chair rails, baseboards, and window sills. |
a. | All floors in Group A to be swept, wet mopped and rinsed. | |
b. | All floors in Group B to be dry mopped |
c. | All floors in Group B to be damp mopped. |
d. | All floors to be scrubbed and buffed. |
89
b. | Brush or dust by hand carpet edges inaccessible to high pressure vacuum attachments. |
a. | Dust all clothes closet shelving. pictures, charts, graphs, etc. | |
b. | Dust clean all vertical surfaces such as walls, partitions, door bucks and other surfaces. |
c. | Dust all venetian blinds. |
a. | Landlord shall supply all soap, towels and toilet tissue. In both mens and womens rooms and sanitary napkins In coin dispensers in the womens rooms. | |
b. | Landlord will supply all coin operated dispensers and will be responsible (or the servicing of same and for the collection of money from the machine. | |
c. | During the term of this lease the dispenser price for sanitary napkins will not exceed a price equal to 150% of the wholesale price paid by the landlord. |
90
a. | Clean all partitions and furniture glass. |
b. | Clean all parameter windows, both inside and out. |
a. | All lights are to be extinguished and the doors as specified by Tenant are to be locked after cleaning is completed. |
b. | All personnel are to be uniformed and clean in appearance during business hours. | |
c. | Cleaning of all private bathrooms and/or kitchen areas will be subject to additional charges which will be determined on a case-by-case basis applying uniform rates to all tenants. |
91
92
Period | Fixed Rent | Monthly Fixed Rent | ||
From the extension
Commencement Date
(September 1, 2001)
through August 31,
2006
|
Two Hundred Ninety-seven Thousand Eight Hundred Thirty-nine and 75/100 Dollars ($297,839.75) | Twenty-four Thousand Eight Hundred Nineteen and 98/100 Dollars ($24,819.98) | ||
|
||||
From September 1,
2006 through the
Expiration Date of
December 31, 2009
|
Three Hundred Twenty-six Thousand Eight Hundred thirty-three and 00/100 Dollars ($326,833.00) | Twenty-seven Thousand Two Hundred Thirty-six and 08/100 ($27,236.08) |
93
94
95
96
97
WITNESS:
|
THE OFFICES AT BEDMINSTER, LLC | |||
|
||||
|
By: Gale & Wentworth, LLC, | |||
|
Authorized Management Agent | |||
|
||||
[illegible]
|
By: |
[illegible]
|
||
Vice President
|
Name: [illegible] | |||
|
Title: | |||
|
Dated: 8/5/99 | |||
|
||||
ATTEST:
|
NUI CORPORATION, SUCCESSOR to | |||
|
NATURAL GAS SERVICES, INC. | |||
[illegible]
|
By: |
[illegible]
|
||
|
Name: | |||
|
Title: COO & CFO | |||
|
Date: 8/4/99 |
98
99
100
101
|
By: | ||
|
Name: | ||
|
Title: | ||
|
|||
ATTEST:
|
NATURAL GAS SERVICES, INC., | ||
|
a corporation | ||
|
|||
/s/
Carol A. Sliker
|
[illegible]
|
||
Name: Carol A. Sliker
|
Name: Richard L. [Illegible] | ||
Title: Assistant Secretary NUI CORP.
|
Title: President |
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
To Landlord:
|
Sammis Pluckemin Associates | |
|
c/o Gale & Wentworth | |
|
Park Avenue at Morris County | |
|
100 Campus Drive, Suite 300 | |
|
Attn: Mr. Jonathan Thorpe | |
|
||
|
Glenn C. Geiger, Esq. | |
|
Pitney, Hardin, Kipp & Szuch | |
|
Park Avenue at Morris County | |
|
200 Campus Drive | |
|
Florham Park, New Jersey 07932 | |
|
||
To Tenant:
|
General Counsel | |
|
N.U.I. Corporation | |
|
550 Route 206 | |
|
Bedminster, New Jersey 07978 |
133
134
135
136
137
138
WITNESS:
|
LANDLORD: | |||
|
||||
|
SAMMIS PLUCKEMIN ASSOCIATES | |||
|
||||
Name:
|
By: | [illegible] | ||
|
General Partner | |||
|
||||
ATTEST:
|
TENANT: | |||
|
||||
|
NATURAL GAS SERVICES INC. | |||
/s/ James R. Van Horn
|
By: |
[illegible]
|
||
Title: Secretary
|
Title: President |
139
140
141
142
1. | No sign, placard, picture, advertisement, name or notice shall be installed or displayed on any part ·of the outside or inside of the Building without the prior written consent of Landlord which shall not be withheld unreasonably. Landlord shall have the right to remove, at Tenants expense and upon prior notice, any sign installed or displayed in violation of this rule. All approved signs or lettering on doors and walls shall be printed, painted, affixed or inscribed at the expense of Tenant by a person chosen by Landlord. | |
2. | If Landlord objects in writing to any curtains, blinds, shades, screens or hanging plants or other similar objects attached to or used in connection with any window or door of the Premises, Tenant shall immediately discontinue such use. No awning shall be permitted on any part of the Premises. Tenant shall not place anything against or near glass partitions or doors or windows which may appear unsightly from outside the Premises. | |
3. | Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances, elevators, escalators or stairways of the Building. The halls, passages, exits, entrances, shopping malls, elevators, escalators and stairways are not for the general public, and Landlord shall in all cases retain the right to control and prevent access thereto of all persons whose presence in the judgment of Landlord would be prejudicial to the safety, character, reputation and interests of the Building and its tenants; provided that nothing herein contained shall be construed to prevent such access to persons with whom any tenants normally deals in the ordinary course of its business, unless such persons are engaged in illegal activities. No tenant and no employee or invitee of any tenant shall go upon the roof of the Building. | |
4. | The directory of the Building will be provided exclusively for the display of the name and location of Tenants only, and Landlord reserves the right to exclude any other names therefrom. | |
5. | All cleaning and janitorial services for the Building and the Premises shall be provided exclusively through Landlord, and except with the written consent of Landlord, no person or persons other than those approved by Landlord shall be employed by Tenant or permitted to enter the Building for the purpose of cleaning the same. Tenant shall not cause any unnecessary labor by any carelessness or indifference to the good order and cleanliness of the Premises. | |
6. | Landlord will furnish Tenant, free of charge, with two keys to each door lock in the Premises. Landlord may make a reasonable charge for any additional keys. Tenant shall not make or have made additional keys, and Tenant shall not alter any lock or install a new additional lock or bolt on any door of its Premises. Tenant, upon the termination of its tenancy, shall deliver to Landlord the keys of all doors which have been furnished to Tenant, in the event of loss of any keys so furnished, shall pay Landlord therefor. |
143
7. | If Tenant requires telegraphic, telephonic, burglar alarm or similar services, it shall first obtain, and comply with, Landlords instructions in their installation. | |
8. | Tenant shall not place a load upon any floor of the Premises which such floor was designed to carry and which is allotted by law. Landlord shall have the right to prescribe the weight, size and position of all equipment, materials, furniture or other property brought into the Building. Heavy objects shall, if considered necessary by Tenant, stand on such platforms as determined by Landlord to be necessary to properly distribute the weight. Business machines and mechanical equipment belonging to Tenant, which cause noise or vibration that may be transmitted to the structure of the Building or to any space therein to such a degree as to be objectionable to Landlord or to any tenants in the Building, shall be placed and maintained by Tenant, at Tenants expense, on vibration eliminators or other devices sufficient to eliminate noise or vibration. The persons employed to move such equipment in or out of the Building must be acceptable to Landlord. Landlord will not be responsible for loss of, or damage to, any such equipment or other property from any cause, and all damage done to the Building by maintaining or moving such equipment or other property shall be repaired at the expense of Tenant except when such damage to equipment or other property is caused by the directions or instructions issued by Landlord. | |
9. | Tenant shall not use or keep in the Premises any kerosene, gasoline or inflammable or combustible fluid or material other than those limited quantities necessary for the operation or maintenance of office equipment ___ Tenant shall not use or permit to be used ,in the Premises any foul or noxious gas or substance, or permit or allow the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Building by reason of noise, odors or vibrations, nor shall Tenant bring into or keep in or about the Premises any birds or animals. | |
10. | Tenant shall not use any method of heating or air-conditioning other than that supplied by Landlord. | |
11. | Tenant shall not waste electricity, water or air-conditioning and agrees to cooperate fully with Landlord to assure the most effective operation of the Buildings heating and air-conditioning and to comply with any governmental energy-saving rules, laws or regulations of which Tenant has actual notice, and shall refrain from attempting to adjust controls other than room thermostats installed for Tenants use. Tenant shall keep corridor doors closed, and shall close window coverings at the end of each business day. | |
12. | Following written notice to Tenant, Landlord reserves the right, and without liability to Tenant, to change the name and street address of the Building. | |
13. | Landlord reserves the right to exclude from the Building between the hours of 6 p.m. and 7 a.m. the to following day, or such other hours as may be established from time to time by |
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Landlord, and on Sundays and legal holidays, any person unless that person is known to the person or, employee In charge of the Building and has a pass or is properly identified. Tenant shall be responsible for all persons for whom it requests passes and shall be liable to Landlord for all acts of such persons. Landlord shall not be liable for damages for any error with regard to the admission to or exclusion from the Building of any person. Landlord reserves the right to prevent access to the Building in case of invasion, mob, riot, public, excitement or other commotion by closing the doors or by other appropriate action. | ||
14. | Tenant shall close and lock the doors of its Premises and entirely shut off all water faucets or other water apparatus, and electricity, gas or air outlets before tenant and its employees leave the Premises, Tenant shall be responsible for any damage or injuries sustained by other tenants or occupants of the Building or by Landlord for noncompliance with this rule. | |
15. | Tenant shall not obtain for use on the Premises, ice, drinking water, food, beverage, towel or other similar services or accept barbering or bootblacking services upon the Premises, except at such hours and under such regulations as may be fixed by Landlord. | |
16. | The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatever shall be thrown therein. The expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have caused it. | |
17. | Tenant shall not sell, or permit the sale at retail, of newspapers, magazines. periodicals. theater tickets or any other goods or merchandise to the general public in or on the Premises. Tenant shall not make any room-to-room solicitations of business from other tenants in the Building. Tenant shall not use the Premises for any business or activity other than that specifically provided for in Tenants Lease. | |
18. | Tenant shall not interfere with radio or television broadcast- ing or reception from or in the Building or elsewhere. | |
19. | Tenant shall not mark, drive nails, screw or drill into the partitions, woodwork or plaster or in any way deface the Premises or any part thereof. Landlord reserves the right to direct electricians as to where and how telephone and telegraph wires are to be introduced to the Premises. Tenant shall not cut or bore holes for wires. Tenant shall not affix any floor covering to the floor of the Premises in any manner except as approved by Landlord. Tenant shall repair any damage resulting from noncompliance with this rule. | |
20. | Tenant shall not install. maintain or operate upon. the Premises any vending machine without the written consent of Landlord which consent shall not be withheld unreasonably. |
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21. | Canvassing, soliciting and distribution of handbills or any other written material, and peddling in the Building are prohibited, and each tenant shall cooperate to prevent same. | |
22. | Landlord reserves the right to exclude or expel from the Building any person who, in Landlords judgment. is intoxicated or under the influence of liquor or drugs or who is in violation of any of the Rules and Regulations of the Building. | |
23. | Tenant shall store all its trash and garbage within its Premises. Tenant shall not place in any trash box or receptacle any material which cannot be disposed of in the ordinary and customary manner of t-rash and garbage disposal. All garbage and refuse disposal shall be made in accordance with direction issued from time to time by Landlord. | |
24. | The Premises shall not be used for the storage of merchandise held for sale to the general public, or for lodging or for manufacturing of any kind, nor shall the Premises be used for any improper, immoral or objectional purpose. No cooking shall be done except microwave cooking or permitted by any tenant on the Premises, except that use by Tenant of Underwriters Laboratory-approved equipment for brewing coffee. tea. hot chocolate and similar beverages shall be permitted, provided that such equipment and use is in accordance with all applicable federal, state, county and city laws, codes, ordinances, rules and regulations. | |
25. | Tenant shall not use in any space or in the public halls of the Building any hand trucks except those equipped with rubber tires and side guards or such other material-handling equipment as Landlord may approve. Tenant shall not bring any other vehicle of any kind into the Building. | |
26. | Without the written consent of Landlord, Tenant shall not use the name of the Building in connection with or in promoting or advertising the business of Tenant except as Tenants address. | |
27. | Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any governmental agency. | |
28. | Tenant assumes any and all responsibility for protecting its Premises from theft, robbery and pilferage, which includes keeping doors locked and other means of entry to the Premises closed. | |
29. | The requirements of Landlord will be attended to only upon appropriate application to the office of the Building by an authorized individual. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord, and no employee of Landlord will admit any person (Tenant or other- wise) to any office without specific instructions from Landlord. | |
30. | Tenant shall not park its vehicles in any parking 8.reas designated by Landlord as areas for parking by visitors to the Building. Tenant shall not leave vehicles in the Building parking areas overnight nor park any vehicles in the Building |
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parking areas other than automobiles, motorcycles, motor driven or non-motor driven bicycles or four-wheeled trucks. | ||
31. | Landlord may waive anyone or more of these Rules and Regulations for the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of Tenant or any other tenant nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Building. | |
32. | These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of premises in the Building. | |
33. | Landlord reserves the right to make such other and reasonable Rules and Regulations as, in its judgment, may from time to time be needed for safety and security, for care and cleanliness of the Building and for the preservation of good order therein. Tenant agrees to abide by all such Rules and Regulations hereinabove stated and any additional rules and regulations which are adopted. | |
34. | Tenant shall be responsible for the observance of all of the foregoing rules by Tenants employees, agents, clients, customers, invitees and guests. |
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1. | GENERAL CLEANING | |
Nightly | ||
a. | Empty and clean all waste receptacles removing waste to a designated central location for disposal. Landlord is to provide for disposal of waste. | |
b. | Empty and clean all ash trays and receptacles. | |
c. | Remove all fingerprints, smudges and other marks from metal partitions, doors and other surfaces. | |
Weekly | ||
d. | Hand dust and clean all office furniture that has been cleared of papers, boxes, and/or personal items, ledges, chair rails, baseboards, and window sills. | |
2. | FLOORS | |
Group A Granite, ceramic title, marble, terrazzo. | ||
Group B Linotile, asphalt, koroseal, plastic vinyl, wood, rubber, or other composition floors and base. | ||
Nightly | ||
a. | All floors in Group A to be swept, wet mopped and rinsed. | |
b. | All floors in Group B to be dry mopped. | |
Weekly | ||
c. | All floors in Group B to be damp mopped. | |
Every six (6) months | ||
d. | All floors to be scrubbed and buffed. | |
3. | VACUUMING | |
Nightly | ||
a. | Vacuum or carpet sweep all rugs and carpeted areas. | |
Monthly | ||
b. | Brush or dust by hand carpet edges inaccessible to high pressure vacuum attachments. | |
4. | HIGH DUSTING | |
Every six (6) Months | ||
a. | Dust all clothes closet shelving, pictures, charts, |
149
graphs, etc. |
b. | Dust clean all vertical surfaces such as walls, partitions, door bucks and other surfaces. | |
c. | Dust all venetian blinds. | |
5. | SPECIAL SERVICES | |
Records and General Storage Area |
6. | OTHER SERVICES | |
a. | Landlord shall supply all soap, towels and toilet tissue in both mens and womens rooms and sanitary napkins in coin dispensers in the womens rooms. | |
b. | Landlord will supply all coin operated dispensers and will be responsible for the servicing of same and for the collection of money from the machine. | |
c. | During the term of this lease the dispenser price for sanitary napkins will not exceed a price equal to 150% of the wholesale price paid by the Landlord. | |
7. | CARPETING |
Weekly |
8. | GLASS | |
Monthly | ||
a. | Clean all partitions and furniture glass. | |
Annually | ||
a. | Clean all perimeter windows, both inside and out. | |
9. | GENERAL | |
a. | All lights are to be extinguished and the doors as specified by Tenant are to be locked after cleaning is completed. | |
b. | All personnel are to be uniformed and clean in appearance during business hours. | |
c. | Cleaning of all private bathrooms and/or kitchen areas will be subject to additional charges which will be determined on a case-by-case basis applying uniform rates to all tenants. |
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152
153
154
155
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1
(i)
|
From the Commencement Date to and including the day proceeding the first |
$143,880 per annum
($11,990 per month) |
2
|
anniversary of the Commencement Date; | |||
|
||||
(ii)
|
From the first anniversary of the Commencement Date to and including the day proceeding the second anniversary of the Commencement Date; |
$147,477 per annum
($12,289.75 per month) |
||
|
||||
(iii)
|
From the second anniversary of the Commencement Date to and including the day proceeding the third anniversary of the Commencement Date; |
$151,164 per annum
($12,597 per month) |
||
|
||||
(iv)
|
From the third anniversary of the Commencement Date to and including the day proceeding the fourth anniversary of the Commencement Date; and |
$154,943 per annum
($12,912 per month) |
||
|
||||
(v)
|
From the fourth anniversary of the Commencement Date to and including the Expiration Date. |
$158,817 per annum
($13,234.75 per month) |
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
SUBLESSOR
:
MELLON INVESTOR SERVICES, LLC |
||||
By: | /s/ Alex G. Sciulli | |||
Name: | Alex G. Sciulli | |||
Title: | Vice President | |||
SUBLESSEE
:
GAIN CAPITAL, INC. |
||||
By: | /s/ Mark E. Galant | |||
Name: | Mark E. Galant | |||
Title: | CEO | |||
Sublessees federal employer identification
number is: 22-3685068 |
||||
20
21
22
23
SUBLESSOR
:
MELLON INVESTOR SERVICES LLC |
||||
By: | ||||
Name: | ||||
Title: | ||||
SUBLESSEE
:
GAIN CAPITAL, INC. |
||||
By: | /s/ Mark E. Galant | |||
Name: | Mark E. Galant | |||
Title: | CEO |
24
25
26
1
|
(i) | From the Additional Premises Commencement Date to and including the day proceeding the first anniversary of the Commencement Date. |
$322,000 per annum
($26,833 per month). |
|||
|
||||||
|
(ii) | From the first anniversary of the Commencement Date to and including the day proceeding the second anniversary of the Commencement Date. |
$330,000 per annum
($27,504 per month). |
|||
|
||||||
|
(iii) | From the second anniversary of the Commencement Date to and including the day proceeding the third anniversary of the Commencement Date. |
$338,000 per annum
($28,175 per month). |
|||
|
||||||
|
(iv) | From the third anniversary of the Commencement Date to and including the day proceeding the Expiration Date. |
$346,150 per annum
($28.846 per month). |
2
3
|
SUBLESSOR : | ||||
|
|||||
|
MELLON INVESTOR SERVICES LLC | ||||
|
By: |
/s/ Alex G. Scinlii
|
|||
|
Name: Alex G. Scinlii | ||||
|
Title: Vice President | ||||
|
|||||
|
SUBLESSEE: | ||||
|
|||||
|
GAIN CAPITAL INC. | ||||
|
By: |
/s/
Christopher W. Calhoun
|
|||
|
Name: Christopher W. Calhoun | ||||
|
Title: Chief Operating Officer | ||||
|
|||||
|
Sublessees federal employer identification | ||||
|
number is: 22-3685008 |
4
5
(i) | access the Office Accommodation twenty-four (24) hours per day, seven (7) days per week; | ||
(ii) | reception of Clients visitors by the Companys receptionist during normal business hours; | ||
(iii) | heating and air conditioning as available and controlled by the building: | ||
(iv) | lighting and electrical power for normal office use: | ||
(v) | common area cleaning, sweeping of floors and rubbish removal in the Office Accommodation; | ||
(vi) | use of sanitary facilities; and | ||
(vii) | mail handling |
Secretarial services
|
Photocopying | |
Telephone sets, line and usage
|
Facsimile | |
Filing and storage
|
High speed Internet access | |
Mail and courier services
|
Food, beverage and catering services | |
Information technology support
|
Voicemail |
1
(i) | if someone dies or is injured while in the Office Accommodation the Client is using; | ||
(ii) | from a third party in respect of Clients use of the Office Accommodation and services; | ||
(iii) | from a third party in respect of the Companys providing of services to Client; and | ||
(iv) | as a result of Client not complying with the terms of this Agreement. |
2
(i) | pay for all services Client has used, | ||
(ii) | except for Section 4(e), pay the Standard Fee for 3 months following termination The Standard Fee for the 3 months will be accelerated and become immediately due, and | ||
(iii) | indemnify the Company against all reasonable costs and losses (including without limitation, reasonable attorneys fees and disbursements) the Company may incur as a result of the termination. |
(i) | Client is responsible for any loss, claim or liability (including, without limitation, reasonable attorneys fees and disbursements) the Company may incur as a result of Clients default or failure to vacate on time; including without limitation, lost Standard Fees; | ||
(ii) | the Company may, in its sole discretion, permit Client an extension subject to a surcharge on the Standard Fee; and | ||
(iii) | Client agrees that the Company may bar the Client and its employees from the Office Accommodation and may terminate telephone, high-speed Internet access and other Services. |
3
(i) | if to the Company, 10 Exchange Place, B Floor, Jersey City NJ 07302, Attention: Tony Scrimenti, or at such other address as it may have furnished in writing to Client, or | ||
(ii) | if to Client, at such address as listed on Schedule 1 hereto, or at such other address is it may have furnished in writing to the Company. |
4
SCIVANTAGE, INC.
|
GAIN CAPITAL GROUP, LLC | ||||
|
|||||
By:
|
/s/ Adnane Charchour
|
By: |
/s/ Christopher W. Calhoun
|
||
Name: Adnane Charchour
|
Name: Christopher W. Calhoun | ||||
Title: President & CEO
|
Title: COO |
5
Company Name:
|
SCIVANTAGE, INC. | |
Client Company Name:
|
GAIN CAPITAL GROUP, LLC | |
Client Address:
|
550 Hills Drive, Bedminster, NJ 07921 | |
Clients Business:
|
Financial Services & Technology | |
Initial Term in months:
|
11 months with option to renew for an additional 12 months | |
Agreement Date:
|
February 1, 2008 | |
Start Date:
|
February 1, 2008 | |
End Date:
|
December 31, 2008 with option to renew for an additional 12 months | |
Move-In Date:
|
February 15, 2008 | |
Office Space:
|
29 Workstations/Offices (As highlighted in attached layout) |
1) | Standard Fee is the monthly fee for the office space per the Service Agreement | |
2) | IT Support Services are available for $100/hr (15 minutes increments) | |
3) | Replacement fee for any lost security card is $50 |
6
* | Assuming two printers | |
** | Services not selected can be made available @ above rates |
SCIVANTAGE, INC.
|
GAIN CAPITAL GROUP, LLC | ||||
By:
|
/s/ Adnane Charchour
|
By: |
/s/ Christopher W. Calhoun
|
||
Name: Adnane Charchour
|
Name: Christopher W. Calhoun | ||||
Title: President & CEO
|
Title: COO |
7
Company Name:
|
SCIVANTAGE, INC. | |
Client Company Name:
|
GAIN CAPITAL GROUP, LLC | |
Client Address:
|
550 Hills Drive, Bedminster, NJ 07921 | |
Clients Business:
|
Financial Services & Technology | |
Initial Term in months:
|
10.5 months | |
Agreement Date:
|
1-Feb-08 | |
Start Date:
|
15-Feb-08 | |
End Date:
|
31-Dec-09 | |
Move-in Date
|
15-Feb-08 | |
Office Space
|
16 Workstations Read to Use for Business Continuity or growth |
Reservation Unit | Occupancy Unit | Reservation | Occupancy | |||||||||||||||||||||
STANDARD FEE - MONTHLY | Details | Quantity | Amount | Amount | Amount | Amount | ||||||||||||||||||
STANDARD FEE MONTHLY
|
Regular Workstation | All inclusive: taxes, | 8 | $ | 87.56 | $ | 350.00 | $ | 700.00 | |||||||||||||||
|
Large Workstation | escalation and | 8 | $ | 112.50 | $ | 450.00 | $ | 900.00 | |||||||||||||||
|
Private Office** | electricity | 0 | $ | 550.00 | $ | 550.00 | | ||||||||||||||||
|
Monthly Standard Fees | $ | 1,000.00 | $ | 6,400.00 | |||||||||||||||||||
ADDITIONAL SERVICES MONTHLY
|
||||||||||||||||||||||||
Communications
|
Telephone Set Rental** | Per Set | 0 | $ | 20.00 | $ | 20.00 | | | |||||||||||||||
|
Telephone lines** | 0 | $ | 75.00 | $ | 75.00 | | | ||||||||||||||||
|
- Unlimited calling US | |||||||||||||||||||||||
|
- Voice Mail | |||||||||||||||||||||||
|
- Teleconference bridge line | Per Line | ||||||||||||||||||||||
|
Private eFax Line (Receive only) ** | Per Line | 0 | $ | 15.00 | $ | 15.00 | | | |||||||||||||||
|
LAN Connection (writes & cross connect) | Per Desk | 16 | $ | 10.00 | $ | 10.00 | $ | 160.00 | $ | 160.00 | |||||||||||||
|
Services 8 Computer Equipment Hosting (Space & Power) ** | Per Equipment | 0 | $ | 350.00 | $ | 350.00 | | | |||||||||||||||
|
Internet Connection Redundant T1 | Per Desk | 16 | $ | 25.00 | $ | 25.00 | $ | 400.00 | $ | 400.00 | |||||||||||||
Cafeteria**
|
Coffee | Per Person | 0 | $ | 30.00 | $ | 30.00 | | | |||||||||||||||
|
Soft Drinks | Per Person | 0 | $ | 45.00 | $ | 45.00 | | | |||||||||||||||
|
Monthly Additional Services Fee | $ | 550.00 | $ | 550.00 | |||||||||||||||||||
|
Monthly Fees TOTAL: | $ | 2,160.00 | $ | 6,960.00 |
ONE-TIME SET UP, PRE-PAID & SERVICE DEPOSIT FEES | Quantity | Unit Amount | Total | |||||||||||||
First Months Fee (0.5 month)
|
0 | $ | 2,160.00 | Waived | ||||||||||||
Service Deposit 1 Monthly Fee
|
0 | $ | 2,160.00 | Waived | ||||||||||||
Office Space Set-Up (cleaning, faxing, etc...)
|
15 | $ | 100.00 | $ | 1,600.00 | |||||||||||
Security Badges**
|
Per Set | 0 | $ | 25.00 | | |||||||||||
Telephone**
|
Per Set | 0 | $ | 50.00 | | |||||||||||
Analog/Fax Line**
|
Per Line | 0 | $ | 75.00 | | |||||||||||
Internet/LAN Connectivity
|
Per Seat | 15 | $ | 50.00 | $ | 600.00 | ||||||||||
|
Move-in / Set-up Fees
TOTAL: |
$ | 2,400.00 |
1) | Standard Fee is the monthly fee for the office space per the Service Agreement | |
2) | IT Support Services are available for $100/hr (15 minutes increments) | |
3) | Replacement fee for any lost security card is $50 | |
** | Services not selected can be made available @ above rates | |
Comments/Amendments for the Service Agreement | ||
1) | Scivantage will reserve the light blue highlighted office space are on the attached floor plan and make it available for use by GAIN | |
2) | GAIN will setup the reserved office space with computer workstations and phones | |
3) | GAIN will not actually use the reserved office unless needed for business continuity, faster than expected growth or any other reason, in GAINs judgment, requiring the additional office space | |
4) | GAIN will pay Scivantage a monthly Reservation Amount representing 25% of the full monthly Occupancy Amount. The monthly Reservation Amount guarantees the space for GAIN for potential future use | |
5) | In the event GAIN actually occupies the office space or some portion thereof, GAIN will pay the Occupancy Amount on a pro rate basis for the sections of the reserved space actually occuppied | |
6) | GAIN will continue to pay the Reservation Amount for the sections of the space not occupied | |
7) | In the event Scivantage needs to use the reserved office space, in whole or in part, to support its business, Scivantage will provide GAIN with 30 days notice so that GAIN can make alternative arrangements | |
8) | In the event that GAIN is not occupying the office space and no longer needs to reserve it, GAIN will provide Scivantage 60 days notice prior to termination | |
9) | This arrangement will be in effect from the Start date above and [illegible] the 2009 calendar year at which point the parties can decide to renew, cancel or renegotiate |
AGREED AND ACCEPTED:
|
|||||
SCIVANTAGE, INC.
|
GAIN CAPITAL GROUP, LLC | ||||
By:
|
/s/ Adnane Charchour
|
By: |
/s/ Chris Calhoun
|
||
Name: Adnane Charchour
|
Name: Chris Calhoun | ||||
Title: President & CEO
|
Title: Managing Director |
Page | ||||
1. DEFINITIONS
|
3 | |||
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2. LEASE OF THE LEASED PREMISES
|
3 | |||
|
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3. RENT
|
5 | |||
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4. TERM
|
6 | |||
|
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5. PREPARATION OF THE LEASED PREMISES
|
7 | |||
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6. OPTIONS
|
9 | |||
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7. USE AND OCCUPANCY
|
12 | |||
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8. UTILITIES, SERVICES, MAINTENANCE AND REPAIRS
|
14 | |||
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9. ALLOCATION OF THE EXPENSE OF UTILITIES, SERVICES, MAINTENANCE, REPAIRS AND TAXES
|
16 | |||
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10. COMPUTATION AND PAYMENT OF ALLOCATED EXPENSES OF UTILITIES, SERVICES, MAINTENANCE, REPAIRS,
TAXES AND CAPITAL EXPENDITURES
|
16 | |||
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11. LEASEHOLD IMPROVEMENTS, FIXTURES AND TRADE FIXTURES
|
23 | |||
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12. ALTERATIONS, IMPROVEMENTS AND OTHER MODIFICATIONS BY THE TENANT
|
23 | |||
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13. LANDLORDS RIGHTS OF ENTRY AND ACCESS
|
25 | |||
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14. LIABILITIES AND INSURANCE OBLIGATIONS
|
26 | |||
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15. CASUALTY DAMAGE TO BUILDING OR LEASED PREMISES
|
27 | |||
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16. CONDEMNATION
|
28 | |||
|
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17. ASSIGNMENT OR SUBLETTING BY TENANT
|
29 | |||
|
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18. SIGNS, DISPLAYS AND ADVERTISING
|
32 | |||
|
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19. QUIET ENJOYMENT
|
32 | |||
|
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20. OMITTED INTENTIONALLY
|
32 | |||
|
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21. SURRENDER
|
32 | |||
|
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22. EVENTS OF DEFAULT
|
33 | |||
|
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23. RIGHTS AND REMEDIES
|
34 | |||
|
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24. TERMINATION OF THE TERM
|
37 | |||
|
||||
25. MORTGAGE AND UNDERLYING LEASE PRIORITY
|
38 |
Page | ||||
26. TRANSFER BY LANDLORD
|
39 | |||
|
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27. INDEMNIFICATION
|
39 | |||
|
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28. PARTIES LIABILITY
|
41 | |||
|
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29. SECURITY DEPOSIT
|
42 | |||
|
||||
30. REPRESENTATIONS
|
43 | |||
|
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31. RESERVATION IN FAVOR OF TENANT
|
44 | |||
|
||||
32. TENANTS CERTIFICATES AND MORTGAGEE NOTICE REQUIREMENTS
|
44 | |||
|
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33. WAIVER OF JURY TRIAL
|
46 | |||
|
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34. SEVERABILITY
|
46 | |||
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35. NOTICES
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46 | |||
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36. CAPTIONS
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46 | |||
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37. COUNTERPARTS
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47 | |||
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38. APPLICABLE LAW
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47 | |||
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39. EXCLUSIVE BENEFIT
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47 | |||
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40. SUCCESSORS
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47 | |||
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41. AMENDMENTS
|
47 | |||
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42. WAIVER
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47 | |||
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43. COURSE OF PERFORMANCE
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47 | |||
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EXHIBIT A LEASED PREMISES FLOOR SPACE DIAGRAM
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49 | |||
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EXHIBIT B PROPERTY DESCRIPTION
|
50 | |||
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EXHIBIT C OMITTED INTENTIONALLY
|
51 | |||
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EXHIBIT D BUILDING RULES AND REGULATIONS
|
52 | |||
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EXHIBIT E DEFINITIONS AND INDEX OF DEFINITIONS
|
56 | |||
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EXHIBIT F CLEANING SPECIFICATIONS
|
62 |
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2.3.1. | Landlord reserves the right to require Tenant to paint the exterior portions of the Roof Installations consistent with the color of the Building and otherwise to take reasonable measures to shield, in whole or in part as deemed practicable, the exterior portions of the Roof Installations from view. | ||
2.3.2. | No such Roof Installations shall interfere with the communications configurations, frequencies or operating equipment which exist on the Property on the effective date of this Agreement or the rights of tenants of Other Leased Premises. Tenant shall indemnify, defend and hold harmless Landlord from any claim by any tenant of Other Leased Premises or third party that such Roof Installations interfere or conflicts with the installations of such other persons (Pre-existing Communications). Tenants Roof Installations and the operation thereof shall comply with all non-interference and health rules of all agencies with jurisdiction including the Federal Communications Commission (FCC). Upon written notice from Landlord of apparent interference by Tenant with Pre-existing Communications of violation of FCC rules, Tenant shall have the responsibility to promptly terminate such interference. | ||
2.3.3. | Tenant shall use the Roof Installations for the transmission, reception and operation of a communications system for its business and for uses incidental thereto and for no other uses. Tenant agrees that the Roof Installations will not cause interference with normal consumer electronics (Electronics) used by Landlord or tenants of Other Leased Premises, regardless of whether the Electronics predate or postdate the Roof Installations. Electronics shall include, but not be limited to, computers and accessory equipment, facsimile machines, landline and mobile telephones, Blackberry devices, audio-visual equipment and other similar electronic components commonly associated with operating a commercial enterprise. Tenant has the obligation to not cause interference with Electronics that are operating within the terms of their license and/or intended manufacturer purpose and customary use. | ||
2.3.4. | Within thirty (30) days after the Commencement Date, Tenant shall provide Landlord with as-built drawings of the Roof Installations and the improvements installed on or in the Roof Installations, which show the actual location of all equipment and improvements consistent with the Plans. The drawings shall be accompanied by a complete and detailed inventory of all equipment and personal property. If there are no immediate Roof Installations to be made following Commencement Date, Tenant will provide to Landlord reasonable notice |
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of any Roof Installations prior to taking any measure to install Roof Installations during the Term of this Agreement. |
Months | Annual Rate | Monthly Installments | ||
8 through 67
|
$990,000.00 | $82,500.00 | ||
68 through 127 | $1,080,000.00 | $90,000.00 | ||
128 through 131 | waived | |||
132 through 191 | $1,215,000.00 | $101,250.00 |
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4.2.1. | the Target Date; or |
4.2.2. | the date that the last of each of the following conditions set forth in this subsection 4.2.2 of the Agreement that is specifically applicable shall have occurred: |
4.2.2.1. | the date the Leased Premises can be legally occupied for its intended use with a temporary certificate of occupancy issued with no conditions which will materially interfere with the use and enjoyment of the Leased Premises by Tenant; |
4.2.2.2. | preparation of the Leased Premises substantially in accordance with the Tenant Plan is complete (except for (i) any long lead time items that may be required that can not be delivered to the Leased Premises in sufficient time to be incorporated into the work in proper sequence which long lead items Landlord will advise Tenant of within five (5) business days of receipt of Tenants Plan and Tenant shall then have five (5) business days to revise Tenants Plan to remove or change any long lead items, (ii) minor details of construction, decoration and mechanical adjustments, the non-completion of which do not materially interfere with the use and enjoyment of the Leased Premises by Tenant, and (iii) except as otherwise provided herein, any additional preparation work contemplated by this Agreement that is not being performed by contractors selected and retained by the Landlord); | ||
4.2.2.3. | the Landlord can deliver actual and exclusive possession of the Leased Premises, free of rubbish and debris, to the Tenant (except for any rubbish and debris left by contractors not selected and retained by the Landlord); | ||
4.2.2.4. | a temporary or permanent certificate of occupancy has been issued and the tenant had operational control and full access to the Leased Premises. |
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4.3.1. | the Tenant shall be allowed a period of thirty (30) days prior to the Commencement Date to move furniture, furnishings, and equipment into the Leased Premises to prepare for commencement of operations. Landlord shall provide sufficient vertical riser space to meet Tenants electric, voice and data requirements; and | ||
4.3.2. | prior to the Commencement Date, when legally permitted, the Tenant shall be allowed to occupy a portion of the First Floor Premises to prepare a transition of its computer systems (the Temporary Occupancy Period). During the Temporary Occupancy Period, Tenant shall pay a Temporary Electric Charge at the rate of $1.75 per square foot per year for the portion occupied for this purpose. |
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6.1.1 | At the time of the exercise of the Option to Renew and at the time of said renewal, the Tenant shall not be in default under the terms and provisions of this Lease, and shall occupy and be in operation at the entire Leased Premises pursuant to this Lease. | ||
6.1.2 | Notice of the exercise of the Option to Renew shall be sent to the Landlord in writing at least twelve (12) months before the expiration of the Initial Term or before the expiration of the first Renewal Term, as the case may be. | ||
6.1.3 | Each Renewal Term shall be for a period of five (5) years to commence at the expiration of the Initial Term or the expiration of the first Renewal Term, as the case may be, and all of the terms and conditions of this Agreement, other than the annual amount of Basic Rent, shall apply during either such Renewal Term. In each Renewal Term, he Base Year for Operating Expenses and the Base Year for Taxes shall be revised to the calendar year in which the first month of the Renewal Term occurs. | ||
6.1.4. | The amount of Basic Rent to be paid during each Renewal Term shall equal the Market Rental Rate which is defined below in Exhibit E. |
6.2.1. | by a written notice served on or before the end of the sixty-seventh full calendar month of the Initial Term to be effective at the close of business on the last day of the seventy-ninth full calendar month of the Initial Term. Eleven (11) months after serving a notice exercising this Option to Cancel, Tenant shall become obligated to pay a termination fee (the Termination Fee) which is the sum of (i) the unamortized portion of the Allowance; (ii) the unamortized portion of the costs incurred by Landlord for the performance of the work and installations required by subsections 5.4(ii) and 5.4(iii) of this Agreement (the Other Costs); (ii) the unamortized portion of the brokerage commissions paid to the Brokers, and (iii) $180,000; which total is the consideration for the granting of this Option to Cancel. If this Option to Cancel is not exercised in a timely manner it shall thereupon expire; and | ||
6.2.2. | by a written notice served on or before the end of the one hundred eighteenth full calendar month of the Initial Term to be effective at the close of business on the last day of the one hundred twenty-seventh full calendar month of the Initial Term. Nine (9) months after serving a notice exercising this Option to Cancel, Tenant shall become obligated to pay a termination fee (the Alternate Termination Fee) equal to the unamortized portion of the brokerage commissions paid to the Brokers which is the consideration for the granting of this Option to Cancel. If this Option to Cancel is not exercised in a timely manner it shall thereupon expire. |
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6.2.3. | If the Termination Fee is not paid in a timely manner, the cancellation shall be ineffective and the applicable Option to Cancel shall thereupon expire. | ||
6.2.4. | The unamortized portion of the Allowance shall equal the present value of the remaining forty-eight (48) payments which would be due on a monthly annuity in arrears for one hundred twenty-seven (127) months using the amount of the Allowance as the present value, and an annual rate of interest of eight percent (8%). The unamortized portion of the Other Costs shall equal the present value of the remaining forty-eight (48) payments which would be due on a monthly annuity in arrears for one hundred twenty-seven (127) months using the amount of the Other Costs as the present value, and an annual rate of interest of eight percent (8%). If the first Option to Cancel is exercised, the unamortized portion of the brokerage commissions shall equal the present value of the remaining one hundred twelve (112) payments which would be due on a monthly annuity in arrears for one hundred ninety-one (191) months using the amount of the brokerage commissions paid to the Brokers as the present value, and an annual rate of interest of eight percent (8%). If the second Option to Cancel is exercised, the unamortized portion of the brokerage commissions shall equal the present value of the remaining sixty-four (64) payments which would be due on a monthly annuity in arrears for one hundred ninety-one (191) months using the amount of the brokerage commissions paid to the Brokers as the present value, and an annual rate of interest of eight percent (8%). | ||
6.2.5. | If the Option to Cancel is exercised then, with respect to any space leased by Tenant pursuant to the Right of First Offer or the Right of First Refusal, Tenant shall be obligated to pay Landlord an additional termination fee (the Additional Termination Fee) which is the sum of (i) the unamortized portion of any allowance granted in connection with any leases made pursuant to the Right of First Offer and the Right of First Refusal; (ii) the unamortized portion of the brokerage commissions paid to any brokers in connection therewith; and (iii) the unamortized portion of free Rent given in connection therewith; which total is the consideration for the granting of the Option to Cancel any leases made pursuant to the Right of First Offer and the Right of First Refusal. |
6.3.1. | After the Lease execution, Tenant shall have a Right of First Refusal for any available space on the third floor of the Building (Third Floor Space), subject and subordinate to existing rights held by tenants of Other Leased Premises as of the date of this Lease provided that, at the time of the exercise of the Right of First Refusal, the Tenant shall not be in default under the terms and provisions of this Lease beyond any applicable cure periods. Landlord shall give Tenant written notice of all terms and conditions of any bona fide third party offer Landlord has received for the Third Floor Space. Tenant shall notify Landlord in writing within five (5) business days after Tenants receipt of such written notice as to whether or not Tenant elects to lease such space. If Tenant either notifies Landlord that Tenant does not wish to lease such space, or Tenant fails to notify Landlord of its intentions within such five (5) business day period, then Tenants Right of First Refusal shall cease as to such space and Landlord may lease only such space without giving Tenant any further notice thereof. Landlord agrees to notify Tenant if Landlord has entered into such lease of the Third Floor Space (or not entered into such lease, as the case may be). |
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6.3.2. | Tenants notice exercising the Right of First Refusal shall constitute a binding commitment to lease the specified space on the following terms: |
6.3.2.1. | If the Right of First Refusal is exercised within the first eighteen (18) months of the Initial Term (i) the term of the lease for the offered space shall be coterminous with the Initial Term, (ii) the Basic Rent per rentable square foot shall be the same as the Basic Rent per rentable square foot being paid from time to time for the Leased Premises, and (iii) Landlord shall provide an allowance of $35 per rentable square foot in the offered space multiplied by a fraction whose numerator is the number of whole months remaining in the first ten years of the Initial Term and whose denominator is 120. Tenant may only look to the Landlord and its successors and assigns for the payment of this allowance but, in no circumstances, may Tenant seek recovery of any such sums from the current or any future mortgagee. | ||
6.3.2.2. | If the Right of First Refusal is exercised after the first eighteen (18) months of the Initial Term (i) the term of the lease for the offered space shall be coterminous with the Initial Term and (ii) the Basic Rent shall be the Market Rental Rate for the offered space. | ||
6.3.2.3. | Landlord and Tenant shall execute and deliver an amendment of this Agreement to confirm the exercise of the Right of First Refusal and to set forth its terms. The amendment shall contain all the same terms as this Agreement, modified to conform to the addition of the offered space. Tenants Proportionate Share and the total rentable area of the Leased Premises shall be increased accordingly. |
6.3.3. | The Right of First Refusal set forth in this Article, is personal to Tenant, and its permitted assigns (pursuant to subsection 17.6 of this Agreement), and may not otherwise be assigned or transferred by Tenant. |
6.4.1. | After the Commencement Date, Tenant shall have a Right of First Offer for any space which Landlord knows or reasonably anticipates will become available in the Building (the Other Space), subject and subordinate to existing rights held by tenants of Other Leased Premises provided that, at the time of the exercise of the Right of First Offer, the Tenant shall not be in default under the terms and provisions of this Lease. |
6.4.1.1. | If Other Space will become available for a term to begin during the first eighteen (18) months of the Initial Term, Landlord shall offer the Other Space to Tenant on the following terms: (i) the term of the lease for the Other Space shall be coterminous with the Initial Term, (ii) the Basic Rent per rentable square foot shall be the same as the Basic Rent per rentable square foot being paid from time to time for the Leased Premises, and (iii) Landlord shall provide an allowance of $35 per rentable square foot in the Other Space multiplied by a fraction whose numerator is the number of whole months remaining in the first ten years of the Initial Term and whose denominator is 120. | ||
6.4.1.2. | If Other Space will become available for a term to begin after the first eighteen (18) |
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months of the Initial Term, Landlord shall notify Tenant in writing of the terms on which Landlord proposes to lease the Other Space including, without limitation, when the number of rentable square feet in the Other Space and the term of the proposed lease. The Basic Rent per rentable square foot shall be the FMV of the Other Space but not less than $22 per gross rentable foot. Tenant shall notify Landlord in writing within five (5) business days after Tenants receipt of the offer as to whether or not Tenant elects to lease the Other Space. | |||
6.4.1.3. | In either case, if Tenant either notifies Landlord that Tenant does not wish to lease the Other Space, or Tenant fails to notify Landlord of its intentions within such five (5) day period, then Tenants Right of First Offer shall cease as to such space and Landlord may lease such space without giving Tenant any further notice thereof. |
6.4.2. | If Tenant exercises the Right of First Offer, Tenants notice exercising the Right of First Offer shall constitute a binding commitment to lease the Other Space on the same terms and conditions as are set forth in this Lease as modified by the terms set forth in Landlords offer. Tenants Proportionate Share and the total rentable area of the Leased Premises shall be increased accordingly. If Tenant leases Other Space under Section 6.4.1.2. above, the Base Year for Operating Expenses and Taxes shall be the year in which the term of the Other Space leased commences and Tenant shall execute and deliver an amendment of this Agreement to confirm the exercise of the Right of First Offer. | ||
6.4.3. | The Right of First Offer set forth in this Article, is personal to Tenant named herein, and its permitted assigns (pursuant to subsection 17.6 of this Agreement), and may not otherwise be assigned or transferred by Tenant. |
6.5.1. | any Option to Renew which the Tenant has theretofore properly exercised with respect to a Renewal Term that has not yet actually commenced shall be rescinded, if the Landlord so elects by notice to the Tenant, to the same extent as if it had not been exercised at all; and | ||
6.5.2. | any Option to Renew or any other type of option or optional right exercisable by the Tenant not theretofore timely and otherwise properly exercised by the Tenant shall thereupon expire. |
7.2.1. | the Tenant shall not do, or permit anything which might have the effect of creating an increased risk of, or damage from, fire, explosion or other casualty; |
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7.2.2. | the Tenant shall not do, or permit anything which would have the effect of (a) increasing any premium for any liability, property, casualty or excess coverage insurance policy otherwise payable by the Landlord or any tenant of Other Leased Premises or (b) making any such types or amounts of insurance coverage unavailable or less available to the Landlord or any tenant of Other Leased Premises; | ||
7.2.3. | to the extent they are not inconsistent with this Agreement, the Tenant and the Tenants employees, other agents and Guests shall comply with the Building Rules and Regulations attached hereto as Exhibit D, and with any reasonable changes made therein by the Landlord for all tenants of the Building if, with respect to any such changes, the Landlord shall have given prior notice of the particular changes to the Tenant and such changes shall not adversely affect the conduct of the Tenants business in the Leased Premises and Tenants use of the Leased Premises; | ||
7.2.4. | the Tenant and the Tenants employees, other agents and Guests shall not create, permit or continue any Nuisance in or around the Leased Premises, the Other Leased Premises, the Building, the Common Facilities and the Property; | ||
7.2.5. | The Tenant and the Tenants employees, other agents and Guests shall not permit the Leased Premises to be regularly occupied by more than the number of individuals permitted by code (provided that, if any supplemental cooling or ventilation is required, because the Leased Premises are occupied by more than one individual per 200 square feet of usable floor space, the cost of installing, operating and maintaining the same shall be at the Tenants sole cost and expense); | ||
7.2.6. | the Tenant and the Tenants employees, other agents and Guests shall comply with all Federal, state and local statutes, ordinances, rules, regulations and orders as they pertain to the Tenants use and occupancy of the Leased Premises, to the conduct of the Tenants business and to the use of the Common Facilities, except that this subsection shall not require the Tenant to make any structural changes that may be required thereby; | ||
7.2.7. | the Tenant and the Tenants employees, other agents and Guests shall comply with the requirements of the Board of Fire Underwriters (or successor organization) and of any insurance carriers providing liability, property, casualty or excess insurance coverage regarding the Property, the Building, the Common Facilities or any portions thereof, and any other improvements on the Property, except that this subsection shall not require the Tenant to make any structural changes that may be required thereby that are generally applicable to the Building as a whole; | ||
7.2.8. | the Tenant and the Tenants employees, other agents and Guests shall not bring or discharge any material or substance (solid, liquid or gaseous) which is a Hazardous Substance, or conduct any activity, in or on the Property, the Building, the Common Facilities or the Leased Premises that shall have been identified by any Federal, state or local statute (including, without limiting the generality of the foregoing, the Spill Compensation and Control Act (58 N.J.S.A. §10-23.11 et seq.); the Industrial Site Recovery Act (ISRA)(13 N.J.S.A. §1 K-6 et seq.); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.) as amended; the Comprehensive Environmental Response Compensation |
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and Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Federal Water Pollution Control Act/Clean Water Act (33 U.S.C. §1251 et seq.); the Clean Water Act (33 U.S.C. §1251 et seq.); the Clean Air Act (42 U.S.C. §7401 et seq.); the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §5101 et seq.) the Safe Drinking Water Act (42 U.S.C. §300f through §300j) as amended; the Global Warming Response Act, 26 N.J.S.A. §2C-37 et seq.; the Regional Greenhouse Gas Initiative Act, 26 N.J.S.A. §2C-45 et seq., and the regulations adopted and publications promulgated pursuant to said laws; and in any revisions or successor codes as toxic or hazardous to health or to the environment (Environmental Laws) As used herein, Hazardous Substance means any material or substance which is toxic, ignitable, reactive, or corrosive; or which is defined as hazardous waste, extremely hazardous waste or a hazardous substance by Environmental Laws; or which is an asbestos, polychlorinated biphenyl or a petroleum product; or which is regulated by Environmental Laws; | |||
7.2.9. | the Tenant and the Tenants employees, other agents and Guests shall not draw electricity in the Leased Premises in excess of the rated capacity of the electrical conductors and safety devices including, without limiting the generality of the foregoing, circuit breakers and fuses, by which electricity is distributed to and throughout the Leased Premises and, without the prior written consent of the Landlord in each instance, shall not connect any fixtures, appliances or equipment to the electrical distribution system serving the Building and the Leased Premises other than typical professional office equipment such as minicomputers, microcomputers, typewriters, copiers, telephone systems, coffee machines and table top microwave ovens, none of which, considered individually and in the aggregate, overall and per fused or circuit breaker protected circuit, shall exceed the above limits. The system is designed to provide three (3) watts per usable square foot for lighting and five (5) watts per usable square foot for the other electric devices enumerated above; | ||
7.2.10. | on a timely basis the Tenant shall pay directly and promptly to the respective taxing authorities any taxes (other than Taxes) charged, assessed or levied exclusively on the Leased Premises or arising exclusively from the Tenants use and occupancy of the Leased Premises; and | ||
7.2.11. | the Tenant shall not initiate any appeal or contest of any assessment or collection of Taxes for any period without, in each instance, the prior written consent of the Landlord which, without being deemed unreasonable, the Landlord may withhold if the Building was not ninety percent (90%) occupied by paying tenants throughout that period or if the Tenant is not joined by tenants of Other Leased Premises that leased throughout that period, and that are then leasing, at least eighty percent (80%) of all Other Leased Premises, determined by their gross rentable floor space. |
8.1.1. | such maintenance and repair of the Building (except the Leased Premises and Other Leased Premises); the Common Facilities; and the heating, ventilation and air conditioning systems (but not including supplemental cooling, whether supplemental cooling units are found in the Leased Premises or not), any plumbing systems and the electrical systems in |
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the Building, the Common Facilities, the Leased Premises and Other Leased Premises as is customarily provided for first class office buildings in the immediate area; | |||
8.1.2. | maintenance and repair of the Leased Premises, except for refinishing walls and wall treatments, base, ceilings, floor treatments and doors in general from time to time or for gouges, spots, marks, damage or defacement caused by anyone other than the Landlord, its employees and other agents, and except for the Tenants furniture, furnishings, equipment and other property; | ||
8.1.3. | such garbage removal from the Building and the Common Facilities and such janitorial services for the Building, the Leased Premises and Other Leased Premises as is customarily provided for first class office buildings in the immediate area; | ||
8.1.4. | the electricity required for the operation of the Building, the Property and the Common Facilities during Regular Business Hours and, on a reduced service basis, during other than Regular Business Hours, and, at all times, the electricity required for the Leased Premises; | ||
8.1.5. | such heat, ventilation and air conditioning (but not including supplemental cooling, whether supplemental cooling units are found in the Leased Premises or not) for the Building, the Leased Premises and Other Leased Premises as is customarily provided for first class office buildings in the immediate area for the comfortable use of the Building during Regular Business Hours. The heating and air conditioning shall have the capacity to maintain, and shall be operated to maintain without material variation, maximum and minimum temperature standards throughout the entire building according to the following: the system shall maintain a maximum of 75 degrees F. dry bulb temperature with not more than 50% relative humidity when the outside air is a dry bulb temperature of 95 degrees F. and a wet bulb temperature of 75 degrees F., assuming heat loads generated by one (1) person per 200 usable square foot, three (3) watts per usable square foot for lighting and four (4) watts per usable square foot for other electric devices (inclusive of supplemental cooling). The system shall maintain a minimum temperature of 72 degrees F. when the outside temperature is 0 degrees F. The Building was designed and constructed in accordance with applicable ASHRAE guidelines for office buildings. The Leased Premises shall have ventilation which meets the minimum ventilation requirements of local building codes (Customary cooling shall be determined without reference to the existence of supplemental cooling units.); | ||
8.1.6. | water (including heated water) to the Building and, if the appropriate plumbing has been installed therein, to the Leased Premises; | ||
8.1.7. | sewage disposal for the Building; | ||
8.1.8. | passenger elevator service for the Building; | ||
8.1.9. | snow clearance from, and sweeping of, Parking Facilities and private access roads which are part of the Property or the Common Facilities; | ||
8.1.10. | the maintenance of landscaping which is part of the Property or the Common Facilities; | ||
8.1.11. | a security guard to be stationed at the security desk in the main lobby during Regular Business Hours; |
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8.1.12. | food service to be available from 6:30 A.M. to 2:00 P.M. on Monday through Friday (except for Legal Holidays); | ||
8.1.13. | a fitness center to be open during Regular Business Hours, provided that, at all hours, Tenants employees shall have access to the fitness center by key card; | ||
8.1.14. | the janitorial services specified in Exhibit F which is attached hereto and made a part hereof. |
9.3.1. | the Tenants Share of: Operational Expenses and Taxes incurred during each such period of twelve (12) months (or shorter period), up to the amounts of Base Year Operational Expenses and Base Year Taxes, respectively (or proportional amount thereof for periods shorter than twelve (12) months), shall be borne by the Landlord; and | ||
9.3.2. | the Tenants Share of: the amounts by which Operational Expenses and Taxes incurred during each such period of twelve (12) months (or shorter period) exceed Base Year Operational Expenses and Base Year Taxes, respectively (or proportional amount thereof for periods shorter than twelve (12) months) shall be allocated to, and borne by, the Tenant as more specifically set forth in section 10 of this Agreement. |
10. | Computation and Payment of Allocated Expenses of Utilities, Services, Maintenance, Repairs, Taxes and Capital Expenditures . |
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10.1.1. | commencing with the first day after the end of the No Pass Through Period, and on the first day of each month thereafter during the Term, one-twelfth of the Tenants Share of the amount by which Taxes for the then current calendar year exceeds Base Year Taxes, computed in accordance with subsection 10.5 of this Agreement. When Landlord knows of facts which cause a revision of the estimate, it may serve a revised estimate and, for the balance of the current calendar year, the estimated payments shall be made accordingly; | ||
10.1.2. | within twenty (20) days of the Landlords giving notice to the Tenant after the close of each calendar year closing during the Term, commencing with the first calendar year closing after the close of the No Pass Through Period, and after the end of the Term, the Tenants Share of the difference between the Landlords previously projected amount of Taxes for such period and the actual amount of Taxes for such period, in either case in excess of Base Year Taxes, computed in accordance with subsection 10.6 of this Agreement (unless such difference is a negative amount, in which case the Landlord shall credit such difference against any amounts next due from the Tenant for Basic Rent); | ||
10.1.3. | commencing with the first day after the end of the No Pass Through Period, and on the first day of each month thereafter during the Term, one-twelfth of the Tenants Share of the amount by which Operational Expenses for the then current calendar year exceed Base Year Operational Expenses, computed in accordance with subsection 10.7 of this Agreement. When Landlord knows of facts which cause a revision of the estimate, it may serve a revised estimate and, for the balance of the current calendar year, the estimated payments shall be made accordingly; | ||
10.1.4. | within twenty (20) days of the Landlords giving notice to the Tenant after the close of each calendar year closing during the Term, commencing with the first calendar year closing after the close of the No Pass Through Period, and after the end of the Term, the Tenants Share of the difference between the Landlords previously projected amount of Operational Expenses for such period and the actual amount of Operational Expenses for such period, in either case in excess of Base Year Operational Expenses, computed in accordance with subsection 10.8 of this Agreement (unless such difference is a negative amount, in which case the Landlord shall credit such difference against any amounts next due from the Tenant for Basic Rent); | ||
10.1.5. | commencing with the first day of the first month after the Landlord gives any notice contemplated by subsection 10.9 of this Agreement to the Tenant and continuing on the first day of each month thereafter until the earlier of (a) the end of the Term or (b) the last month of the useful life set forth in the respective notice, one-twelfth of the Tenants Share of any Annual Amortized Capital Expenditure, computed in accordance with subsection 10.9 of this Agreement; | ||
10.1.6. | on the first day of each month during the Term, the monthly Tenant Electric Charges, set forth in section 9.1 of this Agreement; and | ||
10.1.7. | promptly as and when billed therefore by the Landlord, the amount of any expense which would otherwise fall within the definition of Operational Expenses, but which is specifically paid or incurred by the Landlord for operation and maintenance of the Building, the Common Facilities or the Property outside Regular Business Hours at the specific request |
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of the Tenant or the amount of any expenditure incurred for maintenance or repair of damage to the Building, the Common Facilities, the Property, the Leased Premises or the Other Leased Premises caused directly or indirectly, in whole or in part, by the active or passive negligence or intentional act of the Tenant or any of its employees, other agents or Guests. |
10.2.1. | Utilities Expenses; | ||
10.2.2. | the expense of providing the services, maintenance and repairs contemplated by subsection 8.1 of this Agreement, whether furnished by the Landlords employees or by independent contractors or other agents; | ||
10.2.3. | wages, salaries, fees and other compensation and payments and payroll taxes and contributions to any social security, unemployment insurance, welfare, pension or similar fund and payments for other fringe benefits required by law or union agreement (or, if the employees or any of them are not represented by a union, then payments for benefits comparable to those generally required by union agreement (but not in excess of the union agreements) in first class office buildings in the immediate area which are unionized) made to or on behalf of any employees of Landlord performing services rendered in connection with the operation and maintenance of the Building, the Common Facilities and the Property, including, without limiting the generality of the foregoing, elevator operators, elevator starters, window cleaners, porters, janitors, miscellaneous handymen, watchmen, persons engaged in patrolling and protecting the Building, the Common Facilities and the Property, carpenters, engineers, mechanics, electricians, plumbers, other tradesmen, other persons engaged in the operation and maintenance of the Building, Common Facilities and Property, Building superintendent and assistants, Building manager, and clerical and administrative personnel working in the Building for the Building manager or the Landlord but not for an persons above the grade of Building manager; | ||
10.2.4. | when employees are required by the Landlord to wear uniforms, the uniforms of such employees and the cleaning, pressing and repair thereof; | ||
10.2.5. | premiums and other related charges incurred by Landlord with respect to all insurance relating to the Building, the Common Facilities and the Property and the operation and maintenance thereof, including, without limitation: property and casualty, fire and extended coverage insurance, including windstorm, flood, hail, explosion, other casualty, riot, rioting attending a strike, civil commotion, aircraft, vehicle and smoke insurance; public liability insurance; elevator, boiler and machinery insurance; excess liability coverage insurance; use and occupancy insurance; workers compensation and health, |
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accident, disability and group life insurance for all employees; casualty rent insurance and such other insurance with such limits as may, from time to time, be customary for office buildings or which Landlord may be required to secure by mortgage lenders; | |||
10.2.6. | sales and excise taxes and the like upon any Operational Expenses and Capital Expenditures; | ||
10.2.7. | management fees of any independent managing agent for the Property up to a maximum of three (3%) percent of the gross revenue of the Building, the Building or the Common Facilities; and if there shall be no independent managing agent, or if the managing agent shall be a person affiliated with the Landlord, the management fees that would customarily be charged for the management of the Property, the Building and the Common Facilities by an independent, first class managing agent in the immediate area; | ||
10.2.8. | the cost of replacements for tools, supplies and equipment used in the operation, service, maintenance, inspection, repair and alteration of the Building, the Common Facilities and the Property; | ||
10.2.9. | the cost of repainting or otherwise redecorating any part of the Building or the Common Facilities; | ||
10.2.10. | decorations for the lobbies and other Common Facilities in the Building; | ||
10.2.11. | the cost of licenses, permits and similar fees and charges related to operation, repair and maintenance of the Building, the Property and the Common Facilities; and | ||
10.2.12. | any and all other expenditures of the Landlord in connection with the operation, alteration, repair or maintenance of the Property, the Common Facilities or the Building as a first-class office building and facilities in the immediate area which are properly treated as an expense fully deductible as incurred in accordance with generally applied real estate accounting practice. |
10.3.1. | all costs and expenses incurred by the Landlord in connection with retro-fitting the entire Building or the Common Facilities, or any portion thereof, to comply with any change in Federal, state or local statute, rule, regulation, order or requirement which change takes effect after the original completion of the Building; | ||
10.3.2. | all costs and expenses incurred by the Landlord to replace and improve the Property, the Building or the Common Facilities or portions thereof for the purpose of continued operation of the Property, the Building and the Common Facilities as a first class office complex in the immediate area; and | ||
10.3.3. | all costs and expenses incurred by the Landlord in connection with the installation of any energy, labor or other cost saving device or system on the Property or in the Building or the Common Facilities. |
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10.4.1. | principal or interest on any mortgage indebtedness on the Property, the Building or any portion thereof and any ground rents; | ||
10.4.2. | any capital expenditure, or amortized portion thereof, other than those included in the definition of Capital Expenditures set forth in subsection 10.3 above; | ||
10.4.3. | expenditures for any leasehold improvement which is made in connection with the preparation of any portion of the Building for occupancy by a new tenant or which is not made generally to or for the benefit of the Leased Premises and all Other Leased Premises or generally to the Building or the Common Facilities; | ||
10.4.4. | to the extent the Landlord actually receives proceeds of property and casualty insurance policies on the Building, other improvements on the Property or the Common Facilities, expenditures for repairs or replacements occasioned by fire or other casualty to the Building or the Common Facilities; | ||
10.4.5. | expenditures for repairs, replacements or rebuilding occasioned by any of the events contemplated by section 16 of this Agreement; | ||
10.4.6. | expenditures for costs, including advertising and leasing commissions, and legal expenses and professional fees, incurred in connection with efforts to lease portions of the Building and to procure new tenants for the Building and any amount paid for or on behalf of tenants such as space planning, moving costs, rental and other tenant concessions; | ||
10.4.7. | expenditures for the salaries and benefits of the executive officers, if any, of the Landlord above the level of building manager, and any salary, wages, or other compensation or benefits for off-site employees applicable to the time spent working at other buildings, other than the building manager (provided that with respect to each employee that services the Building and other buildings, a pro-rate portion of such employees salary shall be included in Operational Expenses); | ||
10.4.8. | depreciation and amortization (as those terms are used in the accounting sense in the context of generally applied real estate accounting practice) of the Building, the Common Facilities and any other equipment, machinery, fixtures or improvements on the Property; | ||
10.4.9. | costs of electricity sold to tenants of the Building by Landlord or any other special service or benefit to the tenants or service or benefit in excess of that furnished to Tenant whether or not Landlord receives reimbursement from such tenants as an additional charge; | ||
10.4.10. | any amounts which would otherwise be included in Operational Expenses paid to any person, firm or corporation related or otherwise affiliated with Landlord or any general partner, officer or director of Landlord or any of its general partners, to the extent same exceeds arms-length competitive prices paid in the Bedminster, New Jersey area for the services or goods provided (i.e., that portion of the costs and expenses for such services that exceed the competitive rate shall not be included in Operational Expenses); | ||
10.4.11. | Landlords general entity overhead and general and administrative expenses except as they relates specifically to the actual management of the Project; |
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10.4.12. | costs incurred to correct violations by Landlord of any law, rule, order or regulation which was in effect as of the date hereof; | ||
10.4.13. | costs relating to maintaining Landlords existence as a limited liability company or other entity, such as annual fees, administration expenses, and legal and accounting fees (other than with respect to Building operations); | ||
10.4.14. | any expense for which Landlord is reimbursed under the terms of any insurance policy, warranty, or condemnation award; | ||
10.4.15. | bad debt or rent loss or reserves for bad debts or rent loss; | ||
10.4.16. | costs incurred in connection with the sale of ownership of the Building, including brokerage commissions, attorneys and accountants fees, closing costs, title insurance premiums, transfer taxes and interest charges; | ||
10.4.17. | fines, penalties or interest for landlords failure to make any tax payment in a timely fashion; | ||
10.4.18. | costs of repairs, restoration, replacements or other work occasioned by fire, windstorm or other casualty required to be insured by Landlord under this Lease; | ||
10.4.19. | Landlords net income, transfer, excise, capital stock and franchise taxes; and | ||
10.4.20. | costs incurred to contain, abate, remove or otherwise clean up the Building or the Land required as a result of the presence of Hazardous Materials in, about or below the Building or the Land. |
10.5.1. | Taxes billed, or if a bill has not then been received for the entire period, the Landlords reasonable projection of Taxes to be billed, for the then current calendar year; | ||
10.5.2. | the amount of Base Year Taxes; | ||
10.5.3. | the amount, if any, by which item 10.5.1 above exceeds item 10.5.2 above; and | ||
10.5.4. | the Tenants Share of item 10.5.3 above. |
10.6.1. | the actual amount of Taxes for the preceding calendar year in excess of Base Year Taxes (or proportional amount thereof for shorter periods during the Term); | ||
10.6.2. | the Landlords previously projected amount of Taxes for the preceding calendar year in excess of Base Year Taxes (or proportional amount thereof for shorter periods during the Term); |
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10.6.3. | the difference obtained by subtracting item 10.6.2 above from item 10.6.1 above; and | ||
10.6.4. | the Tenants Share of item 10.6.3 above. |
10.7.1. | the Landlords projection of annual Operational Expenses for the current period (if any portion thereof is during the Term); | ||
10.7.2. | the amount of the Base Year Operational Expenses; | ||
10.7.3. | the amount, if any, by which item 10.7.1 above exceeds item 10.7.2 above; and | ||
10.7.4. | the Tenants Share of item 10.7.3 above. |
10.8.1. | the actual amount of Operational Expenses for the preceding calendar year in excess of Base Year Operational Expenses (or proportional amount thereof for shorter periods during the Term); | ||
10.8.2. | the Landlords previously projected amount of Operational Expenses for the preceding calendar year in excess of Base Year Operational Expenses (or proportional amount thereof for shorter periods during the Term); | ||
10.8.3. | the difference obtained by subtracting item 10.8.2 above from item 10.8.1 above; and | ||
10.8.4. | the Tenants Share of item 10.8.3 above. |
10.9.1. | a description of the Capital Expenditure and the subject thereof; | ||
10.9.2. | the date the subject of the respective Capital Expenditure was first placed into service and the period of useful life selected by the Landlord in connection with the determination of the Annual Amortized Capital Expenditure; | ||
10.9.3. | the amount of the Annual Amortized Capital Expenditure; and | ||
10.9.4. | the Tenants Share of item 10.9.3 above. |
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12.2.1. | furnished to the Landlord detailed, New Jersey architect-certified construction drawings, construction specifications and, if they pertain in any way to the heating, ventilation and air conditioning or other systems of the Building, related engineering design work and specifications regarding, the proposed alterations, improvements or other modifications; | ||
12.2.2. | not received a notice from the Landlord objecting thereto in any respect within thirty (30) days of the furnishing thereof (which shall not be deemed the Landlords affirmative consent for any purpose); | ||
12.2.3. | obtained any necessary or appropriate building permits or other approvals from the Municipality and, if such permits or other approvals are conditional, satisfied all conditions to the satisfaction of the Municipality; and |
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12.2.4. | met, and continued to meet, all the following conditions with regard to any contractors selected by the Tenant and any subcontractors, including materialmen, in turn selected by any of them: |
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Premises and all contractors materials, equipment and work, regardless of whether their work is in progress or completed. |
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14.1.1. | commercial general liability insurance (including broad form and contractual liability coverage) and excess (umbrella) insurance which, without limiting the generality of the foregoing, considered together shall insure against such risks as bodily injury, death and property damage, with a combined single limit of not less than $3,000,000.00 for each occurrence; and | ||
14.1.2. | all-risks property insurance covering the Leased Premises in an amount sufficient, as determined by the Landlord from time to time, to cover the replacement costs for all Tenants alterations, improvements, fixtures and personal property located in or on the Leased Premises. |
14.2.1. | as to which this Agreement requires either party to maintain insurance, or | ||
14.2.2. | as to which either party is effectively insured and for which risks the other party may be liable, | ||
14.2.3. | the party required to maintain such insurance and the party effectively insured shall use its best efforts to obtain a clause, if available from the respective insurer, in each such insurance policy expressly waiving any right of recovery, by reason of subrogation to such partys rights or otherwise, the respective insurer might otherwise have or obtain against the other party, so long as such a clause can be obtained in the respective insurance policy without additional premium cost. If such a clause can be obtained in the respective insurance policy, but only at additional premium cost, such party shall, by notice to the other party, promptly advise the other party of such fact and the amount of the additional premium cost. If the other party desires the inclusion of such a clause in the notifying partys respective insurance policy, the other party shall, within 10 days of receipt of the notifying partys notice, by notice advise the notifying party of its desire and enclose therewith its check in the full amount of the additional premium cost; otherwise the notifying party need not obtain such a clause in the respective insurance. |
14.3.1. | that the waiver set forth in this subsection 14.3 does not cause or result in any cancellation of, or diminution in, the insurance coverage otherwise available under any applicable insurance policy; |
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14.3.2. | of the proceeds of any applicable insurance policy (without adjustment for any deductible amount set forth therein) actually received by such party for such respective loss or damages; and | ||
14.3.3. | the substance of the clause contemplated by subsection 14.2 of this Agreement is actually and effectively set forth in the respective insurance policy. |
14.6.1. | no act or omission of the Tenant, its employees, other agents or Guests shall result in a loss of insurance coverage otherwise available under such policy to any person required to be named as an additional insured in accordance with subsection 14.1 of this Agreement; and | ||
14.6.2. | the insurance coverage afforded by such policy shall not be diminished, cancelled, permitted to expire or otherwise terminated for any reason except upon thirty (30) days prior written notice from the insurer to every person required to be named as an additional insured in accordance with subsection 14.1 of this Agreement. |
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15.1.1. | If, in Landlords opinion, the restoration described above will take more than 180 days then Landlord may elect to cancel this Agreement effective as of the date of casualty. Notice of the Landlords election shall be served upon the Tenant within the thirty (30) day period described above. | ||
15.1.2. | If, in Landlords opinion, the restoration described above will take 180 days or less, then Landlord shall not cancel this Agreement and must restore the Building and the Leased Premises as aforesaid. In either of such events, the Landlord shall cause restoration to proceed diligently and expediently to the extent the Landlord has received proceeds of any property, casualty or liability insurance on the damaged portions (or would have received such proceeds had it obtained such coverage). |
15.2.1. | such time as the Leased Premises are again fully usable and be reduced during such period by the amount which bears the same proportion to the Rent otherwise payable during such period as the gross rentable floor space of the Leased Premises which are rendered unusable bears to the gross rentable floor space of the Leased Premises. The restoration of the improvements constructed or installed prior to the Term or during the Term in excess of the original allowance for the same shall be the Tenants responsibility. Tenant shall make reasonable, good faith efforts to integrate the restoration which is its responsibility with the work which is being performed by Landlord. To the extent that is not feasible, Tenant shall be allowed an additional, reasonable interval to complete its work, not to exceed sixty days and Rent shall abate during the interval required for such restoration. The Landlord shall cooperate with Tenant to integrate the restoration of such improvements during the reconstruction period; or | ||
15.2.2. | this Agreement is canceled pursuant to the provisions of subsections 15.1. |
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17.1.1. | assign this Agreement or any of the Tenants rights hereunder; | ||
17.1.2. | sublet the Leased Premises or any portion thereof; | ||
17.1.3. | license the use or occupancy of the Leased Premises or any portion thereof; | ||
17.1.4. | otherwise transfer any interest including, without limiting the generality of the foregoing, a mortgage, pledge or security interest, in this Agreement, the Leased Premises, but not the contents of the Leased Premises, or the right to the use and occupancy of the Leased Premises; or | ||
17.1.5. | indirectly accomplish, or permit or suffer the accomplishment of, any of the foregoing by merger or consolidation with another entity, by acquisition or disposition of assets or liabilities outside the ordinary course of the Tenants business or by acquisition or disposition, by the Tenants equity owners or subordinated creditors, of any of their respective interests in the Tenant. |
17.2.1. | the full name, address and telephone number of the proposed assignee or sublessee; | ||
17.2.2. | a description of the type(s) of business in which the proposed assignee or sublessee is engaged and proposes to engage; | ||
17.2.3. | a description of the use to which the proposed assignee or sublessee intends to put the Leased Premises or portion thereof; | ||
17.2.4. | the proposed assignees or subtenants most recent quarterly and annual financial |
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statements prepared in accordance with generally accepted accounting principles and any other evidence of financial position and responsibility that the Tenant or proposed assignee or sublessee may desire to submit; | |||
17.2.5. | by diagram and measurement of the actual square feet of floor space, the portion of the Leased Premises proposed to be subject to the assignment of this Agreement or to be sublet; | ||
17.2.6. | a complete summary of the terms of the proposed assignment or sublease including, without limiting the generality of the foregoing, all consideration paid or given, or proposed to be paid or to be given, by the proposed assignee, sublessee or other person to the Tenant and the respective times of payment or delivery; and | ||
17.2.7. | any other information reasonably requested by the Landlord. |
17.3.1. | grant consent on the terms and conditions set forth in subsection 17.4 of this Agreement and such other reasonable terms and conditions set forth in the Landlords notice; | ||
17.3.2. | refuse to grant consent for any of the reasons set forth in subsection 17.5 of this Agreement or for any other reasonable reason set forth in the Landlords notice; or | ||
17.3.3. | elect to terminate the Term as of (a) the end of the first full month after the Tenant has given notice of the Tenants desire to assign or sublet or (b) the proposed effective date of the proposed assignment or sublease. |
17.4.1. | any proposed assignee or sublessee shall, by document executed and delivered forthwith to the Landlord, agree to be bound by all the obligations of the Tenant set forth in this Agreement except that a sublessee shall only be bound to pay the rent agreed to in the sublease; | ||
17.4.2. | the Tenant shall remain liable under this Agreement, jointly and severally with any proposed assignee or sublessee, for the timely performance of all obligations of the Tenant set forth in this Agreement; | ||
17.4.3. | the Tenant shall forthwith deliver to the Landlord manually executed copies of all documents regarding the proposed assignment or sublease and a written, accurate and complete description, manually executed both by the Tenant and the proposed assignee or sublessee, of any other agreement, arrangement or understanding between them regarding the same; | ||
17.4.4. | with respect to any consideration or other thing of value received or to be received by the Tenant in place of or as a substitute for rent in connection with any such assignment or sublease (other than those payable in equal monthly installments each month during the |
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proposed term of any such assignment or sublease), the Tenant shall pay to the Landlord one-half of any such amount and one-half of the fair market value of any other thing of value within 10 days of receipt of same; | |||
17.4.5. | with respect to any amount payable to the Tenant in equal monthly installments each month during the proposed term of any such assignment or sublease in connection with such assignment or sublease, which amount is in excess of the amount of Rent paid by Tenant to Landlord, the Tenant shall pay one-half of such excess to the Landlord together with the Tenants monthly installment of Rent after Tenant has deducted therefrom the cost of alterations and improvements, brokerage fees, legal fees and rent concessions; | ||
17.4.6. | the proposed use of the Leased Premises is a permitted use under this Agreement; and | ||
17.4.7. | Tenant shall reimburse Landlord for the reasonable expenses incurred in connection with the review of the proposed assignment or sublease and the documentation related thereto, not to exceed five hundred dollars. |
17.5.1. | the Landlord desires to take one of the other actions enumerated in subsection 17.3 of this Agreement; | ||
17.5.2. | if comparable space is available in the Building and the proposed sublessee or assignee is an existing tenant of Other Leased Premises; | ||
17.5.3. | the general reputation, financial position or ability or type of business of, or the anticipated use of the Leased Premises by, the proposed assignee or proposed sublessee is unsatisfactory to the Landlord or is inconsistent with those of tenants of Other Leased Premises or inconsistent with any commitment made by the Landlord to any such other tenant; | ||
17.5.4. | Tenant has advertised or listed the space for subleasing or assignment at a rate or at a proposed rate which is less than the rate being quoted by Landlord for other available space in the Building. |
17.6.1. | the proposed assignee or sublessee is, and continues to be, an Affiliate of the Tenant and the Affiliate relationship was not created to avoid the operation of this section of the Agreement; or | ||
17.6.2. | the proposed assignee or sublessee is an entity (a) resulting from the merger or consolidation of the Tenant with or into such entity or (b) purchasing substantially all the assets (subject to substantially all the liabilities) of the Tenant or (c) purchasing substantially all the issued and outstanding capital stock in the Tenant. |
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17.6.3. | For this purpose, an Affiliate of Tenant means an entity controlling, controlled by, or under common control with, Tenant. | ||
17.6.4. | Notwithstanding the foregoing provisions of this subsection 17.6, the provisions of subsections 17.4.1, 17.4.3 and 17.4.6 of this Agreement shall continue to apply in the event of an assignment or sublease to an Affiliate. |
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22.6.1. | the Tenants becoming a debtor, as that term is defined in section 101 of the Bankruptcy Code; | ||
22.6.2. | any time when either the value of the Tenants liabilities exceed the value of the Tenants assets or the Tenant is unable to pay its obligations as and when they respectively become due in the ordinary course of business; | ||
22.6.3. | the appointment of a receiver or trustee of the Tenants property or affairs; or | ||
22.6.4. | the Tenants making an assignment for the benefit of, or an arrangement with or among, creditors or filing a petition in insolvency or for reorganization or for the appointment of a receiver; |
23.1.1. | to elect to terminate the Term by giving notice of such election, and the effective date thereof, to the Tenant and to receive Termination Damages; | ||
23.1.2. | to elect to re-enter and re-take possession of the Leased Premises, without thereby terminating the Term, by giving notice of such election, and the effective date thereof, to the Tenant and to receive Re-Leasing Damages; | ||
23.1.3. | if the Tenant remains in possession of the Leased Premises after the Tenants obligation to surrender the Leased Premises shall have arisen, to remove the Tenant and the Tenants and any others possessions from the Leased Premises by any of the following means without any liability to the Tenant therefore, any such liability to the Tenant therefore which might otherwise arise being hereby waived by the Tenant: legal proceedings (summary or otherwise), writ of dispossession and any other means and to receive Holdover Damages, to receive all expenses incurred in removing the Tenant and the Tenants and any others possessions from the Leased Premises, and of storing such possessions if the Landlord so elects; | ||
23.1.4. | to be awarded specific performance, temporary restraints and preliminary and permanent injunctive relief regarding Events of Default where the Landlords rights and remedies at law may be inadequate, without the necessity of proving actual damages or the inadequacy |
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of the rights and remedies at law; | |||
23.1.5. | to receive all expenses incurred in securing, preserving, maintaining and operating the Leased Premises during any period of vacancy, in making repairs to the Leased Premises, in preparing the Leased Premises for re-leasing and in re-leasing the Leased Premises including, without limiting the generality of the foregoing, any brokerage commissions; | ||
23.1.6. | to receive all reasonable legal expenses, including without limiting the generality of the foregoing, attorneys fees incurred in connection with pursuing any of the Landlords rights and remedies, including indemnification rights and remedies; | ||
23.1.7. | if the Landlord, in its sole discretion, elects to perform any obligation of the Tenant under this Agreement (other than the obligation to pay Rent) which the Tenant has not timely performed, to receive all expenses incurred in so doing; | ||
23.1.8. | to elect to pursue any legal or equitable right and remedy available to the Landlord under this Agreement or otherwise; and | ||
23.1.9. | to elect any combination, or any sequential combination of any of the rights and remedies set forth in subsection 23.1 of this Agreement. |
23.2.1. | all accrued but unpaid Rent; | ||
23.2.2. | the present value (calculated using the most recently available (at the time of calculation) published weekly average yield on United States Treasury securities having maturities comparable to the balance of the then remaining Term) of the sum of all payments of Rent remaining due (at the time of calculation) until the date the Term would have expired (had there been no election to terminate it earlier) less the present value (similarly calculated) of all payments of rent to be received through the end of the Term (had there been no election to terminate it earlier) from a lessee, if any, of the Leased Premises at the time of calculation (and it shall be assumed for purposes of such calculations that (i) the amount of future Additional Rent due per year under this Agreement will be equal to the average Additional Rent per month due during the 12 full calendar months immediately preceding the date of any such calculation, increasing annually at a rate of five percent (5%), (ii) if any calculation is made before the first anniversary of the end of the No Pass Through Period, the average Additional Rent due for any month after the end of the No Pass Through Period will be equal to five percent (5%) of the sum of the Base Year Operational Expenses, Base Year Taxes and Tenant Electric Charges (considered on an annual basis), (iii) if any calculation is made before the beginning of the Base Year, the sum of Base Year Taxes and Base Year Operational Expenses shall be assumed to be $7.50 per gross rentable square foot and (iv) if any calculation is made before the end of the Base Year, Base Year Taxes and Base Year Operational Expenses may be extrapolated based on the year to date experience of the Landlord); | ||
23.2.3. | the Landlords reasonably estimated cost of demolishing any leasehold improvements to the Leased Premises; and |
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23.2.4. | that amount, which as of the occurrence of the Event of Default, bears the same ratio to the costs, if any, incurred by the Landlord (and not paid by the Tenant) in building out the Leased Premises in accordance with section 5 of this Agreement as the number of months remaining in the Term (immediately before the occurrence of the Event of Default) bears to the number of months in the entire Term (immediately before the occurrence of the Event of Default). | ||
23.2.5. | In case this Lease shall be terminated after an Event of Default, Landlord may, in its sole discretion, but shall not have the obligation, in its own name and on its own behalf, relet the whole or any portion of the Leased Premises, for any period equal to or greater or less than the remainder of the then current Lease Term, for any sum which it may deem reasonable, to any tenant which it may deem suitable and satisfactory, and for any use and purpose which it may deem appropriate, and in connection with any such lease Landlord may make such changes in the character of the improvements on the Leased Premises as Landlord may determine to be appropriate or helpful in effecting such lease and may grant concessions or free rent. Tenant hereby waives any rights it may have at law or in equity which may be imposed upon Landlord to perform acts to mitigate Tenants damages resulting from Tenants default. Landlord shall not in any event be required to pay Tenant any surplus of any sums received by Landlord on a re-letting of the Leased Premises for any sum in excess of the Rent reserved in this Lease. | ||
23.2.6. | Notwithstanding subsection 23.2.5 above, in the event that applicable law or Court order shall impose any obligation upon Landlord to mitigate the damages of Tenant following the occurrence of any Default, then Tenant agrees that in such circumstance Landlord shall completely discharge its obligation by listing with a nationally recognized broker. Landlord shall not be obligated to: (a) accept a lower amount or rate of Annual Rent than that payable under this Lease for the remainder of the Lease Term; (b) lease less than all of the Leased Premises to a single tenant; (c) lease to any party that does not meet Landlords financial and creditworthiness requirements; (d) lease for a term shorter than five (5) years; (e) lease to any tenant who would pose an inordinate burden upon the infrastructure of the Building; (f) lease to any tenant that does not meet any criteria established by the holder of a first mortgage on the Premises; or (g) lease to any party that is unable or unwilling to post security deposits reasonably required by Landlord. |
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23.5.1. | any right the Tenant might otherwise have to cause a termination of the action or proceeding by paying to the Landlord or into court or otherwise any Rent in arrears; | ||
23.5.2. | any right the Tenant might otherwise have to transfer or remove such proceeding from the court (or the particular division or part of the court) or other forum in which it shall have been instituted by the Landlord to another court, division or part; and | ||
23.5.3. | any right the Tenant might otherwise have to redeem the Tenants former leasehold interest between the entry of any judgment and the execution of any warrant issued in connection therewith by paying to the Landlord or into Court or otherwise any Rent in arrears. |
24.1.1. | expiration of the Term; | ||
24.1.2. | the effective date of an election by the Tenant under subsection 6.2 of this Agreement; | ||
24.1.3. | in connection with a transaction contemplated by section 16 of this Agreement, the later of (a) the vesting of the acquiring partys right to possession or (b) the Tenants vacating the Leased Premises; | ||
24.1.4. | under the circumstances contemplated by subsection 15.1 of this Agreement, upon the Tenants giving prompt notice of the failure of the Landlord to give, on a timely basis, the notice contemplated by subsection 15.1.2 of this Agreement and that the Tenant desires termination of the Term (which termination shall be effective as of the date of the subject |
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casualty with respect to those portions of the Leased Premises rendered untenantable and as of the date of the Tenants giving notice with respect to those portions of the Leased Premises which were not rendered untenantable); | |||
24.1.5. | under the circumstances contemplated by subsection 15.1 of this Agreement, upon the expiration of thirty (30) additional days (without the Landlords completion of restoration in the interim) after the Tenant shall have given prompt notice that the Landlord has not restored the Leased Premises on a timely basis and that the Tenant desires termination of the Term (which termination shall be effective as of the date of the subject casualty with respect to those portions of the Leased Premises rendered untenantable and as of the date of the Tenants giving notice with respect to those portions of the Leased Premises which were not rendered untenantable); | ||
24.1.6. | the effective date of any election by the Landlord under subsection 17.3.3 of this Agreement in response to the Tenants notice of the Tenants desire to assign this Agreement or to sublet all or a portion of the Leased Premises; or | ||
24.1.7. | the effective date of any election by the Landlord to terminate the Term under subsection 23.1.1 of this Agreement. |
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26.5.1. | upon the expiration or earlier termination of the term of any such ground lease before the termination of the Term under this Agreement, the Tenant shall attorn to, and become the Tenant of, the lessor under any such ground lease and recognize such lessor as the Landlord under this Agreement for the balance of the Term; and | ||
26.5.2. | such expiration or earlier termination of the term of any such ground lease shall have no effect on the Term under this Agreement. |
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27.1.1. | any matter, cause or thing arising out of the use, occupancy, control or management of the Leased Premises or any portion thereof which is not caused by the Landlords negligence or intentional act; | ||
27.1.2. | any negligence or intentional act on the part of the Tenant or any of its employees, other agents or Guests; | ||
27.1.3. | any accident, injury or damage to any person or property occurring in or about the Leased Premises which is not caused by the Landlords negligence or intentional act; | ||
27.1.4. | any representation made by the Tenant in this Agreement shall have been inaccurate or incomplete in any material respect either on the date it was made or the date as of which it was made; | ||
27.1.5. | the imposition of any mechanics, materialmans or other lien on the Property, the Common Facilities, the Building, the Leased Premises or any portion of any of the foregoing, or the filing of any notice of intention to obtain any such lien, in connection with any alteration, improvement or other modification of the Leased Premises made or authorized by the Tenant (which indemnification obligation shall be deemed to include the Tenants obligations set forth in subsection 12.2.4.3 of this Agreement); or | ||
27.1.6. | any failure on the part of the Tenant to perform or comply with any obligation of the Tenant set forth in this Agreement. |
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28.1.1. | the inability of the Landlord to provide any utility or service to be provided by the Landlord, as described in section 8 of this Agreement which is due to causes beyond the Landlords control, or to necessary or advisable improvements, maintenance, repairs or emergency, so long as the Landlord uses reasonable efforts and diligence under the circumstances to restore the interrupted service or utility; | ||
28.1.2. | any improvement, modification, alteration or other change made to the Property, the Building or the Common Facilities by the Landlord consistently with the Landlords obligations set forth in subsection 13.2 of this Agreement providing any change does not affect Tenants use and or occupancy to more than a de minimus extent; and | ||
28.1.3. | any change in any Federal, state or local law or ordinance. |
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32.1.1. | whether this Agreement is then in full force and effect; | ||
32.1.2. | whether this Agreement has not been amended, modified, superseded, canceled, repudiated or revoked; | ||
32.1.3. | whether the Landlord has satisfactorily completed all construction work, if any, required of the Landlord or contractors selected and retained by the Landlord in connection with readying the Leased Premises for occupancy by the Tenant in accordance with section 5 of this Agreement; | ||
32.1.4. | whether the Tenant is then in actual possession of the Leased Premises; | ||
32.1.5. | whether the Tenant then has no defenses or counterclaims under this Agreement or otherwise against the Landlord or with respect to the Leased Premises; | ||
32.1.6. | whether Landlord is not then in breach of this Agreement in any respect; | ||
32.1.7. | whether the Tenant then has knowledge of any assignment of this Agreement, the pledging or granting of any security interest in this Agreement or in Rent due and to become due under this Agreement; | ||
32.1.8. | whether Rent is not then accruing under this Agreement in accordance with its terms; |
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32.1.9. | whether any Rent is not then in arrears; | ||
32.1.10. | whether Rent due or to become due under this Agreement has not been prepaid by more than one month; | ||
32.1.11. | if the response to any of the foregoing matters is in the negative, a specification of all the reasons that necessitated the negative response in each instance; and | ||
32.1.12. | any other matter reasonably requested by the Landlord or any of its mortgagees, ground lessors or lessees or transferees or prospective mortgagees, ground lessors or lessees or transferees, including, without limiting the generality of the foregoing, such information as the Landlord may request for purposes of assuring compliance with the Industrial Site Recovery Act (13 N.J.S.A. 1K-6 et seq.), as it may be amended, and any other applicable Federal, state or local statute, ordinance, rule, regulation or order concerned with environmental matters. |
32.2.1. | its written consent to any requested modifications of this Agreement provided that, in each such instance, the requested modification does not increase the Rent otherwise due or, in the reasonable judgment of the Tenant, otherwise to a de minimus extent increase the obligations of the Tenant under this Agreement or to a de minimus extent adversely affect the Tenants leasehold interest created hereby or the Tenants use and enjoyment of the Leased Premises (except in the circumstances contemplated by section 16 of this Agreement); and | ||
32.2.2. | summary financial information regarding its financial position as of the close of its most recently completed fiscal year and its most recently completed interim fiscal period and regarding its results of operations for the periods then ended and comparable year earlier periods, certified by Tenants chief financial officer to be a complete, accurate and fair presentation of the summary financial information purporting to be set forth therein. |
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LANDLORD: | |||||
S/K BED ONE ASSOCIATES LLC | |||||
|
By: | Majic Investment Corp., manager | |||
|
|||||
|
By: | /s/ Jonathan Kushner | |||
|
Jonathan Kushner, Vice President | ||||
|
|||||
TENANT: | |||||
GAIN CAPITAL HOLDINGS, INC. | |||||
|
|||||
|
By: | /s/ Henry Lyons | |||
|
Henry Lyons |
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A. | ALONG THE SOUTHERLY SIDELINE OF BURNT MILLS ROAD,SOUTH 76 DEGREES 58 MINUTES 42 SECONDS WEST, 143.04 FEET TO A POINT, THENCE |
B. | NORTH 22 DEGREES 20 MINUTES 48 SECONDS WEST 10.13 FEET TO THE POINT OF BEGINNING AND RUNNING; THENCE |
1. | ALONG THE WESTERLY LINE OF LOT 13 IN BLOCK 71 SOUTH 22 DEGREES 20 MINUTES 48 SECONDS EAST, 351.46 FEET TO A POINT IN THE NORTHERLY LINE OF LOT 15 IN BLOCK 71; THENCE |
2. | ALONG THE NORTHERLY LINE OF SAID LOT 15 SOUTH 53 DEGREES 55 MINUTES 12 SECONDS WEST 287.73 FEET TO A POINT; THENCE |
3. | ALONG THE SOUTHERLY LINE OF SAID LOT 15 NORTH 70 DEGREES 25 MINUTES 12 SECONDS EAST 526.36 FEET TO A POINT IN THE WESTERLY SIDELINE OF ROUTE 202-206; THENCE |
4. | ALONG THE WESTERLY SIDELINE OF ROUTE 202-206 SOUTH 20 DEGREES 38 MINUTES 48 SECONDS EAST 48.68 FEET TO A POINT; THENCE |
5. | STILL ALONG THE WESTERLY SIDELINE OF ROUTE 202-206 SOUTH 19 DEGREES 08 MINUTES 38 SECONDS EAST 671.52 FEET TO A POINT; THENCE |
6. | STILL ALONG THE WESTERLY SIDELINE OF ROUTE 202-206 SOUTH 19 DEGREES 09 MINUTES 25 SECONDS EAST 169.80 FEET TO A POINT; THENCE |
7. | ALONG A NORTHEASTERLY SIDELINE OF NJ INTERSTATE 78 AND 287 SOUTH 84 DEGREES 05 MINUTES 16 SECONDS WEST 321.96 FEET TO A POINT; THENCE |
8. | ALONG A NORTHEASTERLY SIDELINE OF NJ INTERSTATE 78 AND 287 NORTH 83 DEGREES 33 MINUTES 26 SECONDS WEST 200.25 FEET TO A POINT; THENCE |
9. | ALONG A NORTHEASTERLY SIDELINE OF NJ INTERSTATE 78 AND 287 NORTH 74 DEGREES 57 MINUTES 45 SECONDS WEST 271.02 FEET TO A POINT; THENCE |
10. | ALONG A NORTHEASTERLY SIDELINE OF NJ INTERSTATE 78 AND 287 NORTH 61 DEGREES 04 MINUTES 18 SECONDS WEST 191.45 FEET TO A POINT; THENCE |
11. | ALONG A NORTHEASTERLY SIDELINE OF NJ INTERSTATE 78 AND 287 NORTH 50 DEGREES 28 MINUTES 00 SECONDS WEST 388.11 FEET TO A POINT; THENCE |
12. | ALONG A SOUTHERLY LINE OF LOT 6 IN BLOCK 71 NORTH 70 DEGREES 20 MINUTES 12 SECONDS EAST 81.14 FEET TO A POINT; THENCE |
13. | ALONG THE EASTERLY LINE OF SAID LOT 6 NORTH 11 DEGREES 07 MINUTES 48 SECONDS WEST 661.28 FEET TO A POINT IN THE SOUTHERLY SIDELINE OF BURNT MILLS ROAD; THENCE |
14. | ALONG THE SOUTHERLY SIDELINE OF BURNT MILLS ROAD, NORTH 82 DEGREES 47 MINUTES 12 SECONDS EAST 438.82 FEET TO A POINT; THENCE |
15. | STILL ALONG THE SOUTHERLY SIDELINE OF BURNT MILLS ROAD NORTH 82 DEGREES 28 MINUTES 40 SECONDS EAST 72.57 FEET TO A POINT; THENCE |
16. | STILL ALONG THE SOUTHERLY SIDELINE OF BURNT MILLS ROAD, NORTH 79 DEGREES 43 MINUTES 40 SECONDS EAST 103.34 FEET TO THE POINT AND PLACE OF BEGINNING. |
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1. | Additional Rent means all amounts, other than Basic Rent and any Security Deposit, required to be paid by the Tenant to the Landlord in accordance with this Agreement. | |
2. | Additional Termination Fee is defined in subsection 6.2.5 of this Agreement. | |
3. | Agreement means this Lease and Lease Agreement (including exhibits), as it may have been amended. | |
4. | Allowance is defined in subsection 5.3 of this Agreement. | |
5. | Alternate Termination Fee is defined in subsection 6.2.2 of this Agreement. | |
6. | Annual Amortized Capital Expenditure means the payment amount determined as an annuity in arrears using the cost incurred by the Landlord for any Capital Expenditure as the present value, a number of periods equal to the number of years of its useful life (not exceeding 10 years) selected by the Landlord in accordance with generally applied real estate accounting practice and the Base Rate in effect when the respective improvement is first placed into service plus two additional percentage points as the annual rate of interest. | |
7. | Base Rate means the prime commercial lending rate per year as announced from time to time by Bank of America at its principal office. | |
8. | Base Year means the full calendar year 2010 with respect to Operational Expenses and Taxes. | |
9. | Base Year Operational Expenses means Operational Expenses incurred by the Landlord during the Base Year as defined in subsection 10.2 of this Agreement. The Base Year Operational Expenses shall be adjusted to the amount which normally would have been incurred had the average occupancy of the rentable area of the Building been 95%, as reasonably estimated by Landlord. The average occupancy of the rentable area of the Building for the Base Year shall be the arithmetic average of the rentable area of the Building occupied by tenants on the first day of each month during the Base Year. | |
10. | Base Year Taxes means the product of the final assessed value, as the same may subsequently be adjusted in any appeal of the tax assessors valuation, of the Property, the Building and any other improvements on the Property in the Base Year and the Municipalitys lowest tax rate for office buildings and the property on which they stand in effect during the Base Year. | |
11. | Basic Rent is defined in subsection 3.2 of this Agreement. | |
12. | Brokers is defined in subsection 30.2 of this Agreement. | |
13. | Building means the office building erected on the Property which is commonly known as 135 U.S. Highway Route 202/206, Bedminster, New Jersey. As the Building is presently constructed it is agreed to contain 161,305 gross rentable square feet of floor space. |
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14. | Capital Expenditure is defined in subsection 10.3 of this Agreement. | |
15. | Commencement Date is defined in section 4 of this Agreement. | |
16. | Common Facilities means the areas, facilities and improvements provided by the Landlord in the Building (except the Leased Premises and the Other Leased Premises) and on or about the Property, including, without limiting the generality of the foregoing, the Parking Facilities and access roads thereto, for non-exclusive use by the Tenant in accordance with subsection 2.2 of this Agreement, as they may, in the Landlords sole discretion, be increased, decreased, modified, altered or otherwise changed from time to time before, during or after the Term, and subject to rights which may be granted to the major tenant to utilize the lobby as a common reception area. | |
17. | Common Walls means those walls which separate the Leased Premises from Other Leased Premises. | |
18. | Electric Charges means all the supplying utilitys charges for, or in connection with, furnishing electricity including charges determined by actual usage, any seasonal adjustments, demand charges, energy charges, energy adjustment charges and any other charges, howsoever denominated, of the supplying utility, including sales and excise taxes and the like. | |
19. | Electronics is defined in subsection 2.3.3 of this Agreement. | |
20. | Environmental Laws is defined in subsection 7.2.8 (ii) of this Agreement. | |
21. | Event of Default is defined in section 22 of this Agreement. | |
22. | Expiring Term means, when used in the context of any Option to Renew, the Term as it is then scheduled to expire (immediately prior to exercise of the next available Option to Renew). | |
23. | FCC is defined in subsection 2.3.2 of this Agreement. | |
24. | First Floor Premises is defined in subsection 2.1 of this Agreement. | |
25. | 550 Damages is defined in subsection 5.5 of this Agreement. | |
26. | FMV is defined in the definition of Market Rental Rate below. | |
27. | FRD is defined in subsection 32.4 of this Agreement. | |
28. | The Tenants Guests shall mean the Tenants licensees, invitees and all others in, on or about the Leased Premises, the Building, the Common Facilities or the Property, either at the Tenants express or implied request or invitation or for the purpose of soliciting or visiting the Tenant. | |
29. | Hazardous Substance is defined in subsection 7.2.8 (ii) of this Agreement. | |
30. | A History of Recurring Events of Default means the occurrence of two or more Events of Default (whether or not cured by the Tenant) in any period of 12 months. | |
31. | Holdover Damages is defined in subsection 23.4 of this Agreement. | |
32. | Initial Term means the period so designated in subsection 4.1 of this Agreement. |
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33. | Initial Year means the first 12 full calendar months of the Initial Term. | |
34. | Landlord means the person so designated at the beginning of this Agreement and those successors to the Landlords interest in the Property and/or the Landlords rights and obligations under this Agreement contemplated by section 26 of this Agreement. | |
35. | Landlords Work is defined in subsection 5.1 of this Agreement. | |
36. | Leased Premises means that portion of the interior of the Building (as viewed from the interior of the Leased Premises) bounded by the interior sides of the unfinished floor and the finished ceiling on the floor (as the floors have been designated by the Landlord) of the Building, the centers of all Common Walls and the exterior sides of all walls other than Common Walls, the outline of which floor space is designated on the diagram set forth in Exhibit A attached hereto, which portion contains 4,850 square feet of gross rentable floor space on the first floor of the Building and 40,150 square feet of gross rentable floor space on the third floor of the Building, totaling 45,000 square feet of gross rentable floor space. | |
37. | Legal Holidays means New Years Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. | |
38. | Letter of Credit is defined in subsection 29.2 of this Agreement. | |
39. | LSRP is defined in subsection 32.5 of this Agreement. | |
40. | Market Rental Rate means, at the time of reference, the amount agreed to between the parties. If the parties are unable to agree on the Market Rental Rate, then either party may require an appraisal. Within ten (10) days of the service of a notice requiring an appraisal, each party shall designate an appraiser by written notice to the other, specifying in such notice the name and address of such appraiser. Each party shall cause its designated appraiser to appraise the fair market rental value of the Leased Premises (the FMV). Each appraiser shall make its determination in a narrative, written appraisal submitted to the parties not later than twenty (20) days after such designation. If either party shall not have designated an appraiser within the aforesaid ten-day period, then the determination of the fair market rental value shall be made by the appraiser designated by the other party. Such determination shall be binding upon the parties and shall constitute the FMV. If each party shall have designated an appraiser, but only one of the two appraisers so designated shall have submitted the required narrative appraisal to both parties within the aforesaid twenty-day period, then the determination of the FMV by that appraiser shall be binding upon the parties and shall constitute the FMV. If the determinations of the FMV by the aforesaid two appraisers do not differ by more than ten percent (10%) of the lower of the two determinations, then the arithmetic average of those two determinations shall be the FMV. Otherwise, the parties shall promptly direct the two appraisers to consult with one another for the purpose of jointly designating a third appraiser. If a third appraiser has not been so designated within five (5) days after such direction, then the parties shall request the designation of a third appraiser by the American Institute of Real Estate Appraisers (or any other organization which is successor to the American Institute of Real Estate Appraisers and mutually acceptable to the parties). The third appraiser shall not review the appraisals prepared by the other two appraisers unless and until such third appraiser has prepared and submitted its own narrative appraisal of the FMV. The FMV shall be the arithmetic average of the FMV as determined by the two appraisals which are closest together or, if the highest and lowest appraisal differ from the third appraisal by the same amount then the amount of the middle appraisal shall be the FMV. Each appraiser designated pursuant to this provision shall be a licensed |
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appraiser in the State of New Jersey, shall be a certified member of the American Institute of Real Estate Appraisers (or any equivalent organization) and shall have at least ten (10) years experience in appraising rental values of properties comparable to the Leased Premises in the market area in which the Property is located. The fees and expenses of the appraisers referred to herein shall be divided equally between the parties. | ||
41. | Municipality means Bedminster, New Jersey, or any successor municipality with jurisdiction over the Property. | |
42. | No Pass Through Period means, in the context of Operational Expenses and Taxes, the period beginning on the Commencement Date and ending on the day prior to the first anniversary of the Commencement Date. | |
43. | Nuisance means any condition or occurrence which unreasonably or materially adversely interferes with the authorized use and enjoyment of the Other Leased Premises and the Common Facilities by any tenant of Other Leased Premises or by any person authorized to use any Other Leased Premises or Common Facilities. | |
44. | Operational Expenses is defined in subsection 10.2 of this Agreement. If in any subsequent calendar year, after the Base Year, the average occupancy of the rentable area of the Building is not 95%, the Operational Expenses for such calendar year shall be adjusted to the amount which normally would have been incurred had the occupancy been 95%. The average occupancy of the rentable area of the Building for any year shall be the arithmetic average of the rentable area of the Building occupied by tenants on the first day of each month during the year in question. | |
45. | Option to Cancel is defined in subsection 6.2 of this Agreement. | |
46. | Option to Renew is defined in subsection 6.1 of this Agreement. | |
47. | Other Costs is defined in subsection 6.2.1 of this Agreement. | |
48. | Other Leased Premises means all premises within the Building, with the exception of the Leased Premises, that are, or are available to be, leased to tenants or prospective tenants, respectively. | |
49. | Other Space is defined in subsection 6.4.1 of this Agreement. | |
50. | Parking Facilities means the parking area adjacent to the Building, which parking area is provided as Common Facilities. | |
51. | Person includes an individual, a corporation, a partnership, a trust, an estate, an unincorporated group of persons and any group of persons. | |
52. | Post-Term Rent is defined in subsection 32.5 of this Agreement. | |
53. | Pre-existing Communications is defined in subsection 2.3.2 of this Agreement. | |
54. | Price is defined in subsection 5.1 of this Agreement. | |
55. | Project Costs is defined in subsection 5.3 of this Agreement. |
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56. | Project Management Representative is defined in subsection 5.3 of this Agreement. | |
57. | Property means the parcel of land described in Exhibit B attached hereto. | |
58. | Qualified Bank is defined in subsection 29.2 of this Agreement. | |
59. | Regular Business Hours means 8:00 A.M. to 6:00 P.M. on Monday through Friday and 8:00 A.M. to 1:00 P.M. on Saturday, except on Legal Holidays. | |
60. | Re-Leasing Damages is defined in subsection 23.3 of this Agreement. | |
61. | Renewal Term means, at the time of reference, any portion of the Term, other than the Initial Term, as to which the Tenant has properly exercised an Option to Renew which Option to Renew has not been rescinded in accordance with subsection 6.2 of this Agreement. | |
62. | Rent means Basic Rent and Additional Rent. | |
63. | Right of First Offer is defined in subsection 6.4 of this Agreement. | |
64. | Right of First Refusal is defined in subsection 6.3 of this Agreement. | |
65. | Roof Installations is defined in subsection 2.3 of this Agreement. | |
66. | Security Deposit is defined in subsection 29.1 of this Agreement. | |
67. | SRR Act is defined in subsection 32.4 of this Agreement. | |
68. | Target Completion Date is defined in subsection 5.5 of this Agreement. | |
69. | Target Date means the estimated Commencement Date which is January 1, 2010. | |
70. | Taxes means, in any calendar year, the aggregate amount of real property taxes, assessments and sewer rents, rates and charges, state and local taxes, transit taxes and every other governmental charge, whether general or special, ordinary or extraordinary (except corporate franchise taxes and taxes imposed on, or computed as a function of, net income or net profits from all sources and except taxes charged, assessed or levied exclusively on the Leased Premises or arising exclusively from the Tenants occupancy of the Leased Premises) charged, assessed or levied by any taxing authority with respect to the Property, the Building, the Common Facilities and any other improvements on the Property, less any refunds or rebates (net of expenses incurred in obtaining any such refunds or rebates) of Taxes actually received by the Landlord during such calendar year with respect to any period during the Term for the benefit of the Tenant, tenants of Other Leased Premises and the Landlord. If during the Term there shall be a change in the means or methods of taxing real property generally in effect at the beginning of the Term and another type of tax or method of taxation should be substituted in whole or in part for, or in lieu of, Taxes, the amounts calculated under such other types of tax or by such other methods of taxation shall also be deemed to be Taxes. Until such time as the actual amount of Taxes for any calendar year becomes known, the amount thereof shall be the Landlords estimate of Taxes for that calendar year. | |
71. | Temporary Occupancy Period is defined in subsection 4.3.2 of this Agreement. |
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72. | Tenant means the entity designated at the beginning of this Agreement. | |
73. | Tenant Electric Charges means (a) during Regular Business Hours, Electric Charges attributable to the Tenants use of electricity in the Leased Premises for purposes other than heating, ventilation and air conditioning provided to the Leased Premises by the Landlord in accordance with subsection 8.1.5 of this Agreement, and specifically excluding the charge for electricity for the HVAC for the balance of the Building and the charge for electricity used in the Common Areas, and (b) during other than Regular Business Hours, a charge for the actual costs incurred by the Landlord in connection with the HVAC systems plus Electric Charges chargeable in accordance with subsection 9.1 of this Agreement. | |
74. | Tenant Plan means construction drawings and related construction specifications regarding the build-out of the Leased Premises (with any construction drawings in a reproducible diazo sepia mylar form and in CAD readable format) including, without limiting the generality of the foregoing, the finish schedule and the information called for by Exhibit C, signed and sealed by a New Jersey-licensed architect, complying in all respects with applicable building and fire codes and insurance underwriting standards in effect and in sufficient detail to permit the Municipality to issue any required building permits and to permit skilled contractors to supply and perform the work called for therein. The Tenant Plan shall not include any specialized computer installations or any telecommunications equipment or facilities. The Tenant Plan shall include the layout of all furniture and furniture systems which are required to secure a building permit. | |
75. | Tenants Share of any amount means 27.9%. | |
76. | Term means the Initial Term plus, at the time of reference, any Renewal Term. | |
77. | Termination Damages is defined in subsection 23.2 of this Agreement. | |
78. | Termination Fee is defined in subsection 6.2.1 of this Agreement. | |
79. | Third Floor Premises is defined in subsection 2.1 of this Agreement. | |
80. | Third Floor Space is defined in subsection 6.3.1 of this Agreement. | |
81. | Utilities Expenses means Electric Charges (other than Tenant Electric Charges) and all charges for any other fuel that may be used in providing heat and in providing electricity and services powered by electricity that the Landlord provides in accordance with section 8 of this Agreement to the Building, the Leased Premises, Other Leased Premises, the Common Facilities and the Property, including sales and excise taxes and the like. | |
82. | Wire Restoration Work is defined in subsection 21.2 of this Agreement. | |
83. | Wiring is defined in subsection 21.2 of this Agreement. | |
84. | Work Letter means Exhibit C attached hereto which generally describes the type of construction of the Building and, unless the Tenant Plan does not require any such respective improvement, those improvements the Landlord will provide or install in the Leased Premises without installation charge to the Tenant in connection with the preparation of the Leased Premises contemplated by section 5 of this Agreement. |
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FREQUENCY OF SERVICE | ||||||||||
EXTENT OF SERVICE | Daily | Weekly | Monthly | Quarterly | As Directed | |||||
I. GENERAL, PRIVATE
OFFICES, LOBBY,
LOUNGE, ETC.
|
||||||||||
1. Empty wastebaskets.
|
x | |||||||||
2. Transport
trash to designated area.
|
x | |||||||||
3. Recycling services.
|
x | |||||||||
4. Dust all furniture
including desks, chairs,
tables.
|
2x | |||||||||
5. Dust all exposed filing
cabinets, bookcases and
shelves.
|
x | |||||||||
6. Clean and sanitize
telephones.
|
x | |||||||||
7. Clean and sanitize
drinking fountains.
|
x | |||||||||
8. Low dust all horizontal surfaces to
hand height (70)
including sills,
ledges, moldings,
shelves, picture
frames, ducts, radiators, etc.
|
x | |||||||||
9. High dust above
hand height all horizontal surfaces, including shelves,
molding, ledges.
|
||||||||||
10. Spot clean desk tops. | x | (Provided Desktops are Cleared) | ||||||||
11. Clean entire desk tops. | x | (Provided Desktops are Cleared) | ||||||||
12. Clean counter tops.
|
x | |||||||||
13. Spot clean reception
lobby glass including
front door.
|
x | |||||||||
14. Spot clean interior
glass in partitions and
doors.
|
x | |||||||||
15. Clean entire interior
glass in partitions and
doors.
|
x |
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FREQUENCY OF SERVICE | ||||||||||
EXTENT OF SERVICE | Daily | Weekly | Monthly | Quarterly | As Directed | |||||
16. Remove fingerprints
front doors, frames, light
switches, kick and push
plates, handles, railings.
|
x | |||||||||
17. Client papers on desks,
drafting tables, filing
cabinets, etc. are not
disturbed.
|
x | |||||||||
18. Dust venetian blinds.
|
x | |||||||||
19. Damp clean whiteboards
if requested.
|
x | |||||||||
20. Vacuum diffuser outlets
in ceiling.
|
x | |||||||||
21. Hand dust wood
paneling.
|
x | |||||||||
22. Remove
dust and cob-webs from ceiling areas.
|
x | |||||||||
23. Stairways-Sweep/
vacuum and dust.
|
x | |||||||||
24. Elevators-Dust,
Spotclean
|
x | |||||||||
II. WASHROOMS
|
||||||||||
1. Clean, sanitize, and
polish all vitreous
fixtures including
toilet bowls, urinals,
hand basins.
|
x | |||||||||
2. Clean and sanitize
all flush rings, drain
& over-flow outlets.
|
x | |||||||||
3. Clean and polish
all chrome fittings.
|
x | |||||||||
4. Clean and sanitize
toilet seats.
|
x | |||||||||
5. Clean and polish
all glass and mirrors.
|
x | |||||||||
6. Empty all containers and disposals,
insert liners as required.
|
x | |||||||||
7. Wash and sanitize exterior
of all containers
|
x | |||||||||
8. Empty and sanitize interior of
sanitary container
|
x |
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FREQUENCY OF SERVICE | ||||||||||
EXTENT OF SERVICE | Daily | Weekly | Monthly | Quarterly | As Directed | |||||
9. Dust all metal
partitions.
|
x | |||||||||
10. Spot clean metal
partitions.
|
x | |||||||||
11. Wash and sanitize
metal partitions.
|
x | |||||||||
12. Remove spots, stains,
splashes from wall
area adjacent to hand
basins.
|
x | |||||||||
13. Remove fingerprints
from doors, frames,
light switches, kick
and push plates,
handles, etc.
|
x | |||||||||
14. Refill all dispensers to
normal limits-napkin,
soap, tissue, towel,
liners, seat holders,
cups. Supplies to be
furnished by Landlord.
|
x | |||||||||
15. Low dusts all horizontal
surfaces to hand height
including sills, moldings,
ledges, shelves, frames,
ducts, heating outlets,
etc.
|
x | |||||||||
16. High dust above hand
height all horizontal
surfaces including
shelves, ledges,
moldings.
|
x | |||||||||
17. Dust all furniture
including tables, chairs,
etc.
|
x | |||||||||
18. Vacuum diffuser outlets
in ceilings or walls.
|
x | |||||||||
19. Dry clean area adjacent
to diffuser outlet.
|
x | |||||||||
20. Flush toilet bowls &
urinals with Bowlclene.
|
x |
- 64 -
FREQUENCY OF SERVICE | ||||||||||
EXTENT OF SERVICE | Daily | Weekly | Monthly | Quarterly | As Directed | |||||
III. EATING AREAS/
KITCHEN
|
||||||||||
1. Empty all containers and
disposals. Sanitize interior
|
x | |||||||||
2. Wash and sanitize exterior
of all containers.
|
x | |||||||||
3. Clean and sanitize
drinking fountain.
|
x | |||||||||
4. Remove fingerprints
from doors, frames, light
switches, kick and push
plates, handles.
|
x | |||||||||
5. Low dust all horizontal
surfaces to hand height
including sills, moldings,
ledges, shelves, frames,
ducts, heating outlets,
etc.
|
x | |||||||||
6. High dust above hand height
all horizontal surfaces including
shelves, ledges, moldings, pipes
ducts, heating outlets, etc.
|
x | |||||||||
7. Clean interior glass
in partitions & doors.
|
x | |||||||||
IV. RESILIENT AND HARD
FLOORS
|
||||||||||
1. Dust mop or sweep. (alt.)
|
x | (alternate days) | ||||||||
2. Damp mop.
|
x | (alternate days) | ||||||||
3. Sanitize -(Restrooms)
|
x | |||||||||
4. Spray buff open areas
including kneeholes of
desks.(First Flr. Lobby
& Parking Level).
|
x | x | ||||||||
5. Scrub and refinish to
maintain adequate protective coating.(First
Floor Lobby & Parking
Level).
|
x | x | ||||||||
6. Strip, clean, refinish and
machine polish.
|
x | x | ||||||||
V. CARPETS
|
||||||||||
1. Vacuum traffic areas
|
2 x |
- 65 -
a) | Commencement date means the date of execution of this Agreement. | ||
b) | Gain SHIP program refers to the proprietary hedging program developed by GAIN Capital | ||
c) | Questrade Originated Accounts refers to any client signing account opening documents with Questrade |
2
Fee Date | Fee Split (Questrade/Gain) | |
Month 1 after Commencement date
|
*** | |
|
||
Month 2 after Commencement date
|
*** | |
|
||
Month 3 after Commencement date
|
*** | |
|
||
Month 4 after Commencement date
|
*** | |
|
||
Month 5 after Commencement date
|
*** |
3
4
5
6
GAIN CAPITAL, INC. | QUESTRADE, INC. | |||||||||
|
||||||||||
By:
|
/s/ Glenn Stevens | By: | /s/ Edward Kholodenko | |||||||
Glenn Stevens | Edward Kholodenko | |||||||||
Title: Managing Director | Title: President and CEO |
7
Clause | Subject matter | Page | ||||
1.
|
DEFINITIONS | 1 | ||||
2.
|
INTERPRETATION | 4 | ||||
3.
|
GRANT AND TERM | 6 | ||||
4.
|
RIGHTS GRANTED | 6 | ||||
5.
|
RIGHTS RESERVED AND REGRANTED | 7 | ||||
6.
|
THIRD PARTY RIGHTS OVER THE PREMISES | 8 | ||||
7.
|
PAYMENT OF RENTS | 8 | ||||
8.
|
OTHER FINANCIAL MATTERS | 9 | ||||
|
Utilities | 9 | ||||
|
Common facilities | 9 | ||||
|
Payments relating to the Premises and other property | 9 | ||||
|
Landlords costs | 9 | ||||
|
VAT | 10 | ||||
|
Interest | 10 | ||||
|
Exclusion of statutory compensation | 10 | ||||
9.
|
INSURANCE | 10 | ||||
|
Landlords obligations | 10 | ||||
|
Reinstatement | 11 | ||||
|
Tenants obligations | 11 | ||||
|
Suspension of Rent | 12 | ||||
|
Termination after end of Rent suspension period | 12 | ||||
|
Termination following damage by an Excluded Risk | 12 | ||||
|
Insurance money | 13 | ||||
10.
|
SERVICE CHARGE | 13 | ||||
|
Definitions | 13 | ||||
|
Landlords obligations | 15 | ||||
|
Tenants obligations | 16 | ||||
|
Estimating and revising the Service Charge | 16 | ||||
|
Changes to the Service Charge Cap | 17 | ||||
|
General provisions | 18 | ||||
11.
|
STATE AND CONDITION OF THE PREMISES | 18 | ||||
|
Repair | 18 | ||||
|
Alterations | 18 | ||||
|
Signs and reletting notices | 19 | ||||
|
Yield up | 19 | ||||
12.
|
USE OF THE PREMISES | 20 | ||||
|
The Permitted Use | 20 | ||||
|
Obstructions | 20 | ||||
|
Restrictions on use | 20 | ||||
|
Fire and security precautions | 20 | ||||
|
Exclusion of warranty | 20 | ||||
13:
|
DEALINGS | 20 | ||||
|
General restrictions | 20 | ||||
|
Assignments | 20 | ||||
|
Underlettings | 21 | ||||
|
Terms to be contained in any underlease | 22 |
Clause
Subject matter
Page
Further provisions relating to underleases
23
Charging
23
Declarations of trust
23
Group sharing of occupation
23
Registration of dealings
23
Registration at the Land Registry
23
LEGAL REQUIREMENTS AND REGULATIONS
24
Legislation and planning
24
Notices relating to the Premises
24
The Construction (Design and Management) Regulations 2007
24
Regulations
25
LANDLORDS COVENANT FOR QUIET ENJOYMENT
25
LIMIT ON LANDLORDS LIABILITY
25
FORFEITURE
26
Landlords right of re-entry
26
Events giving rise to the Landlords right of re-entry
26
Interpretation
28
MISCELLANEOUS
28
Notice
28
Landlords rights to remedy default by the Tenant
29
Superior interests
29
No right to enforce
29
Tenant to provide information
29
Tenants indemnity
29
Guarantor to enter into supplemental documents
29
Replacement Guarantor
29
Qualification of Landlords liability
30
Removal of goods after end of Term
30
Governing law
30
Contracts (Rights of Third Parties) Act 1999
30
Landlord and Tenant (Covenants) Act 1995
30
Tenants acknowledgement and Code
31
EXCLUSION OF THE LANDLORD AND TENANT ACT 1954
31
The tenancy created by this deed is
a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995.
Pontsarn Investments Limited
00611070.
33 Cavendish Square, London W1G OPW.
Gains Capital - Forex.com UK Limited
03770004
43-45 Dorset Street, London, W1 U 7NA
Part ninth floor (east).
12-20 Camomile Street, London EC3.
From and including the date of this
deed expiring on and including 24 March 2011.
Forty-two thousand one hundred and
twenty pounds (£42,120) per annum.
1 May 2009.
A fair proportion of the total for the Building.
Four per cent above HSBC Bank pic
base lending rate.
Offices within Use Class B1 of the
Town and Country Planning (Use Classes) Order 1987
(as at the date of this deed).
(1) | PONTSARN INVESTMENTS LIMITED (incorporated and registered in England and Wales under company registration number 00611070), the registered office of which is at 33 Cavendish Square, London W1G OPW (the Landlord ); and | |
(2) | GAINS CAPITAL FOREX.COM UK LIMITED (incorporated and registered in England and Wales under company registration number 03770004), the registered office of which is at 43-45 Dorset Street, London, W1U 7NA (the Tenant ). |
1. | DEFINITIONS |
means 12-20 Camomile Street, London EC3 of which the Premises form part together with the yard to the rear; |
means any part of the Building (other than the Premises and the Lettable Units); |
means any risk listed in paragraph (a) or referred to in paragraph (b) of the definition of Insured Risks against which the Landlord does not insure (or in respect of which there is a partial exclusion to the extent that the partial exclusion applies) because insurance cover for that risk is either not ordinarily available in the London insurance market, or is available there only at a premium or subject to conditions which in the Landlords discretion are unacceptable; |
means a group of companies within the meaning of section 42 of the Landlord and Tenant Act 1954; |
means any person who has entered into a guarantee or an authorised guarantee agreement pursuant to this Lease; |
means a fair proportion of the cost to the Landlord (before any commission) and including any insurance premium tax of insuring: |
(a) | the Building against the Insured Risks for its full reinstatement cost, including the costs of demolition and site clearance, temporary works, compliance with local authority requirements in connection with any works of repair or reinstatement, architects, surveyors and other professional fees and other |
incidental expenses, and in each case with due allowance for inflation and VAT; | |||
(b) | against loss of the Rent for a period of three years; and | ||
(c) | against public liability of the Landlord in connection with any matter relating to the Building, its occupation or use; |
means: |
(a) | fire, explosion, lightning, earthquake, flood, storm, bursting or overflowing of water tanks, pipes or other water or heating apparatus, impact, aircraft (other than hostile aircraft) and things dropped from such aircraft, riot, civil commotion, terrorism and malicious damage; and | ||
(b) | such other risks as the Landlord may from time to time insure against (whether at its own discretion or at the request of the Tenant), except to the extent that any such risk is for the time being an Excluded Risk; |
means the rate of four per cent above the base lending rate from time to time of HSBC Bank pic, or if that rate is no longer published then four per cent above the rate of interest which the Landlord reasonably considers to be most closely comparable to minimum lending rates generally applicable in the United Kingdom from time to time; |
means the first party to this deed and its successors in title and persons entitled to the reversion immediately expectant on the termination of this Lease; |
means a chartered surveyor appointed by the Landlord, who may be an individual, or a firm or company of chartered surveyors, or an employee of the Landlord or a company which is in the same Group as the Landlord; |
means this deed as varied or supplemented by any document which is supplemental to this deed; |
means any part of the Building (other than the Premises) which is let or is intended |
means offices within Use Class B1 of the Town and Country Planning (Use Classes) Order 1987 (as at the date of this deed); |
means part of the ninth floor, as shown edged red on the plan annexed to this deed bounded by and including: |
(a) | all non-structural walls wholly within the Premises; | ||
(b) | the internal faces of boundary walls, ceilings and floors that enclose the Premises and the internal faces of all structural walls and columns within the Premises; | ||
(c) | the doors, door frames, internal windows, window frames and glass of the Premises; |
(d) | all fixtures from time to time at those premises, but if those fixtures are Service Media, then only if they fall within paragraph (e) below; | ||
(e) | Service Media within and from time to time exclusively serving those premises and which are owned by the Landlord; | ||
but excluding: | |||
(f) | any Service Media within such premises but which do not serve such premises exclusively, or which are not owned by the Landlord; and | ||
(g) | the main structure of the Building (including the structure of the floors and ceiling), roofs, foundations, external walls, the external windows and window frames and the window glass of the Building; |
means forty-two thousand one hundred and twenty pounds (£42,120) per annum; |
means 1 May 2009; |
means the lesser of a fair proportion of the total cost of the Landlords Expenses (as defined in clause 10.1) and the Service Charge Cap in relation to the relevant Service Charge Year; |
means the shortfall, if any, between the Service Charge Estimate and the Service Charge; |
means for the Service Charge Year which is current at the date of this deed, eighteen thousand three hundred and sixty pounds (£18,360), and for each remaining Service Charge Year during the Term, the amount calculated in accordance with clause 10.5; |
means the same fair proportion of the amount which the Landlord, or the Landlords Surveyor or its accountant, reasonably estimates will be the total cost of the Landlords Expenses (as defined in clause 10.1) in any Service Charge Year; |
means the year from and including 1 April to 31 March in each year or such other date which the Landlord chooses from time to time; |
means conduits and equipment used for the generation, passage, reception and/or storage of Utilities and all fire alarms, sprinklers, smoke detectors, dry risers, security cameras, closed circuit television apparatus and lifts; |
means the second party to this deed and, except where otherwise expressly stated, its successors in title; |
means the term of years granted by this deed; |
means electricity, gas, water, foul water and surface drainage, heating, ventilation and air conditioning, smoke and fumes, signals, telecommunications, satellite and data communications and all other utilities; |
means value added tax and/or any similar tax from time to time replacing it or performing a similar fiscal function; |
means any day (other than a Saturday) on which banks are usually open for business in England and Wales. |
2.1 | In this Lease: | |
2.1.1 | the table of contents and clause headings are for reference only and do not affect its construction; | |
2.1.2 | the words include and including are deemed to be followed by the words without limitation; | |
2.1.3 | general words introduced by the word other do not have a restrictive meaning by reason of being preceded by words indicating a particular class of acts, things or matters; |
Lease Plan
Title Number
2.1.5
in clauses 14 and 20 the word security includes, without limitation, a guarantee or rent
deposit.
2.2
In this Lease, unless otherwise specified:
2.2.1
a reference to legislation is a reference to all legislation having effect in the United
Kingdom at any time during the Term, including directives, decisions and regulations of
the Councilor Commission of the European Union, Acts of Parliament, orders,
regulations, consents, licences, notices and bye-laws made or granted under any Act of
Parliament or directive, decision or regulation of the Council or Commission of the
European Union, or made or granted by a local authority or by a court of competent
jurisdiction and any approved codes of practice issued by a statutory ·body;
2.2.2
a reference to particular legislation is a reference to that legislation as amended,
consolidated or re-enacted from time to time and to all to subordinate legislation made
under it from time to time;
2.2.3
a reference to a person includes an individual, corporation, company, firm, partnership or
government body or agency, whether or not legally capable of holding land; and
2.2.4
a reference to a clause is a reference to a clause of this deed.
2.3
In this Lease:
2.3.1
an obligation of the Tenant not to do something includes an obligation not to cause or
allow that thing to be done;
2.3.2
a reference to any act or to any act or omission of the Tenant includes any act or any act
or omission of any other person at the Premises or the Building with the Tenants express
or implied authority;
2.3.3
the rights and remedies of the Landlord under any clause are without prejudice to any
other right or remedy of the Landlord;
2.3.4
the obligations of or restrictions on the Tenant or a Guarantor under any clause,
supplemental document or other instrument entered into in connection with this Lease,
are without prejudice to the obligations of or restrictions on the Tenant or Guarantor, or to
the rights of the Landlord under any other clause, supplemental document or other
instrument entered into in connection with this Lease;
2.3.5
a reference to the consent or approval of the Landlord means the prior consent in writing
(which, if required by the Landlord, is to be contained in a deed) of the Landlord, and,
where required, of any superior landlord or mortgagee of the Landlord;
2.3.6
references to any adjoining property of the Landlord include any property adjoining or near
the Premises or the Building owned, leased or occupied by the Landlord (or any company
in the same Group as the Landlord) from time to time;
2.3.7
references to the end of the Term are to the end of the Term whether before or at the end
of the term of years granted by this deed;
2.3.8
references to a fair proportion of any sum ·are to the whole or a proportion of that sum
which is fair and reasonable in the circumstances as determined by the Landlords
Surveyor whose decision will be final and binding (except in the case of manifest error)
and where there are different elements to that sum a different proportion for each element
may be determined on this basis;
2.3.9
the perpetuity period is 80 years from the date of this deed;
2.3.10
references to a certified copy are to a copy certified by solicitors to be a true copy of the
original; and
2.3.11
unless otherwise specified, references to the Premises and the Building include any part
of the Premises or the Building.
3.
GRANT AND TERM
The Landlord leases the Premises to the Tenant for a term from and including the date of this
deed expiring on and including 24 March 2011, the Tenant paying the following sums, which are
reserved as rent: the Rent, the Insurance Rent the Service Charge Estimate, the Service Charge
Balance and any VAT payable on those sums and any interest due under this Lease.
4.
RIGHTS GRANTED
4.1
The Landlord grants the following rights to the Tenant:
4.1.1
at all times 24 hours a day 365 days a year to pass and repass on foot from the entrance
at the Building to the passenger lifts and thereafter to pass and repass on foot over along
and across the Common Parts shown coloured orange on the Plan as a means of access
to and egress from the Premises and the toilets within the Common Parts of the Building
but for no other purpose whatsoever;
4.1.2
to use such of the toilets within the Common Parts as may from time to time be
designated by the Landlord acting reasonably;
4.1.3
to pass and repass 24 hours a day 365 days a year with or without vehicles over the areas
coloured brown on the Plan always provided that no cars or other vehicles belonging to or
under the control of the Tenant, its employees or visitors shall be parked or allowed to
stand at the rear of the Building save as provided in paragraph 4.1.4 below;
4.1.4
between the hours of 8 a.m. and 7 p.m. on Mondays to Fridays (inclusive) and 8 a.m. and
1 p.m. on Saturdays (but Sundays and Public Holidays excluded) to park delivery vehicles
opposite the rear entrance of the Building for the purpose of loading and unloading of
articles and goods only and the Tenant shall comply with such reasonable directions as to
the method of such delivery, loading and unloading as the Landlord may give in writing
Provided that in any event no obstruction shall be caused thereby;
4.1.5
the free passage and use of all Service Media under, over or about the Building or any
part thereof which serve the Premises and also the free passage and running of
electricity, telecommunications, gas, water and soil to and from the Premises through
such Service Media;
4.1.6
to display on the tenants nameboard within the ground floor entrance hall and in the ninth
floor lobby and on the name plates adjacent to the entrances to the Premises a sign
stating the Tenants name in a size, style and position reasonably designated by the
Landlord and make of materials designated by the Landlord.
4.2
The Tenant will not be or become entitled to any right, easement or privilege that is not
expressly granted by clause 4.1, and section 62 of the Law of Property Act 1925 does not
[cut off]
5.
RIGHTS RESERVED AND REGRANTED
5.1
The following rights are reserved from this Lease in favour of the Landlord and its lessees,
agents and licensees and all other persons who now have or may hereafter be granted
similar rights by the Landlord:
5.1.1
to build or rebuild upon any adjoining or adjacent land or to alter any building or erection
from time to time thereon to such height and in such manner and otherwise as the
Landlord may desire or permit and to use the same in whatever manner may be desired
and whether or not the access of light or air to the Premises or any other amenity at
present appertaining to the Premises shall be lessened or affected in any way but not so
far as to prevent the reasonable use and enjoyment of the Premises by the Tenant;
5.1.2
to take into use all walls, drains, sewers, pipes, wires and the like and to build upon
connect with or otherwise use the same without payment of any consideration to the
Tenant (but not so as to lessen or affect the Tenants reasonable use and enjoyment
thereof) subject as from the date of such taking into use to contributing a fair and just
proportion of the expense of maintaining repairing and renewing the same;
5.1.3
the free and uninterrupted passage and use of all Service Media under, over or about the
Premises or any part thereof and also the free and uninterrupted passage and running of
electricity, telecommunications, gas, water and soil to and from the other buildings and
land adjoining or near the Premises through such Service Media;
5.1.4
to enter upon the Premises upon reasonable prior written notice (except in emergency
when no prior written notice need be given) for the purposes of inspecting, repairing,
renewing, relaying, cleaning, maintaining or connecting up to any of the Service Media
mentioned in the previous paragraph, the Landlord causing as little damage and
inconvenience as possible to the Tenant and the Tenants business and making good or
causing to be made good at its expense any damage which may be occasioned thereby to
the Premises and the Tenants fixtures and fittings;
5.1.5
except where it is impractical and/or impossible without such entry at all reasonable times
and upon prior written appointment (except in emergency when no prior written
appointment need be made) to the Tenant to enter and remain upon the Premises with all
necessary tools, appliances and materials, for the purpose of cleaning, altering, repairing,
maintaining any adjoining or contiguous premises or any other things used in common the
Landlord causing as little damage and inconvenience as possible to the Tenant and the
Tenants business and making good or causing to be made good at its expense any
damage which may be occasioned thereby to the Premises and the Tenants fixtures and
fittings;
5.1.6
to close or temporarily suspend as often as may be necessary the use of the Common
Parts and/or the Service Media and/or any parts of the Common Parts for the purposes of
effecting, rebuilding, refurbishing, redevelopment, repairs, removals, improvements and
maintenance and for obtaining access to any services and for any other reasonable
purpose provided that a suitable alternative is made available;
5.1.7
to alter the layout and use of the Common Parts and/or divert the Service Media including
(but without limitation) the right to use the Common Parts for all purposes connected with
the rebuilding, refurbishment or redevelopment of the Building or adjoining property
provided that the Tenants use, enjoyment and access to the Premises is not prevented or
materially reduced.
6.
THIRD PARTY RIGHTS OVER THE PREMISES
6.1
There are excepted from this Lease and this Lease is granted subject to:
6.1.1
all existing rights which belong to other property, or are enjoyed by other property over the
Premises or any land or Service Media over which the Tenant may exercise rights by
virtue of this Lease; and
6.1.2
the matters contained or referred to in the property and charges registers of title number
NGL377181 as at the date of this deed.
6.2
The Tenant shall comply with the matters contained or referred to in the registers referred to
in clause 6.1 so far as they relate to the Premises or any rights the Tenant may exercise by
virtue of this Lease.
6.3
The Tenant shall:
6.3.1
not permit any third party to acquire any right over the Premises or to encroach upon the
Premises and shall give the Landlord immediate written notice of any attempt to do this;
6.3.2
take any steps which the Landlord may reasonably require to prevent the acquisition of
any right over or encroachment on the Premises;
6.3.3
preserve for the benefit of the Premises and the Landlords interest in them all existing
rights which belong to the Premises and are enjoyed over adjoining or neighbouring
property; and
6.3.4
not block or obstruct any window or ventilator at the Premises.
7.
PAYMENT OF RENTS
7.1
The Tenant shall pay to the Landlord the Rent, the Service Charge Estimate and any VAT
payable on those sums without deduction or set-off (whether legal or equitable) in four equal
(a) | the grant of this deed; | ||
(b) | the receipt of the rents reserved by this Lease; or | ||
(c) | any dealing or disposition by the Landlord with its interest in the Premises. |
8.3.2 | The Tenant shall not make any claim for relief from any of the charges referred to above which could result in the Landlord not being entitled (during or after the end of the Term) to that relief in respect of the Premises. |
8.4
Payments relating to the Premises and other property
Where any of the charges payable under clause 8.1, 8.2 or 8.3 relates to other property as
well as the Premises, the amount to be paid by the Tenant will be a fair proportion of the
whole of the amount charged or payable.
8.5
Landlords costs
The Tenant shall pay to the Landlord, on demand, and on an indemnity basis, the fees, costs
and expenses properly charged, incurred or payable by the Landlord, and its advisers, agents
or bailiffs in connection with:
8.5.1
any steps taken in contemplation of, or in relation to, any proceedings under section 146
or 147 of the Law of Property Act 1925 or the Leasehold Property (Repairs) Act 1938,
including the preparation and service of all notices, and even if forfeiture is avoided
(unless it is avoided by relief granted by the court);
8.5.2
preparing and serving schedules of dilapidations at any time during the Term or within six
months after the end of the Term (or, if later, six months after the date the Tenant has
given vacant possession of the Premises to the Landlord) and supervising any works
undertaken to remedy such dilapidations;
8.5.3
recovering (or attempting to recover) any arrears of Rent or other sums due to the
Landlord under this Lease, including the costs of preparing and serving any notice under
section 17 of the Landlord and Tenant (Covenants) Act 1995 and any costs associated
with the Landlords remedies of distress or execution;
8.5.4
any investigations or reports carried out to determine the nature and extent of any breach
by the Tenant of its obligations in this Lease;
8.5.5
any steps taken to procure that a breach by the Tenant of its obligations under this Lease
is remedied; and
8.5.6
any application for a consent of the Landlord (including the preparation of any documents)
which is needed by virtue of this Lease, whether or not such consent is granted and
whether or not the application is withdrawn.
8.6
VAT
8.6.1
Where the Tenant is to pay the Landlord for any supply made to the Tenant by the
Landlord, the Tenant shall also pay any VAT which may be payable in connection with that
supply.
8.6.2
Where the Tenant is to pay the Landlord the costs of any supplies made to the Landlord,
the Tenant shall also pay the Landlord any VAT payable in connection with that supply,
except to the extent that the Landlord is able to obtain a credit for the VAT from
HM Revenue & Customs.
9.2.1 | unless payment of any insurance money is refused because of any act or omission of the Tenant and the Tenant has failed to comply with clause 9.3.8; and | |
9.2.2 | subject to the Landlord being able to obtain any necessary consents and to the necessary labour and materials being and remaining available, the Landlord shall use the insurance money it receives, except money received for loss of rent, in repairing and reinstating the Premises (other than any part which the Landlord is not obliged to insure) or in building reasonably comparable premises as soon as reasonably possible. | |
9.3 | Tenants obligations | |
The Tenant shall: | ||
9.3.1 | pay the Insurance Rent in accordance with this Lease; | |
9.3.2 | pay on demand any increase in the insurance premium for the Building or any adjoining property of the Landlord which is attributable to the use of the Premises, or anything done |
or omitted to be done on the Premises by the Tenant or any other occupier of the
Premises;
9.3.3
pay on demand a fair proportion of the costs incurred or payable by the Landlord in
connection with the Landlord obtaining a valuation of the Building for insurance purposes,
as long as such valuation is made at least three years after any previous such valuation;
9.3.4
comply with the requirements of the insurers relating to the Premises;
9.3.5
not do or omit to do anything which may make any insurance of the Building or of any
adjoining property of the Landlord taken out by the Landlord or any superior landlord void
or voidable, or which would result in an increase in the premiums for such insurance;
9.3.6
give the Landlord immediate written notice of any damage to or destruction of the
Premises by an Insured Risk;
9.3.7
pay the Landlord on demand the amount of any excess required by the insurers in
connection with that damage or destruction;
9.3.8
pay the Landlord on demand an amount equal to any amount which the insurers refuse to
pay, following damage or destruction by an Insured Risk to any part of the Building or any
adjoining property of the Landlord, because of any act or omission of the Tenant;
9.3.9
pay the Landlord on demand the costs incurred by the Landlord in preparing and settling
any insurance claim relating to the Premises (or a fair proportion of such costs in relation
to the Common Parts or the Building as a whole) arising, in any case, from any insurance
taken out by the Landlord;
9.3.10
not take out any insurance of the Premises against the Insured Risks in its own name
other than in respect of any part of the Premises installed by or on behalf of the Tenant or
any undertenant or any other occupier, and if the Tenant has the benefit of any such
insurance, the Tenant shall hold all money receivable under that insurance upon trust for
the Landlord; and
9.3.11
if requested by the Landlord remove its fixtures and effects from the Premises to allow the
Landlord to repair or reinstate the Premises.
9.4
Suspension of Rent
9.4.1
If the whole of the Premises or any part which the Landlord is obliged to insure, are
damaged or destroyed by an Insured Risk or an Excluded Risk so as to make the
Premises or any part which the Landlord is obliged to insure, unfit for occupation or use,
the Rent (or a due proportion of it determined by the Landlord according to the nature and
extent of the damage) will subject to clause 9.4.2 be suspended from the date of damage
or destruction for a period of three years, or, if sooner, until the Premises, or such part,
have been made fit for occupation and use.
9.4.2
The Rent will not be suspended to the extent that any loss of rent insurance has been
made ineffective, or payment of it has been refused by the insurers, because of any
deliberate act or omission of the Tenant.
9.5 | Termination after end of Rent suspension period | |
9.5.1 | Clause 9.5 applies if the Rent is suspended pursuant to clause 9.4.1 and the Landlord has not substantially completed the works required to be carried out pursuant to clause 9.2 by the end of the three-year period mentioned in clause 9.4.1. | |
9.5.2 | If clause 9.5 applies the Landlord or the Tenant may terminate this Lease by giving written notice to the other no later than three months after the end of that three-year period. | |
9.5.3 | Termination of this Lease pursuant to clause 9.5 will be without prejudice to any right of the Landlord against the Tenant or any Guarantor for any antecedent breach of its obligations under this Lease. | |
9.6 | Termination following damage by an Excluded Risk | |
9.6.1 | Clause 9.6 applies if the whole (as opposed to any part) of the Premises are damaged or destroyed by an Excluded Risk so as to prevent occupation of the Premises, unless the damage or destruction is due to a deliberate act or omission of the Tenant. | |
9.6.2 | If clause 9.6 applies the Landlord may give written notice to the Tenant stating that the Landlord shall (subject to the Landlord being able to obtain any necessary consents and to the necessary labour and materials being and remaining available) repair and reinstate the Premises (other than any part which the Landlord was not obliged to insure) or build reasonably comparable premises as soon as reasonably practicable. | |
9.6.3 | If the Landlord has not given notice pursuant to clause 9.2 within six months after the date of the damage or destruction, the Tenant may within one month after the end of that six month period, terminate this Lease by giving written notice to the Landlord. The Tenants notice shall specify a termination date not less than five nor more than 20 days after the date of the Tenants notice and upon such termination date this Lease shall determine. | |
9.6.4 | Termination of this Lease pursuant to clause 9.6 will be without prejudice to any right of the Landlord against the Tenant or any Guarantor for any antecedent breach of its obligations under this Lease. | |
9.7 | Insurance money |
10. | SERVICE CHARGE | |
10.1 | Definitions |
means a statement certified by the Landlord or the Landlords Surveyor or its accountant, which shows: |
(a) | the Service Charge Estimate; | ||
(b) | the Landlords Expenses; |
(c) | the Service Charge; | ||
(d) | the Service Charge Balance; and | ||
(e) | the Service Charge Cap, |
means the costs (including any VAT charged on such costs to the extent that the Landlord is not able to obtain a credit for such VAT from HM Revenue & Customs) incurred or provided for by or on behalf of the Landlord in connection with all or any of the following items: |
(a) | cleaning, maintaining, carpeting and recarpeting, decorating, lighting, treating, repairing, rebuilding and replacing the Common Parts; | ||
(b) | cleaning the outside of all windows at the Building; | ||
(c) | providing, operating, inspecting, maintaining, repairing and replacing Service Media at the Building (other than Service Media which form part of the Premises or any Lettable Unit or which do not belong to the Landlord); | ||
(d) | removing any obstruction on the Common Parts; | ||
(e) | providing, operating, inspecting, insuring and maintaining, repairing and replacing any equipment, plant and machinery and other materials, which are used in providing the matters listed in this definition; | ||
(f) | fuel and Utilities used on the Common Parts or in providing the matters listed in this definition; | ||
(g) | maintenance and other contracts entered into for the provision of the matters listed in this definition; | ||
(h) | providing, maintaining and, when reasonably necessary, renewing signs at the Building; | ||
(i) | providing and replacing refuse containers for occupiers of the Building and arranging for the collection of refuse; | ||
(j) | providing, maintaining and restocking floral and/or plant displays on the Common Parts; | ||
(k) | providing, maintaining and, replacing furniture and fittings for use on the Common Parts; | ||
(l) | providing, maintaining and, when reasonably necessary, replacing or altering such security systems for the benefit of the Whole (or substantially the whole) of the Building, which the Landlord (in the interests of good estate management) reasonably considers appropriate and which may include the provision of alarms, closed circuit television, barriers and other equipment, and security guards and patrols (whether employed by the Landlord or engaged as contractors); |
(m) | providing fire detection, prevention and fighting equipment and any signs, notices or equipment required by the fire authority for the Common Parts and maintaining, repairing and, when necessary, replacing such items; | ||
(n) | providing a reception or security desk in the entrance hall of the Building and staffing it; | ||
(o) | employing or arranging for the employment (and the termination of employment) of staff in connection with the provision of the matters listed in this definition, including the costs of insurance, pension and welfare contributions and the provision of clothing, tools and equipment incurred in connection with such employment and the provision of residential accommodation that may at the Landlords discretion be provided for a caretaker; | ||
(p) | all present and future rates, taxes, duties and assessments of whatever nature charged on, or payable in respect of, the Common Parts or in respect of the Building as a whole; | ||
(q) | complying With any legislation relating to the Common Parts or the Building as a whole; | ||
(r) | complying With or, where the Landlord reasonably considers it appropriate, contesting the requirements or proposals of the local or any other competent authority in respect of the Common Parts or of the Building as a whole; | ||
(s) | complying with or, where the Landlord reasonably considers it appropriate, contesting the requirements or proposals of the local or any other competent authority in respect of the Common Parts or of the Building as a whole; | ||
(t) | abating any nuisance to the Building; | ||
(u) | making such provisions as the Landlord reasonably considers appropriate for anticipated future expenditure including the provision and replacement of any plant, machinery, lifts or equipment used or to be used in connection with the matters listed in this definition; | ||
(v) | leasing any item used in providing the matters listed in this definition; | ||
(w) | commitment fees, interest and any other cost of borrowing money, where necessary, to finance the matters listed in this definition; | ||
(x) | obtaining any professional advice which may from time to time be required in relation to the management of the Building or the provision of the matters listed in this definition; | ||
(y) | the fees of managing agents retained by the Landlord for the management of the Building, the provision of the matters listed in this definition and the collection of all rents and service charges (including the Rent, the Service Charge Estimate and the Service Charge Balance) due from the Tenant and the other occupiers of the Building (or where any of those tasks is carried out |
by the Landlord a reasonable charge of the Landlord for that task), but not any such costs arising by reason of those rents or service charges being in arrears; | |||
(z) | preparing the Certificate (whether by the Landlord or the Landlords Surveyor or its accountants); and | ||
(aa) | any other works, services or facilities which the Landlord from time to time reasonably considers desirable for the purpose of maintaining, improving or modernising the services or facilities in or for the Building, and which are for the general benefit of all, or substantially all, of the occupiers of the Building and are in accordance with the principles of good estate management, but excluding any cost which the Landlord recovers under any other clause, or from any insurance taken out by the Landlord, where the Tenant is obliged to refund the Landlord the whole or any part of the premium; |
means: |
(a) | cleaning, maintaining, decorating, lighting, treating and repairing the Common Parts; | ||
(b) | lighting the internal areas of the Common Parts; | ||
(c) | cleaning the outside of the windows of the Building; | ||
(d) | heating and providing air conditioning for the internal areas of the Common Parts between such hours and at such times of the year as the Landlord in its discretion, considers appropriate; | ||
(e) | furnishing and carpeting the internal areas of the Common Parts; | ||
(f) | providing hot and cold water, towels and other supplies in the lavatories on the Common Parts; | ||
(g) | providing and replacing refuse containers for occupiers of the Building and arranging for the collection of refuse; and | ||
(h) | any of the other items referred to in the definition of Landlords Expenses which the Landlord in its discretion, and from time to time, provides for the management or maintenance of the Building. |
10.2 | Landlords obligations | |
10.2.1 | The Landlord shall provide the Services in a manner which the Landlord reasonably considers appropriate. | |
10.2.2 | The Landlord will have no liability for any failure or interruption of any Service: |
(a) | while the Tenant is in arrears with payment of the Rent or other sums due under |
this Lease; | |||
(b) | during the proper inspection, maintenance, repair or replacement of any relevant Service Media or equipment; | ||
(c) | resulting from a shortage of fuel, water, materials or labour; | ||
(d) | resulting from a breakdown of any equipment used in connection with the provision of the Services; or | ||
(e) | resulting from any act or omission of any employee, contractor or agent of the Landlord, or for any other reason beyond the reasonable control of the Landlord. |
10.2.3 | In the circumstances mentioned in clauses 10.2.2(b), 10.2.2(c), 10.2.2{d) and 10.2.2(e), the Landlord shall restore the relevant Service as soon as is reasonably practicable. | |
10.2.4 | The Landlord shall produce the Certificate to the Tenant as soon as practicable after the end of the Service Charge Year. | |
10.2.5 | The Landlord shall, but at the cost of the Tenant, allow the Tenant to inspect any invoices and receipts for the Services as long as the Tenant has given the Landlord reasonable written notice. | |
10.2.6 | If any Lettable Unit is unlet for any period, the Landlord shall bear a fair proportion of the Landlords Expenses in respect of that Lettable Unit. | |
10.3 | Tenants obligations | |
10.3.1 | The Tenant shall pay the Service Charge Estimate, and any VAT on it and the Service Charge Balance, and any VAT on it as provided in clause 7. | |
10.3.2 | If the date of this deed does not coincide with the beginning of a Service Charge Year, the Service Charge due from the Tenant for the part of that Service Charge Year which is Within the Term will be reduced by the proportion which the part of that Service Charge Year which is before the beginning of the Term beats to one year, and the Service Charge Estimate for that part of that Service Charge Year will be adjusted accordingly. | |
10.3.3 | If the end of the Term does not coincide with the end of a Service Charge Year, the Service Charge due from the Tenant for the part of that Service Charge Year which is within the Term Will be reduced by the proportion which the part of that Service Charge Year which is after the end of the Term bears to one year. | |
10.3.4 | The end of the Term shall not prejudice the Landlords entitlement to demand nor the Tenants liability to pay the Service Charge Balance for the Service Charge Year then current, apportioned in accordance With clause 10.3.3. | |
10.4 | Estimating and revising the Service Charge | |
10.4.1 | The Landlord shall give the Tenant a statement of the Service Charge Estimate for each Service Charge Year. Until the statement has been given, the Service Charge Estimate |
means, in respect of each relevant Service Charge Year the figure given in the Index for the last month of that Service Charge Year; |
means the Retail Prices Index (All Items) published by the Office for National Statistics or any successor government ministry, department or agency; |
means, in respect of each relevant Service Charge Year, the figure given in the Index for the month immediately preceding the beginning of that Service Charge Year. |
10.5.2 | The Service Charge Cap for each Service Charge Year, other than that current at the date of this deed, will be calculated by the following formula: | |
N=E x C/P | ||
Where: |
N (the new Service Charge Cap) is the Service Charge Cap for the relevant Service Charge Year; | |||
E (the existing Service Charge Cap) is the Service Charge Cap for the previous Service Charge Year; | |||
C is the Current Index Figure; | |||
P is the Previous Index Figure. |
10.5.3 | If the Index is re-based at any time or times during the Term, the Current Index Figure and the Previous Index Figure will be the figures that would have been given in the Index for the relevant month had there been no re-basing of the Index. | |
10.5.4 | If the Index ceases to be published, the Landlord shall, for the purposes of changes to the Service Charge Cap for Service Charge Years the date the Index ceases to be published, select a replacement index, being a prices index published by the Office for National Statistics or any successor government ministry, department or agency, to be the Index |
for the purposes of this clause. The Landlord shall act reasonably in making its selection
of a replacement index.
10.5.5
If it becomes impossible or impractical to calculate the Service Charge Cap by reference
to the Index (as rebased and/or replaced as mentioned above), then the basis for
calculating the Service Charge Cap for the remaining Service Charge Years will be
determined under the Arbitration Act 1996 by a single arbitrator who shall set the new
basis for calculating the Service Charge Cap, which new basis must be a fair and
reasonable basis having regard to the intent of this clause.
10.6
General provisions
10.6.1
In the absence of manifest error, the Certificate will be conclusive as to the amount of the
Service Charge.
10.6.2
The Landlord shall notify the Tenant in writing of any change in the date of the beginning
of the Service Charge Year.
10.6.3
If the Service Charge for any Service Charge Year is less than the Service Charge
Estimate (as and if revised), the balance will be credited against the installments of the
Service Charge Estimate due from the Tenant in the following Service Charge Year, or, at
the end of the Term, set off against any sums due from the Tenant to the Landlord with
any balance being repaid to the Tenant.
10.6.4
The Landlords Expenses for the Service Charge Year in which the beginning of the Term
falls may include costs incurred by or provided for or -on behalf of the Landlord before the
beginning of the Term so far as they relate to Services which are to be provided during the
Term. The Landlords Expenses in any Service Charge Year may include provisions for
expenses to be made after the end of the Term so far as such provisions are reasonable
having regard to the Services which are provided during the Term.
11.
STATE AND CONDITION OF THE PREMISES
11.1
Repair
11.1.1
The Tenant shall repair the Premises and keep them in good and substantial repair and
condition.
11.1.2
The Tenant shall replace any fixtures, fittings, plant or machinery (other than tenants
fixtures and fittings) within or forming part of the Premises which are in need of
replacement with new articles of similar kind and quality.
11.1.3
The Tenant shall regularly clean the inside of the windows at the Premises and replace
any plate glass which becomes broken or damaged.
11.1.4
The Tenant shall not be liable under clause 11.1 to the extent that the Landlord is obliged
to carry out the relevant repair works under clause 9.2 or to the extent that the Landlord is
prevented from carrying them out by reason of the matters referred to in clause g.2.2 or to
the extent that the disrepair is caused by an Excluded Risk unless the disrepair is caused
by the deliberate act or omission of the Tenant.
11.2
Alterations
11.2.1
The Tenant shall not make any alterations or additions to the Premises except as
Permitted by clause 11.2.
11.2.2
The Tenant shall not make internal structural alterations to the Premises.
11.2.3
The Tenant shall not make internal non-structural alterations or additions which will or
may affect any of the Service Media or any plant or machinery (or any other services or
systems) at the Premises or the Building without the consent of the Landlord, such
[omitted] reasonably withheld or delayed.
11.2.4
The Tenant shall not make other internal, non-structural alterations without the consent of
the Landlord, unless the Tenant shall have notified the Landlord of its intention to carry out
any such works at least three weeks before it intends to begin the works and shall have
demonstrated td the Landlords reasonable satisfaction that they do not affect any of the
Service Media. In relation to any such works which the Tenant affects, it shall carry them
out:
(a)
and complete them in a good and workmanlike manner, with new and good quality
materials fit for the purpose for which they are required and so as to be free from
defects and without using or permitting the use of any material or substance which,
at the time of use, does not conform to all relevant British and European standards
and codes of practice or which is generally known to the United Kingdom building
industry at the time of use to be deleterious to health and safety or to the durability
of the works in the particular circumstances in which it is used;
(b)
in accordance in all respects with all relevant legislation and the terms of any
consents which are required for the works;
(c)
in a manner so as to cause as little inconvenience and annoyance as reasonably
possible to the Landlord, any superior landlord and the other occupiers of the
Building;
(d)
so as not to result in the Premises, or any other part of the Building becoming
unsafe; and
(e)
at its sale risk,
and the Tenant shall make good to the Landlords satisfaction any damage arising out of,
or incidental to, the carrying out or completion of the works and shall provide the Landlord
with a set of as-built drawings as soon as reasonably practicable after completion of the
alterations or additions.
11.2.5
Subject to clause 11.4 the Tenant shall if reasonably required by the Landlord on
reasonable notice before the end of the Term remove any alterations or additions made to
the Premises (and make good any damage caused by that removal to the reasonable
satisfaction of the Landlord).
11.3 | Signs and reletting notices | |
11.3.1 | The Tenant shall not display any signs or notices at the Premises save in accordance with clause 4.1.6 of this Lease, and at the end of the Term the Tenant shall remove any such signs and make good any damage caused by that removal to the reasonable satisfaction of the Landlord. | |
11.3.2 | The Tenant shall permit the Landlord to place a sign on the Premises at any time advertising the sale of the Landlords interest (or any superior interest) in the Premises and during the last six months of the Term for the reletting of the Premises. | |
11.4 | Yield up |
provision of fire-fighting equipment at the Premises and the reasonable requirements of the Landlord in relation to the security of the Building and of the Premises while they are vacant | ||
12.5 | Exclusion of warranty | |
The Landlord does not warrant or represent that the Premises may be used for the Permitted Use or for any other purpose. | ||
13. | DEALINGS | |
13.1 | General restrictions |
13.2 | Assignments | |
13.2.1 | The Tenant shall not assign or agree to assign any part (as opposed to the whole) of this Lease. The Tenant shall not assign the whole of this Lease without the consent of the Landlord, such consent not to be unreasonably withheld or delayed. | |
13.2.2 | The Landlord and the Tenant agree that for the purposes of section 19(1A) of the Landlord and Tenant Act 1927 the Landlord may refuse its consent to an assignment if the proposed assignee is in the same Group as the assignor and in the reasonable opinion of the Landlord the financial standing of the proposed assignee (when assessed together with any proposed guarantor for the proposed assignee) is lower than the financial standing of the assignor (when assessed together with any guarantor of the assignor). | |
13.2.3 | The Landlord and the Tenant agree that for the purposes of section 19(1A) of the Landlord and Tenant Act 1927 if: |
(a) | in the reasonable opinion of the Landlord the financial standing of the assignee (when assessed together with any guarantor for the assignee) is lower than the financial standing of the assignor (when assessed together with any guarantor of the assignor), or | ||
(b) | the assignee is incorporated or resident outside the United Kingdom, |
the Landlord may give its consent to an assignment subject to a condition that the Tenant enters into an authorised guarantee agreement no later than the date of the instrument of the assignment, which agreement is to be by deed, is to provide for a guarantee of all the obligations of the assignee under this Lease from the date of the instrument of the assignment until the assignee is released by virtue of the Landlord and Tenant (Covenants) Act 1995, and which provides for all the matters permitted by section 16(5) of that Act and which is otherwise in accordance with section 16 of that Act and in a form reasonably required by the Landlord. | ||
13.2.4 | Clauses 13.2.2 and 13.2.3 do not limit the right of the Landlord to refuse consent to an assignment on any other reasonable ground or to impose any other reasonable condition |
to its consent.
13.3
Underlettings
13.3.1
The Tenant shall not underlet or agree to underlet any part of the Premises (as opposed
to the whole).
13.3.2
The Tenant shall not underlet the whole of the Premises, except in accordance with the
remainder of clause 13.3 and with clause 13.4 and then only with the consent of the
Landlord, such consent not to be unreasonably withheld or delayed.
13.3.3
The Tenant shall not underlet the Premises without first obtaining from the undertenant a
covenant by the undertenant with the Landlord to comply with the obligations on the
undertenant in the underlease (and any document which is supplemental or collateral to
the underlease) throughout the term of the underlease or until the undertenant is released
by virtue of the Landlord and Tenant (Covenants) Act 1995, if sooner.
13.3.4
Any underlease shall be granted at a rent which is not less than the then full open market
rental value of the Premises (but this will not prevent an underlease providing for a rentfree
period of a length as is then usual in the open market in respect of such a letting),
and without a fine or premium and with the underlease rent payable not more than one
quarter in advance.
13.3.5
The Tenant shall not grant an underlease unless:
(a)
before the earlier of the undertenant entering into the underlease and the
undertenant becoming contractually bound to do so, the Tenant has served a notice
on the undertenant and the undertenant (or a person duly authorised by the
undertenant) has made a statutory declaration, such notice and statutory
declaration to relate to the tenancy to be created by the underlease and to comply
with section 38A of the Landlord and Tenant Act 1954 and the relevant schedules
of the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003;
and
(b)
the Tenant has supplied the Landlord with a certified copy of the notice and
statutory declaration referred to in clause 14.3.5(a).
13.3.6
The Tenant shall not grant any underlease for a term which will expire by effluxion of time
later than three clear days before the date the contractual term granted by this deed will
expire by effluxion of time.
13.3.7
The Tenant shall not enter into any collateral deed nor give any side letter varying or
relieving the undertenant from any terms required by clause 13.3 or 13.4 to be contained
in the underlease.
13.4
Terms to be contained in any underlease
Any underlease shall contain the following terms:
13.4.1
an obligation on the undertenant not to deal with or dispose of its interest in the
underlease (including by way of declaration of trust) or part with or share possession of
the whole or part of that interest or permit any other person to occupy the Premises
except by way of an assignment or charge of the whole of its interest in the Premises,
which may only be made with the Landlords consent, such consent not to be
unreasonably withheld or delayed, or as permitted by clause 13.8;
13.4.2
agreements between the Tenant and the undertenant in the same terms as clauses
13.2.2 and 13.2.3 and a further agreement between the Tenant and the undertenant
expressed to be for the purposes of section 19(1A) of the Landlord and Tenant Act 1927
that the Tenant may give its consent to an assignment of the underlease subject to a
condition that the assignee of the underlease enters into a covenant with the Landlord
with effect from the date of the instrument of the assignment of the underlease in the
terms of the covenant required by clause 13.3.3;
13.4.3
a statement in the terms of clause 13.2.5;
13.4.4
if this Lease requires the consent or approval of the Landlord for any matter and that
matter is permitted by the underlease, a provision requiring the consent or approval of the
Landlord for that matter;
13.4.5
if this Lease requires the consent or approval of the Landlord, such consent not to be
unreasonably withheld or delayed for any matter and that matter is permitted by the
underlease, a provision requiring the consent or approval of the Landlord for that matter,
such consent not to be unreasonably withheld or delayed,
13.4.6
a statement by the Tenant and the undertenant referring to the notice and statutory
declaration mentioned in clause 13.3.5, and where the statutory declaration was made by
a person other than the undertenant, a statement by the undertenant confirming that such
person was duly authorised by the undertenant to make the statutory declaration and an
agreement between the Tenant and the undertenant that the provisions of sections 24 to
28 of the Landlord and Tenant Act 1954 shall be excluded in relation to the tenancy
and shall otherwise be on terms which are consistent with the Tenant being able to observe
and perform its obligations in this Lease.
13.5
Further provisions relating to underleases
13.5.1
The Tenant shall enforce the obligations of the undertenant in any underlease and
exercise its rights under the agreements made between it and the undertenant for the
purposes of section 19(1 A) of the Landlord and Tenant Act 1927.
13.5.2
The Tenant shall not vary the terms of. nor. without the consent of the Landlord. such
consent not to be unreasonably withheld. accept or agree to accept a surrender of. nor
forfeit any underlease.
13.6
Charging
The Tenant shall not charge or agree to charge any part of the Premises (as opposed to the
whole) and shall not charge or agree to charge the whole of the Premises without the
consent of the Landlord. such consent not to be unreasonably withheld or delayed.
13.7
Declarations of trust
The Tenant shall not make any declaration of trust of the whole or any part of its interest in
the Premises or this Lease.
13.8
Group sharing of occupation
Nothing in clause 13 will prevent the Tenant or any permitted undertenant from sharing
occupation of the Premises with another member of the same Group if and so long as that
other member remains a member of that Group and no relationship of landlord and tenant
subsists between the Tenant or permitted undertenant and that other member. The Tenant
shall keep the Landlord informed of the identity of all occupiers and of the basis of their
occupation of the Premises.
13.9
Registration of dealings
Within one month of any dealing with. or devolution of. the Premises or this Lease or of any
interest created out of them or it. the Tenant shall give the Landlord written notice of that
dealing or devolution together with a certified copy of any document effecting or evidencing
the dealing or devolution (and a certified copy for any superior landlord) and shall pay the
Landlord a reasonable registration fee of not less than seventy five pounds (£75)
13.10
Registration at the Land Registry
13.10.1
If this Lease and/or the rights granted or reserved by this Lease are or should be
registered at the Land Registry under the Land Registration Act 2002 then the Tenant
shall:
(a)
register this Lease and any assignment or other registrable disposition of this Lease
at the Land Registry within one month of the date of the grant of this Lease or the
date of the instrument of assignment or other disposition requiring registration (as
the case may be);
(b)
use its best endeavours to procure that all rights granted or reserved by this Lease
are properly noted against the affected titles; and
(c)
within five Working Days of the registration of the grant, assignment, other
registrable disposition of this Lease or notice against the affected titles (as the case
may be) deliver to the Landlord official copies of the registered title.
13.10.2
The Landlord shall not be liable to the Tenant for the Tenants failure to register and/or
to protect this Lease or any rights granted by it.
14.
LEGAL REQUIREMENTS AND REGULATIONS
14.1
Legislation and planning
The Tenant shall:
14.1.1
comply with all legislation affecting the Premises, their use and occupation and the health
and safety of persons working at or visiting the Premises, whether the legislation requires
the owner, landlord, tenant or occupier to comply;
14.1.2
give the Landlord written notice of any defect in the Premises which may make the
Landlord liable to do, or not to do, any act to comply with the duty of care imposed by the
Defective Premises Act 1972, and shall display any notices at the Premises needed to
enable the Landlord to comply with the Defective Premises Act 1972;
14.1.3
not apply for planning permission without the consent of the Landlord, and shall pay any
charge imposed under legislation relating to town and country planning in respect of the
use of the Premises, or any works carried out at the Premises; and
14.1.4
at the end of the Term pay the Landlord a fair proportion of any compensation which the
Tenant has received or which is receivable by the Tenant because of any restriction
placed on the use of the Premises under any legislation.
14.2
Notices relating to the Premises
14.2.1
The Tenant shall give the Landlord a copy of any notice received by the Tenant, relating to
the Premises or the Building or any occupier of them, or to the Landlords interest in them,
upon having received it and take any steps which the Landlord may require in connection
with such notice.
14.2.2
The Tenant shall not give any notice or counter-notice under the Party Wall etc. Act 1996
without the consent of the Landlord.
14.3
The Construction (Design and Management) Regulations 2007
14.3.1
In this clause Regulations means the Construction (Design and Management)
Regulations 2007 and File means the Health and Safety file required by the Regulations
for any project (within the meaning of the Regulations) carried out by or on behalf of the
Tenant or any undertenant or other occupier of the Premises.
14.3.2
In respect of any works carried out by or on behalf of the Tenant or any undertenant or
other occupier of the Premises (including any works of reinstatement which may be
carried out after the end of the Term) to which the Regulations apply:
(a)
the Tenant shall comply in all respects with the Regulations and procure that any
person (other than the Landlord) who otherwise has any duty under the
Regulations, complies with the Regulations;
(b)
the Tenant shall pay the Landlord on demand its reasonable costs and expenses
(and any VAT in relation to them) for providing any information or documents which
the Landlord may supply to any person in connection with such works; and
(c)
if and to the extent that the Landlord is a client for the purposes of the Regulations,
the Tenant shall elect in writing (or the Tenant shall procure that the undertenant or
other occupier of the Premises (as the case may be) elects in writing), for the
purpose of the Regulations, to be the only client in relation to such works, and the
Tenant shall not begin (or shall procure that the undertenant or other occupier (as
the case may be) does not begin) to carry out such works until the Landlord has
consented to that election.
14.3.3
The Tenant shall:
(a)
compile, maintain and make the File available to the Landlord for inspection at all
times;
(b)
on request provide copies of the whole or any part of the File to the Landlord; and
(c)
hand the File to the Landlord at the end of the Term.
14.3.4
The Tenant shall obtain all copyright licences which are needed for the Tenant to comply
lawfully with clause 14.3.
14.3.5
The copyright licences obtained by the Tenant shall:
(a)
be granted with full title guarantee;
(b)
allow the Landlord and any superior landlord and anyone deriving title through or
under them to take further copies of the File or any part of it;
(c)
be obtained without cost to any such person;
(d)
allow any such person to grant sub-licences on similar terms; and
(e)
be irrevocable.
14.4
Regulations
The Tenant shall comply with any regulations concerning the Common Parts reasonably
made by the Landlord from time to time.
15.
LANDLORDS COVENANT FOR QUIET ENJOYMENT
The Landlord agrees with the Tenant that for so long as the Tenant complies with the terms of
this Lease the Tenant may hold and use the Premises during the Term without any interruption
(except as authorised by this Lease) by the Landlord or by any person lawfully claiming
through, under or in trust for the Landlord.
16.
LIMIT ON LANDLORDS LIABILITY
To the extent that the obligations on the Landlord contained or implied in this Lease relate
to any
time after a person has parted with the whole of its interest in the reversion immediately
expectant on the end of the Term, they shall not be binding on or enforceable against that
person after that person has parted with the whole of that interest.
17.
FORFEITURE
17.1
Landlords right of re-entry
If any event set out in clause 17.2 occurs, the Landlord may forfeit this Lease and re-enter
the Premises (or any part of them in the name of the whole). The Term will then end, but this
will be without prejudice to any claim which the Landlord may have against the Tenant or a
Guarantor for any failure to comply with the terms of this Lease.
17.2
Events giving rise to the Landlords right of re-entry
17.2.1
The Rent or any other sum payable under this Lease has not been paid 15 Working Days
after it became due, whether formally demanded or not.
17.2.2
The Tenant or any Guarantor has failed to comply with any of the terms of this Lease.
17.2.3
The Tenant or any Guarantor who is an individual (or if more than one individual then any
one of them):
(a)
is unable to pay, or has no reasonable prospect of being able to pay, its debts
within the meaning of section 268 of the Insolvency Act 1986;
(b)
is the subject of an application for an interim order under the Insolvency Act 1986,
or it enters into, or commences negotiations in respect of, or calls or convenes any
meeting for the approval of any composition, compromise, moratorium, scheme or
other similar arrangement with its creditors or any of them, whether under the
Insolvency Act 1986 or otherwise;
(c)
requests or suffers the appointment of a Law of Property Act 1925, court appointed
or other receiver or receiver and manager or Similar officer over or in relation to the
whole or any part of its undertaking, property, revenue or assets, or any person
holding security over the whole or any part of its undertaking, property, revenue or
assets takes possession of all or any part of them, or it requests that such a person
does so;
(d)
is the subject of a bankruptcy petition, or an interim receiver of its property is
appointed, or a bankruptcy order is made against it;
(e)
has a receiver appointed for it under the Mental Health Act 1983 or the court makes
any declaration or order under the Mental Capacity Act 2005 in relation to the
Tenants or Guarantors property or affairs or appoints any deputy to make decision
on the Tenants or Guarantors behalf in relation to its property and affairs;
(f)
has any distress, execution, sequestration or other process levied or forced upon or
against its undertaking, chattels, property or any of its assets; or
(g)
is, or becomes, subject to, or takes or has taken against it or in relation to it or the
whole or any part of its undertaking, property, revenue or assets, any finding, step,
process or proceeding in any jurisdiction other than England and Wales which is
equivalent, analogous, corresponding or similar to any of the findings, steps,
processes or proceedings mentioned in clauses 17.2.3(a)-17.2.3(f), and whether or
not any such finding, step, process or proceeding has been taken in England and
Wales.
17.2.4
The Tenant or any Guarantor which is a company (or if more than one company then any
one of them):
(a)
is unable to pay, or has no reasonable prospect of being able to pay, its debts
within the meaning of section 123 or sections 222 to 224 of the Insolvency Act 1986 (but disregarding references in those sections to proving it to the courts satisfaction); | |||
(b) | resolves or its directors resolve to enter into, or it enters into, or it or its directors commence negotiations or make any application to court in respect of, or call or convene any meeting for the approval of any composition, compromise, moratorium (including a moratorium statutorily obtained, whether as a precursor to a voluntary arrangement under the Insolvency Act 1986 or otherwise, or a moratorium informally obtained), scheme or other similar arrangement with its creditors or any of them, whether under the Insolvency Act 1986, the Companies Act 1985 or otherwise; | ||
(c) | resolves, or its directors resolve, to appoint an administrator of it, or to petition or apply to court for an administration order in respect of it, or a petition or an application for an administration order is made in respect of it, or an administration order is made in respect of it, or any step under the Insolvency Act 1986 is taken to appoint an administrator of it out of court, or it enters administration; | ||
(d) | requests or suffers the appointment of a Law of Property Act 1925, court appointed or other receiver or receiver and manager, or similar officer over or in relation to the whole or any part of its undertaking, property, revenue or assets, or any person holding security over all or any part of its undertaking, property, revenue or assets takes possession of all or any part of them or requests that such a person does so; | ||
(e) | resolves or its directors resolve to wind it up, whether as a voluntary liquidation or a compulsory liquidation, or its directors take any step under the Insolvency Act 1986 to wind it up voluntarily or to petition the court for a winding-up order, or a winding-up petition is presented against it, or a provisional liquidator is appointed to it, or it goes into liquidation within the meaning of section 247 of the Insolvency Act 1986; | ||
(f) | is dissolved, or is removed from the Register of Companies, or ceases to exist (whether or not being capable of reinstatement or reconstitution) or threatens to cease to exist, or its directors apply for it to be struck off the Register of Companies; | ||
(g) | has any distress, execution, sequestration or other process levied or forced upon or against its undertaking, chattels, property or any of its assets; or | ||
(h) | is, or becomes, subject to, or takes or has taken against it or in relation to it or the whole or any part of its undertaking, property, revenue or assets, any finding, step, process or proceeding in any jurisdiction other than England and Wales which is equivalent, analogous, corresponding or similar to any of the findings, steps, processes or proceedings mentioned in clauses 17.2.4(a)-17.2.4(g), and whether or not any such finding, step, process or proceeding has been taken in England and Wales. |
17.2.5 | The Tenant or any Guarantor ceases or threatens to cease to carry on any business, or |
makes or permits or threatens to make or permit any material change in the nature of its
business, or suspends or threatens to suspend payment of its debts.
17.3
Interpretation
17.3.1
In clause 17 company includes:
(a)
a company as defined in section 735 of the Companies Act 1985;
(b)
a body corporate or corporation within the meaning of section 740 of the
Companies Act 1985;
(c)
an unregistered company or association;
(d)
any company or legal person in relation to which insolvency proceedings may be
opened pursuant to Article 3 of the EC Regulation on Insolvency Proceedings 2000
(No 1346/2000);
(e)
a partnership within the meaning of the Partnership Act 1890;
(f)
a limited partnership registered under the Limited Partnerships Act 1907;
(g)
a limited liability partnership incorporated under the Limited Liability Partnerships
Act 2000, and the Registrar of Companies includes the keeper of any register of any of the legal
persons mentioned above.
17.3.2
In relation to a Tenant or Guarantor that is a partnership within the meaning of the
Partnership Act 1890 or a limited partnership registered under the Limited Partnerships
Act 1907, the provisions of clause 17.2.4 will, except where the context otherwise
requires, apply mutatis mutandis to the Tenant or Guarantor (as the case may be)
incorporating, where relevant, the modifications mentioned in the Insolvent Partnerships
Order 1994 and the Insolvent Partnerships (Amendment) Order 2005.
17.3.3
In relation to a Tenant or Guarantor that is a limited liability partnership incorporated under
the Limited Liability Partnerships Act 2000, the provisions of clause 17.2.4 will, except
where the context otherwise requires, apply mutatis mutandis to the Tenant or Guarantor
(as the case may be) incorporating, where relevant, the modifications mentioned in the
Limited Liability Partnerships Regulations 2001.
18.
MISCELLANEOUS
18.1
Notices
18.1.1
Where a notice is to be given in connection with this Lease, it must be given in writing and
signed by or on behalf of the party giving it, unless it is stated that it need not be given
in writing.
18.1.2
Any notice to be given in connection with this Lease will be validly served if sent by first
class post, or registered postal service or recorded delivery and addressed to or
personally delivered to: |
(a) | the Landlord at the address given in this deed or such other address which the Landlord has notified to the Tenant in writing; | ||
(b) | the Tenant at the Premises or its registered office or its last known address; and | ||
(c) | a Guarantor at the Premises or its registered office or its last known address. |
18.1.3 | Any notice or demand sent by post from within the United Kingdom and properly stamped and correctly addressed will be conclusively treated as having been delivered two Working Days after posting. | |
18.1.4 | The Tenant shall give the Landlord oral notice (as well as written notice) of any matter affecting the Premises where emergency action is needed. | |
18.2 | Landlords rights to remedy default by the Tenant | |
If the Tenant fails to comply with any of its obligations in this Lease, the Landlord may give the Tenant written notice of that failure, and the Tenant shall remedy the failure within the time reasonably specified by the Landlord (or immediately in the case of an emergency). If the Tenant fails to do this the Landlord may enter the Premises and carry out any works or do anything else which may be needed to remedy the Tenants failure to comply with its obligations under this Lease, and any costs incurred by the Landlord will be a debt due from the Tenant payable on demand and may be recovered by the Landlord as if it were additional rent. | ||
18.3 | Superior interests | |
If at any time this Lease is an underlease, the Tenant shall comply with the terms of any superior lease to the extent that they relate to the. Premises, other than any obligation to pay any rent, and the Landlord shall pay any rent due under the immediate superior lease. | ||
18.4 | No right to enforce |
18.5 | Tenant to provide information | |
The Tenant shall give the Landlord any information or documents which the Landlord reasonably requests to show that the Tenant is complying with its obligations in this Lease and shall give the Landlord immediate written notice of any matter in connection with the Premises which may make the Landlord liable to the Tenant or any third party. | ||
18.6 | Tenants indemnity | |
The Tenant agrees to indemnify the Landlord at all times (both during and after the Term) against all charges, claims, proceedings, liabilities, damages, losses, costs and expenses arising directly or indirectly from the existence, state of repair or use of the Premises or any |
works carried out at the Premises or any breach of any of the Tenants obligations in this
Lease, or any act or omission of the Tenant subject to the Landlord not settling any claim or
taking any step or action in any proceedings without the Tenants consent (not to be
unreasonably withheld or delayed).
18.7
Guarantor to enter into supplemental documents
The Tenant shall procure that a Guarantor enters into and executes and delivers to the
Landlord any deed or document which is supplemental to this deed and which is entered into
before that Guarantor is released by virtue of the Landlord and Tenant (Covenants) Act 1995.
18.8
Replacement Guarantor
18.8.1
In clause 18.8 a Guarantor Replacement Event is the death of a Guarantor or the
occurrence of any of the events referred to in clause 17.2.3,17.2.4, or 17.2.5 in relation to
a Guarantor, or where a Guarantor comprises more than one person, the death of any
one of them or the occurrence of any of those events in relation to any one of them.
18.8.2
If at any time during the Term a Guarantor Replacement Event occurs, the Tenant shall
give immediate written notice of it to the Landlord. The Landlord may after a Guarantor
Replacement Event (and whether or not it has received notice of it from the Tenant) give
written notice to the Tenant requiring the Tenant to procure a replacement or additional
guarantor. Within one month of the Landlord giving such notice to the Tenant, the Tenant
shall procure that a person of standing acceptable to the Landlord enters into and
executes and delivers to the Landlord a replacement or additional guarantee and
indemnity in the same form as that entered into by the Guarantor in respect of which the
Guarantor Replacement Event has occurred.
18.8.3
Clause 18.8 does not apply in relation to a Guarantor ho is a Guarantor by reason of
having entered into an authorised guarantee agreement.
18.9
Qualification of Landlords liability
The Landlord shall not be liable to the Tenant or any other person for:
18.9.1
any damage to person or property arising from any act, omission or misfeasance by the
Landlord or its employees, agents or independent contractors or by any other tenant or
occupier of the Building or from the state and condition of the Premises or of any other
part of the Building or any adjoining property of the Landlord;
18.9.2
any interruption to the supply of Utilities to the Premises or other parts of the Building;
18.9.3
any accidental damage to the Premises or to any property of the Tenant or any other
occupier of the Premises or their employees, agents or independent contractors; or
18.9.4
for any failure to perform any obligation in this Lease, unless the Tenant has given the
Landlord written notice of the facts giving rise to that failure and allowed the Landlord a
reasonable time to remedy the matter.
18.10
Removal of goods after end of Term
Order was made by , whom the Tenant confirms was duly authorized by the Tenant Act 1954 shall be excluded in relation to the tenancy created by this deed. |
Signed as a deed by
|
||
GAINS CAPITAL FOREX.COM UK LIMITED
|
[illegible] | |
acting by a director and its secretary or by two
|
Director | |
directors
|
[illegible] | |
|
Secretary/Director |
Questrade, Inc, | GAIN Capital Group, LLC | |||||||||
|
||||||||||
By:
|
/s/ Edward Kholodenko | By: | /s/ Tom Levine | |||||||
Print Name: Edward Kholodenko | Name: Tom Levine | |||||||||
Title: President & CEO | Title: Director | |||||||||
Date: 7/23/07 | Date: 7/2307 |
Questrade, Inc, | GAIN Capital Group, LLC | |||||||||
|
||||||||||
By:
|
/s/ Edward Kholodenko | By: | /s/ Tom Levine | |||||||
Print Name: Edward Kholodenko | Name: Tom Levine | |||||||||
Title: President & CEO | Title: Director | |||||||||
Date: 10/12/07 | Date: 10/10/07 |
A. | Questrade is a registered investment dealer with the Investment Dealers Association of Canada (IDA); | |
B. | Questrade provides Canadian clients with online trading, foreign currency and brokerage services utilizing a trading application (the Trading Application), which enables its customers to place securities orders for execution by or through Questrade ; | |
C. | Gain is a registered Futures Commissions Merchant and member of the National Futures Association (NFA). Gain is regulated by the Commodity Futures Trading Commission (CFTC); | |
D. | Gain operates a proprietary software trading application which provides clients with foreign exchange services (Trading Software); and | |
E. | Gain and Questrade desire to provide to Questrade clients exclusive access to the Trading Software; |
(a) | Agreement means this Agreement, and any schedules and attachments hereto; | |
(b) | Clients means all Trading Software users who reside in Canada and who have executed account agreements with Questrade to access and use Questrades trading and brokerage services, as well as any other accounts that belong to Questrade.; | |
(c) | Confidential Information means technical data, trade secrets, know-how, research, product plans, ideas or concepts, products, services, software, inventions, patent applications, techniques, processes, developments, algorithms, formulas, technology, designs, schematics, drawings, engineering, and hardware configuration information, business or financial plans or strategies, including but not limited to customers, customer lists, markets, financial statements and projections, product pricing and marketing, financial or other strategic business plans or information disclosed by one Party (Disclosing Party) to the other Party (Receiving Party). For greater certainty, Confidential Information includes (i) Trading Technology, (ii) the Users Manuals, (iii) all prior versions of the Trading Software and the Users Manuals. Confidential Information does not include any of the foregoing items which (i) at the time of its disclosure is publicly available through no fault of the Receiving Party; (ii) after disclosure hereunder, is released to the public without restriction or otherwise becomes part of the public domain through no fault of Receiving Party (but only after it is released or otherwise becomes part of the public domain); (iii) Receiving Party can demonstrate was in its possession at the time of disclosure and which was not acquired by such Party under any obligation of confidence; or (iv) Receiving Party can demonstrate was independently developed by such Party without any use of the Confidential Information. | |
(d) | Order means any executed request by a Client to purchase or sell a security placed through the Trading |
Application, without regard to the manner in which Questrade may seek to execute an Order. | ||
(e) | Product means the Trading Software and any and all user manuals, developments and improvements made thereto, whether those improvements are made or initiated by Gain and extending to any use to which the Product, the developments and improvements thereto may be applied and not limited to the industry for which originally intended; | |
(f) | Territory means Canada. |
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3.1 | Gain shall provide maintenance for the Trading Software during the term of this Agreement. | |
3.2 | Gain shall be responsible for providing instructions and technical support to Questrades Clients for installing and using the Trading Software to access the Product. | |
3.3 | Gain will provide Questrade with marketing and promotional materials so that Questrade can support the Product. | |
3.4 | Gain shall be responsible for facilitating the execution of orders submitted by Questrades Clients via the Trading Software. | |
3.5 | Gain shall use commercially reasonable efforts to (1) maintain the privacy of any Client information in the possession of or available to Gain and to (2) comply with any applicable Canadian laws and regulations relating to Client information privacy, including without limitation privacy of financial and personal information. | |
3.6 | Gain shall provide Questrades designated employees with sufficient training for demonstrating the Trading Software to enable Questrade to fulfill its obligations under this Agreement. | |
3.7 | Gain shall make and maintain complete, clear and accurate records of all actions that it is required to take in connection with this Agreement. Upon reasonable request and upon 30 days notice, but not more that two times in anyone (1) year period, Questrade shall have the right to conduct a reasonable inspection of Gains books and records that pertain to this Agreement. |
3.7 | Questrade shall be solely responsible for the opening and management of any and all accounts of its Clients. |
(a) | Gain has all requisite power, authority and right to enter into and deliver this Agreement and to perform its obligations hereunder; | |
(b) | The consummation of the transactions contemplated hereby will not violate or conflict with any of the provisions of the constating documents or by-laws of Gain, any provision of any agreement or instrument to which Gain is a party or by which it is bound or any judgment, decree, order, law, statute, rule or regulation applicable to Gain; | |
(c) | Gain is a valid and subsisting corporation under the laws of the State of Delaware with all necessary power to own its property and carry on its business, is duly licensed and registered to carry on business in each of the jurisdictions in which it operates, and has made all necessary filings under all applicable corporate, securities or taxation laws or any other law to which Gain is made subject which, had such filings not been made, would have a material adverse effect on Gain or its business operations; |
3
(d) | This Agreement has been fully authorized, executed and delivered by Gain and all other documents executed and delivered hereunder in relation to the granting of the exclusive license by Gain shall have been duly authorized, executed and delivered and this Agreement does, and such other documents will, constitute legal, valid and binding obligations of Gain enforceable in accordance with their respective terms; | |
(e) | Gain has all rights, titles, licenses, permissions and approvals necessary to perform its obligations under this Agreement; | |
(f) | Gain has the right to grant this exclusive, non-transferable license to Questrade, for the Territory in accordance with this Agreement; | |
(g) | Gain is the owner of the Intellectual Property and that it has the sole right to grant this exclusive license; and it further warrants that it has granted no prior license and that there is no outstanding license granted by it covering the Product, the Intellectual Property or the Licensed Rights and that this exclusive license is granted free from all encumbrances, liens or actions of any nature whatsoever. |
a) | All orders for Questrades Clients accounts, shall be placed in conformity with all applicable laws and rules, regulations, interpretations and policies of the IDA and all appropriate Canadian regulatory authorities | |
b) | Questrade has all requisite power, authority and right to enter into and deliver this Agreement and to perform its obligations hereunder; | |
c) | The consummation of the transactions contemplated hereby will not violate or conflict with any of the provisions of the constating documents or by-laws of Questrade, any provision of any agreement or instrument to which Questrade is a party or by which it is bound or any judgment, decree, order, law, statute, rule or regulation applicable to Questrade; | |
d) | Questrade is a valid and subsisting corporation under the laws of the Province of Ontario with all necessary power to own its property and carry on its business, is duly licensed and registered to carry on business in each of the jurisdictions in which it operates, and has made all necessary filings under all applicable corporate, securities or taxation laws or any other law to which Questrade is made subject which, had such filings not been made, would have a material adverse effect on Questrade or its business operations; | |
e) | This Agreement has been fully authorized, executed and delivered by Questrade and all other documents executed and delivered hereunder in relation to the granting of the exclusive, indivisible, non-transferable license to Questrade shall have been duly authorized, executed and delivered and this Agreement does, and such other documents will, constitute legal, valid and binding obligations of Questrade enforceable in accordance with their respective terms; | |
f) | Questrade is not a non-resident of Canada within the meaning of the Income Tax Act (Canada) and is not a non-Canadian within the meaning of the Investment Canada Act; |
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GAIN
|
QUESTRADE | ||||||||||
Per:
|
/s/ Glenn Stevens | Per: | /s/ Edward Kholodenko | ||||||||
Glenn Stevens | Edward Kholodenko | ||||||||||
Managing Director | President & CEO |
8
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3
4
THE LICENSEE
|
THE LICENSOR | |
|
||
GAIN Capital Group, LLC
|
MetaQuotes Software Corp. |
5
550 Hills Drive
|
#28 Parliament Street, | |
Bedminster, NJ 07921
|
P.O. Box CB-12345, | |
U.S.A.
|
Nassau, Bahamas | |
|
||
Tel: 1.908.731.0750
|
Tel.: +7 843 5700037 | |
Fax: 1.908.731.0788
|
+ 357 25875 134
|
|
|
Fax: +7 843 5700037 ext. 105 | |
|
||
COO:
Chris Calhoun
|
Director: Renat Fatkhullin | |
/s/ Chris Calhoun
|
6
1. General company information
|
||
Company name
|
Gain Capital Group, LLC | |
Email address of the technical support unit
|
||
|
||
2. General client terminal information
|
||
Full mailing
address of the company (country, city, ZIP code, correct address)
|
550 Hills Drive Bedminster,
|
|
|
N.J. 07921 USA | |
Telephone/Fax (including the country code)
|
||
|
www.gaincapital.com; | |
Corporate website
|
www.forex.com | |
Full correct name of the terminal
|
Forex Trader. Meta | |
Abbreviated name of the terminal
|
Forex Trader. Meta | |
|
||
3. Technical administrator contact details
|
||
Full name
|
Andrew Haines | |
Email
|
ahaines@gaincapital.com | |
Telephone (including the country code)
|
908-212-3908 (US) | |
ICQ / MSN
|
||
|
||
4. Servers
|
||
IP addresses of trading servers (list, separated by commas)
|
TBD | |
Default SMTP server
|
TBD | |
|
||
5. Access accounts of MetaQuotes Support Center
|
||
Full name, email and login
|
Andrew Haines | |
|
Neil Wilkinson | |
Full name, email and login
|
nwilkinson@gaincapital.com | |
|
Ravi Srikantan | |
Full name, email and login
|
rsrikantan@gaincapital.com | |
Passwords will be generated and sent to the indicated emailing addresses.
|
||
|
||
6. Payment Coordinator
|
||
Full name
|
Dave Cromartie | |
Email
|
dcromartie@gaincapital.com | |
Telephone (including the country code)
|
908-212-3923 | |
ICQ / MSN
|
7
(1) | It has the requisite authority to enter into this Agreement. | ||
(2) | Research Provider represents and warrants that any copyrights, trademarks, service marks, trade names, logos or other commercial designations are owned by Research Provider free of encumbrances or claims of any kind, and Research Provider has right to grant SALES AGENT a license to use such items in accordance with the terms of this Agreement. | ||
(3) | Research Provider has all required governmental and regulatory approvals and licenses required to conduct the business contemplated by this Agreement, including any required registrations. |
(1) | It has the requisite authority to enter into this Agreement and to carry out the services as contemplated herein. | ||
(2) | It agrees to maintain the registrations and licenses necessary under |
2
applicable laws and regulations. |
3
TRADING CENTRAL | GAIN CAPITAL GROUP, LLC | |||||||||
|
||||||||||
By:
|
/s/ Alain Pellier | By: | /s/ Glenn Stevens | |||||||
|
|
|
||||||||
Name:
|
Alain Pellier | Name: | Glenn Stevens | |||||||
Title:
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CEO | Title: | CEO | |||||||
Date:
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9/October/2006 | Date: | 10/January/2007 |
New Subscriptions | Subscription Renewals | |
SALES AGENT ***/Trading Central ***
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SALES AGENT ***/Trading Central *** |
New Subscriptions | Subscription Renewals | |
SALES AGENT ***/Trading Central ***
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SALES AGENT ***/Trading Central *** |
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TRADING CENTRAL SA
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GAIN CAPITAL GROUP, LLC | ||||
By:
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/s/ Alain Pellier | By: | /s/ Christopher Calhoun | ||
Name: Alain Pellier
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Name: Christopher W. Calhoun | ||||
Title: CEO
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Title: Chief Operating Officer | ||||
Date: 20 December 2006
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Date: 10/11/07 |
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| *** |
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CONTACT NAME: KEN OBRIEN
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TELEPHONE NUMBER: +1.908.212.3930 | |
EMAIL:
kobrien@gaincapital.com
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FACSIMILE: +1.908.731.0701 |
TRADING CENTRAL
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YOUR SALES CONTACT
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SALES@TRADINGCENTRAL.COM | |
TELEPHONE (LONDON)
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+44 207 847 4042 | |
TELEPHONE (PARIS):
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+331 55288040 | |
FACSIMILE:
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+331 5528 8049 |
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From:
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GAIN CAPITAL GROUP (FOREX.COM) | |
Address:
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550 HILLS DRIVE, SUITE 210, BEDMINSTER, NJ 07921 USA | |
Contact name:
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KEN OBRIEN | |
Phone:
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+1.908.212.3930 | |
E-Mail:
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kobrien@gaincapital.com | |
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To:
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TRADING CENTRAL | |
Attn:
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JULIEN HEIDERSCHEID | |
Fax:
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1-646-349-2240 |
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- DEMO Services
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= Savings | *** | ||
Note: ***
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- BASIC Services
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= Additional charge | *** | ||
Note: ***
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C and D - FX PLUS and PREMIER Services
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= Additional charge | *** |
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TOTAL UPGRADE INVESTMENT
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= Additional charge | *** |
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| TOTAL FOREX RESEARCH INVESTMENT *** |
| Contract length: 2 Years | |
| Special offer valid until September 30 th 2007 |
DATE / NAME / TITLE | SIGNATURE | |||
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September 11 th 2007 | |||
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Kenneth W. OBrien | |||
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VP Strategic Alliances |
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A. | Broker wishes to introduce Brokers customers (Customers) on a fully-disclosed basis to GAIN, including Customers that may be referred to Broker by GAIN (as described later in this Agreement), for the purpose of enabling the Customers to enter into principal foreign exchange (forex) transactions with GAIN. | |
B. | The respective roles of GAIN and Broker with respect to forex accounts of Customers, generally speaking, shall be as follows. Brokers role is to acquire Customers, including Customers that may be referred to Broker by GAIN (as described later in this Agreement), for the forex services GAIN will provide, using whatever marketing, sales and account-opening methods, techniques, media and efforts that Broker, in its sole and absolute discretion, deems appropriate. Broker shall also provide customer and technical support services to the Customers, and otherwise own and maintain the customer relationship with Customers and all good will associated therewith (GAIN will, at no additional cost or expense to Broker, provide training and remote services directly to Broker to support these services as and when reasonably requested by Broker on a day to- day basis). GAIN will provide trade desk and technical support services to Brokers trade desk and client services personnel when they call with issues relating to orders, deals and other issues that may be raised by Customers with Broker on a daily basis. GAIN shall not deal directly with Customers. GAINs role is to act as a principal/counterparty in forex deals with Customers and to provide all order placement, execution, clearing, settlement, processing, reporting and other deal services and functions relating to forex transactions of and with Customers. Broker is not the only introducing broker from whom GAIN or its affiliates may be introduced forex customers or business, and GAIN is not or will not necessarily be the sole forex principal or clearing firm to or with whom Broker or its affiliates may introduce or transact forex business (i.e., neither party is granting or agreeing to an exclusive arrangement); provided, however, other than pursuant to any agreements or arrangements Broker has in place on the date of this Agreement, Broker shall, as long as this Agreement is in effect, not use any forex principal other than GAIN during 2005. | |
C. | Forex orders will be made by Customers by seamlessly accessing GAINs electronic forex trading system via, as the complete front-end, Brokers TradeStation trading platform. In order to accomplish this, each party, at its own expense, shall, in cooperation with the other party, develop and complete such application program interfaces and other technical compatibilities as required to be able to provide to |
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Customers, as promptly as possible, using a FIX server engine framework, the TradeStation trading platform for the design, back-testing, optimization, analysis, | ||
automation and placement of forex trading strategies, including manual and automated trade execution seamlessly through GAINs electronic forex trading system, together with real-time access to Customers positions and other trading and account information (collectively, the Compatibility). | ||
REPRESENTATIONS, WARRANTIES, COVENANTS AND UNDERTAKINGS |
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Broker:
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TradeStation Securities, Inc. | |
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8050 SW 10th St., Suite 2000 | |
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Plantation, FL 33324 | |
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Fax No.: (954) 652-7019 and (954) 652-5701 and (954) 652-5021 | |
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Attn: Joseph Nikolson and Marc J. Stone | |
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GAIN:
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GAIN Capital Group, Inc. | |
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35 Technology Drive | |
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Warren, NJ 07059 | |
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Fax No.: (908) 731-0701 | |
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Attn: Glenn Stevens and Mark Galant |
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GAIN CAPITAL GROUP, INC.
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By: | /s/ Glenn Stevens | |||
Glenn Stevens, Managing Director | ||||
TRADESTATION SECURITIES, INC. | ||||
By: | /s/ Marc Stone | |||
Marc J. Stone, Vice President | ||||
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Agreed to and Accepted:
GAIN CAPITAL GROUP, INC. |
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By: | /s/ Glenn Stevens | |||
Glenn Stevens, Managing Director | ||||
TRADESTATION SECURITIES, INC. | ||||
By: | /s/ Marc Stone | |||
Marc J. Stone, Vice President | ||||
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1. | The parties represent and warrant to one another that the statements are true, accurate and complete in all material respects, and now constitute part of the Agreement. | |
2. | GAIN represents and warrants it is making available the Inside Spreads for the Integrated Offering, and TradeStation confirms that it has agreed it will receive no share in the Inside Spreads as a fee for introducing Customers to GAIN. | |
3. | The parties confirm and ratify Tradestations fee of $17.00 per 100,000 deal lot per the Agreement (as previously amended) for the Traditional Retail Offering. The parties further confirm and agree that Customers trading ***. | |
4. | Notwithstanding anything in the Agreement to the contrary, GAIN shall, as between GAIN and TradeStation, have no indemnity obligation or other liability to TradeStation under Section 11 of the Agreement to the extent any liability to Customers is deemed to have arisen and occurred due to design errors or bugs in the TradeStation trading platform application relating to the placement of forex deal orders from the TradeStation Order Bar, Market Depth Window or Matrix, or design errors or bugs in certain TradeStation macros or automation features. |
The foregoing sentence amends or modifies the provisions of Section 4 and Section 5 of the Agreement only to the extent regarding the subject matter the sentence addresses herein. Those provisions of Section 4 and 5 relating to subject matter(s) not addressed in this amendment shall remain unaffected and of full force and effect. |
5. | The expiration of the term of the Agreement shall now be December 31, 2009. Should TradeStation elect termination pursuant to Section 14.1 after August 31, 2007 and before December 1, 2009, TradeStation agrees to a termination fee in the amount of ***. | |
6. | Except as expressly amended hereby, the Agreement has not been modified and is of full force and effect. Capitalized tenns used herein, which are not herein defined, shall have the respective meanings ascribed to them in the Agreement. |
TradeStation Securities, Inc. | GAIN Capital Group, LLC | |||||||||
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By:
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/s/ Marc Stone | By: | /s/ Christopher Calhoun | |||||||
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Print Name: Marc J. Stone | Print Name: Christopher W. Calhoun | |||||||||
Title: VP & General Counsel | Title: COO | |||||||||
Date: 3/12/08 | Date: 3/3/08 |
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TradeStation Securities, Inc. | ||||
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By:
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/s/ Marc Stone | |||
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Marc J. Stone, Vice President | |||
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GAIN Capital Group, LLC | ||||
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By:
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/s/ Glenn Stevens | |||
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