exv10w33






Exhibit 10.33




AGREEMENT OF SUBLEASE




     AGREEMENT OF SUBLEASE (this “Sublease”), made as of the 14th day of November,
2005, by and between MELLON INVESTOR SERVICES LLC, a New Jersey limited liability company having an
office at 85 Challenger Road, Ridgefield Park, New Jersey (“Sublessor”), and GAIN CAPITAL
INC., a Delaware corporation, having an office at 550 Hills Drive, Bedminster, New Jersey 07921
(“Sublessee”).



W I T N E S S E T H:




     WHEREAS, Sublessor, as the successor to ChaseMellon Financial Group LLC, is the current tenant
under that certain Lease dated as of February 1,2000, (the “Prime Lease”) with 44 Wall
Street-YEF IV, LLC (“Landlord”), whereby Sublessor leased the entire 7’’’ floor and a
portion of the 61h floor (collectively, the “Premises”) in an office building (the
“Building”) commonly known as and located at 44 Wall Street, New York, New York, for a term
expiring on July 31, 2010.



     WHEREAS, Sublessor desires to sublet to Sublessee, and Sublessee desires to hire from
Sublessor, a portion of the Premises constituting the Subleased Premises (as hereinafter defined)
as more particularly described below.



     NOW, THEREFORE, in consideration of TEN ($10) DOLLARS, the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows (capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in the Prime Lease):



     1. Subleasing of Subleased Premises: Condition of Subleased Premises.



     (a) During the Term (as hereinafter defined), Sublessor hereby subleases to Sublessee and
Sublessee hereby hires from Sublessor, upon and subject to all of the terms, covenants, rentals and
conditions hereinafter set forth, that portion of the Premises consisting of a portion of the
6th floor (the “Subleased Premises”) of the Building, as substantially shown on the
floor plan attached hereto as Exhibit A. The attachment of the floor plan of the Subleased
Premises does not constitute a representation that said floor plan is exact or correct, and
Sublessor makes no representation or warranty with respect to the accuracy of the layout, the
conditions or dimensions of the Subleased Premises as shown on said floor plan or otherwise. For
all purposes of this Sublease, Sublessor and Sublessee conclusively agree that the Subleased
Premises consists of 7,194 rentable square feet.



     (b) (i) Subject to subparagraph (ii) of this Paragraph (b), Sublessee shall accept the
Subleased Premises in the condition and state of repair on the Commencement Date (as hereinafter
defined), “AS IS.” Sublessee expressly acknowledges and agrees that Sublessor has made no
representations with respect to the Subleased Premises or the Building, except as may be expressly
set forth in this Sublease. Sublessor shall not be obligated to perform any work to prepare the
Subleased Premises for Sublessee, other than the completion of Sublessor’s Work
(as hereinafter defined). Suhlessee’s taking occupancy of the Subleased Premises shall be
conclusive evidence as against Sublessee that the Subleased Premises was in good and satisfactory
condition,
with the Sublessor’s Work Substantially Complete (defined below), as of the Commencement Date.



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          (ii) Notwithstanding subparagraph (i) of this Paragraph (b), on the Commencement Date, the
Subleased Premises and the network and telecommunications equipment and the wiring in the Subleased
Premises shall be in substantially the same condition as they were when Sublessee inspected the
Subleased Premises on September 25, 2005.




     (c) Sublessor shall complete the work described on Exhibit A-1 attached hereto
(“Sublessor’s Work”).



     (d) Sublessee shall not malee any alterations, additions, improvements or changes
(collectively, “Improvements’’) in or to the Subleased Premises without first obtaining the
prior written consent of Sublessor (which shall not be unreasonably withheld or delayed if Landlord
consents to such Improvements), and of Landlord if required under the Prime Lease. Sublessee; in
making any such approved Improvements in or to the Subleased Premises, shall comply with all
applicable terms, covenants and conditions of the Prime Lease and with all requirements of
governmental bodies having jurisdiction thereof. Sublessee shall reimburse Sublessor for
Sublessor’s actual out-of-pocket costs reasonably incurred by it in connection with 0) its review
of any plans and specifications submitted by Sublessee and (ii) Landlord’s review of any plans and
specifications submitted by Sublessee, including charges imposed by Landlord.



     2. Term.


The term (the “Term”) of this sub lease Shall commence on the Commencement Date and
shall expire on July 30, 2010 (the “Expiration Date”). The “Commencement Date”
shall be defined to mean the later to occur of (i) the date Sublessor Substantially Completes
Sublessor’s Work and tenders possession of the Subleased Premises to Sublessee, which date shall be
no earlier than December 3,2005 and (ii) the date that Sublessor shall have obtained, and provided
a manually executed counterpart to Sublessee of, Landlord’s consent to this Sublease (the
“Consent”). Sublessor and Sublessee shall, within ten (10) days after the Commencement Date,
execute a written agreement, substantially in the form annexed hereto as Exhibit B,
confirming such date as the Commencement Date. Any failure of the parties to execute such written
agreement shall not affect the validity of the Commencement Date or excuse any of the parties from
their respective obligations hereunder.




     “Substantially Completes” or “Substantial Completion” means Sublessor’s Work has been
completed except for minor details (so-called “punch list”) items which do not interfere with the
conduct of Sublessee’s business.



     3. Fixed Rent.



     (a) With respect to the Subleased Premises, during the Term, from and after the Commencement
Date through and including the Expiration Date, Sublessee shall pay to Sublessor, in lawful money
of the United States, a fixed annual rent (the “Fixed Rent”) as set forth below. If the
Fixed Rent shall commence on a date other than the first day of a calendar month, the Fixed Rent
for such calendar month shall be prorated.



	 	 	 	 	 
	(i)

	 	From the Commencement
Date to and including the day
proceeding the first
	 	$143,880 per annum

($11,990 per month)






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	 	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)






          (b) The Fixed Rent for a month shall he due and payable on the first (1st) day of each
calendar month for which the monthly installment of rent is due during the Term at the office of
Sublessor, or at such other place as Sublessor may designate, at any time and from time to time,
without any set-off or deduction of any kind whatsoever (except as otherwise expressly set forth
herein), and except that Sublessee shall pay to Sublessor the first monthly installment of Fixed
Rent, which shall become due under the terms of this Sublease, upon execution of this Syblease.




          (c) If Sublessee shall fail to pay when due any installment affixed Rent or Additional Rent
(as hereinafter defined) and such failure shall continue for a period of five (5) days after such
installment or payment shall have become due and payable, (i) Sublessee shall pay a late fee equal
to four percent (4%) of any outstanding amounts to help defray the cost of collection, and (ii)
Sublessee shall pay interest thereon, from the due date thereof to the date of payment, at the rate
equal to the lesser of (x) of six percent (6%) in excess of the prime interest rate then in effect
as published in The Wall Street Journal (or successor) or (y) the maximum legal mte of interest
(the “Interest Rate”). Notwithstanding the imposition of such interest, Sublessee shall be
in default under this Sublease if any or all payments required to be made by Sublessee are not made
at the time herein stipulated, and neither the demand for, nor collection by Sublessor of, such
late fee or such interest shall be construed as a curing of such default
on the part of Sublessee. The payment of such late fee and interest shall be in addition to all
other rights and remedies available to Sublessor in the case of nonpayment of rent.




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     (d) Notwithstanding any provision to the contrary contained in this Sublease and subject to
Exhibit A-I, provided that there shall not then be existing any default beyond any
applicable notice and grace period provided under this Sublease, Sublessee shall be entitled to the
Aggregate Rent Credit (as hereinafter defined) to be applied solely against the first through the
sixth monthly installments of Fixed Rent due under tills Sublease. “Aggregate Rent Credit”
shall mean $71,940.00.



     4. Additional Rent.



          (a) With respect to the Subleased Premises, during the Term, Sublessee shall pay to Sublessor
as “Additional Rent” as follows:




               (i) Any items specified in the Prime Lease to be additional rent (except for electricity
expenses, which shall be billed to Sublessee as set forth in Section 4(a)(ii) below) and
any other sums of money, costs, charges, adjustments, increases, rent or additional rent payable by
Sublessor to Landlord under the Prime Lease attributable to the Subleased Premises or the use and
occupancy, thereof by Sublessee, or to any alteration or Tenant Change (as such term is defined in
‘the Prime Lease), made or to be made therein by or for Sublessee, provided, that, for the purposes
of calculating the amount of Additional Rent payable by Sublessee to Sublessor in respect of Taxes
nod tile “Tenant’s Percentage” (as defined in the Prime Lease) shul1 be deemed to 2.2590%
(subject to adjustment as provided in the Prime Lease), with all other terms having the same
meanings ascribed to them in Article 38 of tile Prime Lease, except that the ''Base Year Taxes” (as
defined in the Prime Lease) for purposes of this Sublease shall mean the Real Estate Taxes” for the
2005/2006 Tax Year. Sublessee is not obligated to pay any Additional Rent by reason of increases in
porter-wage, operating expenses or similar escalations. Except as modified by this Sublease, with
respect to the Subleased Premises, the Additional Rent for Taxes shall be calculated in accordance
with tile terms of the Prime Lease; and,



               (ii) Additional Rent for electricity at the rate of $2,50 per rentable square foot of the
Subleased Premises per annum ($17,985 per annum), payable in equal monthly installments of
$1,498.75 (the “Electric Inclusion Amount”), which the parties have agreed is the
reasonable value to Sublessee, as of the date of tins Sublease, for normal electric service to be
provided to the Subleased Premises for lighting, light office equipment and the usual small
business machines during Business Hours on Business Days (as defined in the Prime Lease). The
Electric Inclusion Amount shall he paid in addition to the Fixed Rent and shall be paid ot the same
time and in the same manner as Fixed Rent. Except as specifically set forth herein, there shall he
no separate charge to Sublessee for such electric energy by way of measuring the use of electricity
on any meter or otherwise.



     Notwithstanding anything to the contrary set forth in this Sublease, the Electric Inclusion
Amount shall remain at the amount set forth above in this subparagraph for the first 365 days
following the Commencement Date.



     The Electric Inclusion Amount shall be subject to the following:



               (A) If the cost to provide electric energy to the Subleased Premises (the “Electric
Cost”) is increased or decreased after the date of this Sublease,



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then the Electric Inclusion
Amount shall be increased or decreased by an amount equal to the product of (i) the then-existing
Electric Inclusion Amount and (n) the percentage increase or decrease in such Electric Cost. Any
increase or decrease shall be effective as of the date of such increase or decrease and shall be
made retroactively if
necessary. Upon the request of either party, Sublessor and Sublessee shall execute a supplementary
agreement confirming the increase or decrease. Any adjustment shall be effective even if such
supplementary agreement is not executed and delivered. In no event shall the provisions of this
subsection A operate to reduce the Electric Inclusion Amount below the amount set forth
above; and



               (B) The Electric Inclusion Amount is based upon Sublessor’s assumption that Sublessee’s
initial electrical installation will only require electrical service in an amount equal to or less
than the amount permitted under Section 39 of the Prime Lease and that Sublessee will use
electrical energy only during Business Hours on Business Days. Accordingly, (i) if Sublessee’s
initial electrical installation exceeds such criteria,. or (ii) if from time to time Sublessee
makes material use of electricity during hours other than Business Hours on Business Days, or (ii)
if from time to time Sublessee adds or changes any machinery, appliances or equipment which
materially increases the aggregate electrical load in the Subleased Premises (if such increase is
permissible under the terms of the Prime Lease) and, as the result of any of the events set forth
in subsections (i), (ii) or (iii) above, Sublessor reasonably believes that the Electric Cost is
greater than $2.50 per rentable square foot of the Subleased Premises per annum, then the Electric
Inclusion Amount shall from time to time be equitably adjusted to reflect the resulting increase in
such use. Sublessor shall furnish a statement of Sublessor’s determination as to the amount of the
adjustment, and the same shall become binding upon the parties unless, within thirty (30) days,
Sublessee notifies Sublessor that it disputes the amount of such adjustment, in which event the
parties shall in good faith make reasonable attempts to come to agreement, and, if Sublessor and
Sublessee cannot agree thereon, the amount of such adjustment shall be determined, based on
standard practices, by an independent electrical consultant selected by Sublessor. Sublessee shall
permit such consultant to have access to the Subleased Premises and Sublessee’s electrical
facilities for the foregoing purpose at all reasonable times. The fee of such consultant shall be
paid by Sublessee unless such consultant finds that Sublessee’s use does not justify an increase in
the Electric Inclusion Amount, in which case the fee shall be paid by Sublessor. When the amount of
such adjustment is so determined, Sublessor and Sublessee shall execute a supplementary agreement
to reflect such adjustment, which shall be effective from the date of the increase of such usage as
determined by such electrical consultant and be made retroactively if necessary. Any adjustment
shall be effective even if such supplementary agreement is not executed and delivered. Pending the
determination of the adjustment, Sublessee shall pay to Sublessor the amount of such adjustment as
specified in Sublessor’s statement Thereafter if it is determined that Sublessee bas overpaid,
Sublessee shall receive a credit against the Electric Inclusion Amount in the amount of the
overpayment, said credit to be applied against the next accruing installment(s) of the Electric
Inclusion Amount In order to facilitate Sublessor’s determination of whether Sublessee is making
material use of electricity during hours other than business hours on business days, Sublessor
shall have the right, at any time during the term of this Sublease, to install a meter or other
monitoring device to track the use of electricity by Sublessee.



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          (b) Unless otherwise provided in this Sublease, Sublessee shall pay to Sublessor the
Additional Rent at the time and in the manner Sublessor is required to pay the same to Landlord, as
set forth in the Prime Lease. Except as expressly provided herein, all other additional rent,
charges, fees or other amounts payable under this Sublease or the Prime Lease by Sublessee shall be
payable within fifteen (15) days of written demand therefor.




          (c) The initial demand for Additional Rent payable pursuant to this Section 4 aud any
subsequent demand for increases in Additional Rent shall be accompanied by copies of any invoices,
bills, demands, statements or other documentation evidencing such Additional Rent which Sublessor
shall have received from Landlord in connection therewith. Notwithstanding the foregoing, any
failure by
Sublessor to make a demand under the provisions of this Sublease, shall not in any way be a waiver,
or cause Sublessor to forfeit or surrender its rights to collect, any Fixed Rent or Additional Rent
that may have become due pursuant to the terms of this Sublease.




          (d) Sublessor shall credit Sublessee, its proportionate share of any refunds received by
Sublessor from Landlord under the Prime Lease on account of any overpayment of Additional Rent,
other than the Electric Inclusion Amount, for which Sublessee bas paid Sublessor under this
Sublease; provided, however, that Sublessor shall be entitled to deduct from the aggregate of the
amount of such refund Sublessee’s proportionate share of any and all costs and expenses, including,
without limitation, reasonable attorneys’ fees, consultants fees and disbursements, incurred by
Sublessor in connection with the obtaining of any such refunds. Sublessee shall pay to Sublessor,
as Additional Rent, within ten (l0) days after demand therefor, Sublessee’s proportionate share of
any amounts (plus interest, if any) due Landlord under the Prime Lease on account of any
underpayment of Additional Rent payable under this Sublease, including, without limitation,
Additional Rent payable hereunder On account of Taxes due under Article 38 of the Prime Lease.




          (e) All amounts payable by Sublessee to Sublessor pursuant to this Sublease, including,
without limitation, Fixed Rent and Additional Rent, shall be deemed to be and shall constitute rent
for all purposes hereunder and, in the event of any non-payment thereof, Sublessor shall have all
of the rights and remedies provided herein, at law or in equity for nonpayment of rent TIle
obligation of Sublessee to pay all amounts to Sublessor hereunder shall survive the Expiration Date
or the earlier termination of this Sublease.




     5. Care. Surrender and Restoration of the Subleased Premises.



          (a) Without limiting any other provision of this Sublease or the Prime Lease, as the case may
be, Sublessee shall take good care of the Subleased Premises, suffer no waste or injury thereto and
shall comply with all laws, orders and regulations applicable to the Subleased Premises, the
Building and Sublessee’s use or manner of use thereof, which are imposed on Sublessor, as tenant
under the Prime Lease in connection with the Subleased Premises and/or the Building.




          (b) Upon the Expiration Date or the earlier termination of the Term, Sublessee shall quit and
surrender the Subleased Premises to Sublessor in the condition required under the Prime Lease.




          (c) If the Expiration Date or the earlier termination of the Term falls on a Sunday, this
Sublease shall expire at noon on the immediately preceding Saturday unless such





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Saturday is a legal holiday, in which case the Tern1 shall expire at noon on the first business day
immediately preceding such Saturday. Sublessee shall observe and perform each of the
covenants contained in this Sublease and Sublessee’s obligations hereunder shall survive the
Expiration Date or earlier termination of this Sublease.




     6. Use.



     Sublessee shall use and occupy the Subleased Premises as executive and general offices
in connection with Sublessee’s business (the “Permitted Use”) and for no other purpose.



     7. Subordination to and Incorporation of Terms of the Prime Lease.



          (a) With respect to the Subleased Premises, this Sublease is in all respects
subject and subordinate to all of the terms, provisions, covenants, stipulations, conditions and
agreements of the Prime Lease, and to all matters to which the Prime Lease is or shall be
subordinate, and, except as otherwise expressly provided in this Sublease, all of the terms,
provisions, covenants, stipulations, conditions, rights, obligations, remedies and agreements of
the Prime Lease are incorporated in this Sublease by reference and made !l part hereof as if
herein set forth at length, and shall, as between Sublessor and Sublessee (as if they were the
“Landlord” and “Tenant,” respectively, under the Prime Lease, and as if the words “Prime
Lease” were “Sublease” and the word “Premises” were “Subleased Premises”), constitute the
terms of this Sublease, except for such other terms of the Prime Lease that are inapplicable,
inconsistent with, or specifically modified by, the terms of this Sublease. This clause shall be
self-operative and no further instrument of subordination shall be required, but Sublessee shall
execute any certificate confirming such subordination that Sublessor may request within a
reasonable period of time after receipt of written demand from Sublessor therefor. In the event
of any inconsistency between this Sublease and the Prime Lease, such inconsistency shall be
resolved in favor of the obligation which is more onerous to Sublessee or that restriction which is
more restrictive of Sublessee, as the case may be.




     The following provisions of the Prime Lease shall not apply to this Sublease; all
references in the Prime Lease to any of the following terms or to any obligation of the Landlord
to perform any of the following: Premises, Commencement Date, Expiration Date, Rent
Commencement Date, Security Deposit, Landlord’s Contribution, Initial Installation
Contribution, 7th Floor Air-Conditioning Contribution, Landlord’s Initial Construction,
Broker,
Notices, rental amounts, rental rates and rent abatements. Representations made by Landlord in
the Prime Lease shall not be deemed to be made by Sublessor in this Sublease.



     In addition, the following Articles, Sections, Exhibits and Amendments shall not apply to
this Sublease or shall be amended as indicated:




Sections 37(b), (c), (d), (e) and (f); the Tenant’s Percentage listed in Section 38(a)(2), the
Base Year Taxes listed in Section 38(a)(iii), Sections 38(b), the last sentence of 38(c)(I)
and 38(c)(4), all of Section 39(a) other than the first sentence, Sections 39(g) and (b),
references to Article 53 and Exhibit B in Section 41, Sections 42(c) and (I), all of Section
43(b) other than the first sentence, Section 46(b), Section 47, Section 48(g), the overtime
rates specified in Section 49(a) and all of (b) and (c) of that Section, Section 51, Sections
53 and 59, Exhibits A, A-I, and B.



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     In furtherance of the foregoing, Sublessee shall not take any action or do or permit to be
done anything which (i) is or may be prohibited under the Prime Lease, (ii) might result in a
violation of or default under any of the terms, covenants, conditions or provisions of the Prime
Lease or any other instrument to which this Sublease is subordinate, or (iii) would result in any
additional cost or other liability to Sublessor (unless Sublessee agrees to bear such additional
cast).



          (b) In the event of termination, re-entry or dispossess of Sublessor by
Landlord under the Prime Lease, Landlord may, at its option, take over all of the right, title and
interest of Sublessor, as sublessor under this Sublease, and Sublessee shall, at Landlord’s option,
as the case may be, attorn to Landlord” pursuant to the then executory provisions of the Sublease,
except that Landlord shall not (i) be liable for any previous act or omission of Sublessor under
this Sublease; (ii) be subject to any offset, not expressly provided in this Sublease, that
theretofore accrued to Sublessee against Sublessor or (iii) be bound by any previous modification
of this Sublease or by any previous prepayment of more than one month’s Fixed Rent or any
Additional Rent then due, in either case not approved by Landlord in writing.




     8. Sublessee’s Obligations.



     Except as specifically set forth herein to the contrary, all acts to be performed by, and all
of the terms, provisions, covenants, stipulations, conditions, obligations and agreements to be
observed by, Sublessor, as Tenant under the Prime Lease shall, to the extent that the same relate
to the Subleased Premises, be performed and observed by Sublessee, and Sublessee’s obligations
in respect thereof shall run to Sublessor or Landlord as Sublessor may determine to be
appropriate or as may be required by the respective interests of Sublessor or Landlord. Sublessee
shall indemnify Sublessor against, and bold Sublessor harmless from, all liabilities, losses,
obligations, damages, penalties, claims, costs and expenses (including, without limitation,
reasonable attorneys’ fees and other costs) which are paid, suffered or incurred by Sublessor as a
result of the nonperformance or nonobservance of any such terms, provisions, covenants,
stipulations, conditions, obligations or agreements by Sublessee.



     9. Sublessor’s Obligations.



     The benefit of all repairs, restorations, compliance with law and other requirements,
materials and services to be provided to the Subleased Premises and the Building by Landlord
under the Prime Lease sball accrne to Sublessee; but, nonwithstanding anything to the contrary in
this Sublease or in the Prime Lease, Sublessor shall under no circumstances be obligated to make
any repairs or restorations, comply with any laws or other requirements or to supply any
materials or services to the Subleased Premises or the Building; and Sublessor shall under no
circumstances be liable to Sublessee for the failure of Landlord or others so to do. Upon
Sublessee’s written request, Sublessor shall present to Landlord, in the name of Sublessor, any
demand requested by Sublessee for any such repairs, restorations, materials or right to exercise,
in Sublessor’s name, but at Sublessee’s sole cost and expense, all of the rights available to
Sublessor to enforce performance of the obligations of Landlord to make any such repairs and
restorations and to supply any such materials and services to the Subleased Premises. If
requested by Sublessee, Sublessor shall exercise whatever rights Sublessor has under the Prime
Lease to dispute increases in Taxes using Sublessee’s consultants. Any such exercise by
Sublessor shall be at Sublessee’s sale cost and expense. No failure by Landlord to make any
such repairs or restorations or to supply any such materials and services to the Subleased
Premises, and no cessation, interruption or suspension of any service provided by Landlord, shall
entitle Sublessee to any diminution or abatement of Fixed Rent or Additional Rent or other



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compensation under this Sublease, nor shall this Sublease be affected by reason of any such
failure, cessation, iuterruption or suspension, except that to the extent Sublessor shall receive
an
abatement of Rent under the Prime Lease, Sublesee shall be entitled to a similar abatement with
respect to the Subleased Premises.




     10. Covenants with Respect to the Prime Lease.



     In the event that Sublessee shall be in default of any term, provision, covenant,
stipulation, condition, obligation or agreement of, or shall fail to honor any obligation under
this
Sublease, Sublessor, on giving the notice required by the Prime Lease (as modified pursuant to
Section 15 hereof), and subject to the right, if any, of Sublessee to cure any such default
within
any applicable grace period provided in the Prime Lease (as modified pursuant to Section 15
hereof), sbal1 have available to it all of the remedies available to Landlord under the Prime Lease
in the event of a like default or failure on the part of Sublessor, as Tenant thereunder. Such
remedies shall be in addition to all other remedies available to Landlord under the Prime Lease in
the event of a like default or failure on the part of Sublessor, as Tenant thereunder, and such
remedies shall be in addition to all other remedies available to Sublessor at law or in equity.



     11. Broker.



     Each party represents and warrants to the other that such party making the representation
has not dealt with any broker or finder in connection with this Sublease other than CB Richard
Ellis, Inc., Jones Lang LaSalle and Cushman & Wakefield, Inc. (collectively, “Broker”). Each
party does hereby agree to indemnify and hold the other harmless from and against any and all
liabilities, losses, obligations, damages, penalties, claims, costs and expenses (including,
without
limitation, reasonable attorneys’ fees and other charges and reasonable attorneys’ fees and other
charges incurred in connection with the enforcement of this indemnity provision) arising out of
any claims, demand or proceeding for a real estate brokerage commission, finder’s fee or other
compensation made by any person or entity in connection with this Sublease claiming to have
dealt with such party with the indemnification obligation other than Broker. The provisions of
this Section 11 shall survive the Expiration Date or the earlier termination of the
Sublease.
Sublessor shall pay Broker its commission in accordance with a separate agreement(s).



     12. Indemnification of Sublessor.



     Sublessee agrees to indemnify Sublessor against and hold Sublessor harmless from, any
and all liabilities, losses, obligations, damages, penalties, claims, costs and expenses
(including,
without limitation, reasonable attorneys’ fees and other charges and reasonable attorneys’ fees
and other charges in connection with the enforcement of this indemnity provision) which are
paid, suffered or incurred by Sublessor as a result of (a) any personal injuries or property damage
occurring in, on or about the Subleased Premises during the Term, (b) any work or thing done, or
any condition created, by Sublessee in, on or about the Subleased Premises or the Building
during the Term, or (c) any act or omission of Sublessee or Sublessee’s agents, contractors,
servants, employees, invitees or licensees during the Term, except if any of the foregoing
indemnified matters is caused by the negligence or willful misconduct of Sublessor or its agents,
contractors, servants, employees, invitees or licensees.



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     13. Termination or Amendment of the Prime Lease.



     If the term of the Prime Lease is terminated prior to the Expiration Date, then, subject to
Section 7(b) hereof, this Sublease shall immediately terminate with respect to the entire
Subleased Premises, and Sublessor shall not be liable to Sublessee by reason thereof, unless such
termination was the result of a default by Sublessor under the Prime Lease beyond any notice
and applicable cure period. Sublessor shall not enter into any voluntary agreement with
Landlord to terminate the Prime Lease before the expiration or earlier termination of this
Sublease. Sublessor shall not amend the Prime Lease in any manner that would increase the
obligations of Sublessee under this Sublease.



     14. Approvals or Consents.



     In all provisions of the Prime Lease requiring the approval or consent of Landlord,
Sublessee shall be required to obtain the express written approval or consent of Sublessor, which
consent shall be further subject to the approval or consent of Landlord, pursuant to the Prime
Lease. If Sublessor shall give its consent to any request made by Sublessee then Sublessor
hereby agrees to promptly furnish to Landlord copies of such request for consent or approval
received from Sublessee. If Landlord shall refuse to give its consent or approval to any request
made by Sublessee then such request shall be deemed denied, whether or not Sublessor shall
have previously granted its consent.



     15. Time Limits.



     The parties agree that unless otherwise expressly modified herein, the time limits set forth
in the Prime Lease for the giving of notices, making demands, payment of any sum, the
performance of any act, condition or covenant, or the exercise of any right, remedy or option, are
modified for the purpose of this Sublease as follows. Whenever in the Prime Lease a time is
specified for the giving of any notice or the making of any demand by the tenant thereunder,
such time is hereby changed (for the purpose of this Sublease only) by adding five (5) days
thereto; and whenever in the Prime Lease a time is specified for the giving of any notice or the
making of any demand by the landlord thereunder, such time is hereby changed (for the purpose
of this Sublease only) by subtracting three (3) days therefrom, if such notice, request or demand
given or made by landlord thereunder relates to the payment (or default in the payment) of Fixed
Rent or additional rent under the Prime Lease, and by ten (10) days if such notice, request or
demand of landlord thereunder relates to any subject other than the payment of Fixed Rent or
additional rent under the Prime Lease. Whenever in the Prime Lease a time is specified within
which the tenant thereunder must give notice or make a demand following an event, or within
which the tenant thereunder must respond to any notice, request or demand previously given or
made by the landlord thereunder, or to comply with any Obligation on the tenant’s part
thereunder, such time is hereby changed (for the purposed of this Sublease only) by subtracting
three (3) days therefrom, if the same shall relate to the payment affixed Rent or additional rent
under the Lease or under this Sublease, and ten (l0) days if the same shall relate to any other
obligation under the Prime Lease or under this Sublease. Wherever in the Prime Lease a time is
specified within which the landlord thereunder must respond to any notice, request or demand
previously given or made by the tenant thereunder, such lime is hereby changed (for the purpose
of this Sublease only) by adding five (5) days thereto. It is the purpose and intent of the
foregoing provisions, among other things, to provide Sublessor with time within which to
transmit to Landlord any notices or demands received from Sublessee and to transmit to
Sublessee any notices or demands received from Landlord. Sublessor and Sublessee shall,



10









 




promptly after receipt thereof, furnish to each other a copy of each notice, demand or other
communication received from Landlord with respect to the Subleased Premises.




     16. Assignment and Subletting.



          (a) Sublessee, for itself, its successors and assigns, expressly covenants that it
shall not assign (whether by operation of law or otherwise), pledge or otherwise encumber this
Sublease, or sublet all or any portion of the Subleased Premises, without obtaining, in each
instance, the prior written consent of Landlord in accordance with the Prime Lease. If Landlord
consents to the subject transaction, then Sublessor agrees to consent to the subject transaction.




          (b) Sublessor reserves the right to transfer and assign its interest in and to this
Sublease to any entity or person who shall succeed to Sublessor’s interest in and to the Prime
Lease.




     17. End of Term.



          (a) Sublessee acknowledges that possession of the Subleased Premises must
be surrendered to Sublessor on the Expiration Date or the earlier termination of this Sublease, in
the same condition required under this Sublease and the Prime Lease. Sublessee shall remove all
of its personal property and personal effects of all persons claiming through or under Sublessee,
and shall pay the cost of repairing all damage to the Subleased Premises and the Building
occasioned by such removal. Any of Sublessee’s personal property that remains in the
Subleased Premises after the termination of this Sublease shall be deemed to have been
abandoned and either may be retained by Sublessor as its property or may be disposed of in such
manner as Sublessor may see fit If such property or any part thereof is sold, Sublessor may
receive and retain the proceeds of such sale as the property of Sublessor. Any expense incurred
by Sublessor in removing or disposing of such property, as well as the cost of repairing all
damage to the Building or the Subleased Premises caused by such removal, shall be reimbursed
to Sublessor by Sublessee, as Additional Rent, on demand.




          (b) If the Expiration Date falls on a day which is not a business day, then
Sublessee’s obligations under this Section 17 shall be performed on or prior to the
immediately
preceding business day.




          (c) Sublessee expressly waives, for itself and for any person claiming through
or under Sublessee, any rights that Sublessee or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any similar or successor
law oflilce import then in force in connection with any holdover proceedings that Sublessor may
institute to enforce the provisions of this Section 17.




     If Sublessee shall remain in possession of the Subleased Premises after the Expiration
Date, without the execution by both Sublessee and Sublessor of a new sublease, Sublessee, at the
election of Sublessor, shall be deemed to be occupying the Subleased Premises as a Sublessee
from month-to-month, at a monthly rental equal to two times the Fixed Rent and Additional Rent
payable during the last month of the Term, subject to all the other conditions, provisions and
obligations of this Sublease insofar as the same are applicable to a month-to-month tenancy. In
addition, Sublessee shall indemnify and hold harmless Sublessor for, from and against any and
all liabilities, losses, obligations, damages, penalties, claims, costs and expenses (including,
without limitation, reasonable attorneys’ fees and other charges) which are paid, suffered or



11









 





incurred by Sublessor as a result of the failure of, or the delay by, Sublessee in so surrendering
the Subleased Premises, including, without limitation, any claims made by Landlord or any
succeeding tenant founded on such failure or delay.




     18. Condemnation. Destruction, Fire and other Casualty. 



     If the Prime Lease is terminated by Landlord or Sublessor pursuant to the applicable
terms of the Prime Lease, then this Sublease shall terminate concurrently therewith. If the whole
or any part of the Subleased Premises shall be condemned or damaged by fire or other casualty
and the Prime Lease is not terminated on account thereof by Landlord or Sublessor, then this
Sublease shall remain in full force and effect with respect to the portion of the Subleased
Premises not so terminated, and Sublessee’s obligation to pay Fixed Rent and Additional Rent
hereunder shall abate only proportionate to the extent that the Fixed Rent and Additional Rent
for the Subleased Premises shall abate under the terms of the Prime Lease.



     19. Notices.



     Any notice, request or demand (“Notice”) permitted or required to be given by the
terms
and provisions of this Sublease, or by any law or governmental regulation, either by Sublessor or
Sublessee, shall be in writing and shall be given as follows: (i) by hand delivery; (ii) by deposit
in the United States mail as first class certified mail, return receipt requested, postage paid; or


(iii) by overnight t nationwide commercial courier service; in each case, to the address and party
listed below:



If to Sublessor:



Mellon Investor Services LLC

c/o Jones Lang LaSalle Americas, Inc.

Two Mellon Center, Suite 925

Pittsburgh, Pennsylvania 15259

Attention: Lease Administration



With a copy to:



Mellon Investor Services LLC

c/o Corporate Operations and Real Estate

Two Mellon Center, Suite 975

Pittsburgh, Pennsylvania 15259

Attention: Head of Transaction Management



If to Sublessee:

Gain Capital Inc.

550 Hills Drive

Bedminster, New Jersey 07921



With a copy to:

Canfield, Madden & Ruggiero, LLP

1461 Franklin Avenue



Garden City, New York 11530




12









 







Attn: David J. Canfield, Esq.




     Any party may change the address to which any such Notice is to be delivered, by
furnishing ten (10) days written Notice of such change to the other parties in accordance with the
provisions of this Section 19. Notices shall be deemed to have been given on the date they
are
actually received; provided, however, that if any Notice is received on a day that is not a
business day or is received after 5:00 p.m. on a business day in the time zone where received, it
shall be deemed given on the next succeeding business day and (ii) the inability to deliver
Notices because of a changed address of which no Notice was given, rejection or refusal to
accept any Notice offered for delivery shall be deemed to be receipt of the Notice as of the date
of such inability to deliver or rejection or refusal- to accept delivery (subject to the provisions
of
clause (i) above).



     20. Sublease Conditional Upon Consent.



     Sublessor and Sublessee each acknowledges and agrees that this Sublease is subject to
Sublessor’s obtaining the Consent, as required by the Prime Lease. Notwithstanding anything
set fortb in this Sublease to the contrary, Sublessor shall not be obligated to perform any acts,
expend any sums or bring any lawsuits or other legal proceedings, in order to obtain the Consent,
other than to request the Consent in due course. Sublessee shall promptly provide Sublessor with
all information required or reasonably requested by Landlord under the Prime Lease. If
Landlord denies its Consent to this Sublease or if Landlord fails to issue its Consent or before
the
sixtieth (60th) consecutive day immediately following the date this Sublease shall have
been
executed and delivered by Sublessor and Sublessee, this Sublease shall automatically terminate
and be void and of no force or effect. If this Sublease is so terminated, (a) the security deposit
referred to in Section 21 of this Sublease and the first monthly installment of Fixed Rent
previously paid by Sublessee to Sublessor on account of the Subleased Premises shall be
returned to Sublessee within a reasonable period of time after such termination, and (b) the
parties thereupon shall be relieved of any further liability or obligation under this Sublease,
except for such provisions hereof as are expressly stated to survive.



     21. Security Deposit.



     (a) Sublessee has deposited with Sublessor the sum of $23,980 (the “Security
Deposit”) in cash or by the Letter of Credit (as hereinafter defined) as security for the faithful
performance, observance and compliance with all of the terms, covenants aiJd conditions of this
Sublease on Sublessee’s part to perform, observe or comply \\~th. In the event that Sublessee
defaults under any of the terms, covenants or conditions in this Sublease on Sublessee’s part to
observe, perform or comply with (including, without limitation, tile payment of any installment
of Fixed Rent or any amount of Additional Rent), and fails to cure such default after the giving
of any required notice hereunder (provided however, notwithstanding any provision herein or in
the Prime Lease to the contrary, notice shall not be required to draw on the Letter of Credit after
a Bankruptcy Event (as hereinafter defined) bas occurred), and the expiration of any applicable
cure period, then, to the extent required for the payment of any Fixed Rent, Additional Rent, or
any other sums as to which Sublessee is in default, or for any sum that Sublessor may reasonably
expend or may be required to expend by reason of any such default (including any damages or
deficiency accrued before or after summary proceedings, a Bankruptcy Event or other re-entry
by Sublessor, including attorneys’ fees and costs in connection therewith), (a) Sublessor may
notify the Issuing Bank (as such term is defined in Section 21 (c) hereof) and thereupon receive
all of the monies represented by the said Letter of Credit and use, apply, or retain the whole or



13









 




any part of such proceeds, or (b) in the event that Sublessor is holding a cash security pursuant
to
Section 21 (b) below, Sublessor may use, apply, or retain the whole or any part of the cash
security. In the event that Sublessor applies or retains any portion or all of such cash security
or
proceeds of such Letter of Credit, or both, as the case may be, the amount not so used, applied or
retained shall continue to be treated as a part of the Security Deposit, and Sublessee shall
restore
the amount so applied or retained (by increase in the Letter of Credit or delivery of cash
security)
within seven (7) days after Sublessor’s demand therefor, so that, at all times, the amount
deposited shall be $23,980. In the event that Sublessee shall fully and faithfully comply with all
of the material terms, provisions, covenants and conditions of this Sublease, that portion, if any,
of the cash security or Letter of Credit, or both, as the case may be, not used, applied or
retained
shall be returned to Sublessee within sixty (60) days after the Expiration Date and after delivery
of possession of the entire Subleased Premises to Sublessor, in accordance with, and subject to,
the applicable provisions of this Sublease.




     (b) To the extent that the security deposited under this Section 21 is a cash
security deposit, Sublessor agrees to deposit same into an interest bearing account in a bank or
savings and loan association to be selected, from time to time, by Sublessor in its sale
discretion.
Sublessor agrees, further to hold said security in · such an account for the entire Term of this
Sublease, subject, however, to the terms of Section 21 (a) above with respect to the use,
application or retention of such security. To the extent permitted by law, Sublessee agrees that
Sublessor shall he entitled to receive and retain, as an administrative expense, a sum equal to one
(1 %) percent per annum upon such security, and Sublessor shall have the right to withdraw such
sum from time to time as Sublessor shall determine in its sale discretion. The balance of the
interest earned on such security sball, provided Sublessee is not then in default under this
Sublease, and to the extent that same shall not be used, applied or retained pursuant to the terms
of Section 21 (a) above, be paid to Sublessee upon the request of Sublessee, but not more than
once daring any calendar year of the term of this Sublease. Unless and until such interest shall
be paid to Sublessor and Sublessee as herein provided, the same shall be held as a part of the
security deposited by Sublessee, subject to, and in accordance with, the terms of Section 21 (a)
above. Sublessor shall not be required to credit any security with the interest for any period
during which Sublessor does not receive interest thereon.



     (c) (i) Any letter of credit (the “Letter of Credit”) to be delivered as security
under this Section 21 shall be a clean, irrevocable and unconditional letter of credit issued by
and
drawn upon such commercial bank (hereinafter referred to as the “Issuing Bank”) with offices
for banking purposes in The Borough of Manhattan, The City of New York which is a member
of the New York Clearinghouse Association (or any successor thereto) and which is approved by
Sublessor, in its sale discretion, which Letter of Credit shall have a term of not less than one
year, be in form and content satisfactory to Sublessor, be for the account of Sublessor and be in
the amount of $23,980, as such amount may be reduced as provided herein. Annexed to this
Sublease as Exhibit D is a form of letter of credit that is satisfactory to Sublessor. The
Letter of
Credit shall provide that:



          (A) The Issuing Bank shall pay to Sublessor or its duly
authorized representative an amount up to the face amount of the Letter of Credit upon
presentation of only the Letter of Credit and a sight draft in the amount to be drawn;




          (B) The Letter of Credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year each (the last such
extension to provide for the continuance of such Letter of Credit for at least 60 days




14









 







beyond the Expiration Date of this Sublease), unless the Issuing Bank sends written
notice (hereinafter called the ''Non-Renewal Notice”) to Sublessor by certified or
registered mail, return receipt requested, not less than thirty (30) days next preceding the
then expiration date of the Letter of Credit that it elects not to have such Letter of Credit
renewed; and




          (C) The Letter of Credit shall be transferable by the beneficiary
thereof, without charge to the beneficiary, and that any failure to pay the transfer charges
shall not affect the beneficiary’s ability to transfer the Letter of Credit; the Letter of
Credit may be transferred as aforesaid from time to time, by the then beneficiary under
the Letter of Credit; to effectuate a transfer under the Letter of Credit, the beneficiary
must notify the Issuing Bank in a writing signed by an authorized signatory of
beneficiary, of the name and address of the transferee and of the effective date of the
transfer; and upon the Issuing Bank’s receipt of such writing, the Issuing Bank will issue
an amendment to the Letter Credit that changes the name and address of the beneficiary
hereof and shall deliver the original of such amendment to the new beneficiary/transferee
and a copy thereof to the prior beneficiary/transferor. Any transfer of the Letter of Credit
shall be in accordance with subparagraph (iii) below.




     (ii) Sublessor, after its receipt of the Non-Renewal Notice, shall have
the right, exercisable by a sight draft only, to receive the moneys represented by the Letter of
Credit which moneys shall be held by Sublessor as a cash deposit pursuant to tile terms of this
Section 21 pending the replacement of such Letter of Credit. Within seven (7) days after receipt
of the replacement of such Letter of Credit, Sublessor shall deriver such cash deposit to
Sublessee or as Sublessee may so direct in writing.



     (iii) In the event that Sublessor, pursuant to an assignment of the Prime
Lease, assigns this Sublease to a third party, Sublessor shall have the right to transfer the cash
security deposit and/or Letter of Credit to the assignee and Sublessor shall thereupon be released
hy Sublessee from all liability for the return of the cash security deposit and/or Letter of
Credit.
In such event, Sublessee agrees to look solely to the new Sublessor for the return of said cash
security or Letter of Credit. It is agreed that the provisions hereof shall apply to every transfer
or
assignment.made of said cash security or Letter of Credit (0 a new Sublessor. In connection with
the foregoing, Sublessee, at no cost to Sublessor, shall reasonably cooperate with Sublessor and
such vendee, transferee or lessee in connection with the transfer or assignment of such security
or Letter of Credit, including, without limitation, executing and delivering, ,within ten (10) days
after demand therefor, any and all instruments, certificates, agreements or other documents that
Sublessor, such vendee, transferee or lessee, the · bank with which such security is deposited or
the Issuing Bank may require.



     (d) Sublessee covenants that it will not assign or encumber, or attempt to
assign or encumber, such cash security or Letter of Credit, and that neither Sublessor nor its
successors or assigns shall be bound by any such assignment, encumbrance, attempted
assignment, or attempted encumbrance.



     22. Insurance Requirements.


Prior to the Commencement Date, Sublessee shall provide Sublessor with evidence of
insurance, which includes Sublessor as an insured party and otherwise complies with the
requirements of the Prime Lease.




15









 








     23. Sublessor’s Right of Access.



          (a) Sublessor reserves for itself and its agents and employees the right to enter
the Subleased Premises at all reasonable times (upon reasonable telephonic or written notice,
except in the case of emergency) to post notices of non-responsibility and to determine whether
Sublessee is complying with its obligations under this Sublease. When entering the Subleased
Premises, except in case of an emergency, Sublessor shall be accompanied by a representative of
Sublessee, provided that Sublessee makes such representative available when Sublessor wishes
to enter.




          (b) Sublessor shall have the right to use any and all reasonable means that
Sublessor may deem necessary or proper to open doors in an emergency, in order to obtain entry
to any portion of the Subleased Premises, provided that Sublessor shall use reasonable efforts to
maintain the security of the Subleased Premises and its contents.




     24. Right to Cure Defaults and Damages.



     If Sublessee shall at any time fail to make any payment or perform any other obligation
of Sublessee hereunder after any required notice and within the applicable cure period, if any,
then Sublessor shall have the right, but not obligation, after two (2) days written notice to
Sublessee, or without notice to Sublessee in the event of any emergency, and without waiving or
releasing Sublessee from any obligations of Sublessee hereunder, to make such payment or
perform such other obligation of Sublessee in such manner and to such extent as Sublessor shall
deem necessary, and in exercising any such right, to pay any incidental costs and expenses,
employ attorneys, and incur and pay reasonable attorneys’ fees. Sublessee shall pay to
Sublessor, upon demand, all sums so paid or incurred by Sublessor and all incidental costs and
expenses of Sublessor in connection therewith, together with interest thereon at the Interest Rate.



     25. Sublessor’s Representations, Warranties and Covenants.



     Sublessor represents, warrants and covenants to Sublessee that the following are true and
correct as of the date hereof: (i) a true and correct copy of the Prime Lease is attached hereto
and
made a part hereof as Exhibit C, with certain of the provisions that do not apply to the Sublease
redacted, (ii) the Prime Lease is unmodified and in full force · and effect, (iii) Sublessor has
received no written notice from Landlord of default by Sublessor, as tenant under the Prime
Lease, which remains uncured, and (iv) to the best knowledge of Sublessor, neither Sublessor
nor Landlord is in default in the performance and/or observance of any material covenant,
agreement or condition of the Prime Lease on either Sublessor’s or Landlord’s part to be
performed or observed.



     26. Bankruptcy.



          (a) If a petition is filed by or against Sublessee for relief under the Bankruptcy
Code, and Sublessee (including for the purposes of this Section, Sublessee’s successor in
bankruptcy, whether a trustee, Sublessee as debtor in possession or other responsible person)
assumes, or assumes and proposes to assign this Lease pursuant to the provisions of the
Bankruptcy Code to any person or entity which has made or accepted a bona fide offer to accept
an assignment of Uris Sublease, such assumption or assumption and assignment may only he
made if all of the terms and conditions of this Section 26 are satisfied.




16









 








          (b) Conditions to Assumption.




               (i) No election by Sublessee to assume this Sublease shall be
effective unless each of the following conditions, which Sublessor and Sublessee acknowledge
are commercially reasonable, have been satisfied, and Sublessor has acknowledged in writing
that: (i) Sublessee has cured, or has provided Sublessor adequate assurance (as defined
below) that within ten (10) days from the date of such assumption Sublessee will cure all
monetary defaults under this Sublease and within thirty (30) days from the date of such
assumption Sublessee will cure all nonmonetary defaults under this Sublease; (ii)
Sublessee bas compensated, or bas provided to Sublessor adequate assurance that within
ten (10) days from the date of assumption Sublessor will be compensated for any
pecuniary loss incurred by Sublessor arising from the default of Sublessee as recited in
Sublessor’s written statement of pecuniary loss sent to Sublessee; (iii) Sublessee bas
provided Sublessor with adequate assurance of the future performance (as defined below)
of each of Sublessee’s obligations · under this Lease, but in any event Sublessee shall have
replenished and/or renewed the cash security deposit, as security for the timely payment
of Rent and performance of all other obligations hereunder, in the amount of $23,980;
and (iv) Sublessee shall have provided Sublessor at least thirty (30) days prior written
notice of any proceeding concerning the assumption of this Sublease.



               (ii) For purposes of this Section, Sublessor and Sublessee
acknowledge that (A) “adequate assurance” shall mean that the Bankruptcy Court shall
have entered a Final Order segregating $23,980 of cash to be payable to Sublessor, and/or
authorizing Sublessee to secure “Sublessee’s obligation to Sublessor 10 cure all monetary
and/or nonmonetary defaults under this Sublease within the time periods set forth above
and (B) “adequate assurance of future performance” shall mean that Sublessee bas and
will continue to have sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to fulfill the obligations of Sublessee under this
Sublease, in addition to the simultaneous posting of the cash security deposit.



          (c) Conditions to Assignment. In addition to satisfying the terms and
conditions of Subsection 26(b), Sublessee shall give notice 10 Sublessor oflbe proposed
assignment setting forth (1) the name and address of the proposed assignee and (2) all of the
terms and conditions of the offer and proposed assignment. Sublessee shall also deliver to
Sublessor a statement confirming that the assignee will continue to use the Subleased Premises
for the Permitted Use. Sublessor and Sublessee acknowledge that Sublessor’s asset will be
substantially impaired if the trustee in bankruptcy, debtor or debtor in possession or any assignee
of the Sublease makes any use of the Subleased Premises other than the Permitted Use.
Adequate assurance of future performance of the Sublease shall be furnished by the proposed
assigoee, no later than fifteen (15) days after Sublessee has made or received such offer, but in
no event later than ten (10) days prior to the date on which Sublessee applies to a court of
compelent jurisdiction for authority and approval to effect the proposed assignment. The
description of the adequate assurance of future performance of the proposed assignee in such
notice shall include such financial and other information as is necessary to demonstrate that the
financial condition and operating performance experience of the proposed assignee and its
guarantors, if any, is sufficient to perform in such a manner as to meet and satisfy all
obligations
under this Sublease in a timely fashion, and shall be satisfactory to Sublessor in all other
respects. Sublessor shall have the prior right and option, to be exercised by notice to Sublessee
given at any time prior to the date on which the court order authorizing such assignment becomes




17









 







a Final Order, to accept an assignment of this Sublease upon the same terms and conditions, and
for the same consideration, if any, as the proposed assignee, less any brokerage commissions
which may otherwise be payable out of the consideration to be paid by the proposed assignee for
the assignment of this Sublease. If this Sublease is assigned pursuant to the provisions of the
Bankruptcy Code, “adequate assurance of future performance,” shall require from the assignee a
deposit or posting of a letter of credit for the performance of its obligations under this Sublease
in the same amount as required by Section 26(b). Any person or entity to whom this Sublease
is
assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act
or documentation to have assumed all of Sublessee’s obligations arising under this Sublease on
and after the date of such assignment. Any such assignee shall, upon demand, execute and
deliver to Sublessor an instrument confirming such assumption. No provision of this Sublease
shall be deemed a waiver of Sublessor’s rights or remedies under the Bankruptcy Code to oppose
any assumption and/or assignment of this Sublease, to require timely performance of Sublessee’s
obligations under this Sublease, or to regain possession of the Subleased Premises if this
Sublease has neither been assumed nor rejected within sixty (60) days after the date of entry of
the Bankruptcy Court’s order for relief.




          (d) Notwithstanding anything in this Sublease to the contrary, all amounts
payable by Sublessee to or on behalf of Sublessor under this Sublease, whether or not expressly
denominated as such, shall constitute “rent’ for the purposes of Section 502(b)(6) of the
Bankruptcy Code.




     27. Costs and Expenses.



     Sublessee shall reimburse Sublessor on demand for all costs and expenses (including
attorneys’ fees and disbursements and court costs) incurred by Sublessor in connection with
enforcing Sublessee’s obligations under this Sublease after a default by Sublessee, whether
incurred in connection with an action or proceeding commenced by Sublessor, by Sublessee, by
a third party or otherwise. All such amounts shall be deemed to be Additional Rent, and shall be
collectible whether incurred before or after the expiration or termination of this Sublease.



     28. Non-Recourse.



     The obligations of Sublessor under this Sublease shall not be binding upon Sublessor
named herein after the sale, conveyance, assignment or transfer by such Sublessor (or upon any
subsequent Sublessor after the sale, conveyance, assignment or transfer by such subsequent
Sublessor) of its interest in the Subleased Premises, and in the event of any such sale,
conveyance, assignment or transfer, Sublessor shall be and hereby is entirely freed and relieved
of all covenants and obligations of Sublessor under this Sublease thereafter arising, and the
transferee shall be deemed to have assumed, subject to the remaining provisions of this Section
all obligations of the Sublessor under this Sublease arising after the effective date of the
transfer. No trustee, partner, shareholder, director or officer of Sublessor, or of any partner or
sbareholder of Sublessor (collectively, the “Parties”) shall have any direct or personal liability
for the performance of Sublessor’s obligations under this Sublease, and Sublessee shall oat seek
any damages against any of the Parties whatsoever. Sublessee shall not look to any property or
assets of any of the Parties in seeking either to enforce Sublessor’s obligations under this
Sublease or to satisfy a judgment for Sublessor’s failure to perform such obligations.



18









 





     29. Miscellaneous.



          (a) Modifications. This Sublease may not be modified, amended, extended,
renewed, terminated or otherwise modified except by a written instrument signed by both of the
parties hereto.




          (b) Entire Agreement. It is acknowledged and agreed that all understandings
and agreements heretofore had between the parties are merged in this Sublease, which alone
fully and completely expresses their agreement with respect to the subject matter hereof. This
Sublease has been executed and delivered after full investigation by each of the parties hereto,
and neither party hereto bas relied upon any statement, representation or warranty which is oat
specifically set forth in this Sublease.




          (c) Not an Offer. This Sublease does not constitute an offer to sublease the
Subleased Premises to Sublessee and Sublessee shall have no rights with respect to the leasing of
the Subleased Premises unless and until Sublessor, in its sale and absolute discretion, elects to
be
bound hereby by executing and unconditionally delivering to Sublessee an original counterpart
hereof.




          (d) Governing Law. This Sublease shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without regard to conflict of
laws principles.




          (e) Successors and Assigns. Subject to the restrictions on assignment and
subletting in this Sublease and in the Prime Lease, this Sublease and the covenants and
agreements herein continued and incorporated herein by reference shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto.




          (f) Captions. The captions contained in this Sublease are inserted only as a
matter of convenience and for reference and in no way define, limit or describe the scope of this
Sublease nor the intent of any provision hereof.




          (g) Counterparts. This Sublease may be executed in one or more
counterparts, each of which shall be an original and all of which taken together shall constitute
but one and the same instrument.




          (h) Existing Furniture. The Subleased Premises will be delivered to Sublessee
with the furniture located in the Subleased Premises (the “Furniture”) remaining in place and
Sublessee agrees to accept the Subleased Premises with the Furniture in place. Sublessee shall
be permitted to use the Furniture daring the Term without charge. Sublessor makes no
representation or warranty as to the Furniture. Upon the expiration of the Term, title to the
Furniture shall vest in Sublessee and Sublesee shall remove the Furniture from the Subleased
Premises. If this Sublease is terminated by reason of default by Sublessee, title to the Furniture
shall not vest in Sublessee and Sublessee shall not remove the Furniture from the Subleased
Premises.




[Remainder of page intentionally left blank]




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IN WITNESS WHEREOF, this Sublease has been duly executed as of the day and year
first above written.




	 	 	 	 	 
	 	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 	 
	 
	 	Sublessee’s federal employer identification

number is: 22-3685068

 	 
	 	 	 
	 	 	 
	 	 	 



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EXHIBIT A




Floor Plan of Subleased Premises




[ATTACHED HERETO]




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EXHIBIT A-1




Sublessor’s Work



Sublessor shall, at Sublessor’s sale cost and expense, perform the following work:






1. Paint (to a professional finish) and carpet the main corridor (as shown on
Exhibit A) on the 6th floor. Paint and carpet shall be building standard in
colors selected by Sublessee.




2. Sublessor shall steam clean all carpeted surfaces in the Subleased Premises.



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EXHIBIT B




Form of Commencement Date Agreement




COMMENCEMENT DATE AGREEMENT




     AGREEMENT
made as of the ___ day of October, 2005, by and between MELLON
JNVESTOR SERVICES LLC, a New Jersey limited liability company having an office at 85
Challenger Road, Ridgefield Park, New Jersey, as Sublessor, and GAIN CAPITAL INC., a
Delaware corporation, having an office at 550 Hills Drive, Bedminster, New Jersey 07921, as
Sublessee.



W I T N E S S E T H:



     WHEREAS, Sublessor and Sublessee have entered into an Agreement of Sublease, dated
as of October _____, 2005 (the “Sublease”), pursuant to which Sublessor subleased to Sublessee
certain space in the Building known as and located at 44 Wall Street, New York, New York, as
more fully described in the Sublease; and



     WHEREAS, Sublessor and Sublessee wish to confirm the Commencement Date of the
Sublease.



     NOW, THEREFORE, the parties confirm as follows:



     1. All capitalized items not defined in this Agreement shall have the meanings
ascribed to them in the Sublease.



     2. The Term of the Sublease has commenced on                      2005, and such date
constitutes the “Commencement Date,” as such term is defined in the Sublease.



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IN WITNESS WHEREOF, Sublessor and Sublessee have respectively executed this
Commencement Date Agreement as of the day and year first above written.




	 	 	 	 	 
	 	SUBLESSOR:




MELLON INVESTOR SERVICES LLC

 	 
	 	By:  	 	 
	 	Name:	 	 
	 	Title:	 	 
	 
	 	SUBLESSEE:




GAIN CAPITAL, INC.

 	 
	 	By:  	/s/
Mark E. Galant 
 	 
	 	Name:	Mark E. Galant 	 
	 	Title:	CEO 	 



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EXHIBIT C




The Prime Lease




[ATTACHED HERETO]




25









 






EXHIBIT D




Form of Letter of Credit




[date]




                                        




                                        




                                        




Gentlemen:



We hereby
establish our Clean Irrevocable Standby Letter of Credit No. ___ in your favor for up
to the aggregate amount of US Dollars ($ ) effective immediately and expiring at our counters
at our close of business on October _____, 2005.



Funds are available, from time to time, against presentation of one or more of your sight draft(s).
The honoring of any sight draft shall not relieve the undersigned of its liability to so honor any
further sight draft(s); provided, however, that the undersigned shall, except as provided below,
not be obligated to honor any sight draft if such sight draft, when aggregated with amounts
previously drawn under this Letter of Credit, shall exceed the amount stated above; in which
case, only the balance then existing shall be disbursed pursuant to such sight draft.



It is a condition of this Letter of Credit that it shall be automatically extended without
amendment for additional periods of one (l) year from the present or future expiration date,
unless we notify you in writing by Certified Mail, return receipt requested, or overnight courier
service at least thirty (30) days prior to the then present expiration date that we elect not to do
so.
Upon receipt by you of such notice, you may draw on us at sight for the balance remaining in
this Letter of Credit.



We hereby engage with you that all draft(s) drawn under and in compliance with the terms of
this Letter of Credit will be duly honored upon proper presentation (by facsin1ile or by overnight
courier to:                                                             .



This Letter of Credit may be transferred any number of times to any transferee designated by the
then beneficiary hereunder. Transfer of this Letter of Credit shall be effective by the
presentation
to the undersigned of the original of this Letter of Credit accomplished by n request designating
the transferee. Upon such presentation, the undersigned shall forthwith effect a transfer of this
Letter of .Credit to such designated transferee. All transfer fees shall be for the account of the
Applicant.



Upon such presentation, the undersigned shall forthwith effect a transfer of this Letter of Credit
to such designated transferee. All transfer fees shall be for the account of the Applicant.



Except as otherwise expressly provided herein, this Letter of Credit is subject to the
International
Standby Practices (ISP98), International Chamber of Commerce Publication No. 590.





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