FIFTH AMENDMENT TO SUB-LEASE AGREEMENT
FIFTH
AMENDMENT TO SUB-LEASE AGREEMENT
FIFTH
AMENDMENT TO SUB-LEASE AGREEMENT (“Amendment”), made this 2nd day of
November, 2007 between COLUMBIA 677, L.L.C., a New York limited
liability company with offices at 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxx,
Xxx
Xxxx 00000 (the "Landlord"), and FIRST ALBANY COMPANIES INC.,
with an office at 000 Xxxxxxxx, Xxxxxx, Xxx Xxxx 00000 (the
"Tenant").
WHEREAS,
Landlord and Tenant entered into a Sub-Lease Agreement dated August
12,
2003 as amended pursuant to a First Amendment dated October 11,
2004 and Second Amendment dated February 28, 2005 and as amended by
that certain Third Amendment dated September 29, 2006 and as amended
by that certain Fourth Amendment dated August 9, 2007 (collectively the
Sublease”) concerning the lease of 32,698 square feet in the building located at
000 Xxxxxxxx, Xxxx xxx Xxxxxx xx Xxxxxx, Xxxxx of New York (“Leased Property”);
and
WHEREAS,
Tenant desires to surrender a portion of the Leased Property prior
to
the expiration date set forth in the Sublease and Landlord is willing to accept
such surrender in the manner and upon and subject to the terms and conditions
hereinafter set forth; and
WHEREAS,
Landlord will enter into a new lease (the "New Lease") for the portion of the
Leased Property being surrendered with a new tenant (the "New Tenant");
and
WHEREAS,
Landlord and Tenant desire to amend certain terms and conditions of
the
Sublease as specifically set forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises, of the mutual
covenants set forth herein, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. All
capitalized terms not specifically defined herein shall have the meaning set
forth in the Sublease.
2. Pursuant
to the Sublease, Tenant is leasing space located on the 10th floor in
the
Building and desires to surrender to Landlord the entire 10th floor of
the
Building consisting of 15,358 square feet of space in the manner described
herein ("Surrender Premises"). Tenant wishes to surrender possession
of the Surrender Premises and Landlord hereby agrees to release the Tenant
from
its lease obligations under the Sublease for its use and occupancy of the
Surrender Premises pursuant to the terms and conditions of this
Amendment.
3. Provided
and on the condition that Landlord and New Tenant have both executed and
delivered the New Lease, and Landlord gives Tenant notice that the New Lease
has
been fully executed and delivered prior to the Surrender Date, Tenant hereby
agrees to vacate the Surrender Premises as follows:
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(A)
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On
or before November 15, 2007, Tenant shall surrender 10,204 square
feet as
shown on Exhibit "A" attached hereto ("First Surrender
Date");
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(B)
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On
or before December 15, 2007, Tenant shall surrender the remainder
of the
Surrender Premises except for the existing computer room shown on
the
attached Exhibit "B" ("Second Surrender Date");
and
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(C)
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On
or before April 1, 2008, Tenant shall surrender the entire Surrender
Premises ("Third Surrender Date")
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such
dates, as all or some of them may be extended pursuant to the last sentence
of
this paragraph. The First Surrender Date, the Second Surrender Date
and the Third Surrender Date are sometimes referred to herein collectively
as
the "Surrender Dates" or each a "Surrender Date".
Therefore,
Tenant's surrender of the applicable Surrender Premises on each of the Surrender
Dates set forth herein is OF THE ESSENCE. Tenant shall comply with
the terms and conditions of Section 15 of the Sublease regarding the condition
of each Surrender Premises on the applicable Surrender Date. In
addition, prior to the Third Surrender Date, Tenant shall remove its computer
wiring installed in the Surrender Premises that are the subject of the Third
Surrender Date. Notwithstanding anything set forth in this paragraph
to the contrary, Tenant if Tenant fails to vacate the Surrender Premises (or
any
portion thereof) on the applicable Surrender Date, Tenant shall pay a fix sum,
on demand, of $50,000 per month for such failure which sum shall be charged
to
Tenant on a per diem basis based upon a 30 day month (i.e. Tenant shall be
charged $1,666.67 for each day Tenant fails to vacate the applicable portion
of
the Surrender Premises on the applicable Surrender Date).
4. As
of each Surrender Date set forth above and provided (i) Tenant has vacated
the
applicable Surrender Premises on or before such Surrender Date , (ii)
Tenant pays to Landlord the applicable Surrender Fee when due, and (iii) the
terms and conditions of this Amendment are satisfied, the rentable square
footage of the Leased Property as defined in the Sublease shall be reduced
from
25,116 sf to 9,758 sf, in three stages based upon the reduction of square
footage occurring on each Surrender Date, the "Tenant's Share" as
defined in Section 7 of the Sublease shall be proportionately reduced and each
other term and condition in the Sublease, if any, that is based on square
footage shall likewise be proportionately reduced. Provided the conditions
set
forth in Paragraph 4(i), (ii) and (iii) have been satisfied on the applicable
dates, all rent or other charges due under the Sublease with respect to each
of
the three portions of the Surrender Premises or otherwise arising from each
such
portion of the Surrender Premises shall cease on the applicable Surrender
Date.
5. Landlord
and Tenant hereby agree that, in consideration of Landlord agreeing to the
surrender of the Surrender Premises, and provided that the New Lease has been
executed and delivered with notice thereof given by Landlord to Tenant as
provided herein, Tenant shall make a payment equal to the sum of One Million
Fifty Thousand Dollars and 00/100 ($1,050,000) to Landlord ( "Surrender Fee")
which shall be paid by Tenant to Landlord in three equal installments of
$350,000.00, the first installment shall be paid on the First Surrender Date,
the second installment shall be paid on the Second Surrender Date and the third
installment shall be paid on the Third Surrender Date
Any
late
fees for late payment of rent set forth in the Sublease shall be applicable
to
the late payment of the Surrender Fee.
6. If
the New Lease is not executed by Landlord and the New Tenant on or before
November 7, 2007, either of Landlord or Tenant may declare this Agreement to
be
null and void and, notwithstanding whether Tenant may have vacated the Surrender
Premises, the Surrender Premises shall continue to be part of the Leased
Property for all purposes under the Sublease. Landlord shall keep Tenant
reasonably informed regarding the status of negotiations with the New Tenant
and
any date upon which Landlord and the New Tenant intend to execute the New
Lease.
7. As
of the Third Surrender Date, and provided that the New Lease has been executed
and delivered with notice thereof given by Landlord to Tenant as provided
herein, Tenant's parking spaces, as provided in the Sublease, shall be reduced
from 1 spaces to 0 spaces and the Parking Rent under the Sublease shall be
reduced accordingly.
8. Paragraph
32 shall be deleted from the Sublease.
9. Landlord
and Tenant shall be equally responsible for any transfer or similar tax due
in
connection with or arising from the transactions contemplated by this
Amendment. Landlord shall be responsible for the filing of a tax
return or similar document or instrument required in connection with the payment
of same but Tenant agrees to reasonably cooperate with Landlord and to execute
any document reasonably requested by Landlord in connection with
same.
10. Landlord
hereby acknowledges and agrees that pursuant to the Agreement of Subordination,
Non-Disturbance and Attornment, dated May 12, 2005, by and among Landlord,
Tenant and Prudential Mortgage Capital Company LLC ("Prudential"), the consent
of Prudential is required for the modification of the Sublease contemplated
by
this Agreement. Landlord agrees to obtain such consent (at its sole
cost and expense) at prior to the First Surrender Date and to provide
Tenant with evidence of same, in form and substance reasonably satisfactory
to
Tenant. If Landlord does not obtain such consent prior to the First
Surrender Date, it shall indemnify and hold Tenant harmless for any claim by
Prudential in connection with such failure.
11. This
Amendment may be executed in several counterparts, and any signed counterpart
shall constitute a legal original for all purposes. Any such
counterparts maybe
introduced into evidence in any action or proceeding without having to produce
the others.
12. Except
as specifically amended in this Amendment, all terms and provisions of the
Sublease shall remain unchanged and in full force and effect.
13. This
Amendment (i) shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, (ii) shall be governed
by
and construed in accordance with the laws of the State of New York, and (iii)
may be executed in multiple counterparts, each of which shall constitute an
original and all of which shall constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the parties have executed this Fifth Amendment to
Sublease as of the date first above written.
Columbia
677,
L.L.C.
By:_______________________________
Xxxxxx
X. Xxxxxxx, Member
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By:_________________________________
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Name:
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Title:
STATE
OF NEW YORK
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)
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)SS.:
COUNTY
OF ALBANY
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)
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On
the
_____ day of __________________ in the year 2007 before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxxx, personally known to me or proved to
me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in
his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the
instrument.
______________________________
Notary
Public
STATE
OF NEW YORK
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)
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)SS.:
COUNTY
OF
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)
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On
the
_____day of ________________ in the year 2007 before me, the undersigned,
personally appeared ____________________, personally known to me or proved
to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed
the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
______________________________
Notary
Public