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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 302 Washington Avenue Extension,
Albany, New York 12203 (the "Landlord"), and FIRST ALBANY
COMPANIES INC. , with an office at 677 Broadway, Albany,
New York 12207 (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 677 Broadway, City and County of Albany,
State 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 10
th floor
in the Building and desires to surrender to Landlord the
entire 10 th 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 da
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