Exhibit 10.41
SURRENDER OF SUBLEASE
AGREEMENT
AGREEMENT dated April 28, 2006 (this "
Agreement "), by and between DEUTSCHE BANK AG, NEW YORK
BRANCH, a Germany banking corporation qualified to do business
in the State of New York, having an office at 60 Wall Street, Mail
Stop NYC60-3430, New York, New York 10005 (" Sublandlord ")
and FIRST ALBANY COMPANIES, INC., a New York corporation, having an
office at c/o First Albany Capital Inc., 677 Broadway, Albany, New
York 12207 (" Subtenant ").
W I T N E S S
E T H :
WHEREAS:
A.
WHEREAS, by Agreement of Lease, dated as
of December 22, 1989 (the " Original Lease "),
between 1301 Properties Owner, L.L.C. (formerly known as 1301
Properties, L.L.C., as successor to Tishman Speyer Trammell Crow
Limited Partnership; " Master Landlord "), as
landlord, and PricewaterhouseCoopers LLP (successor to Coopers
& Lybrand L.L.P.) (" Overlandlord "), as tenant, as
supplemented and amended from time to time by certain letter
agreements listed on Exhibit A attached to the Overlease and by
that certain First Amendment of Lease and Agreement dated July 17,
1990, by that certain Second Amendment of Lease and Agreement dated
January 28, 1993, by that certain License Agreement dated January
1, 1995, by that certain Third Amendment dated July 19, 2001, by
that certain Fourth Amendment dated December 16, 2004 and by that
certain Fifth Amendment dated March 10, 2005, each between Master
Landlord and Overlandlord (the Original Lease, as so supplemented
and amended, hereinafter collectively referred to as the "
Master Lease "), Master Landlord leased to Overlandlord
certain premises, as said premises may be modified from time to
time (the " Master Premises ") more particularly
described in the Master Lease and initially located on the
subconcourse, the concourse and the second (2nd) through and
including the tenth (10th) floors of the building (the "
Building ") known as 1301 Avenue of the Americas, New York,
New York; and
B.
WHEREAS, by Agreement of Sublease, dated
as of September 19, 1996 (the " Overlease "), between
Overlandlord, as sublandlord, and Sublandlord, as subtenant,
Overlandlord subleased to Sublandlord the eighth (8th) and ninth
(9th) floors of the Master Premises (the " Overlease
Premises "), which Overlease was consented to by Master
Landlord pursuant to that certain Consent to Sublease dated
September 19, 1996, signed by Master Landlord, Overlandlord and
Sublandlord (the " Consent to Overlease "; the Overlease,
the Consent to Overlease and the Master Lease collectively referred
to herein as the " Primary Lease Documents ");
and
C.
WHEREAS, Sublandlord and First Albany
Capital, Inc. (" FA-Capital ") entered into an Agreement of
Sublease dated April 6, 2005 (together with the First Amendment,
collectively, the " FA Sublease ") and that certain First
Amendment to Sublease dated May 18, 2005 (the “ First
Amendment ”), for a portion of the Overlease Premises
consisting of 62,600 rentable square feet located on the entire 9
th floor of the Building (the " Subleased
Premises "), which FA Sublease was consented to under that
certain Landlord Consent to Sub-Sublease, dated May 18, 2005,
entered into by Master Landlord , Overlandlord, Sublandlord and
FA-Capital (the “ Consent to Sublease ”);
and
D.
WHEREAS, FA-Capital and Subtenant entered
into that certain Assignment and Assumption dated September 15,
2005 and effective as of July 1, 2005 (the “
Assignment ”), pursuant to which FA-Capital assigned
and Subtenant assumed all of the rights and obligations of the
subtenant under the FA Sublease; and
E.
WHEREAS, Subtenant and Lehman Brothers
Holdings Inc., a Delaware corporation (" Lehman ") have
entered into a License Agreement dated March 31, 2006, and a
consent thereto (the " Consent to License "), of even date
therewith, among Master Landlord, Overlandlord, Sublandlord,
Subtenant, and Lehman (collectively, the " License "),
pursuant to which Subtenant has given Lehman a license to enter the
Subleased Premises and perform certain work more particularly
described in the License (the FA Sublease, as amended by the
Consent to Sublease and the Consent to License, is hereinafter
referred to at the " Sublease "); and
F.
WHEREAS, Subtenant and Lehman have
advised Sublandlord that Subtenant desires to surrender the
Subleased Premises and terminate the Sublease so that Lehman may
sub-sublet the Subleased Premises from Sublandlord and,
accordingly, Sublandlord and Lehman entered into contemporaneously
herewith a separate agreement to so sub-sublet (the " Lehman 9
th Floor Sublease "); and
G.
WHEREAS, Sublandlord has agreed to accept
the surrender of Subleased Premises subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the
premises, $10.00 and of other good and valuable consideration, it
is agreed:
1.
Definitions . All capitalized terms used in this Agreement
and not defined herein shall have the meanings assigned thereto in
the Sublease.
2.
Surrender .
(a)
Subtenant hereby agrees to quit,
surrender and vacate the Subleased Premises immediately prior to
the later to occur of: (i) the commencement date of the Lehman 9
th Floor Sublease, which commencement date shall be the
first date that Sublandlord has received the written consent (the "
2006 Consent ") to the Lehman 9 th Floor Sublease
and to this Agreement from Master Landlord and Overlandlord in the
form attached to the Lehman 9 th Floor Sublease and
which consent shall have been executed and agreed to by Lehman,
Subtenant and FA-Capital, and (ii) Lehman has executed and
delivered to Sublandlord a letter confirming that the Lehman 9
th Floor Sublease has commenced and is in full force and
effect, provided that a fully executed copy of the 2006 Consent and
a copy of the Lehman 9 th Floor Sublease commencement
date confirmation letter shall have been sent to Subtenant (the "
Surrender Date "). Simultaneously therewith, the
Sublease shall automatically terminate and be of no further force
or effect as of the Surrender Date. Promptly after the
Surrender Date is established, the parties hereto shall execute a
letter agreement which sets forth the actual Surrender
Date.
(b)
On the Surrender Date, or earlier
termination of the Sublease pursuant to the Sublease, and
notwithstanding anything to the contrary contained in the Sublease,
Subtenant shall surrender and deliver up the Subleased Premises,
including all leasehold improvements, vacant, free and clear of any
liens or encumbrances and otherwise in the condition permitted
under the License.
3.
Fixed Rent . Subtenant and Sublandlord acknowledge that
Subtenant has paid Fixed Rent in advance through April 30, 2006.
If the Surrender Date is not on the last day of a calendar
month, the Fixed Rent from and including the Surrender Date to and
including the last day of the calendar month in which the Surrender
Date occurs shall be applied to the fixed rent due for such period
under the Lehman 9 th Floor Sublease and Subtenant shall
seek reimbursement from Lehman for such amount pursuant to a
separate agreement between Subtenant and Lehman.
4.
Failure to Surrender
.
(a)
If Subtenant fails to quit, surrender and
vacate the Subleased Premises in accordance herewith on or before
the Surrender Date, the Sublease shall nevertheless terminate with
respect to the Subleased Premises, on the Surrender Date.
Subtenant shall thereafter be deemed to be holding over as to
the Subleased Premises without the consent of the Sublandlord
unless such failure to quit, surrender and vacate shall be by
reason of Lehman’s occupancy of the Subleased Premises
pursuant to the terms of the License.
(b)
Except as may be otherwise expressly
provided in this Agreement, if the Subleased Premises are not
vacated and surrendered on or before the Surrender Date, Subtenant
hereby agrees that the holdover rent set forth in Section 23.1 of
the Sublease and all other remedies of Sublandlord under the
Sublease, at law or in equity, shall be applicable as if the
Surrender Date was t
