exhibit10-46.htm


    
      

      

    


    


    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 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:

    


    
      	
               

            	
              (A)

            	
              On
                or before November 15, 2007, Tenant shall surrender 10,204 square
                feet as
                shown on Exhibit "A" attached hereto ("First Surrender
                Date");

            


    

    
      	
               

            	
              (B)

            	
              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

            


    

    
      	
               

            	
              (C)

            	
              On
                or before April 1, 2008, Tenant shall surrender the entire Surrender
                Premises ("Third Surrender Date")

            


    

    


    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:_______________________________

               Joseph
      R. Nicolla, Member

    


    


    


    
      	
               

            	
              First
                Albany Companies Inc.

            


    

    


    


    
      	
               

            	
              By:_________________________________

            


    

    
      	
               

            	 	
              Name:

            


    

    Title:

    


    


    
      	
              STATE
                OF NEW YORK

            	
              )

            


    

    )SS.:

    
      	
              COUNTY
                OF ALBANY

            	
              )

            


    

    


    On
      the
      _____ day of __________________ in the year 2007 before me, the undersigned,
      personally appeared Joseph R. Nicolla, 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

            	
              )

            


    

    )SS.:

    
      	
              COUNTY
                OF

            	
              )

            


    

    


    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