EXHIBIT 10.22a
THIRD AMENDMENT OF LEASE
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THIS THIRD AMENDMENT OF LEASE (this "Amendment"), made as of the
1st day of December, 1999, by and between ONE PENN PLAZA LLC, a New York
limited liability company, having an office c/o MRC Management LLC, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and FIRST ALBANY
COMPANIES, INC., a New York corporation, having an office at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease, dated as of March 21, 1996, as
amended by a Lease Modification Agreement, dated as of June 17, 1996, and a
Second Lease Modification Agreement, dated as of July 12, 1996 (the "Second
Amendment") (such Agreement of Lease, as so amended, the "Lease"), Landlord's
predecessor-in-interest, Mid-City Associates ("Mid-City"), did demise and let
unto Tenant, and Tenant did hire and take from Mid-City, the entire rentable
area of the forty-second (42nd) floor, a portion of the forty-first (41st)
floor and a portion of the fortieth (40th) floor, as more particularly
identified in the Lease (the "Original Demised Premises"), of the building
known as and by the street address of Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (the
"Building"); and
WHEREAS, Landlord succeeded to Mid-City as owner of the Leasehold
in the Building; and
WHEREAS, Landlord and Tenant desire to provide for the leasing by
Landlord to Tenant of certain additional space on the forty-first (41st)
floor of the Building and to otherwise modify the Lease as set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and of the sum of Ten Dollars ($10.00) paid by Tenant to
Landlord, and for other good and valuable consideration, the mutual receipt
and legal sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their legal representatives, successors and assigns, hereby
agree as follows:
1. Definitions. All capitalized terms used herein shall have
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the meanings ascribed to them in the Lease, unless otherwise defined
herein.
2. Additional Space. Effective on December 1, 1999 (the
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"Additional Space Effective Date"), Landlord hereby leases to Tenant, and
Tenant hereby hires from Landlord, a portion of the forty-first (41ST)
floor of the Building as indicated by hatching on the floor plan annexed
hereto as Exhibit "A" (the "Additional Space") upon all of the same terms,
covenants and conditions set forth in the Lease, except as modified herein.
3. Modification of Lease. From and after the Additional Space
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Effective Date, the Lease is hereby modified and amended as follows:
(a) the Additional Space shall be added to, and deemed a
part of, the demised premises for all purposes of the Lease (except as
provided herein), so that the demised premises shall consist of the
Original Demised Premises and the Additional Space.
(b) the fixed annual rent with respect to the Additional
Space only (which amount includes the ERIF for the Additional Space as of
the date hereof) shall be an amount equal to:
(i) Two Hundred Ninety-One Thousand Eight Hundred
Forty Dollars ($291,840) per annum for the period commencing on the
Additional Space Effective Date and ending on the date immediately
preceding the third (3rd) anniversary of the Additional Space Effective
Date ($24,320.00 per month), and
(ii) Three Hundred Six Thousand Four Hundred Thirty-
Two Dollars ($306,432) per annum for the period commencing on the third
(3rd) anniversary of the Additional Space Effective Date and ending on the
date immediately preceding the seventh (7th) anniversary of the Additional
Space Effective Date ($25,536.00 per month), and
(iii) Three Hundred Twenty-One Thousand Twenty-
Four Dollars ($321,024) per annum for the period commencing on the seventh
(7th) anniversary of the Additional Space Effective Date and ending on
October 31, 2008 ($26,752.00 per month), payable in advance in equal
monthly installments at the times and in the manner provided in the Lease.
If the Additional Space Effective Date occurs on a date other than the
first (1st) day of any calendar month, then, on the Additional Space
Effective Date, Tenant shall pay to Landlord an amount equal to Eight
Hundred Ten and 67/100 Dollars ($810.67), multiplied by the number of
calendar days in the period from the Additional Space Effective Date to the
last day of the month in which the Additional Space Effective Date shall
occur, both dates inclusive. Such amount includes ERIF for the Additional
Space.
(iv) Tenant shall be entitled to a rent credit against
fixed annual rent of an aggregate amount equal to Eight Thousand Two
Hundred Dollars ($8,200) to be applied against the first (1st) monthly
installment of fixed annual rent.
(c) Article 26 of the Lease is hereby deleted in its entirety
and the following inserted in lieu thereof:
"Except as otherwise expressly provided in this Lease,
any bills, statements, consents, notices, demands,
requests or other communications given or required to
be given under this Lease shall be in writing and shall
be deemed sufficiently given or rendered if delivered
by hand (against a signed receipt) or if sent by
registered or certified mail (return receipt requested)
addressed:
If to Tenant (a) at the Building, Attn.: ----------,
or (b) at any place where Tenant or any agent or
employee of Tenant may be found if mailed subsequent to
Tenant's vacating, deserting, abandoning or
surrendering the demised premises, in each case with a
copy to First Albany Companies Inc., 00 Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attn.: General Counsel, or
If to Landlord at Landlord's address set forth in this
Amendment of Lease, Attn.: Xx. Xxxxx X. Xxxxxxxxx, and
with copies to (x) Vornado Realty Trust, Park 00 Xxxx,
Xxxxx XX, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, Attn.: Xx.
Xxxxxx Xxxxxx, (y) Proskauer Rose LLP, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxxxx X. Xxxxxx,
Esq., and (z) each mortgagee and superior lessor
(including, without limitation, the lessor under the
ground lease) which shall have requested same, by
notice given in accordance with the provisions of this
Article 26 at the address designated by such mortgagee
or superior lessor, or
to such other address(es) as Landlord, or any mortgagee
or lessor may designate as its new address(es) for such
purpose by notice given to Tenant in accordance with
the provisions of this Article 26. Any such xxxx,
statement, consent, notice, demand, request or other
communication shall be deemed to have been rendered or
given on the date when it shall have been hand
delivered or three (3) business days from when it shall
have been mailed as provided in this Article 26.
Anything contained herein to the contrary
notwithstanding, any operating statement, tax
statement, or any other xxxx, statement, consent,
notice, demand, request or other communication from
Landlord to Tenant with respect to any item of rental
(other than any "default notice" if required hereunder)
may be sent to Tenant by regular United States mail."
(d) the term "base year" (as such term is defined in Section
46(a)(i) of the Lease) shall mean with respect to the Additional Space only
the calendar year 2000;
(e) the term "base tax year" (as such term is defined in
Section 46(a)(ii) of the Lease) shall mean with respect to the Additional
Space only the twelve (12) month fiscal period commencing on July 1, 1999
and ending on June 30, 2000;
(f) the term "The Percentage" (as such term is defined in
Section 46(a)(iii) of the Lease) shall mean with respect to the Additional
Space only, Three Thousand Five Hundred Twenty-One ten-thousandths percent
(0.3521%) for real estate tax escalation, and Three Thousand Seven Hundred
Eighty-Three ten thousandths percent (0.3783%); for expense escalation;
(g) Section 46(a)(iii) of the Lease is hereby modified with
respect to the Additional Space only by deleting therefrom the number
"33,774" and by substituting therefore the number "7,296";
(h) The following new Section 10.12 is hereby added to the
Lease:
"10.12. Limitation Upon Assignment and Subletting .
Notwithstanding any other provision of this Lease,
neither Tenant nor any direct or indirect assignee or
subtenant of Tenant may enter into any lease, sublease,
license, concession or other agreement for use,
occupancy or utilization of space in the demised
premises which provides for a rental or other payment
for such use, occupancy or utilization based in whole
or in part on the net income or profits derived from
any person from the property leased, occupied or
utilized, or which would require the payment of any
consideration which would not fall within the
definition of "rents from real property," as that term
is defined in Section 856(d) of the Internal Revenue
Code of 1986, as amended."
(i) Supplementing Articles 39 and 52 of the Lease, Tenant
shall deposit, simultaneously with execution and delivery hereof, an
additional security deposit (or letter of credit) to Landlord in the amount
of Twenty-Six Thousand One Hundred Forty-Four Dollars ($26,144.00).
(j) Landlord and Tenant hereby acknowledge that the fixed
expiration date, with respect to the Original Demised Premises and the
Additional Space shall be October 31, 2008.
4. Condition of Demised Premises. Tenant acknowledges that it
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is currently in possession of the Original Demised Premises and that
Landlord has made no representations to Tenant with respect to the
condition of either the Original Demised Premises or the Additional Space.
Tenant represents that it has made a thorough inspection of the Additional
Space and agrees to take the same "as is" in the condition existing on the
Additional Space Effective Date and that, notwithstanding anything to the
contrary contained in the Lease, Landlord shall have no obligation to
provide any landlord's work, provide any rent credit, or alter, improve,
decorate or otherwise prepare the Original Demised Premises for Tenant's
continued occupancy or the Additional Space for Tenant's occupancy, except
that Landlord shall: (x) properly demise the Additional Space in accordance
with all applicable requirements of law, (y) provide to Tenant a Form ACP-5
with respect to the Additional Space, and (z) deliver the Additional Space in
broom clean condition.
5. Brokerage. Articles 40 and 51 (F) of the Lease are hereby
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deleted and replaced with the following, with respect to the Additional
Space only. Tenant and Landlord represent and warrant to each other that
they have not dealt with any broker, finder or like agent in connection
with this Amendment other than Xxxxxxx & Xxxxxxxxx, Inc. ("Broker").
Tenant and Landlord do hereby indemnify and hold each other harmless of and
from any and all loss, costs, damage or expense (including, without
limitation, attorneys' fees and disbursements) incurred by either Landlord
or Tenant by reason of any claim of or liability to any broker, finder or
like agent (other than Broker) who shall claim to have dealt with Landlord
or Tenant in connection herewith. The provisions of this Paragraph 5 shall
survive the expiration or termination of the Lease, as amended by this
Amendment.
6. Limitation of Liability. The obligations of Landlord under
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the Lease as amended by this Amendment shall not be binding upon Landlord
named herein after the sale, conveyance, assignment or transfer by such
Landlord (or upon any subsequent landlord after the sale, conveyance,
assignment or transfer by such subsequent landlord) of its interest in the
Building or the land upon which it is erected, as the case may be, and in
the event of any such sale, conveyance, assignment or transfer, Landlord
shall thereafter be and hereby is entirely freed and relieved of (i) all
covenants and obligations of Landlord under the Lease as amended by this
Amendment with respect to which performance was due prior to the date of
such sale, conveyance, assignment or transfer, to the extent transferee
assumes the obligations of Landlord under the Lease as amended by this
Amendment, and (ii) all covenants and obligations of Landlord hereunder
with respect to which performance of Landlord is due from and after the
date of such sale, conveyance, assignment or transfer. The members,
partners, shareholders, directors, officers and principals, direct and
indirect, of Landlord (collectively, the "Parties") shall not be liable for
the performance of Landlord's obligations under the Lease as amended by
this Amendment. Tenant shall look solely to Landlord to enforce Landlord's
obligations under the Lease as amended by this Amendment and shall not seek
any damages against any of the Parties. The liability of Landlord for
Landlord's obligations under the Lease as amended by this Amendment shall
be limited to Landlord's interest in the Building and the land upon which
the Building is erected and Tenant shall not look to the property or assets
of any of the Parties in seeking either to enforce Landlord's obligations
under the Lease as amended by this Amendment or to satisfy a judgment for
Landlord's failure to perform such obligations.
7. Condition of Amendment. Landlord and Tenant hereby
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expressly acknowledge and agree that this Amendment is conditioned upon the
unconditional execution and delivery by Landlord and Metamor Information
Technology Services, Inc. ("Metamor") of an agreement between Landlord and
Metamor with respect to the surrender of the Additional Space on terms and
conditions acceptable to Landlord in its sole discretion (the aforesaid
event being hereinafter referred to as the "Condition"), and shall be of no
force and effect unless and until the Condition is satisfied; it being
understood and agreed, however, that if, for any reason whatsoever, the
Condition is not satisfied or waived by Landlord on or before the date
which is forty-five (45) days after the date hereof, this Amendment shall
be void ab initio, and be of no force and effect, and Landlord and Tenant
shall have no obligations or liability to the other respective parties
under this Agreement.
8. Authorization. Tenant represents and warrants to Landlord
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that its execution and delivery of this Amendment has been duly authorized
and that the person executing this Amendment on behalf of Tenant has been
duly authorized to do so, and that no other action or approval is required
with respect to this transaction.
9. Full Force and Effect of Lease. Except as modified by this
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Amendment, the Lease and all covenants, agreements, terms and conditions
thereof shall remain in full force and effect and are hereby in all
respects ratified and confirmed.
10. Expense Payment. For purposes of the Additional Space,
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there shall be no application of "expense cap", as such term is further
described on Page 80B and 80C of the Lease, as such section was amended by
the Lease Modification Agreement dated, June 17, 1996.
11. Entire Agreement. The Lease as amended by this Amendment
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constitutes the entire understanding between the parties hereto with
respect to the Premises thereunder and may not be changed orally but only
by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment of Lease of the date first above written.
ONE PENN PLAZA LLC, Tenant
By: Vornado Realty L.P., sole member
By: Vornado Realty Trust, general partner
By: /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
Vice-President and Chief Financial Officer
FIRST ALBANY COMPANIES, INC., Tenant
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Secretary/General Counsel
Exhibit "A"
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This floor plan is annexed hereto and made a part of this Amendment of Lease
solely to indicate the Additional Space by outlining and diagonal marking. All
areas, conditions, dimensions and locations are approximate.
