EXHIBIT 10.18
CONSENT
PS ASSOCIATES, a New York limited partnership, having an office at 54 State
Street, Albany, New York 12207 ("Landlord"), hereby consents to the subletting
by KEYCORP, an Ohio corporation, having an office at One KeyCorp Plaza, Albany,
New York 12207 ("Tenant"), to, FIRST ALBANY COMPANIES INC., a New York
corporation, having a place of business at 41 State Street, Albany, New York
12207 ("Subtenant"), pursuant to an agreement of sublease, dated October 13,
1995 (the "Sublease"), a copy of which is annexed hereto as Exhibit "A" for
certain space (the "Sublease Space"), as more particularly described in the
Sublease, which Sublease Space is a portion of the premises (the "Premises")
presently leased and demised by Landlord to Tenant under a lease, dated as of
January 31, 1986, as amended by First Lease Amendment dated as of December 28,
1992, a Second Lease Amendment dated as of March 31, 1993 and a Third Lease
Amendment dated as of September 14, 1993 (as amended, the "Lease"), such consent
is subject to, and in reliance upon, the representations, warranties, covenants,
terms and conditions contained herein. All capitalized terms contained herein
shall have the meaning ascribed to them in the Lease unless otherwise indicated
herein.
1. Sublease Subordinate to Lease. Except as otherwise specifically provided
herein, the Sublease shall be subject and subordinate at all times to the Lease
and to all of the provisions, covenants, agreements, terms and conditions of the
Lease and this Consent, and Subtenant shall not do or permit anything to be done
in connection with Subtenant's use and occupancy of the Sublease Space which
would violate any of said provisions, covenants, agreements, terms and
conditions. Any breach or violation of any provision of the Lease or this
Consent by Subtenant shall be deemed to be, and shall constitute a default by
Tenant in fulfilling such provision. During the term of the Sublease or any
extensions thereof, Subtenant shall duly observe and comply with all of the
terms, covenants, agreements, provisions, obligations and conditions on the part
of Subtenant to be performed or observed under the Sublease and under the Lease
(as modified by this Consent), provided, however, Subtenant shall be under no
obligation to name Landlord as an additional insured on any comprehensive
general liability policy carried by Subtenant.
2. Representations and Warranties. Tenant represents and warrants that no
rent or other consideration is being paid or is payable to Tenant by Subtenant
for the right to use or occupy the Sublease Space and no profit or gain is being
realized by Tenant from such subletting and Tenant and Subtenant represent and
warrant that the Sublease is the complete and true agreement between the
parties.
3. Amendment of Sublease. Waiver. Tenant and Subtenant agree that they
shall not change, modify or amend, the Sublease or enter into any additional
agreements relating to or affecting the use or occupancy of the Sublease Space
or any other portion of the Premises or the use, sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture or other personal
property, without first obtaining Landlord's prior written consent thereto.
Neither this Consent, the Sublease, or the Lease, nor any acceptance of rent or
other consideration from the Subtenant by Landlord or Landlord's agent shall
operate to waive, modify, impair, release or in any manner affect Tenant's
liability under the Lease or Subtenant's liability under the Sublease, nor shall
the foregoing operate to waive any breach or violation of any provision of the
Lease or any rights of Landlord against any person, firm, association,
corporation or other entity liable or responsible for the performance of any of
the provisions, covenants, agreements, terms or conditions contained in the
Lease, nor shall the foregoing enlarge or increase Landlord's obligations or
Tenant's rights or diminish Landlord's rights or Tenant's obligations under the
Lease or otherwise; and all provisions, covenants, agreements, terms and
conditions of the Lease are hereby declared by Tenant to be in full force and
effect. Except as otherwise set forth herein, no assignment of the Lease or
Sublease or further sublease of all or any part of the Premises or the Sublease
Space shall be made by Tenant or Subtenant, except in accordance with the
provisions of the Lease and this Consent and any further consent to a sublease
or assignment shall not be nor shall it be deemed to be a waiver of any
provision of the Lease.
4. Ratification of Sublease. Nothing contained herein shall be construed as
a consent to, or approval of, or ratification by Landlord of any of the
particular provisions of the Sublease (except as may be expressly provided
herein) or as a representation or warranty by Landlord to Tenant, Subtenant or
any other party or entity with respect to the subject matter thereto. Landlord
has not, and shall not, review or pass upon any of the provisions of the
Sublease and shall not be bound or estopped in any way by the provisions of the
Sublease.
5. Remedies for Default. In the event of any default by Tenant or Subtenant
in the full performance and observance of any of their respective obligations
hereunder or in the event any representation or warranty of Tenant or Subtenant
made herein shall prove to be false or misleading in any way, such event may, at
Landlord's option, be deemed a default under the Lease, and Landlord shall have
and may pursue all of the rights, powers and remedies provided for in the Lease
or at law or in equity or by statute or otherwise with respect to defaults
thereunder or hereunder.
6. Use. Subject to all of the provisions, covenants, agreements, terms and
conditions of the Lease, the Sublease Space and each part thereof shall be used
by Subtenant solely for general offices, including, but not limited to, the
operation of an investment banking and securities brokerage business (provided
the same shall not involve dealing with the general public on an off- the-street
retail basis) and for no other purpose.
7. Termination; Attornment. A. If for any reason at any time prior to the
expiration date of the Lease, the term of the Lease shall terminate or be
terminated by operation of law or by any provision of the Lease, the Sublease
and the term thereof shall terminate on the date of such termination, and
Subtenant, at Subtenant's sole cost and expense, shall (i) quit and surrender
the Sublease Space to Landlord, broom clean, in good order and condition,
ordinary wear and tear and damage, maintenance, and repair work for which
Subtenant is not responsible for under the terms of the Sublease excepted, (ii)
remove from the Sublease Space and the Building all of Subtenant's personal
property and all other property and effects of Subtenant and all persons
claiming through or under Subtenant, and (iii) repair all damage to the Sublease
Space and the Building occasioned by such removal to the Building standard
original condition. Landlord shall have the right to retain any property and
personal effects which shall remain in the Sublease Space or the Building, after
the date of termination of the Sublease, without any obligation or liability to
Tenant or Subtenant, and to retain any net proceeds realized from the sale
thereof, without waiving Landlord's rights under the foregoing provisions of
this paragraph and the provisions of the Lease. If Subtenant shall fail to
vacate and surrender the Sublease Space in accordance with the provisions of
this paragraph, Landlord shall be entitled to all of the rights and remedies
under the Lease which are available to a landlord against a tenant holding over
after the expiration of a term, and any such holding over shall be and be deemed
to be a default under the Lease.
B. The foregoing provisions of paragraph 7A notwithstanding, but
subject to Subtenant's rights to terminate the Sublease in the event of a
casualty or condemnation, and provided the term of the Lease shall not have been
terminated by Tenant as a result of Landlord's default under the Lease, Landlord
may, at its option, upon written notice to Tenant and Subtenant on or before the
date of termination of the term of the Lease and without any additional or
further agreement of any kind on the part of Tenant or Subtenant, elect to
require Subtenant to attorn to Landlord and to continue the Sublease with the
same force and effect as if Landlord, as lessor, and Subtenant, as lessee, had
entered into a lease as of such termination date, for a term equal to the then
unexpired term of the Sublease and containing the same provisions as those
contained in the Sublease. In the event of such election by Landlord, (i)
Subtenant agrees to so attorn to Landlord, and Landlord and Subtenant shall have
the same rights, obligations and remedies as were had by Tenant and Subtenant,
respectively, under the Sublease prior to such termination date, except that in
no event shall Landlord be (a) liable for any act or omission by Tenant, (b)
subject to any offsets or defenses which Subtenant had or might have against
Tenant, (c) bound by any rent or additional rent or other payment paid by
Subtenant to Tenant more than thirty (30) days in advance of the termination
date, (d) bound by any covenant to undertake or complete any work to the
Sublease Space or any part hereof, except for repair or replacement to the
Sublease Space which is damaged by casualty, taken by eminent domain or
otherwise required to be repaired or replaced by Landlord pursuant to the terms
of the Sublease, or (e) bound by any pre-existing obligation to make any payment
to Subtenant; (ii) Tenant shall deliver to Landlord any security deposit which
Tenant is then holding under the Sublease; and (iii) Subtenant shall reimburse
Landlord for any costs that may be incurred by Landlord in connection with such
attornment, including, without limitation, reasonable legal fees and
disbursements incurred in connection with any such attornment. The foregoing
provisions of this paragraph 7B shall apply notwithstanding that, as a matter of
law, the Sublease may terminate upon the expiration, termination or surrender of
the Lease and shall be self-operative upon any such election by Landlord to
require attornment; provided, however, that either party, upon demand of the
other party agrees to execute and deliver such instrument or instruments as the
requesting party may reasonably request to evidence and confirm the foregoing
provisions of this paragraph 7B. However, in the event that Subtenant has the
right to terminate the Sublease as a result of a casualty or condemnation
pursuant to the terms of the Sublease, Landlord shall not be entitled to require
that Subtenant attorn to Landlord hereunder.
If Landlord elects to exercise its option under this paragraph 7B, then the
foregoing provisions of paragraph 7A shall be of no force or effect.
8. Indemnity. Tenant and Subtenant hereby indemnify and hold harmless
Landlord from and against all liabilities, claims, obligations, damages,
penalties, costs and expenses (including, without limitation, attorneys' fees
and disbursements) which Landlord may incur or suffer by reason of (i) any
breach or default by Subtenant, its agents, contractors, employees, invitees, or
licensees of any covenant, agreement, term, provision or condition of the Lease,
the Sublease or this Consent, (ii) any work done in or to the Sublease Space by
or on behalf of Subtenant, (iii) any act, omission or negligence of Subtenant,
its agents, contractors, employees, invitees or licensees, or (iv) the conduct
of Subtenant's business in, or Subtenant's use and occupancy of, the Sublease
Space. In case any action or proceeding is brought against Landlord by reason of
any such claim, Tenant or Subtenant, upon written notice from Landlord, shall,
at Tenant's or Subtenant's sole cost and expense, as the case may be, resist or
defend such action or proceeding using counsel approved by Landlord, which
approval shall not be unreasonably withheld or delayed. The provisions of this
paragraph shall survive the expiration or earlier termination of the term of the
Sublease. The indemnity and any rights granted to Landlord pursuant to this
paragraph shall be in addition to, and not in limitation of, any of Landlord's
rights under the Lease.
9. Conflict. If there shall be any conflict or inconsistency between the
terms, covenants and conditions of this Consent or the Lease and the terms,
covenants and condition of the Sublease, then the terms, covenants and
conditions of this Consent and Lease shall prevail. In the event that there
shall be any conflict or inconsistency between this Consent and the Lease, the
terms and conditions of this Consent shall control.
10. Notices. Any bills, statements, notices, demands, requests, consents or
other communications given or required to be given under this Consent shall be
effective only if rendered or given in writing and delivered personally or sent
by mail (registered or certified, return receipt requested), postage prepaid,
delivered to the respective party at the address hereinabove set forth or at
such other address for such purpose by notice in accordance with the provisions
hereof, or, if addressed to Tenant or Subtenant at the Building (if to
Subtenant, to the attention of Michael R. Lindburg); the same shall be deemed to
have been rendered or given on the date delivered, if delivered personally, or
after three (3) business days of the date mailed, if mailed.
11. Entire Agreement. This Consent contains the entire agreement of the
parties with respect to the matters contained herein and may not be modified,
amended or otherwise changed except by written instrument signed by the parties
sought to be bound. Furthermore, Tenant and Subtenant each acknowledge and
represent that, other than this Consent, the Lease and the Sublease, there are
no other agreements between Tenant and Subtenant oral or otherwise, or
representations or warranties of any kind or nature referring or related to, or
in connection with and the Sublease or the use and occupancy of the Premises,
the Sublease Space or any other portion of the Building.
12. Governing Law. This Consent shall for all purposes be construed in
accordance with, and governed by, the laws of the State of New York.
13. Payments. Tenant and/or Subtenant has paid Landlord's attorneys' fees
incurred in connection with this transaction to reimburse Landlord for the time
expended in reviewing and processing the request for subletting the Sublease
Space.
14. Miscellaneous. A. Each right and remedy of Landlord provided for in
this Consent or in the Lease shall be cumulative and shall be in addition to
every other right and remedy provided for herein and therein or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
commencing of the exercise by Landlord of any one or more of the rights or
remedies so provided for or existing shall not preclude the simultaneous or
later exercise by Landlord of any or all other rights or remedies so provided
for or so existing.
B. The terms and provisions of this Consent shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns
except that no violation of the provisions of paragraph 3 shall operate to vest
any rights in any successor or assignee of Tenant or Subtenant.
C. If any one or more of the provisions contained in this Consent
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
D. The captions contained in this Consent are for convenience only and
shall in no way define, limit or extend the scope of intent of this Consent, nor
shall such captions affect the construction hereof.
E. This Consent may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
agreement.
F. Landlord, Tenant and Subtenant each represents and warrants that
each has full right, power and authority to enter into this Consent and that the
person or persons executing this Consent on behalf of Landlord, Tenant or
Subtenant, as the case may be, are duly authorized to do so.
G. It is expressly understood and agreed that this Consent shall not
create or constitute, nor shall it be deemed to create or constitute, any
landlord-tenant relationship, or occupancy or license agreement between Landlord
and Subtenant.
H. Neither Landlord, nor the partners comprising Landlord, nor the
shareholders (nor any of the partners comprising same), partners, directors or
officers of any of the foregoing (collectively, the "Parties"), shall be
personally liable, in any manner, by reason of, or as a consequence of, the
execution or delivery of this Consent. Tenant and Subtenant shall look solely to
Landlord's estate and property in the building within which the Premises are
located and the rents, profits and proceeds derived therefrom and any right of
offset provided to Tenant under the Lease (if any) in enforcing any of the
rights which Tenant or Subtenant may have against Landlord hereunder or by
reason of any of the foregoing, and shall not seek any damages against any of
the Parties.
I. This Consent is offered for signature by Tenant and Subtenant and
it is understood that this Consent shall not be binding upon Landlord unless and
until Landlord shall have executed and delivered a copy of this Consent to both
Tenant and Subtenant.
IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have respectively executed
this consent as of the 3lst day of October, 1995.
TENANT:
KEYCORP
Attest:______________________________ By: /s/ Thomas C. Nachod
Name: Thomas C. Nachod
Title: Vice President
SUBTENANT:
FIRST ALBANY COMPANIES INC.
Attest:______________________________ By: /s/ Michael R. Lindburg
Name: Michael R. Lindburg
Title: Senior Vice President and
General Counsel
LANDLORD:
PS ASSOCIATES,
a New York limited partnership
By: PS Pearl Corporation, General
Partner
Attest:______________________________ By: /s/ I. David Swawite
Name: I. David Swawite
Title: Vice President
Exhibit "A"
SUBLEASE AGREEMENT
The Parties (defined below) agree as follows:
Date of this Sublease: October 13, 1995
Parties to this Overtenant: KeyCorp
Sublease: Address for notices:
Undertenant: First Albany Companies Inc.
Address for notices:
Information from
Overlease: Landlord: PS Associates
Address for notices: 54 State Street,
Albany, New York 12207
Overtenant: KeyCorp
Address for notices:
Date of Overlease: January 31, 1986 as
amended by First lease Amendment dated
December 28, 1992, Second Lease Amendment
dated March 31, 1993 and Third Lease
Amendment dated September 14, 1993
(collectively, the "Overlease").
Overlease Term: as provided in the
Overlease.
Definitions: 1. Unless otherwise defined herein,
capitalized terms herein shall be defined as
set forth in the Overlease.
Sublease Term: 2. The Sublease Term shall commence on
execution (the "Commencement Date") and end
at 11:59 P.M. EST on the Expiration Date.
Premises Leased
Under this
Sublease: 3. A basement mailroom, 10,021 square feet
on Floor 6 (in the area shown on Exhibit "A"
annexed hereto), all of Floor 12 and all of Floors
Penthouse 1 and Penthouse 2 (the "Subpremises")
which Subpremises contain in the aggregate 48,876
square feet and are located in a building commonly
known as KeyCorp Tower which is located at 30
South Pearl Street, Albany, New York (the
"Building").
Use of
Subpremises: 4. The Subpremises may be used for general
and executive offices with data processing
support facilities in connection with
Undertenant's business and that of its
subsidiaries provided however that the
Subpremises must be used for purposes
consistent with the provisions of Article 2
of the Overlease.
Allowances: 5. Overtenant shall pay to Undertenant an
amount equal to Seven Hundred Thirty Three
Thousand One Hundred Forty and no/100
($733,140.00) Dollars as an allowance (the
"Allowance") toward renovation, installation
and fit-up of the Subpremises ("Undertenant's
Work") to be undertaken in the Subpremises by
Undertenant. Overtenant shall pay
Undertenant an allowance of Nine Hundred
Thousand ($900,000.00) Dollars to defray
Undertenant's costs and expenses of
relocation (the "Relocation Allowance").
Said Allowance and Relocation Allowance shall
be paid to Undertenant in accordance with the
following schedule:
(a) During the period between January
15, 1996 and March 31, 1996, an amount
equal to the lesser of $244,380.00 or
the sum for which Undertenant has
received invoices for payment of the
Undertenant's Work.
(b) On and after April 1, 1996, at such
time as invoices for completed
Undertenant's Work are submitted, such
sums as are set forth in said invoices
with the understanding that the sums
advanced pursuant to subparagraph (a)
and this subparagraph (b) shall in no
event exceed the lesser of the Allowance
or the sums actually spent by
Undertenant to complete Undertenant's
Work.
(c) On January 15, 1996, an amount
equal to one-third (1/3) of the
Relocation Allowance and thereafter, at
Overtenant's election but in no event
later than April 15, 1996, the balance
of the Relocation Allowance.
Nothing in this Section should be construed
as any undertaking on the part of the
Overtenant to perform or contract for any of
Undertenant's Work or to relieve the
Undertenant from the obligation to comply
with the Tenant's Changes provisions set
forth in Article 13 of the Overlease.
Rent: 6. The Rent reserved under this Sublease
shall be:
(a) Base rent in the amount of
$33,602.25 on June 15, 1996 and thereafter in
the amount of $67,204.50 per month payable in
advance commencing on July 1, 1996 and
continuing on the first day of each and every
calendar month during the Term; and
(b)
(1) For the purposes of this
subparagraph (b), the following terms shall
have the following definitions:
(i) "Base Year" shall mean the
period commencing on July 1, 1995
and ending on June 30, 1996.
(ii) "Base Year Operating
Expenses" shall mean the Operating
Expenses paid by Overtenant to
Landlord during the Base Year, as
adjusted pursuant to Section 5.03
(a) of the Overlease.
(iii) "Undertenant's Percentage"
shall mean Forty Seven and
47.4593%.
(2) Commencing on July 1, 1996,
and continuing on the 1st day of each month
thereafter, additional rent equal to Undertenant's
Percentage of the amount (if any) obtained by
subtracting the amount obtained by dividing the
sums paid by Overtenant pursuant to Section 5.03
(a) of the Overlease for the Base Year by twelve
(12) from the sum which Overtenant has been billed
by Landlord for Operating Expenses for the
corresponding month during each successive
year of the Sublease Term.
For example, if Overtenant is billed by
Landlord pursuant to Section 5.03(a) of the
Overlease for the month of July, 1996 in the
amount of $1,000.00 and the amount determined by
dividing the sums paid for the Base Year pursuant
to said Section by 12 was $500.00, Undertenant's
liability for additional rent pursuant to this
subparagraph would be determined by multiplying
$500.00 by Undertenant's Percentage.
Undertenant shall receive Undertenant's
Percentage of any rebate or credit or pay
Undertenant' s Percentage of any additional sums
due as a result of Landlord's reconciliation of
the sums paid by Overtenant as Tenant's Projected
Share of Operating Expenses. Overtenant shall
submit to Undertenant documentation it receives
from Landlord in connection with sums billed by
Landlord to Overtenant, including copies of
invoices and expense statements showing monthly
payment calculations and recalculations.
(c) Undertenant shall also pay to Overtenant
one hundred (100%) percent of the amount payable
by Overtenant for Cleaning Services incurred
during the Sublease Term which are attributable to
the Subpremises to the extent said sums paid are
in excess of sums payable for Cleaning Services by
Overtenant under the Lease for calendar year 1993.
Said sums shall be payable as and when paid by
Overtenant.
(d) All sums due hereunder shall be payable
to Overtenant promptly as and when the same
become due and payable, without demand therefor
and without any abatement, deduction or setoff
whatsoever.
(e) There shall be no allowance to
Undertenant for diminution of rental value and no
liability on the part of Overtenant by reason of
inconvenience, annoyance or injury to business
arising from Landlord, Overtenant or others making
any changes, alterations, additions, improvements,
repairs or replacements in or to any portion of
the Building or the Subpremises, or in or to
fixtures, appurtenances or equipment thereof, and
no liability upon Overtenant for failure of
Landlord or others to make any changes,
alterations, additions, improvements, repairs or
replacements in or to any portion of the Building
or the Subpremises, or in or to the fixtures,
appurtenances or equipment thereof.
(f) Any failure by Undertenant to pay any
sums due hereunder shall render Undertenant
responsible to pay as a late charge a sum equal to
six (6%) percent of the amount of fixed rent or
additional rent which Undertenant may have failed
to pay hereunder.
Agreement to
Lease and Pay
Rent: 7. Overtenant sublets the Subpremises to the
Undertenant, for the Sublease Term. Undertenant
agrees to pay the Rent as required in the Sublease and
Overtenant agrees to discharge the rental obligations
under the Overlease.
Sublease
Subject to: 8. The Sublease is subject to the OverLease. The
Undertenant states that it has received and examined
the Overlease.
Except as specifically modified herein, all applicable
terms and conditions of the Overlease are
incorporated into and made a part of this Sublease as
if Overtenant were Landlord thereunder and
Undertenant the Tenant thereunder and the
Subpremises the Demised Premises, but
incorporating such provisions herein shall not
obligate Overtenant or be construed as causing
Overtenant to assume or agree to perform any
obligations of the Landlord or to be responsible for
any representations or warranties of Landlord under
the Overlease.
Overtenant's
Warranty 9. Overtenant warrants and represents to Undertenant
that the Overlease has not been amended or modified
except as described herein, that it is in full force
and effect and that Overtenant has received no notice
of any claim by Landlord that Overtenant is in default
or breach of any of the provisions of the Overlease
and that, to the best of Overtenant's knowledge,
Landlord is not in default thereunder.
Undertenant's
Duties: 10. The Subpremises will be separately metered for
electricity and Undertenant shall be responsible for
all utility charges to the Subpremises.
Additional
Space: 11. Upon the scheduled expiration of an existing
sublease for the balance of Floor 6, Overtenant will
not further sublease said premises unless it gives
Undertenant sixty (60) days to enter into a sublease
for said premises on terms and conditions mutually
satisfactory to Overtenant and Undertenant.
Parking: 12. Undertenant shall have the right to use five (5)
parking spaces in the basement of the Building and
Undertenant will reimburse Overtenant for said spaces
in an amount equal to the sum paid by Overtenant to
Landlord for said spaces. Undertenant's use of said
spaces shall be subject to the provisions of Sections
18.05 and 18.06 of the Overlease.
Insurance: 13. In addition to the general requirement that
Undertenant comply with the provisions of the
Overlease, Undertenant agrees that it will provide
Overtenant and Landlord with a certificate of
insurance or other evidence reasonably satisfactory to
Landlord and Overtenant indicating Undertenant's
compliance with the provisions of Section 11.06 of
the Overlease and Undertenant will provide from
time to time as required by either Landlord or
Overtenant, additional coverages as may be required
pursuant to said Section.
Landlord
Events of
Default: 14. Undertenant shall provide Overtenant with
written notice of any default by Landlord under the
Overlease.
Liability and
Indemnification: 15. Neither Overtenant nor any agent or employee of
Overtenant shall be liable to Undertenant for any
injury or damage to Undertenant or to any other
person or for any damage to, or loss (by theft or
otherwise) of, any property of Undertenant or any
other person, irrespective of the cause of such injury,
damage or loss, unless caused by or due to the
negligence of Overtenant, its agents or employees, it
being understood that no property, other than such as
might normally be brought upon or kept in the
Subpremises as an incident to the reasonable use of
the Subpremises for the purposes herein permitted,
will be brought upon or kept in the Subpremises.
Undertenant shall indemnify and save harmless
Overtenant and its agents against and from
(a) any and all claims for bodily injury or property
damage, (i) arising from (x) the conduct or
management of the Subpremises or of any business
therein, or(y) any work or thing whatsoever done, or
any condition created (other than by Overtenant for
Overtenant's or Undertenant's account) in or about
the Subpremises during the term of this Sublease or
during the period of time, if any, prior to the
Commencement Date that Undertenant may have been
given access to the Subpremises, or (ii) arising
from any negligent or otherwise wrongful act or
omission Undertenant or any of its employees, agents
or contractors, and (b) all costs, expenses and
liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon. In case
any action or proceeding be brought against
Overtenant by reason of any such claim, Undertenant
upon notice from Overtenant, shall resist and defend
such action or proceeding.
Access: 16. Overtenant or Overtenant's agent shall have the
right to enter and/or pass through the Subpremises or
any part thereof, at reasonable times during reasonable
hours upon reasonable notice.
Destruction or
Damage: 17. If the Building or the Subpremises shall be
partially or totally damaged or destroyed by fire or
other cause, Undertenant's obligations shall be the
same as those set forth for "Tenant" under the
Overlease provided however that Overtenant shall be
the only party with authority to exercise the right of
termination set forth in Section 22.03 of the
Overlease.
Condemnation: 18. If the Building or the Subpremises shall be
partially or-totally condemned, Undertenant'
obligations shall be the same as those set forth for
"Tenant" under the Overlease provided however that
Overtenant shall be the only party with authority to
exercise the right of termination set forth in Section
23.01 of the Overlease.
Default; Remedies: 19. This Sublease and the term and estate hereby
granted are subject to the limitation that whenever
Undertenant shall make an assignment of the
property of Undertenant for the benefit of creditors or
shall file a voluntary petition under any bankruptcy
or insolvency law or any involuntary petition alleging
an act of bankruptcy or insolvency shall be filed
against Undertenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed
by or against Undertenant under the reorganization
provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or
whenever a petition shall be filed by Undertenant
under the arrangement provisions of the United States
Bankruptcy Act or under the provisions of any law of
like import, or whenever a permanent receiver of
Undertenant of or for the property of Undertenant
shall be appointed, then, Overtenant may (a) at any
time after receipt of notice of the occurrence of any
such event, or (b) if such event occurs without the
acquiescence of Undertenant, at any time after the
event continues for thirty (30) days, give Undertenant
a notice of intention to end the term of this Sublease
at the expiration of five (5) days of service of such
notice of intention and upon the expiration of said
five (5) day period, this Sublease and the term and
estate hereby granted, whether or not the term shall
theretofore have commenced, terminate with the
same effect as if that day were the Expiration Date
but Undertenant shall remain liable for damages as
provided herein.
This Sublease and the term and estate
hereby granted are subject to further limitation as
follows:
(a) whenever Undertenant shall default in
the payment of any installment of base rent,
or in the payment of any additional rent or
any other charge payable by Undertenant to
Overtenant, on any day upon which the same
ought to be paid, and such default shall
continue for five (5) days after Overtenant
shall have given Undertenant a written
notice specifying such default; or
(b) whenever Undertenant shall do or permit
anything to be done, whether by action or
inaction, contrary to any of Undertenant's
obligations hereunder, and if such situation
shall continue and shall not be remedied by
Undertenant within fifteen (15) days after
Overtenant shall have given Undertenant a
notice specifying the same, or, in the case of
a happening or default which cannot with
due diligence be cured within a period of
fifteen (15) days if Undertenant shall not, (i)
within said fifteen (15) day period advise
Overtenant of Undertenant's intention to
duly institute all steps necessary to remedy
such situation, (ii) duly institute within said
fifteen (15) day period, and thereafter
diligently and continuously prosecute to
completion all steps necessary to remedy the
same and (iii) complete such remedy within
such time after the date of the giving of said
notice of Overtenant as shall reasonably be
necessary, or
(c) whenever any event shall occur or any
contingency shall arise whereby this
Sublease or the estate hereby granted or the
unexpired balance of the term hereof would, by
operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other
than Undertenant; or
(d) whenever Undertenant shall default in
due keeping, observing or performance of
any covenant, agreement, provision or
condition of Section 4 hereof on the part of
Undertenant to be kept, observed or
performed and if such default shall
continue and shall not be remedied by
Undertenant within 24 hours after
Overtenant shall have given to Undertenant
a notice specifying the same.
Overtenant may give to Undertenant a notice of
intention to end the term of this Sublease at the
expiration of three (3) days from the date of
service of such notice of intention and upon the
expiration of said three (3) days, this Sublease
and the term and estate hereby granted, whether or
not the term shall theretofore have commenced,
shall terminate with the same effect as if that
day were the Expiration Date, but Undertenant
shall remain liable for damages as provided
herein.
If an order for relief is entered in any case
which is commenced by or against Undertenant
under the present or any future federal bankruptcy
code, Overtenant shall be entitled to invoke any and
all rights and remedies available to it under such
bankruptcy code or this Sublease including, without
limitation, such rights and remedies as may be
necessary to protect adequately Overtenant's right,
title and interest in and to the Subpremises or any
part thereof. Adequate protection of Overtenant's
right, title and interest in and to the Subpremises
shall include, without limitation, invoking a
requirement that:
(a) Undertenant comply with all of its
obligations under this Sublease;
(b) Undertenant pay to Overtenant, on the
first day of each month occurring
subsequent to the entry of such order, a sum
equal to the amount by which the
Subpremises diminished in value during the
immediately preceding monthly period, but,
in no event, an amount which is less than the
aggregate rents reserved under this Sublease
for such monthly period;
(c) Undertenant continue to use the
Subpremises in the manner required by this
Sublease; and
(d) Overtenant be permitted to supervise the
performance of Undertenant's obligations
under this Sublease.
Upon the occurrence of any of the foregoing
events, Overtenant shall, in addition to the right of
termination set forth herein, have the right to
re-enter the Subpremises and shall also have the
right to damages for the aggregate rental value set
forth herein including all fixed rent and additional
rent payable hereunder which would have been payable
by Undertenant had this Sublease not been so
terminated. A suit or suits for the recovery of such
damages or any installments thereof may be brought
by Overtenant from time to time at its election and
nothing contained herein shall be deemed to require
Overtenant to postpone suit until the date when the
term of this Sublease would have expired had it not
been so terminated under the provisions hereof or
any provision of law or had Overtenant not re-entered
the Subpremises. Nothing herein contained shall be
construed to limit or preclude recovery by Overtenant
against Undertenant for any sums or damages to
which, in addition to the damages particularly
provided above, Overtenant may be lawfully entitled
by reason of any default hereunder on the part of
Undertenant. If Overtenant shall relet the
Subpremises, Overtenant shall credit Undertenant
with the net rents received by Overtenant from such
reletting which shall be equal to the gross rents as
and when received by Overtenant from such reletting,
less the expenses incurred or paid by Overtenant and
terminating this Sublease or in re-entering the
Subpremises and in securing possession thereof, as
well as the expenses of reletting, including altering
and preparing the Subpremises for new tenants,
broker's commissions and all other expenses properly
chargeable against the Subpremises and the rental
thereof. Any such reletting may be for a period
shorter or longer than the remaining term of this
Sublease but in no event shall Undertenant be entitled
to receive any excess of such net rents over the sums
payable by Undertenant to Overtenant hereunder, or
shall Undertenant be entitled in any suit for the
collection of damages pursuant hereto to a credit in
respect of any net rents from a reletting, except to
the extent that such net rents are actually received by
Overtenant. If the Subpremises or any part thereof
should be relet in combination with other space, the
rent received from such reletting and the expenses of
reletting shall be apportioned on a square foot basis.
If the Subpremises or any part thereof be relet by
Overtenant for the unexpired portion of the term of
this Sublease or any part thereof, before presentation
of proof of damages to any court, commission or
tribunal, the amount of rent reserved upon such
reletting shall, prima facial, be the fair and
reasonable rental value of the Subpremises, or part
thereof, so relet during the term of the reletting.
Waivers: 20. Overtenant and Undertenant hereby waive trial by
jury in any action, proceeding or counterclaim
brought by either against the other on any matter
whatsoever arising out of or in any way connected
with this Sublease, the relationship of landlord and
tenant, Undertenant's use or occupancy of the
Subpremises or other statutory remedy with respect
thereto. If Overtenant commences any summary
proceeding, Undertenant agrees that Undertenant will
not interpose any counterclaim of whatever nature or
description in any such proceeding.
Notices: 21. Except as otherwise provided in this Sublease,
notice or communication shall be deemed sufficiently
given or rendered if in writing, sent by registered or
certified mail or nationally recognized courier service
addressed to the addressee at the address set forth
herein and shall be effective upon receipt. Either
party hereto may change its mailing address by
giving notice to the other pursuant to the provisions
of this Section.
Overtenant's
Duties: 22. The Overlease describes the Landlord's duties.
The Overtenant is not obligated to perform the
Landlord's duties but agrees as an inducement to
Undertenant to enter into this Sublease to enforce the
compliance with the Overlease by Landlord.
Overtenant covenants and agrees that it will fully and
punctually pay all rent, additional rent and other
charges, costs and expenses due and payable under
the Overlease as and when the same shall be come
due and payable and uphold each and every promise,
covenant and obligation required of it under the
Overlease.
Adopting the
Overlease and
Exceptions: 23. The provisions of the Overlease are part of this
Sublease. All provisions of the Overlease applying to
the Overtenant are binding on the Undertenant, except
as may be specifically agreed otherwise by Overtenant
and Undertenant.
Brokers: 24. Overtenant and Undertenant warrant and represent
that they have had no dealings with any real estate
broker or agent in connection with the negotiation of
this Sublease except for Robert Cohn Associates, Inc.
(the "Named Broker") and that they know of no other
real estate broker or agent who is or might be entitled
to a commission in connection with this Sublease,
except that Overtenant has retained The Centrum Group
and will be solely responsible for paying such sums as
are due The Centrum Group in connection with this
Sublease which are independent of any compensation due
the Named Broker. Overtenant agrees that it shall be
responsible for a commission to the Named Broker
pursuant to a separate agreement between Overtenant and
the Named Broker. Overtenant and Undertenant each agree
to indemnify, defend and hold the other party harmless
from and against any and all liabilities for expenses,
including attorneys' fees and costs arising out of or
in connection with the breach of the representations
contained in this Section.
Quiet Enjoyment: 25. Overtenant covenants and agrees that Undertenant,
so long as it shall not be in default hereunder beyond
any applicable grace period, shall and may at all times
during the Sublease Term, peaceably and quietly have,
hold, occupy and enjoy the Subpremises pursuant to the
terms of this Sublease provided however that Overtenant
shall not be in breach of this covenant if Overtenant's
rights to the Subpremises under the Lease are
interfered with by Landlord.
Defaults Under
Overlease: 26. Overtenant will give Undertenant notice of any
default under the Overlease and Undertenant shall
have the right to cure any such default provided that a
right to cure exists under the Overlease. Overtenant
agrees to request that Landlord provide Undertenant
with any notices of default delivered to Overtenant.
Subordination and
Non-Disturbance: 27. Overtenant agrees to request that Landlord obtain
a subordination and non-disturbance agreement from
any existing mortgagee of the Building.
Communication
Facilities: 28. To the extent that Overtenant has the right to
place communication facilities on the roof of the
Building pursuant to Section 18.07(b) of the
Overlease, Undertenant shall have the right to use
a portion of any area available to Overtenant
determined by multiplying the total area available
to tenant pursuant to said Section by Undertenant's
percentage.
Capitalized
Terms: 29. All capitalized terms herein shall have the
definitions set forth in the Overlease unless
otherwise defined herein.
No Authority: 30. The Undertenant has no authority to contact or
make any agreement with the Landlord about the
Subpremises or the Overlease. The Undertenant may
not pay rent or other charges to the Landlord, but
only to the Overtenant.
Successors: 31. Unless otherwise stated, the Sublease is
binding on all parties who lawfully succeed to
the rights or take the place of the Overtenant or
the Undertenant.
Changes: 32. This Sublease can be changed only by an
agreement in writing signed by the parties to the
Sublease.
OVERTENANT:
KEYCORP
By: /s/ James M. Gustafson
Name: James M. Gustafson
Title: Designated Signer
UNDERTENANT
FIRST ALBANY COMPANIES INC.
By: /s/ Michael R. Lindburg
Name: Michael R. Lindburg
Title: General Counsel