Exhibit 10.33
THIRD MODIFICATION OF LEASE
Third Modification of Lease ("Agreement") made as of this 18th
day of September, 2000, between METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation having its principal place of business at Xxx Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and CREDIT SUISSE FIRST BOSTON
CORPORATION, a Massachusetts corporation having an office at Eleven Madison
Avenue, New York, New York 10010-3629 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into a certain
written lease dated September 10, 1997 (the "Lease"), as amended by Modification
of Lease dated February 5, 1998, and further amended by Second Modification of
Lease and License Agreement dated June 12, 2000 (collectively, the "Lease")
wherein and whereby Landlord leased and/or licensed to Tenant and Tenant let
and/or licensed from Landlord those certain premises (the "demised premises") as
shown on the plans annexed to the Lease as Exhibit A and A-1 thereto and being
the entire rentable area of the 13th floor, a portion of the 14th floor, a
portion of the 1st floor, a portion of the mezzanine, and a portion of the
basement level 3B of the building known as Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Building");
WHEREAS, Landlord and Tenant wish to further modify the Lease,
subject to the terms and conditions hereinafter set forth, to, inter alia, add
the entire rentable area of the 16th floor of the Building (the "Third
Additional Space"), as shown on Exhibit A-2 attached hereto and made a part
hereof, to the demised premises;
WHEREAS, the Lease is in full force and effect; and
WHEREAS, Landlord and Tenant desire to modify the Lease only in the
respects hereinafter stated.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto by these presents do
covenant and agree as follows:
1. All capitalized terms used herein without definition are used
herein with the meanings assigned to such terms in the Lease, unless the context
otherwise requires. Further, references herein to the Lease shall be deemed
references to the Lease as modified by this Agreement, unless expressly
indicated contra.
2. Landlord does hereby lease to Tenant and Tenant does hereby let
from Landlord the Third Additional Space for the period to commence on the date
Landlord delivers the Third Additional Space to Tenant (the "Third Additional
Space Commencement Date") and to end April 30, 2017, or on such earlier date or
later date upon which said term may expire pursuant to any of the conditions,
covenants, provisions, terms and agreements of the Lease, as modified by this
Agreement. Landlord shall provide Tenant with at least thirty (30) days prior
written notice (the "Delivery Date Notice") of the delivery of the Third
Additional Space. It is the intention and agreement of the parties hereto that
by reason of such addition of the Third Additional Space to the premises demised
by the Lease, the demised premises shall, from and after the Third Additional
Space Commencement Date, be those covered by the Lease, as modified by this
Agreement. The Third Additional Space shall be subject to all of the terms,
covenants and conditions of the Lease, as modified hereby.
Landlord shall deliver the Third Additional Space on or before April
30, 2001. If Landlord fails to deliver the Third Additional Space by April 30,
2001 for any reason other than Tenant's act or an act attributable to Tenant,
Tenant shall receive a rent abatement for the Third Additional Space (and the
Third Additional Space only) as follows: (i) one (1) additional day of basic
annual rent and additional rent abatement for every day of delay in delivery
after April 30, 2001; and (ii) two (2) days of basic annual rent and additional
rent abatement for every day of delay after July 1, 2001.
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3. Landlord and Tenant acknowledge that the Third Additional Space
contains 69,525 rentable square feet on the 16th floor of the Building.
4. A. Effective the 91st day subsequent to the Third Additional
Space Commencement Date, or such subsequent date if extended in accordance with
the second paragraph of Paragraph 2 of this Agreement (the "Third Additional
Space Rent Commencement Date"), Tenant shall pay, in addition to the annual
rental rate specified in the Lease for the portion of the demised premises
exclusive of the Third Additional Space, basic annual rent for the Third
Additional Space as follows:
(i) Two Million Nine Hundred Twenty Thousand Fifty Dollars
($2,920,050.00) per annum for the period commencing on the Third Additional
Space Rent Commencement Date and ending one day prior to the 60th month
anniversary of the Third Additional Space Commencement Date; and thereafter (ii)
Three Million Two Hundred Sixty Seven Thousand Six Hundred Seventy Five Dollars
($3,267,675.00) per annum for the period commencing on the 60th month
anniversary of the Third Additional Space Commencement Date and ending one day
prior to the 120th month anniversary of the Third Additional Space Commencement
Date; and thereafter (iii) Three Million Six Hundred Fifteen Thousand Three
Hundred Dollars ($3,615,300.00) per annum for the period commencing on the 120th
month anniversary of the Third Additional Space Commencement Date and ending one
day prior to the 180th month anniversary of the Third Additional Space Rent
Commencement Date; and thereafter (iv) Three Million Nine Hundred Sixty-Two
Thousand Nine Hundred Twenty Five Dollars ($3,962,925.00) per annum for the
period commencing on the 180th month anniversary of the Third Additional
Commencement Date and ending on the last day of the term of the Lease (to wit:
April 30, 2017).
B. Landlord and Tenant agree that the basic annual rent set forth
above for the Third Additional Space shall be reduced by One Hundred Eighty Two
Thousand One Hundred Fifty Five Dollars Fifty Cents ($182,155.50) per annum in
the event Landlord elects not to provide Third Additional Space Work Allowance
as provided for in Paragraph 14 of this Agreement, which election (to wit: not
to provide Third Additional Space Work Allowance), if exercised by Landlord in
its sole and absolute discretion, must be expressly exercised in the Delivery
Date Notice.
C. From and after the Third Additional Space Rent Commencement Date,
the additional basic annual rent and additional rent payable under Articles 28
and 29 of the Lease for the Third Additional Space shall be paid by Tenant to
Landlord at the times and in the manner specified in the Lease.
D. Tenant acknowledges that notwithstanding the "free rent period"
from and including the Third Additional Space Commencement Date through and
including the day prior to the Third Additional Space Rent Commencement Date,
Tenant shall be obligated to pay for electricity supplied to
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the demised premises (inclusive of the Third Additional Space) during such free
rent period.
E. Tenant hereby covenants and agrees that the Third Additional
Space shall be used solely for the purposes set forth in the Lease, and for no
other purpose.
5. A. Effective the Third Additional Space Rent Commencement Date,
in addition to the basic annual rent due and payable for the Third Additional
Space, Tenant shall also pay additional rent for "Taxes" (Article 28) and
"Operating Expenses" (Article 29) further provided that Tenant's Proportionate
Share for Taxes for the Third Additional Space shall be 6.33% and Tenant's
Proportionate Share for Operating Expenses for the Third Additional Space shall
be 3.27%.
B. Notwithstanding anything to the contrary contained in the Lease,
with respect to the Third Additional Space and the Third Additional Space only,
Operating Expenses shall include and be limited to all, in Landlord's reasonable
opinion, reasonable third party out-of-pocket expenses paid or incurred by
Landlord or on Landlord's behalf in respect of any and all maintenance, repairs,
replacements (when such replacement would, in Landlord's sole but reasonable
opinion, be economically more feasible than repair) and improvements which are
necessary or appropriate for the continued operation of the Building as a
first-class Class A office building, including, without limitation, the cost of:
(i) all charges (including all surcharges, taxes, fuel adjustments, taxes
regularly passed on to consumers by the public utility, and other sums payable
in respect thereof) for steam and electricity, furnished to the Building
(including, without limitation, the common areas thereof), together with any
taxes on such utilities; (ii) heating, ventilation and air-conditioning
furnished to the Building (including, without limitation, the common areas
thereof); (iii) snow removal and rubbish removal; (iv) janitorial and cleaning
services, such as, without limiting the generality of the foregoing, cleaning of
outside windows, elevators and elevator lobbies and cabs [provided, however,
Tenant shall be obligated to pay Landlord one hundred (100%) percent of all
reasonable costs and expenses incurred by Landlord in providing dedicated
elevator service to Tenant on Elevators 57 and 58 pursuant to Paragraph 9 of
this Agreement further provided that any cost so billed to Tenant on a one
hundred (100%) percent basis shall not be included as an Operating Expense],
lobbies at street and mezzanine levels, plazas and sidewalks, as well as the
normal repair, replacement (when such replacement would, in Landlord's sole but
reasonable opinion, be economically more feasible than repair) and maintenance
of any and all of the foregoing; (v) painting and decoration of the Building
(including the common areas thereof but excluding any area under lease to any
tenant); (vi) the repair, replacement (when such replacement would, in
Landlord's sole but reasonable opinion, be economically more feasible than
repair) and maintenance of the water riser and sprinkler system, alarm system
and any equipment used for the protection and security of the Building or the
tenants thereof and their employees, licensees and invitees; (vii) interior and
exterior landscaping;
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(viii) rental fees or repair costs of any equipment used for any and all of the
above-mentioned purposes or uses; (ix) the reasonable amortization by Landlord,
with interest on the unamortized amount, of the cost of any capital improvement
and/or equipment, including without limitation or duplication, capital
expenditures for a deferred maintenance [(a) made in compliance with the
requirement of any federal, state or local law or government regulation or (b)
made in conversion of, in addition and/or as a supplement to the source of power
operating the Building's mechanical systems, provided such conversion, addition
or supplement is designed to result in a saving of, or reduction in, Operating
Expenses] made after the Base Operating Period, it being understood and agreed
that the amortization shall be done on a straight-line basis over the useful
life of the applicable item determined pursuant to generally accepted accounting
principles, consistently applied, and that the interest factor shall be in an
amount equal to the prime rate of the then largest commercial bank doing
business in the City of New York then being charged to its largest corporate
customers for unsecured, commercial loans of ninety (90) days or less; (x)
premiums for All Risks' Property Insurance and any other insurance which
Landlord may deem reasonably necessary or which is required by the Declaration
(so long as the Condominium shall exist), the lessor under any Ground Lease or
by the holder of any Mortgage; (xi) supplies; (xii) sales or use taxes on
supplies or services; (xiii) wages, salaries and other compensation or benefit
of every nature or kind and all direct or indirect expenses respecting employees
of Landlord engaged in the maintenance, operation, cleaning or repair of the
Building, up to and including the level of building superintendent and/or
manager, including, without limitation, disability benefits, pensions,
hospitalization, retirement plans, group policies, vacation, holidays, sick days
and personal days, annuities, meal money, training and other expenses imposed on
Landlord pursuant to law or to any collective bargaining agreement with respect
to such employees, workers' compensation insurance and payroll, social security,
unemployment and other similar taxes with respect to such employees; (xiv)
uniforms for such employees and the cleaning thereof; (xv) the charges of any
independent contractor who does any of the work of operating, maintaining,
cleaning or repairing of the Building; (xvi) professional and consulting fees,
including legal and accounting fees; (xvii) computer time, telephone,
bookkeeping and other Building office expenses; (xviii) the annual fee paid or
payable for managing the Building, or, if such service is provided directly by
Landlord, an annual amount that would otherwise have been required to engage,
and retain, the services of a first-class, highly reputable managing firm
providing such services in first-class, Class A office buildings in the City of
New York; (xix) all charges for water and sewer, whether measured by meter or
otherwise; (xx) all security costs and expenses for other than the leasable
areas of the Building; (xxi) all building improvement district charges and other
similar items; and (xxii) any other expense or charge of any nature whatsoever,
whether or not herein mentioned, which, in accordance with sound accounting and
management principles generally accepted with respect to the operation of
first-class Class A office buildings in the City of New York, would be construed
as an operating expense. Notwithstanding the inclusion as an Operating Expense
of charges and expenses for "cleaning", Landlord acknowledges the right of
Tenant, at Tenant's sole cost and and
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expense, to retain and use (subject to Landlord's prior written approval which
shall not be unreasonably withheld or delayed) a different cleaning contractor
for the Third Additional Space further provided that despite any such election
by Tenant to use independent cleaning services, Tenant shall continue to pay its
proportionate share of cleaning expenses included as Operating Expenses.
Operating Expenses shall exclude or have deducted from them, as the case
may be, and as shall be appropriate: (i) leasing commissions and advertising
expenses incurred in leasing or for procuring tenants for the Building; (ii) the
cost of repairs or replacements incurred by reason of fire or other casualty;
(iii) costs for services rendered or performed directly for the account of
tenants and for which a separate charge is made but then only to the extent that
such work or service is in excess of any work or service Landlord, at its own
expense, is obligated to furnish to or for Tenant under this Lease; (iv) Taxes;
(v) depreciation (provided, however, that such exclusion of depreciation shall
not affect the inclusion in Operating Expenses of the amortized items included
in the first paragraph of this Section B of Paragraph 5 of the Agreement; (vi)
installments of principal and interest and any other sum due and payable under
any Mortgage; (vii) expenditures for the costs of performing capital
improvements for tenants other than Tenant; (viii) any expense for which
Landlord is reimbursed by insurance or third parties or other tenants in the
Building (other than as an Operating Expense pursuant to their lease); (ix)
costs of fireproofing removal and refireproofing and/or costs of hazardous waste
removal; (x) costs of providing a special service to a particular tenant not
provided to other tenants in the Building; (xi) costs and expenses incurred in
connection with the enforcement of leases or disputes with tenants (including
legal fees); (xii) costs incurred to perform any work in the Building in
connection with a violation of law by Landlord, including those that may be in
existence on the date hereof; (xiii) costs incurred as a result of the
negligence of Landlord, its employees, contractors, agents and invitees; (xiv)
the cost of any items reimbursable to Landlord by insurance, warranties or
otherwise other than pursuant to clauses similar to Article 29 of the Lease;
(xv) rent and other charges due and payable under any ground lease or xxxxxxxxx;
(xvi) any costs included in Operating Expenses representing an amount paid to a
party related to Landlord which is in excess of the amount which would have been
paid in the absence of such relationship; (xvii) lease payments for rented
equipment, the cost of which equipment if purchased would not be includable in
Operating Expenses; and (xviii) amounts paid by Landlord to restore any damage
with respect to which Landlord elected to act as a self-insurer over and above
the amount of self insurance (or deductibles) which a reasonably prudent owner
of a first class office building comparable to the Building would have
maintained.
6. Notwithstanding anything to the contrary in the Lease, Landlord
shall furnish air conditioning to the demised premises (inclusive of the Third
Additional Space) pursuant to the provisions of Section 27.04(f), as amended by
the Modification of Lease. Without affecting Tenant's obligation to pay its
proportionate share for HVAC costs included as Operating Expenses, Tenant shall
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have the right, one time during the term of the Lease, to convert the heating,
ventilating and air-conditioning ("HVAC") system from the Building System to
Tenant's System at Tenant's sole cost and expense further subject to Landlord's
prior written approval of Tenant's plans and specifications for such conversion,
which approval shall not be unreasonably withheld, conditioned or delayed. If
Tenant elects to convert the HVAC system to Tenant's System, Tenant shall then
have the one time right to convert back to the Building System, at Tenants sole
cost and expense, upon reasonable written notice to Landlord requesting that
Landlord commence the furnishing of air-conditioning to the Third Additional
Space. Further, in the event Tenant elects to operate Tenant's HVAC system using
its own personnel (in lieu of the Building's personnel), Tenant's obligation to
pay its proportionate share for HVAC costs included as Operating Expenses shall
remain unaffected.
7. Sections 27.04(g) and (h) of the Lease is deemed to be not
applicable to the Third Additional Space unless, and until Tenant elects to
convert the Third Additional Space HVAC system to Tenant's System.
8. Section 27.04(j) of the Lease, as amended by the Modification of
Lease, is hereby amended by: (i) deleting the words "fifty (50)" in the fifth
(5th) line thereof and substituting the words "90" and (ii) inserting the
following words after the words "the 13th floor and/or 14th floor" in the
eleventh (11th) line thereof: "and/or 16th floor". Notwithstanding the
foregoing, Tenant acknowledges that pursuant to the current piping configuration
in the Building, only forty (40) tons of condenser water is available for each
specific floor of the demised premises and, accordingly, if Tenant requires more
than forty (40) tons of condenser water for any specific floor of the demised
premises, Tenant must submit its requirements for additional condenser water to
Landlord for its prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed. In the event of such written
approval by Landlord, Landlord shall then proceed, at Tenant's sole cost and
expense, to modify the current piping configuration to meet Tenant's approved
requirements. In no event, however, shall Tenant's condenser water requirements
for the entire demised premises exceed ninety (90) tons.
9. Section 27.05 of the Lease is hereby amended by adding the
following sentences at the end thereof: "With respect to the Third Additional
Space only, Landlord agrees to dedicate elevators 57 and 58 in the "B" elevator
bank to serve only the 13th and/or 16th floors. The remaining six (6) elevators
in this elevator bank will be reprogrammed to service the 13th floor, and will
continue to serve the 12th, 14th, and 16th floors of the Building. Tenant shall
reimburse Landlord for all reasonable costs associated with such reprogramming
and the providing of two dedicated elevators to Tenant. Landlord, at Tenant's
expense, will provide Tenant with appropriate identification cards to allow
Tenant to access its elevator banks through the common Building lobby. In
addition, Landlord agrees to allow Tenant, at Tenant's option and expense, to
provide elevator access to the
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16th floor from Tenant's dedicated "D" elevator bank. All costs in connection
with such elevator dedication shall be paid by Tenant within thirty (30) days of
Landlord's written demand (with reasonable back-up) including but not limited to
costs to meter electricity, electricity usage, elevator maintenance charges,
metal and stone maintenance and night cleaning.
10. Section 27.13 of the Lease, as amended by the Modification of
Lease, is hereby amended by deleting the second sentence thereof and
substituting the following sentence: "The premises originally demised under this
Lease will have a capacity to serve a minimum of thirty (30) speaker/strobe
units, the Additional Space will have a capacity to serve a minimum of fifteen
(15) speaker/strobe units, and the Third Additional Space will have a capacity
to serve a minimum of thirty (30) speaker/strobe units provided that such
specified number of units are, in the premises originally demised under this
Lease, the Additional Space, and the Third Additional Space, designed to be
collected on a loop, installed by Tenant at Tenant's cost, before connection to
the base Building systems."
11. Section 27.14 of the Lease, is hereby amended by inserting the
following words after the words "exhaust in excess of 2450 cfm" in the sixth
(6th) line thereof: "and 2450 cfm for the Third Additional Space."
12. Section 30.01 of the Lease, is hereby amended by inserting the
following language after the words "Prior to the Rent Commencement Date" in the
first (1st) line thereof: "or prior to any subsequent rent commencement dates as
provided for in any modifications to the Lease,
13. Section 31.02 of the Lease is hereby amended by inserting the
following language after the words "after the Commencement Date and the Rent
Commencement Date" in the second (2nd) line thereof: "or any subsequent
commencement date and rent commencement date as provided for in any
modifications to the Lease"
14. Notwithstanding anything in Section 32.01 of the Lease to the
contrary, Landlord may, at its option in its sole and absolute discretion, by
notice given to Tenant included with the Delivery Date Notice, provide Tenant
(in accordance with this Paragraph 14) with a cash contribution of $1,738,125 to
be utilized by Tenant solely for Tenant's hard and reasonable soft costs (i.e.,
architectural and design fees) (the "Third Additional Space Work Allowance") in
connection with all construction, alterations or installations necessary to make
the Third Additional Space ready for Tenant's use (the "Third Additional Space
Initial Improvements"). The payment of the Third Additional Space Work Allowance
shall be made to Tenant in installments from time to time upon receipt by
Landlord of receipted invoices or other evidence that such costs have been
incurred and paid by Tenant which, with respect to the first of such payment, is
to be made within thirty (30) days after the first submission by Tenant and
which, with respect to
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each subsequent payment, is to be made within thirty (30) days after each
subsequent submission by Tenant. If Landlord elects not to provide the Third
Additional Space Work Allowance as above provided, the Third Additional Space
Work Allowance shall be deemed eliminated and the basic annual rent in respect
of the Third Additional Space set forth in Section 4 herein shall be reduced by
One Hundred Eighty-Two Thousand One Hundred Fifty-Five and 50/100 Dollars
($182,155.50) per annum for the term of the Lease.
15. Section 32.04 of the Lease is hereby amended by inserting the
following words after the words "Initial Improvements" in the second (2nd) line
thereof: "or any Initial Improvements with respect to the Third Additional
Space"
16. [Intentionally Omitted]
17. Section 32.05(b) is hereby amended by (i) inserting the
following words after the words "prior to the Rent Commencement Date" in the
first (1st) line thereof: "or the Third Additional Space Rent Commencement Date,
as the case may be"; and, (ii) inserting the following words after the words "to
the demised premises" in the third line thereof: "and the Third Additional
Space"; and inserting the following words after the words "servicing the demised
premises" in the fifth (5th) line thereof: "and the Third Additional Space"
18. Section 32.05(c) of the Lease, as amended by the Modification of
Lease, is hereby amended by inserting the following words after the words "or
14th" in the eighth (8th) line thereof: "or 16th"
19. Notwithstanding anything to the contrary contained therein,
Landlord agrees that Tenant's option to extend the term of the Lease in
accordance with Article 41 of the Lease (i) shall be applicable with respect to
either the entire demised premises, the 13th floor portion of the demised
premises, the Additional Space, the Second Additional Space, or Third Additional
Space, as the case may be.
20. Article 43 of the Lease, as amended by the Modification of
Lease, is modified by adding the following sentence after the last sentence:
"Tenant shall have no termination right with respect to the Third Additional
Space."
21. Exhibit "E" of the Lease is hereby amended by inserting the
following words after the words "13TH FLOOR" on the last line thereof: "AND THE
THIRD ADDITIONAL SPACE ON THE 16TH FLOOR."
22. Landlord and Tenant each represent and warrant to each other
that it has not dealt with any real estate agents or brokers in connection with
this Agreement other than Xxxxxxx & Xxxxxxxxx, Inc. ("C&W") and Insignia/ESG,
Inc. ("ESG") whose fees, if any, Landlord agrees to pay pursuant to separate
written agreements. Further, Landlord and Tenant each covenant and warrant to
the other
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that it has not brought about or procured this Agreement through the use or
instrumentality of any other agent or broker and each covenants and agrees to
indemnify and hold the other harmless from any and all claims for commissions
and other compensation made by any agent or agents and/or any broker or brokers,
other than C&W or ESG, based on any dealings between it and any other such agent
or agents and/or broker or brokers, together with all costs and expenses
incurred by the indemnified party in resisting such claims (including, without
limitation, reasonable attorneys' fees). The obligations of Landlord and Tenant
under this Section 32 shall survive the expiration or termination of the Lease.
23. Except as modified by this Agreement, the Lease and all the
terms, covenants, conditions, provisions, and agreements thereof are hereby in
all respects ratified, confirmed, and approved.
24. The Lease, the agreements executed contemporaneously therewith,
this Agreement, any agreements executed contemporaneously herewith and any
documents or agreements executed pursuant thereto or which have heretofore been
executed and which amend or supplement the Lease contain the entire
understanding between the parties. No other representations, warranties,
covenants or agreements have been made.
25. This Agreement 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.
26. This Agreement shall be binding upon, and inure to the benefit
of the parties hereto, their respective legal representatives, successors and,
except as otherwise provided in the Lease as modified by this Agreement, their
respective assigns.
27. The submission of this Agreement to Tenant shall not be
construed as an offer, nor shall Tenant have any rights with respect hereto,
unless and until Landlord shall execute a copy of this Agreement and deliver the
same to Tenant.
28. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement shall be effective as delivery of a manually
executed counterpart of this Agreement.
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29. Any delivery of a counterpart signature by telecopier shall,
however, be promptly followed by delivery of a manually executed counterpart.
IN WITNESS WHEREOF, the parties hereto have respectively executed
this Agreement as of the day and year first above written.
Landlord: METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ W. Xxxx Xxxxxx
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W. Xxxx Xxxxxx, Assistant Vice-President
Tenant: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxxx, Director
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Exhibit A
Third Additional Space
EXHIBIT A
[FLOOR PLAN OMITTED]
