Exhibit 10.34
FOURTH MODIFICATION OF LEASE
Fourth Modification of Lease ("Agreement") made as of this 13th day
of November, 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").
WITNESSETH:
WHEREAS, Landlord and Tenant heretofore entered into a certain
written lease dated September 10, 1997, as amended by (i) Modification of Lease
dated February 5, 1998; (ii) Second Modification of Lease and License Agreement
dated June 12, 2000; and (iii) Third Modification of Lease dated September 18,
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
Exhibits A, A-1 and A-2 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, and the entire rentable area
of the 16th floor 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 south portion, the northwest portion, north rooms and the common area of the
15th floor of the Building (collectively, the "Fourth Additional Space"), as
shown on Exhibit A-3 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.A. Subject to Landlord's continuing right of access, in accordance with
Section B of this Xxxxxxxxx 0, Xxxxxxxx does hereby lease to Tenant and Tenant
does hereby let from Landlord the Fourth Additional Space for the period to
commence on the date hereof (the "Fourth 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. It is the intention
and agreement of the parties hereto that by reason of such addition of the
Fourth Additional Space to the demised premises, the demised premises shall,
from and after the Fourth Additional Space Commencement Date, be those covered
by the Lease, as modified by this Agreement. The Fourth Additional Space shall
be subject to all of the terms, covenants and conditions of the Lease, as
modified hereby.
B. Notwithstanding anything to the contrary contained herein, Tenant
acknowledges that various mechanical equipment for the Building is located
throughout the Fourth Additional Space and that Landlord must, at all times,
have open access to inspect, service, repair, replace and otherwise maintain
such equipment (the "Access Right"). Tenant agrees Landlord shall have such
access further provided that Landlord agrees to take commercially reasonable
steps to minimize interference with Tenant's use and enjoyment of the Fourth
Additional Space, as contemplated by this Agreement, when exercising its Access
Right and, in addition, to the extent reasonably practicable, Landlord will
notify Tenant prior to entering the Fourth Additional Space, which notice will,
likely, be oral. Tenant further acknowledges that the Access Right is in
addition to (and not in exclusion of) any other express rights of Landlord
pursuant to the Lease to enter into any portion of the demised premises and/or
perform any work therein.
C. Landlord and Tenant acknowledge that the Fourth Additional Space
contains 14,308 rentable square feet.
3.A. Effective the 91st day subsequent to the Fourth Additional Space
Commencement Date (the "Fourth 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 Fourth Additional Space, basic
annual rent for the Fourth Additional Space as follows: (i) Five Hundred Twenty
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Nine Thousand Three Hundred Ninety Six Dollars ($529,396.00) per annum for the
period commencing on the Fourth Additional Space Rent Commencement Date and
ending one day prior to the 60th month anniversary of the Fourth Additional
Space Commencement Date; and thereafter (ii) Five Hundred Seventy Two Thousand
Three Hundred Twenty Dollars ($572,320.00) per annum for the period commencing
on the 60th month anniversary of the Fourth Additional Space Commencement Date
and ending one day prior to the 120th month anniversary of the Fourth Additional
Space Commencement Date; and thereafter (iii) Six Hundred Fifteen Thousand Two
Hundred Forty Four Dollars ($615,244.00) per annum for the period commencing on
the 120th month anniversary of the Fourth Additional Space Commencement Date and
ending one day prior to the 180th month anniversary of the Fourth Additional
Space Commencement Date; and thereafter (iv) Six Hundred Fifty Eight Thousand
One Hundred Sixty Eight Dollars ($658,168.00) per annum for the period
commencing on the 180th month anniversary of the Fourth Additional Commencement
Date and ending on the last day of the term of the Lease (to wit: April 30,
2017).
B. From and after the Fourth Additional Space Rent Commencement Date,
basic annual rent payable for the Fourth Additional Space shall be paid by
Tenant to Landlord at the times and in the manner specified in the Lease.
C. Tenant acknowledges that notwithstanding the "free rent period" from
and including the Fourth Additional Space Commencement Date through and
including the day prior to the Fourth Additional Space Rent Commencement Date,
Tenant shall be obligated to pay for electricity supplied to the demised
premises (inclusive of the Fourth Additional Space) during such free rent
period.
D. Tenant hereby covenants and agrees that the Fourth Additional Space
shall be used solely for the purposes set forth in the Lease, and for no other
purpose.
4. Notwithstanding anything to the contrary contained in the Lease, Landlord and
Tenant agree that Tenant shall not be responsible for the payment of any share,
percentage, or amounts for "Taxes" or "Operating Expenses" (as defined in
Articles 28 and 29, respectively, of the Lease) for the Fourth Additional Space
provided, however, Tenant acknowledges that, except as otherwise expressly set
forth in this Agreement, Landlord shall not be obligated or required to provided
any services to the Fourth Additional Space. In the event Tenant requests any
service, however, and Landlord agrees to and does provide same, Tenant shall
remit to Landlord, within twenty (20) days of Landlord's written demand,
Landlord's then applicable Building charge for such requested and provided
service further provided if such service is provided by a third party (to wit:
other than Landlord or its Building Manager), the charge for same shall be
Landlord's out-of-pocket cost to such third party.
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5. Tenant, at its sole cost and expense, in accordance with plans and
specifications submitted to and approved in writing by Landlord (as required by
and in accordance with the Lease), shall be responsible for the installation and
maintenance of the heating, ventilating and air-conditioning ("HVAC") system to
serve the Fourth Additional Space. Notwithstanding the foregoing, Tenant shall
have the right, one time during the term of the Lease, upon not less than thirty
(30) days prior written notice to Landlord, to convert its HVAC system serving
the Fourth Additional Space from Tenant's system to the Building System. The
conversion to the Building system shall be performed by Landlord, at Tenant's
sole cost and expense (including the actual out-of-pocket cost to install a
meter, the cost to maintain such meter, as well as any other one-time or
recurring expenses incurred as a result of such conversion to the Building
system) and if Tenant does convert the HVAC system to the Building System,
Tenant shall then have the one time right to convert back to Tenant's System,
also at Tenants sole cost and expense and in accordance with plans and
specifications submitted to and approved in writing by Landlord (as required by
and in accordance with the Lease).
6.A. It is understood and agreed that Landlord shall have no obligation to do
any work or incur any expense (except as indicated below in this Paragraph 6) in
order to ready the Fourth Additional Space for Tenant's use and that Tenant
shall be responsible for all construction, alterations or installations
necessary to make the Fourth Additional Space ready for its use, which
construction shall be done in accordance with plans and specifications submitted
to and approved in writing by Landlord (as required by and in accordance with
the Lease). It is further understood that Tenant agrees that it will accept
delivery of the Fourth Additional Space in an "as is" condition or whatever
condition the same may be in as of the Fourth Additional Space Commencement
Date, subject to the terms of the Lease. Tenant acknowledges that it is
thoroughly familiar with the condition of the Fourth Additional Space and has
either undertaken an exhaustive and comprehensive inspection of the same and
been satisfied with the results thereof or waived the undertaking of such
inspection. Notwithstanding the foregoing, Landlord hereby agrees to remit to
Tenant the lesser of (a) Tenant's reasonable actual out-of pocket costs to
erect, in Building standard manner (applicable to the Fourth Additional Space)
pursuant to plans and specifications submitted to and approved in writing by
Landlord (in accordance with the terms of the Lease), the demising walls
delineated on Exhibit A-4 (attached hereto and made a part hereof) as "Demising
Walls" (the "Demising") and (b) the sum of One Hundred Fifteen Thousand Dollars
($115,000.00). Such payment shall be made by Landlord to Tenant within thirty
(30) days of Tenant's submission to Landlord of paid receipts and lien waivers
for all expenses incurred for the Demising and copies of any governmental
approvals required, along with a statement by Tenant's architect that the
Demising was performed and completed in Building standard manner in accordance
with plans and specifications submitted to and approved in writing by Landlord.
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B. Landlord represents to Tenant that, as of the date hereof, the
bathrooms located in the Fourth Additional Space are in compliance with
applicable governmental laws, rules and regulations; including but not limited
to the American's With Disabilities Act ("ADA") provided that the occupancy
level within the Fourth Additional Space does not exceed seventy (70) persons.
In the event this representation proves to be incorrect for any reason, except
if the result of Tenant's act, as Tenant's sole remedy, Landlord shall, at its
expense, promptly bring the bathrooms into such compliance with applicable
governmental laws, rules and regulations, including but not limited to ADA. If
more than seventy (70) persons are to occupy the Fourth Additional Space,
Tenant, at its sole cost and expense, shall cause the certificate of occupancy
for the Building to be amended so as to permit such increased occupancy and, in
addition, upgrade said bathrooms in order to comply with applicable governmental
laws, rules and regulations, including but not limited to ADA, in accordance
with plans and specifications submitted to and approved in writing by Landlord.
Landlord agrees to reasonably cooperate with Tenant's efforts to secure an
amended certificate of occupancy, expressly provided Landlord incurs no expenses
in connection therewith.
C. Upon Landlord's receipt of Tenant's plans for "Tenant's Work" in the
Fourth Additional Space (approved by Landlord, as required by the Lease),
Landlord shall provide Tenant with an ACP-5 (or equivalent if no longer issued)
Certification of a licensed asbestos investigator indicating that the Fourth
Additional Space is not an asbestos project.
7. Section 27.04(j) of the Lease is hereby amended by: (i) deleting the words
"ninety (90)" in the fifth (5th) line thereof and substituting the words "one
hundred ten (110)" and (ii) inserting the following words after the words "the
13th floor and/or 14th floor and/or 16th floor" in the eleventh (11th) line
thereof: "and/or 15th 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. Tenant also acknowledges that there is no condenser water connection
on the 15th floor of the Building. 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 one hundred ten (110) tons.
8. Section 27.05 of the Lease is hereby amended by adding the following
sentences at the end thereof: "With respect to the Fourth Additional Space only,
Landlord shall provide elevator service to the 15th floor of the Building
through
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elevator #53 in the "C" elevator bank. Landlord shall also, at the request of
Tenant, and at Tenant's sole cost and expense, provide elevator service to the
Fourth Additional Space through some or all of the remaining elevators in the
"C" elevator bank. 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 15th 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.
9. Section 27.13 of the 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, the Third Additional Space will
have a capacity to serve a minimum of thirty (30) speaker/strobe units and the
Fourth Additional Space will have a capacity to serve a minimum of fifteen (15)
speaker/strobe units provided that such specified number of units are, in the
premises originally demised under this Lease, the Additional Space, the Third
Additional Space and the Fourth Additional Space, designed to be collected on a
loop, installed by Tenant at Tenant's cost, before connection to the base
Building systems."
10. Section 27.14 of the Lease, is hereby amended by inserting the following
words after the words "and 2450 cfm for the Third Additional Space" in the
sixth (6th) line thereof: "and 300 cfm for the Fourth Additional Space."
11. [Intentionally Deleted]
12. [Intentionally Deleted]
13. [Intentionally Deleted]
14. Section 32.04 of the Lease is hereby amended by inserting the following
words after the words "or any Initial Improvements with respect to the Third
Additional Space" in the second (2nd) line thereof: "or any Initial Improvements
with respect to the Fourth Additional Space"
15. [Intentionally Deleted]
16. Section 32.05(b) is hereby amended by (i) inserting the following words
after the words "or the Third Additional Space Rent Commencement Date," in the
first (1st) line thereof: "or the Fourth Additional Space Rent Commencement
Date"; and, (ii) inserting the following words after the words "and the Third
Additional Space"
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in the third line thereof: "and the Fourth Additional Space"; (iii) and
inserting the following words after the words "and the Third Additional Space"
in the fifth (5th) line thereof: "and the Fourth Additional Space"
17. Section 32.05(c) of the Lease is hereby amended by inserting the following
words after the words "or 16th" in the eighth (8th) line thereof: "or 15th"
18. 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, the Third Additional Space or the Fourth
Additional Space, as the case may be.
19. Article 43 of the Lease is modified by inserting the following words after
the words: "Tenant shall have no termination right with respect to the Third
Additional Space" in the last sentence thereof: "or the Fourth Additional
Space."
20. Exhibit "E" of the Lease is hereby amended by inserting the following words
after the words "AND THE THIRD ADDITIONAL SPACE ON THE 16TH FLOOR" in the last
line thereof "AND THE FOURTH ADDITIONAL SPACE ON THE 15TH FLOOR."
21. 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
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.
22. 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.
23. 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
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understanding between the parties. No other representations, warranties,
covenants or agreements have been made.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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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Assistant Vice-President
Tenant: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ [Illegible]
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Managing Director
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EXHIBIT A-3
[FLOOR PLAN OMITTED]
