EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (the "Amendment") is made and entered
into this ______ day of , 1997, by and between LAFP-SF, Inc., successor in
interest to The Prudential Insurance Company Of America ("Landlord"), having an
office c/x Xxxx Enterprises Colorado, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, and Data Transmission Network Corporation ("Tenant"),
having an office at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000.
RECITALS
A. The Prudential Insurance Company of America and Data Transmission
Network Corporation entered into that certain Lease dated as of May 2,
1995, for Suites #000X, #000, #000, #000, #000, #000, #320, #325, #340,
#360, #362, and #100 containing 75,931 rentable square feet (RSF) in
the Building known as Embassy Plaza, located at 0000 Xxxx Xxxxx Xxxx,
Xxxxx, Xxxxxxxx ("the Premises").
B. Subsequently, The Prudential Insurance Company Of America and Data
Transmission Network Corporation executed a First Amendment To Lease
dated September 29, 1995, a Second Amendment To Lease dated January 5,
1996, a Third Amendment To Lease dated January 5, 1996, and a Fourth
Amendment To Lease between LAFP-SF, Inc. and Tenant dated December 23,
1996, a Fifth Amendment To Lease dated July 7, 1997, a Sixth Amendment
To Lease dated July 7, 1997, and a Seventh Amendment To Lease dated
September , 1997. The combined terms of the Lease and subsequent
Amendments shall herein be referred to as the "Lease". Under the Lease
the Premises consists of a total of 93,860 RSF.
C. Landlord and Tenant acknowledge that the surface parking for the
Building is overburdened, in part as a result of Tenant's use thereof.
D. Landlord intends to construct additional parking facilities to ser-
vice Tenant and other tenants in the Building subject to the terms and
conditions contained below.
E. All capitalized terms not defined herein shall have the meanings
ascribed to them in the Lease.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. Premises. Effective September 16, 1997, the Premises shall be expanded
to include Suite 315 (3,430 RSF) and the adjacent corridor space (142
RSF), measuring 3,572 RSF as shown on the floor plans attached hereto,
marked Exhibit "A" (the "Additional Expansion Premises") and by this
reference made a part hereof for a total Premises of 97,432 RSF.
Notwithstanding the above, both Tenant and Landlord understand that GAB
Robins, Inc., currently leases Suite 315, with such lease expiring
approximately September 15, 1997. Should GAB Robins, Inc., holdover and
not vacate Suite 315 by September 15, 1997, Landlord will make
reasonable efforts to pursue its legal remedies to have GAB Robins,
Inc., removed from the space. If the Additional Expansion Premises is
delivered to Tenant after September 16, 1997, Landlord and Tenant shall
execute a Commencement Date Certificate in the form attached hereto as
Exhibit "C", confirming Landlord's delivery of the Additional Expansion
Premises and commencement of the Lease with respect to the Additional
Expansion Premises.
2. Term. The term of the Lease with respect to the Additional Expansion
Premises identified in Paragraph 1 above shall commence September 16,
1997, and terminate upon termination of the Lease.
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3. Base Rent. Tenant shall pay as Base Rent for the Additional Expansion
Premises during the Term the sum of Four Hundred Sixty-Eight Thousand,
Six Hundred and One Dollars, and Ninety-One Cents ($468,601.91) payable
monthly as follows:
September 16, 1997 - May 31, 2001 $4,911.50 / Month
June 1, 2001 - May 31, 2005 $5,209.17 / Month
4. Adjustment Rent. Effective upon commencement of the Term with respect
to the Additional Expansion Premises, Tenant shall pay Adjustment Rent
with respect to the Additional Expansion Premises in accordance with
the terms and conditions contained in Paragraph 2 of the Lease, except
that the Base Expense Year and Base Tax Year with respect to the
Additional Expansion Premises herein shall be the calendar year 1997.
5. Tenant Improvements. Landlord shall provide a tenant improvement
allowance of up to $35,720.00 to be applied toward the cost of Tenant's
required building improvements. All improvements shall be performed in
accordance with the Tenant Improvement Work Schedule attached hereto,
marked as Exhibit "B", and by this reference made a part hereof.
6. Tenant's Proportionate Share. The schedule for Tenant's Proportionate
Share shall be revised to reflect the incorporation of the Additional
Expansion Premises as follows:
Floor Space with a 1994 Base Expense Year and Base Tax Year:
January 1, 1997-September 15, 1997 59.20% (77,992 RSF / 131,740 RSF)
September 16, 1997-December 31, 1997 59.14% (77,992 RSF / 131,882 RSF)
January 1, 1998-May 31, 2005 66.83% (88,136 RSF / 131,882 RSF)
Floor Space with a 1997 Base Expense Year and Base Tax Year:
August 1, 1997 - September 15, 1997 3.45% (4,544 RSF / 131,740 RSF)
September 16, 1997 - May 31, 2005 7.05% (9,296 RSF / 131,882 RSF)
7. Effect of Agreement. Except as herein specifically provided, the
terms and conditions of the Lease shall continue in full force and
effect.
8. This Amendment shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
9. The parties hereto hereby reaffirm and ratify all covenants, represen-
tations and warranties in the Lease as amended by this Amendment.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the day and year first above written.
Tenant: Landlord:
Data Transmission Network Corporation, LAFP-SF, Inc.
a Delaware corporation
By: Xxxx Enterprises Investment
Management, Inc.
By: Its: Authorized Agent
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Its: By:
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Its:
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XXXXXXX "X" to be made a part of an Eighth Amendment To Lease between LAFP-SF,
INC. (Landlord), and DATA TRANSMISSION NETWORK CORPORATION (Tenant), dated
1997 (Page 1 of 2).
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TENANT IMPROVEMENTS WORK SCHEDULE
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ARTICLE I
Landlord's Construction Obligations
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Landlord shall have no construction obligations under this Amendment.
Tenant accepts the Additional Expansion Premises in an "as is" condition, with
all faults and with the understanding that it shall be responsible for any and
all improvements required for its occupancy and use in accordance with Article
II of this Exhibit "B".
ARTICLE II
Construction of Tenant Improvements
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Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the Additional Expansion Premises in
accordance with the provisions of Paragraph 9 of the Lease. Landlord shall
provide Tenant a tenant finish allowance of up to Thirty-Five Thousand, Seven
Hundred and Twenty Dollars and No Cents ($35,720.00) to be applied toward the
cost of any such tenant-provided improvements as follows:
1. The tenant finish allowance shall be paid in periodic installments, not
more frequently than once per month, equal to the total of the contractor's or
consultant's invoice amounts for improvements made to the Additional Expansion
Premises, excluding any furnishings or business equipment (such as computers,
satellite/microwave dish, office equipment, etc.), as submitted by Tenant and
verified to Landlord's reasonable satisfaction; provided, however, that such
payments will be made only if Tenant is not then in Default under the terms of
this Lease and invoices are accompanied by lien waivers in the amount equal to
that of the invoices. The tenant finish allowance shall be allocated and
distributed subject to the provisions of this Exhibit "B" as follows:
September 16, 1997 - September 15, 1998 Up To $35,720.00
2. Upon the earlier of the end date identified in the allocation schedule
specified in Paragraph 1 above, or the satisfaction of all obligations
associated with the tenant improvements covered under this Article II and
receipt of the associated lien waivers for the work, the Tenant shall forfeit
any unused portion of the allowance. Any requests for payment received by the
Landlord after the above specified end date, will be returned to the Tenant and
will be the obligation and sole responsibility of the Tenant.
3. In addition to the provisions set forth in Paragraph 9 of the Lease,
Tenant's contractor shall (and its contract shall so provide):
(a) conduct its work in such a manner so as not to unreasonably
interfere with other tenants in the Building, Building operations,
or any other construction occurring on or in the Building or the
Premises;
(b) execute a set of and comply with all rules and regulations
relating to the construction activities in or on the Building as
may be reasonably promulgated from time to time by Landlord or its
agents;
(c) maintain such insurance (such as general liability and xxxxxxx'x
compensation) and bonds (such as performance and completion) in
force and effect as may be reasonably requested by Landlord or as
required by applicable law (but in any event said bonds shall be
in amounts equal to the full value or cost of the work being done
by the Tenant contractor);
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XXXXXXX "X" to be made a part of an Eighth Amendment To Lease between LAFP-SF,
INC. (Landlord), and DATA TRANSMISSION NETWORK CORPORATION (Tenant), dated
1997. (Page 2 of 2).
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(d) be responsible for reaching an agreement with Landlord and its
agents as to the terms and conditions for all contractor items
relating to the conducting of its work, including but not limited
to, those matters relating to hoisting, systems interfacing, use
of temporary utilities, storage of materials, placement of
dumpsters, access to the Premises and the Building, and the
purchase and return of Building standard materials.
(e) Upon completion of any tenant improvements, Tenant shall promptly
furnish Landlord with sworn owner's and contractors' statements
and full and final waivers of lien covering all labor and
materials included in such improvements. Tenant shall not permit
any mechanic's lien to be filed against the Building, or any part
thereof, arising out of any improvement performed, or alleged to
have been performed, by or on behalf of Tenant. If any such lien
is filed, Tenant shall within ten (10) days thereafter have such
lien released of record or deliver to Landlord a bond in form,
amount, and issued by a surety satisfactory to Landlord,
indemnifying Landlord against all costs and liabilities resulting
from such lien and the foreclosure or attempted foreclosure
thereof. If Tenant fails to have such lien so released or to
deliver such bond to Landlord, Landlord, without investigating the
validity of such lien, may pay or discharge the same; and Tenant
shall reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord's expenses and attorney's fees.
4. Landlord shall have the right to approve all subcontractors to be used
by the Tenant's contractor, which approval shall not be unreasonably withheld as
long as such subcontractors satisfy the requirements of this Article II.
5. Tenant shall indemnify and hold harmless Landlord, its agents,
contractors (including Building Contractor), and any mortgagee of Landlord, from
and against any and all losses, damages, costs (including costs of suit and
attorneys' fees), liabilities, or causes of action for injury to or death of any
person, for damage to any property, and for mechanic's material men's or other
liens or claims arising out of or in connection with the work done by the
Tenant's contractor (and Tenant's contractor's subcontractors and
sub-subcontractors) under its contract with Tenant.
6. The failure by Tenant, after receiving written notice, to materially
comply with any of the provisions of Article II of this Exhibit shall constitute
a Default by Tenant under the terms of the Lease and Landlord shall have the
benefit of all remedies provided for in the Lease, except Tenant shall have a
thirty (30) day right to cure Default upon receipt of written notice .
7. Upon completion of the Tenant Improvements, Tenant shall deliver to
Landlord two (2) copies of the "as built" plans and specifications for the
Tenant Improvements completed under Article II of this Exhibit within thirty
(30) days of completing the same.
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EXHIBIT "C" TO AN EIGHTH AMENDMENT TO LEASE
BETWEEN
LAFP-SF, INC., (LANDLORD)
AND
DATA TRANSMISSION NETWORK CORPORATION, (TENANT)
DATED , 1997
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COMMENCEMENT DATE AGREEMENT
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This Commencement Date Agreement is entered into by Landlord and Tenant
pursuant to Paragraph 1 of this Amendment.
1. DEFINITIONS. In this Agreement the following terms have the
meanings given to them:
(a) Landlord: LAFP-SF, Inc.
(b) Tenant: Data Transmission Network
Corporation
(c) Lease: Lease between Landlord and Tenant,
dated May 2, 1995, and subsequently amended
via a First Amendment To Lease dated
September 29, 1995, a Second Amendment To
Lease dated January 5, 1996, a Third
Amendment To Lease dated January 5, 1996, a
Fourth Amendment To Lease dated December 23,
1996, a Fifth Amendment To Lease dated July
7, 1997, a Sixth Amendment To Lease dated
July 7, 1997, and an Seventh Amendment To
Lease dated 1997.
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2. CONFIRMATION OF THE COMMENCEMENT DATE WITH REGARD TO THE
OCCUPANCY, BY TENANT, OF SUITE. Landlord and Tenant confirm that the
Commencement Date of the Lease with regard to the Additional Expansion Premises
is , 1997.
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Landlord and Tenant have executed this Commencement Date Agreement as
of the date set forth above.
Tenant: Landlord:
DATA TRANSMISSION NETWORK LAFP-SF, INC.
CORPORATION, a Delaware corporation
Xxxx Enterprises Investment Management,
Inc.
By: Its: Authorized Agent
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Its: By:
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Its:
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