FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment") is made and entered
into this 29th day of September, 1995, by and between THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA ("Landlord"), having an address at Xxx Xxxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, 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 (the "Lease"), for Xxxxxx #000X, #000, #000, #000, #000, #000,
#000, #000, #340, #360, and #362 containing 75,931 rentable square feet
in the Building known as Embassy Plaza, located at 0000 Xxxx Xxxxx
Xxxx, Xxxxx, Xxxxxxxx ("the Premises").
B. 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. The Premises shall be expanded to include: Space "A",
effective October 1, 1995, measuring 3,688 RSF; and Space "B",
effective July 1, 1996, measuring 2,902 RSF (the "Additional
Premises"). Both Space "A" and Space "B" are located on the third floor
of the Building as shown on the floor plan attached hereto, marked as
Exhibit "A", and by this reference made a part hereof. As of October 1,
1995, the Premises shall consist of 79,619 RSF and as of July 1, 1996,
the Premises shall consist of 82,521 RSF (the Revised Premises)
2. Term. The term of the Lease with respect to Space "A" and Space "B"
shall be that period of time commencing October 1, 1995, for Space "A",
and July 1, 1996, for Space "B" and ending on May 31, 2005, (the
"Expiration Date").
3. Base Rent. Tenant shall pay as Base Rent for the Additional Premises
during the Term the sum of Nine Hundred and Seven Thousand, Five
Hundred Twenty-One Dollars and No Cents ($907,521.00) payable monthly
as follows:
October 1, 1995 - June 30, 1996 $4,533.17 / Month
July 1, 1996 - May 31, 2005 $8,100.21 / Month
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4. Tenant Improvements. Landlord shall provide a tenant improvement
allowance of up to $30,412.00 for Space "A", and up to $30,790.22 for
Space "B", 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.
5. Tenant's Proportionate Share. The schedule of Tenant's Proportionate
Share contained in Item D of the Basic Terms of the Lease shall be
replaced with the following schedule:
May 1, 1995 - May 31, 1995 46.37% (60,361 RSF / 130,173 RSF)
June 1, 1995 - September 30, 1995 50.44% (65,787 RSF / 130,436 RSF)
October 1, 1995 - June 30, 1996 53.05% (69,475 RSF / 130,950 RSF)
July 1, 1996 - December 31, 1997 55.21% (72,377 RSF / 131,094 RSF)
January 1, 1998 - May 31, 2005 62.95% (82,521 RSF / 131,094 RSF)
6. Adjustment Rent. Effective with commencement of the Term for Spaces "A"
and "B", Tenant shall pay Adjustment Rent in accordance with the terms
and conditions contained in Paragraph 2 of the Lease.
7. Effect of Agreement. Except as herein specifically provided, the terms
and conditions of the Lease shall continue in full force and effect.
6. This Amendment shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
7. The parties hereto hereby reaffirm and ratify all covenants,
representations and warranties in the Lease as amended by this
Amendment.
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, The Prudential Insurance Company
a Delaware corporation of America, a New Jersey corporation
By: /s/ Xxxx X. Xxxxx By: Pacific Realty Group, Inc.,
----------------------------- its Managing Agent
Its: Executive Vice President and
Chief Operating Officer
-----------------------------
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EXHIBIT "B" to be made a part of a First Amendment To Lease between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA (Landlord), and DATA TRANSMISSION
NETWORK CORPORATION (Tenant), dated September 29, 1995. (Page 1 of 2)
TENANT IMPROVEMENTS WORK SCHEDULE
ARTICLE I
Landlord's Construction Obligations
Landlord shall have no construction obligations under this Amendment.
Tenant accepts the Additional 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
Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the Additional Premises in accordance with
the provisions of Paragraph 9 of the Lease. Landlord shall provide Tenant a
tenant finish allowance of up to Sixty-One Thousand, Eight Hundred Thirty-Two
Dollars and Twenty Cents ($61,832.20) 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 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:
October 1, 1995 - February 29, 1996 Up To $30,412.00 July 1, 1996
- November 30, 1996 Up To $30,790.22
2. Upon the earlier of the end dates 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 dates, 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;
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(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);
(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 materialmen'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.
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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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