Exhibit 10.4
AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") is entered into as of June 16,
1997, by and between ADI COMMUNICATION PARTNERS. L.P., a California limited
partnership ("Landlord"), and COMSTREAM CORPORATION, a Delaware corporation
("Tenant"), with reference to that certain Lease dated as of April 23, 1997, by
and between Landlord and Tenant ("Lease").
RECITALS
A. Pursuant to Section 20.25 of the Lease, Tenant is required to
deliver to Landlord an Irrevocable Standby Letter of Credit ("LC"), naming
Landlord as the payee thereunder, in the amount of One Million Four Hundred
Thousand Dollar ($1,400,000) as additional security against an Event of Default
under the Lease.
B. Landlord and Tenant have agreed that additional provisions should be
added t the Lease to address certain issues regarding the LC, including, without
limitation, how proceeds drawn by Landlord on the LC will be applied.
NOW, THEREFORE, Landlord and Tenant agree to amend the Lease as
follows:
AGREEMENT
1. AMENDMENT OF LETTER OF CREDIT. Section 20.26 of the Lease is hereby
amended to add the following as subsection (d):
"(d) If (i) the LC is drawn by Landlord because it was not renewed by
Tenant in a timely manner as required by subsection (a)(i), above, or
(ii) the LC is drawn by Landlord because an Event of Default by Tenant
occurs under the Lease and, as a result of such an Event of Default,
the Lease is terminated, as provided in subsection (a)(ii), above, the
amount drawn shall be held by Landlord as security for Tenant's
faithful performance of its obligations under this Lease. When such
funds are drawn they shall be invested by Landlord in investment grade
fixed income securities (e.g. United States government securities) with
a maturity of not more than six (6) months, with interest thereon paid
as received by Landlord to Tenant. Such funds shall be paid to Landlord
only upon a final determination, either by mutual agreement of Landlord
and Tenant, or by the judgment of a court of competent jurisdiction, of
the amount of monetary damages to which Landlord is entitled as a
result of such Event of Default, if any, following an Event of Default
by Tenant which results in a termination of the Lease. Any such funds
held by Landlord which exceed such amount of monetary damages to which
Landlord is determined to be entitled shall be promptly refunded to
Tenant."
2. RATIFICATION OF LEASE; NO OTHER MODIFICATIONS. Except as expressly
amended and modified by this Amendment, Landlord and Tenant hereby ratify and
affirm the terms and provisions of the Lease in its entirety. Except as
otherwise amended by this Amendment, all other provisions of the Lease are
unmodified hereby.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Amendment to Lease to be duly executed as of the day and year first above
written.
LANDLORD: TENANT:
ADI COMMUNICATION PARTNERS, L.P. COMSTREAM CORPORATION
a California limited partnership a Delaware corporation
By: Xxxxx Development, Inc. By: /s/ Xxxx Xxxxxxxx
a California corporation -----------------
Its General Partner Name: Xxxx Xxxxxxxx
Its: VP Finance and CFO
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Its: President
2
