FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "Amendment") is made and entered
into this ______ day of , 1996, 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, #310, #320, #325, #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. 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 November
30, 1995, and a Third Amendment To Lease dated January 5, 1996. 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 83,284 RSF.
C. 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 January 1, 1997, the Premises shall be expanded to
include Suite 350A, measuring 3,348 RSF; Xxxxx 000X, measuring 710 RSF;
and the contiguous corridor area, measuring 794 RSF; for a total of
4,852 RSF as shown on the floor plan attached hereto, marked Exhibit
"A" (the "Additional Space") and by this reference made a part hereof.
Notwithstanding the above, both Tenant and Landlord understand that
Travelers Insurance Company currently leases Xxxxx 000X xxx Xxxxx 000X,
with such lease expiring December 31, 1996. Should Travelers holdover
and not vacate Suites 350A and/or 350B by January 1, 1997, Landlord
will make reasonable efforts to pursue its legal remedies to have
Travelers removed from the space. If the Additional Space is delivered
to Tenant after January 1, 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 Space and
commencement of the Lease with respect to the Additional Space.
2. Term. The term of the Lease with respect to the Additional Space
identified in Paragraph 1 above shall commence January 1, 1997, and
terminate upon termination of the Lease.
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3. Base Rent. Tenant shall pay as Base Rent for the Additional Space
during the Term the sum of Six Hundred and Two Thousand, Three Hundred
Fifty-five Dollars and Ninety-Two Cents ($602,355.92) payable monthly
as follows:
January 1, 1997 - May 31, 2005 $5,963.92 / Month
4. Adjustment Rent. Effective upon commencement of the Term for the
Additional Space, Tenant shall pay Adjustment Rent with respect to the
Additional Space in accordance with the terms and conditions contained
in Paragraph 2 of the Lease.
5. Tenant Improvements. Landlord shall provide a tenant improvement
allowance of up to $48,600.19 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 of Tenant's Proportionate
Share contained in Item D of the Basic Terms of the Lease shall be
replaced with the following schedule:
January 1, 1997 - December 31, 1997 59.13% (77,990 RSF / 131,888 RSF)
January 1, 1998 - May 31, 2005 66.83% (88,136 RSF / 131,888 RSF)
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, LAFP-SF, Inc.
a Delaware corporation
By: Xxxx Enterprises Investment
Management, Inc.
By: Its: Authorized Agent
Its: By:
Its:
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EXHIBIT "B" to be made a part of a Fourth Amendment To Lease between LAFP-SF,
INC. (Landlord), and DATA TRANSMISSION NETWORK CORPORATION (Tenant), dated ,
1996. (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 Space in accordance with the
provisions of Paragraph 9 of the Lease. Landlord shall provide Tenant a tenant
finish allowance of up to Forty Eight Thousand, Six Hundred Dollars and Nineteen
Cents ($48,600.19) 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 Space,
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:
January 1, 1997 - December 31, 1997 Up To $48,600.19
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 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;
(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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EXHIBIT "B" to be made a part of a Fourth Amendment To Lease between LAFP-SF,
INC. (Landlord), and DATA TRANSMISSION NETWORK CORPORATION (Tenant), dated ,
1996. (Page 2 of 2)
(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.
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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