Exhibit 10.17
AMENDMENT NO. 1 TO LEASE AGREEMENT
AGREEMENT, made as of October 1, 1997, between ND PROPERTIES, INC.
("Landlord") and NETWORK MANAGEMENT SERVICES, INC. ("Tenant").
A. Landlord and Tenant entered into a written Lease Agreement dated March
12, 1997 ("Initial Lease"), relating to the premises ("Initial Premises")
consisting of approximately 1,390 rentable square feet on the seventh floor of
the building commonly known as 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx
(the "Project").
B. The Initial Lease has not previously been amended or modified.
C. Landlord and Tenant desire to include additional space in the Project on
a temporary basis and to amend the Lease as provided in this Amendment.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
expressly acknowledged, Landlord and Tenant agree as follows:
1. Effect. The Lease is hereby amended to the extent necessary to give
effect to this Amendment, and the terms of this Amendment shall supersede any
contrary terms in the Lease. All references in the Lease to "this Lease" shall
be deemed to refer to the Lease as amended by this Amendment. In all other
respects, the terms and conditions of the Lease shall remain unmodified and in
effect. Unless otherwise defined herein, capitalized terms shall have the same
meaning as provided in the Lease.
2. Temporary Space. Effective on October 6, 1997 ("Effective Date"), Tenant
accepts and leases from Landlord approximately 2,783 rentable square feet on the
ninth floor of the Project as shown on the attached Exhibit 1 ("Temporary
Space"). The Temporary Space shall be added to and become part of the Premises
on all of the terms and conditions of the Lease, except that:
A. The Temporary Space shall be added to the Premises for a limited term
("Temporary Space Term") beginning on the Effective Date and ending on the
earlier of: (1) termination of the Temporary Space Term by either party,
for any reason, upon ten (10) days advance written notice to the other
party; or (2) the expiration or termination of the Term of the Lease.
Landlord shall not be liable nor shall the Lease be impaired by any delay
or inability to deliver possession of the Temporary Space for any reason
whatsoever; provided, that all Rent for the Temporary Space shall be abated
until Landlord delivers possession of such space to Tenant.
B. During the Temporary Space Term, Tenant shall pay Rent for the Temporary
Space as follows: (1) Base Rent at an annual rate of $15.00 per rentable
square foot, payable in advance in equal monthly installments of $3,478.75,
and (2) Operating Cost Rent at the same rate per rentable square foot as
payable for the Initial Premises and subject to the same adjustments as
provided in the Lease. Rent for the Temporary Space
shall be payable in advance on the Effective Date and on the first day of
each month thereafter during, the Temporary Space Term. Rent for any
partial month shall be prorated.
C. Tenant acknowledges that it has inspected the Temporary Space and agrees
to accept the Temporary Space on an "as is" basis, with no obligation of
Landlord to do or pay for any work or plans relating to the Temporary
Space.
D. Upon the expiration or termination of the Temporary Space Term, Tenant
shall completely vacate and surrender possession of the Temporary Space to
Landlord in as good condition as when Tenant took possession, ordinary wear
and tear excepted. The expiration or termination of the Temporary Space
Term shall not terminate or modify the Term of the Lease with respect to
the remaining Premises. If Tenant holds over in the Temporary Space after
the termination or expiration of the Temporary Space Term, in addition to
Landlord's other rights and remedies under the law and the Lease and in
addition to payment of Rent for the Initial Premises: (1) Tenant shall pay
holdover rent for the Temporary Space at one hundred fifty percent (150%)
of the rate for Base Rent and Operating Cost Rent payable by Tenant for
such space pursuant to Section 2B of this Amendment, computed on a daily
basis for each day Tenant remains in possession of the Temporary Space; and
(2) Landlord shall immediately be entitled to lawfully retake possession of
the Temporary Space and to recover from Tenant all costs, reasonable
attorneys fees and damages sustained by Landlord as a result of such
holding over by Tenant.
E. Upon reasonable prior notice to Tenant, Landlord reserves the right to
inspect and show the Temporary Space to prospective tenants. Within ten
(10) days after written request by Landlord from time to time, Tenant shall
execute a written confirmation concerning the term, rent, size, location,
or any other matter relating to the Temporary Space.
F. At any time during the Temporary Space Term, Landlord may relocate the
Temporary Space to another area in the Project ("substituted space") upon
ten (10) days prior written notice; provided, that (1) the substituted
space shall be substantially similar to the Temporary Space in area,
condition and suitability for Tenant's use; and (2) Landlord shall pay the
reasonable out-of-pocket costs of moving Tenant's property and equipment to
the substituted space. If Landlord exercises such relocation right, the
substituted space shall thereafter be deemed to be the Temporary Space for
all purposes.
3. Brokers. Landlord and Tenant each represents that it has not engaged or
dealt with any real estate broker, agent or finder with respect to this
Amendment, except for C.B. Commercial Real Estate Group, Inc., formerly known as
Xxxx Management Services, Inc. (whose commission, if any, shall be paid by
Landlord pursuant to a separate written agreement). Landlord and Tenant shall
indemnify and hold each other harmless from all claims, liability or
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expense (including reasonable attorneys fees) in connection with any claim for
broker's, finder's or other fees or commissions as a result of such party's
actions or alleged actions.
4. Tenant's Representations. Tenant hereby represents to Landlord that
there has been no assignment of the Lease and no sublease of all or any portion
of the Premises, there are no existing defenses or offsets which Tenant has
against enforcement of the Lease, and Landlord and Tenant are not in default
under the Lease.
5. Entire Agreement. The Lease, including, without limitation, this
Amendment and all exhibits which are attached hereto and hereby incorporated by
reference, constitutes the entire agreement between Landlord and Tenant with
respect to the subject matter hereof. Tenant acknowledges that it has not been
induced to enter into this Amendment by any agreements or representations which
are not set forth in this Amendment. This Amendment shall not be effective until
execution and delivery by both Landlord and Tenant.
By signing this Amendment, the parties agree to the above terms.
LANDLORD: TENANT:
ND PROPERTIES, INC. NETWORK MANAGEMENT SERVICES, INC.
By /s/ Xxxx X. Xxxx By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxx Name: Xxxxx X. Xxxxxxxx
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Title: Asst. Sec. Title: Chief Financial Officer
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