FIRST AMENDMENT TO LEASE
Exhibit 10.5
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this “Amendment”) is entered into as of the 29th day of
November, 2004, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey
corporation (“Landlord”) and T-NETIX, INC., a Delaware corporation (“Tenant”).
WHEREAS, Landlord and Tenant executed that certain Lease Agreement dated as of November 8,
2004 (the “Lease”) whereby Landlord leased to Tenant certain space (the “Original Premises”)
containing 51,283 square feet of Agreed Rentable Area consisting of the entire sixth (6th) floor
of the building known as The Princeton located at 00000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (the
“Building”), as more particularly described therein;
WHEREAS, pursuant to Rider 2 to the Lease, prior to the date which is six (6) months after the
Commencement Date, Tenant has the right to lease any or all of the fifth (5th) floor of the
Building under the terms set forth in Rider 2;
WHEREAS, on November 23, 2004, Tenant delivered a Notice to Landlord exercising its right
under Rider 2 of the Lease to lease approximately 7,959 square feet of Agreed Rentable Area on the
fifth (5th) floor of the Building shown on the floor plan attached as Exhibit A hereto
(the “First Expansion Space”); and
WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their agreements as to the
terms and conditions governing Tenant’s lease of the First Expansion Space.
NOW, THEREFORE, in consideration of the premises and the mutual covenants between the parties
herein contained, Landlord and Tenant hereby agree as follows:
1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
First Expansion Space. Accordingly, Item 2 of the Basic Lease Provisions is hereby amended in
its entirety to read as follows:
2. Premises:
a. Suite #: 600; Floors: a portion of the 5th floor and the entire 6th floor.
b. Agreed Rentable Area: 59,242 square feet.
2. Basic Rent. Section 3(a) of the Basic Lease Provisions is hereby amended in its
entirety to read as follows:
3. a. Basic Rent (See Article 2, Supplemental Lease Provisions):
| Rate Per Square | Basic | Basic | ||||||||||
| Rental | Foot of Agreed | Annual | Monthly | |||||||||
| Period | Rentable Area | Rent | Rent | |||||||||
Lease Months 1—12 |
$ | 13.25 | $ | 784,956.48 | $ | 65,413.04 | ||||||
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| Rate Per Square | Basic | Basic | ||||||||||
| Rental | Foot of Agreed | Annual | Monthly | |||||||||
| Period | Rentable Area | Rent | Rent | |||||||||
Lease Months
13 — 24 |
$ | 13.75 | $ | 814,577.52 | $ | 67,881.46 | ||||||
Lease Months
25 — 36 |
$ | 14.25 | $ | 844,198.56 | $ | 70,349.88 | ||||||
Lease Months 37 — 48 |
$ | 14.75 | $ | 873,819.48 | $ | 72,818.29 | ||||||
Lease Months 49 — 60 |
$ | 15.25 | $ | 903,440.52 | $ | 75,286.71 | ||||||
Lease Months 61 — 72 |
$ | 15.75 | $ | 933,061.56 | $ | 77,755.13 | ||||||
Lease Months 73 — 84 |
$ | 16.25 | $ | 962,682.48 | $ | 80,223.54 | ||||||
Lease Months 85 — 96 |
$ | 16.75 | $ | 992,303.52 | $ | 82,691.96 | ||||||
Lease Months 97 — 108 |
$ | 17.25 | $ | 1,021,924.56 | $ | 85,160.38 | ||||||
Lease Months 109 — 120 |
$ | 17.75 | $ | 1,051,545.48 | $ | 87,628.79 | ||||||
3. Tenant’s Pro Rata Share Percentage: Item 4 of the Basic Lease Provisions is
hereby amended in its entirety to read as follows:
| 4. | Tenant’s Pro Rata Share Percentage: 15.96% (the Agreed Rentable Area of the Premises divided by the Agreed Rentable Area of the Building, expressed in a percentage). |
4.
Amendment of Exhibit A Exhibit A to the Lease is hereby amended by incorporating
Exhibit A attached hereto and Exhibit A
attached hereto is made a part of Exhibit A to the Lease.
5. Delivery of First Expansion Space. Tenant hereby accepts delivery of the First
Expansion Space. Tenant acknowledges that Tenant has inspected the First Expansion Space
and, except for punch list items and latent defects discovered and reported to Landlord by Tenant
within one (1) year from the Commencement Date and subject to Landlord’s completion of its
obligations under the Work Letter, Tenant hereby accepts the First Expansion Space (including
the suitability of the First Expansion Space for the Permitted Use) for all purposes.
LANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER
EXPRESS OR IMPLIED, AS TO THE QUALITY, CONDITION OR FITNESS FOR A
PARTICULAR USE OR USES OF ANY ABOVE-BUILDING STANDARD
IMPROVEMENTS AND/OR EQUIPMENT (SUCH AS SUPPLEMENTAL HEATING
AND AIR CONDITIONING UNITS) PRESENTLY LOCATED IN OR SERVING THE
FIRST EXPANSION SPACE, ALL OF SUCH REPRESENTATIONS OR WARRANTIES
BEING HEREBY EXPRESSLY EXCLUDED AND DENIED. Landlord and Tenant
acknowledge and agree that the First Expansion Space shall be treated as part of the initial
Premises for all purposes under the Lease except (i) with respect to Section 1.202 of the Lease,
and (ii) except for the purpose of Tenant’s entitlement to exercise the Second Expansion Option
pursuant to Rider 2 to the Lease (it being agreed that Tenant’s lease of the First Expansion Space
hereunder shall result in Tenant having the Second Expansion Option under Rider 2 to the
Lease).
6. Tenant’s Improvements. Landlord shall construct improvements in the First Expansion
Space subject to and in accordance with the terms and conditions of the Work Letter attached to
the Lease as Exhibit D (the “Work Letter”) at the same time and as part of the Tenant’s
Improvements under the Work Letter. The First Expansion Space shall be considered a part of
the Premises with respect to all references in the Work Letter to the Premises, including without
limitation the amount of Finish Allowance to be provided by Landlord and, except with respect
to Section 1.202 of the Lease, all references in the Lease to the Tenant’s Improvements shall
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include the improvements to be constructed in the First Expansion Space pursuant to the Work
Letter. Landlord and Tenant confirm and agree that the Finish Allowance to be provided by Landlord
in connection with the Original Premises and the First Expansion Space is $1,777,260.00 (i.e.,
$30.00 per square foot of Agreed Rentable Area of the Original Premises and the First Expansion
Space).
7. Renewal Option The first sentence of Section 1 of Rider 1 to the Lease is hereby
amended in its entirety to read as follows:
If, and only if, on the Expiration Date and the date Tenant notifies Landlord of its
intention to renew the Term of this Lease (as provided below), (i) Tenant is not then in
default under this Lease, (ii) Tenant then occupies and the Premises then consist of at
least 59,242 square feet of Agreed Rentable Area and (iii) this Lease is in full force and
effect, then Tenant, but not any assignee (other than an Affiliate, as defined in Rider 5)
or subtenant of Tenant, shall have and may exercise an option to renew this Lease for two
(2) additional terms of three (3) years each (each, a “Renewal Term”) upon the same terms
and conditions contained in this Lease with the exceptions that (x) this Lease shall not be
further available for renewal after the expiration of the second Renewal Term, and (y) the
rental (including parking rent, Additional Rent and Basic Annual Rent) for each Renewal
Term shall be the “Renewal Rental Rate”.
8. Expansion Option Fifth Floor. The Expansion Option shall continue with respect to the
remaining portion of the Expansion Space at any time during the period which is on or before the
date which is six (6) months following the Commencement Date, and the First Expansion Space
together with any such additional space leased by Tenant under Rider 2 prior to the date which is
six (6) months following the Commencement Date shall be the “Initial Expansion Space” as
defined in Rider 2 to the Lease.
9. Submission of Amendment Not Offer. The submission by Tenant to Landlord of this
Amendment for Landlord’s consideration shall have no binding force or effect, and shall not
confer any rights upon Landlord or impose any obligations upon Tenant irrespective of any
reliance thereon, change of position or partial performance. This Amendment is effective and
binding on Tenant only upon the execution and delivery of this Amendment by Landlord and
Tenant.
10. No Brokers. Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Amendment other than DMc Corporate Services
(“Tenant’s Broker”) and PM Realty Group (“Landlord’s Broker”) and that it knows of no other
real estate brokers or agents who are or might be entitled to a commission in connection with this
Amendment or otherwise in connection with the Lease. Tenant agrees to indemnify and hold
harmless Landlord from and against any liability or claim arising in respect to any brokers or
agents claiming by, through or under Tenant other than Tenant’s Broker. Landlord shall pay the
commissions due to Tenant’s Broker and Landlord’s Broker pursuant to separate written
agreements with such brokers. Landlord warrants that it has had no dealings with any real estate
broker or agent in connection with the negotiation of this Amendment other than Tenant’s Broker
and Landlord’s Broker and that that it knows of no other real estate brokers or agents who are or
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might be entitled to a commission in connection with this Amendment or otherwise in connection
with the Lease. Landlord agrees to indemnify and hold harmless Tenant from and against any
liability or claim arising in respect to any brokers or agents claiming by, through or under
Landlord.
11. Authority. Tenant and each person signing this Amendment on behalf of Tenant
represents to Landlord as follows: (i) Tenant is a duly formed and validly existing corporation
under the laws of the State of Delaware, (ii) Tenant has and is qualified to do business in Texas,
(iii) Tenant has the full right and authority to enter into this Amendment, and (iv) each person
signing on behalf of Tenant was and continues to be authorized to do so. Landlord represents to
Tenant as follows: (i) Landlord is a duly formed and validly existing corporation under the law
of the State of New Jersey, (ii) Landlord has the full right and authority to enter into this
Amendment, and (iii) each person signing on behalf of Landlord was and continues to be
authorized to do so.
12. Defined Terms. All terms not otherwise defined herein shall have the same meaning
assigned to them in the Lease.
13. Ratification of Lease. Except as amended hereby, the Lease shall remain in full force
and effect in accordance with its terms and is hereby ratified. In the event of a conflict between the
Lease and this Amendment, this Amendment shall control.
14. Entire Agreement. This Amendment, together with the Lease, contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this
Amendment or the Lease, and no prior agreement, understanding or representation pertaining to
any such matter shall be effective for any purpose.
15. Section Headings. The section headings contained in this Amendment are
for convenience only and shall in no way enlarge or limit the scope or meaning of the various and
several sections hereof.
16. Successors and Assigns. The terms and provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
17. Severability. A determination that any provision of this Amendment is unenforceable or
invalid shall not affect the enforceability or validity of any other provision hereof and any
determination that the application of any provision of this Amendment to any person or
circumstance is illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to any other persons or circumstances.
18. Governing Law. This Amendment shall be governed by the laws of the State of Texas.
19. Exhibits. Each Exhibit attached hereto is made a part hereof for all purposes.
Signature Page to Follow
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| LANDLORD | ||||||||||
| THE PRUDENTIAL INSURANCE COMPANY | ||||||||||
| OF AMERICA, a New Jersey corporation | ||||||||||
| By: | PM Realty Group, L.P., a Delaware limited | |||||||||
| partnership, its duly authorized agent | ||||||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||||||
| Name: Xxxxxxx Xxxxxx | ||||||||||
| Title: Senior Vice President/Managing Director | ||||||||||
| TENANT: | ||||||||||
| T-NETIX, INC., a Delaware corporation | ||||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||||
| Name: Xxxxx X. Xxxxxxx | ||||||||||
| Title: Vp. General Counsel | ||||||||||
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EXHIBIT A
THE EXPANSION SPACE
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