EXHIBIT 10.17
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (the "Agreement") is made as of this 1st day of
March 1999 by and between DALLAS OFFICE PORTFOLIO, LP, A DELAWARE LIMITED
PARTNERSHIP ("Landlord") as successor-in-interest to GREENVILLE AVENUE
PROPERTIES, LTD. ("Previous Landlord") and PREFERRED VOICE, INC. having an
address at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated February 3, 1998 (the
"Lease") with respect to the Premises consisting of approximately 1,707 square
feet ("Existing Space") know as Suite 570, in the building known as 0000
Xxxxxxxxxx Xxxxx, located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxx, which
premises are more particularly described in the Lease; and,
WHEREAS, Landlord and Tenant now mutually desire to amend the Lease to reflect
(i) the addition of 1,881 square feet (the "Expansion Space") as shown on
Exhibit "B-2" annexed hereto and made a part thereof (ii) the then subsequent
extension of lease on the Existing Space, which all space combined (including
the Expansion Space and Existing Space shall be known as Suite 570, consisting
of 3,588 rentable square feet as shown on Exhibit "B-1" annexed hereto and made
a part hereof (the"Premises") and to further amend the terms and conditions of
the Lease as set forth below; and;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby covenant and agree as follows:
1. The provisions of this Agreement shall supersede any inconsistent
provisions contained in the Lease, regardless of whether such inconsistent
provisions are contained in the printed portion of the Lease or any rider
annexed thereto and made a part thereof. All capitalized items not otherwise
defined herein shall have the same meanings ascribed to them in the Lease.
2. The term of this Agreement shall commence March 1, 1999 upon the
conditions set forth herein.
3. On approximately March 5, 1999, Tenant shall surrender unto Landlord
the Existing Space and relocate into the Expansion Space, so that Landlord may
perform the Work specified in Exhibit A-Work Letter. At such time, Tenant shall
occupy the Expansion Space in accordance with all of the applicable provisions
of the Lease.
Effective from and after the day following substantial completion of
the Work in the Existing Space ("Substantial Completion Date" which is estimated
to be March 31, 1999), Tenant shall then occupy both the Existing space and the
Expansion Space ("Effective Date"). Landlord and Tenant
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shall confirm the Effective Date in an acceptance letter or other written
instrument after the Effective Date within fifteen (15) days of demand therefore
by Landlord, provided, however, that the failure of Landlord and Tenant to
execute such letter or instrument shall not affect the Effective Date as
established pursuant to this Paragraph 3. If the Effective Date occurs on a day
other than the first day of a calendar month, rent and such other amounts
constituting additional rental under the Lease with respect to the Existing
Space shall be prorated on a per diem basis for the month in which the Effective
Date shall occur. Tenant expressly waives any right to rescind this Agreement or
the Lease, or any damages, direct or indirect, winch may result from Landlord's
failure to deliver the Existing Premises by April 1, 1999. If Landlord shall be
unable to deliver to Tenant possession of the Existing Space by April 1,1999,
then rent for the Expansion Space shall continue and rent for the Existing Spam
only shall continue to xxxxx (as is reflected in paragraph 5 below) for such
period as possession by Tenant is delayed unless Tenant shall cause such delay
in which case rent shall not xxxxx and rent for the entire Premises shall
commence April 1, 1999. The continuation of the abatement of rent with respect
to the Existing Space, does constitute full settlement of all claim which Tenant
might otherwise have against Landlord by reason of the Existing Space not being
ready for occupancy by April 1, 1999 and no such failure by Landlord to deliver
possession of the Existing Space shall affect or impair the validity of the
Agreement or the Lease, or the obligations of Tenant hereunder or give rise to
any claim for damages by Tenant or claim for rescission of this Agreement or the
Lease. Notwithstanding anything contained herein to the contrary, if Landlord is
unable to deliver the Existing Space to Tenant by April 1, 1999, then the term
of this Lease shall be extended by the number of days of such delay in
commencement of the Effective Date and the Base Annual Rent for that extension
period shall be equal to the per diem rate Tenant paid during the month of
April, 2002.
4. Upon Tenant's execution thereof, Tenant shall pay to Landlord the
sum of $523.75 to be held by Landlord as additional security pursuant to Article
6 of the Fundamental Lease Provisions of the Lease, for a total Security Deposit
held of $4,933.50.
5. Effective from and after the March 1, 1999, Base Annual Rent, as
reflected in Article 4 of the Fundamental Lease Provisions shall be:
March 1, 1999 - March 5,1999: $2,276.00 per month
March 6,1999 - Substantial Completion Date $2,508.00 per month
*Effective Date - Month 12 $4,784.00 per month
Month 13 - Month 24 $4,933.50 per month
Month 25 - Month 36 $5,083.00 per month
*Month 12 shall mean through the last day of the 12th full calendar month
following the Effective Date. Month 24 shall mean through the last day of the
24th full calendar month following the Effective Date. Month 36 shall mom
through the last day to the 36th full calendar month following the Effective
Date.
6. For and in consideration of the covenants contained in the Lease to
which this Agreement has been made a part, Landlord and Tenant agree that the
ending date, as defined in Paragraph (3) of the Fundamental Lease Provisions
section of the Lease shall become April 30, 2002, unless otherwise adjusted as
detailed in paragraph 3 above.
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7. Landlord, at its sole cost and expense, shall provide Tenant
requested improvements (the "Improvements") to the Existing Space only, in a
building standard manner for a cost to Landlord not to exceed $12,248
("Landlord's Allowance") and in the manner specified in Exhibit "A" ("Work
Letter") and the contractor's bid (Exhibit A-1) herein attached. In the event
the cost of completing the Improvements exceeds Landlord's Allowance or if
Tenant makes any changes to the Improvements, Tenant expressly agrees that the
costs attributable to those changes shall be the sole responsibility of Tenant
and Tenant shall pay same to Landlord upon demand as specified in Exhibit A.
Except for the Improvements, Tenant acknowledges and agrees that it has made a
fall and complete inspection of the Existing Space and the Expansion Space
(Premises) and accepts such in its present "as-is" condition as suitable for
Tenant's intended use and occupancy and/or continued occupancy thereof. Upon
Tenant's complete possession of the "Premises", it shall be conclusively
presumed that same has been so accepted by Tenant, is in satisfactory conditions
and complies fully with Landlord's covenants and obligations.
8. Tenant expressly warrants and represents that the sole broker who
negotiated and brought about this transaction was Transwestern Property Company
("Landlord's Agent") and Xxxxxxxxxx Realty Group ("Tenant's Agent"). Tenant
represents it neither consulted nor negotiated with any broker other than those
named herein with regard to the Premises. Tenant agrees to indemnify, defend and
save Landlord harmless from and against any claims for fees or commissions from
anyone or my entity other than those brokers named herein, with whom Tenant has
dealt in connection with this Agreement. The foregoing provisions contained in
this Paragraph 8 shall survive the expiration or early termination of the Lease.
9. Effective from and after the Effective Date, Tenant's parking as
reflected to in Section 12 of the Fundamental Lease Provisions shall be amended
to read: "A total of three (3) Garage parking spaces at no charge during the
term and eight (8) Lot spaces at no charge during the term, all on a first come
first serve basis. Tenant shall no longer be entitled to one (1) additional
unreserved garage parking space on a month to month basis."
10. Effective from and after the Effective Date, Section 5 of the
Fundamental Lease Provisions shall change from "1998" to "1999".
11. Effective from and after the Effective Date, subject to Tenant's
then current financials, prior right of first refusal (if any), prior renewal
options (if any), and as long as Tenant is not or has not been in default under
the Lease, and has not subleased or assigned all or any portion of the Premises,
then Tenant shall have a one-time Right of First Refusal on approximately 1,000
square feet (as shown on attached Exhibit "D"-"Refusal Space") under the
following terms and conditions:
1) Tenant must agree to at least the same total lease package
being offered to a bona- fide third party but in no case less
than the base rental Tenant is contracted to pay.
2) Landlord shall give notice ("Refusal Notice") to Tenant of a
bona-fide offer for the refusal space and Tenant shall then
have three (3) business days in which to accept or reject said
offer.
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3) If Tenant should reject Landlord's offer (or if such offer is
not accepted in writing within the three (3) business day
period, then Tenant's Right of First Refusal shall become null
and void,
4) If Tenant accepts said offer, Tenant must execute a lease
modification covering such space within seven (7) days of
receipt related paperwork from Landlord under the term and
conditions specified in the offer or Tenant shall be in
default under the Lease.
12. This Agreement shall not constitute an Agreement by Landlord and
shall not be binding upon Landlord unless and until this Agreement shall be
executed by Landlord and Tenant and shall be delivered by Landlord to Tenant.
19. This Agreement may not be changed orally, and shall be binding upon
and shall inure to the benefit of the parties to it, their respective heirs,
successors and, as permitted, their assigns.
20. Except as hereby modified or amended, all of the terms, covenants
and conditions of the Lease shall remain unmodified and in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement as of
the day and year first above written.
LANDLORD: TENANT:
DALLAS OFFICE PORTFOLIO, L.P., Preferred Voice, Inc.
a Delaware limited partnership
By: Suburban Dallas Office Portfolio, LLC,
a Delaware limited liability company, its
sole general partner
By: Beacon Capital Partners, L.P., a Delaware
limited partnership, its sole member
By: Beacon Capital Partners, Inc., a Maryland
corporation, its sole general partner
By:/s/ Illegible By:/s/ Xxxx Xxxxxxx
--------------------------------- ------------------------
Name:Illegible Name:Xxxx Xxxxxxx
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Title Title: VP Finance
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Hereunto Duly Authorized
Date Signed:3/1/99 Date Signed:2/26/99
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EXHIBIT "A"
WORK LETTER
TO
OFFICE LEASE AGREEMENT
BETWEEN
DALLAS OFFICE PORTFOLIO, L.P., A DELAWARE LIMITED PARTNERSHIP
AND PREFERRED VOICE, INC.
This Exhibit sets forth the respective obligations of, and the procedures to be
followed by, Landlord and Tenant in the design and construction of those
improvements that will prepare the Existing Premises described in Exhibit B-1 of
the Lease for Tenant's use and occupancy.
1. The Work.
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The "Work" will consist of leasehold improvements described in the
floor plan and specifications attached to this Lease as Exhibit C "(Final
Plan").
B. Landlord will pay all costs and fees incurred in connection with construction
of the leasehold improvements as described in the Final Plan up to a cost of
$12,248. Tenant will pay all costs and fees incurred in connection with
preparation of plans and working drawings (if should later be required) and
construction resulting from a change requested by Tenant pursuant to Paragraph 2
of this Exhibit and any amount in excess of $12,248 incurred by Landlord in
connection with the design and construction of the Work (collectively, "Tenant's
Cost"). Tenants Cost hereunder will be deemed additional rent under the Lease.
2. Changes
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A. If Tenant desires any changes, alterations or additions to the Final
Plan, Tenant must submit a detailed written request to Landlord ("Change
Order"). If reasonable and practicable and generally consistent with the Final
Plan previously approved, Landlord will comply with the Change Order, but all
costs in connection therewith, including without limitation any additional
plans, drawings and engineering reports or opinions or modifications of such
existing item, win be paid for by Tenant. Landlord may at any time reasonably
estimate Tenant's Cost for a Change Order, in advance, and, Tenant will deposit
the estimated amount with Landlord within five (5) days after requested by
Landlord. If such estimated amount exceeds the actual amount of Tenant's Cost,
Tenant will receive a refund of the difference, and if the actual amount exceeds
the estimated amount, Tenant will pay the difference to Landlord within five (5)
days after requested by Landlord. If any additional plans, drawings or
specifications, or modifications of such items, are required to construct a
Change Order, the same will be prepared (at Tenant's cost by Tenant's architect)
and approved in the manner described above. Under no circumstances will any
Change Orders serve to xxxxx the rentals under the Lease.
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3. Substantial Completion
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A. Landlord will be deemed to have "substantially completed" the Work
for the purposes thereof if Landlord has caused all of the Work to be completed
substantially except for so called "punchlist items," e.g., minor details of
construction or decoration or mechanical adjustments winch do not substantially
interfere with Tenant's occupancy of the New Premises to be made by Tenant. If
there is any dispute as to whether Landlord has substantially completed the
Work, the good faith decision of Landlords architect will be final and binding
on the parties.
B. If Landlord notifies Tenant in writing that the Work is
substantially completed, and Tenant fails to object thereto in writing within
three (3) days thereafter specifying in reasonable detail the items of Work
needed to be performed in order for substantial completion, Tenant will be
deemed conclusively to have agreed that the Work is substantially completed, for
purposes of commencing rental under the Lease.
C. Substantial completion will not prejudice Tenant's rights to require
fill completion of any remaining items of Work. However, if Landlord notifies
Tenant in writing that the Work is fully completed, and Tenant fails to object
thereto in writing within fifteen (15) days thereafter specifying in reasonable
detail the items of work needed to be completed and the nature of work needed to
complete said items, Tenant will be deemed conclusively to have accepted the
Work as fully completed (or such portions thereof as to which Tenant has not so
objected).
4. Construction.
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A. Landlord reserves the right to substitute comparable or better
materials and items for those shown in the attached Final Plan.
B. Landlord warrants that Landlord will employ an experienced, licensed
contractor to construct the leasehold improvements and will require in the
construction contract that such contractor construct the leasehold improvements
in a good and workmanlike manner and in compliance with all applicable laws,
ordinances and budding codes; provided, however, Tenant will be solely
responsible for determining whether or not Tenant is a public accommodation
under The Americans with Disabilities Act and Texas Architectural Barriers Act
and whether or not the Final Working Drawings comply with such laws and the
regulations thereunder.
5. Liability
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The parties acknowledge that Landlord is not an architect or engineer,
and that the Work will be performed by Landlord's independent contractor.
Accordingly, Landlord does not guarantee or warrant that the Final Plan will be
free from errors or omissions, nor that the Work will be free from defects, and
Landlord will have no liability therefor. In the event of such errors,
omissions, or defects,
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by the independent contractor, Landlord will cooperate in any action Tenant
desires to bring against such party.
6. Incorporation Into Lease: Default.
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THE PARTIES AGREE THAT THE PROVISIONS OF THIS EXHIBIT ARE HEREBY
INCORPORATED BY THIS REFERENCE INTO THE LEASE FULLY AS THOUGH SET
FORTH THEREIN. In the event of any express inconsistencies between the Lease and
this the latter will govern and control. Any default by Tenant hereunder will
constitute a default by Tenant under the Lease and Tenant will be subject to the
remedies and other provisions applicable thereto under the Lease.
INITIALED FOR INITIALED FOR
IDENTIFICATION: IDENTIFICATION:
BY LANDLORD: BY TENANT:
/s/ /s/
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EXHIBIT B-1
[Graphic of Premises]
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EXHIBIT B-2
[Graphic of Expansion Space]
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EXHIBIT C
[Graphic of Final Plan]
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EXHIBIT D
[Graphic of Refusal Space]
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