EXHIBIT 10.23
FIRST AMENDMENT TO OFFICE LEASE
THIS FIRST AMENDMENT TO OFFICE LEASE (this Amendment) is executed as of February
15/th/, 2000, by 114 MILLENNIUM, LTD., a Texas limited partnership (Landlord),
and DATA RETURN CORPORATION, a Texas corporation (Tenant).
BACKGROUND:
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A. Landlord and Tenant entered into an Office Lease dated as of November 15,
1999 (the Lease), covering approximately 68,765 Rentable Square Feet (RSF)
(the Leased Premises) located on the 2/nd/ and 3/rd/ floors of the East
Tower, and the 3/rd/ and 4/th/ floors of the North Tower, of Millennium
Center, 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000.
B. Landlord and Tenant want to amend the Lease to, among other things, expand
the Leased Premises to add approximately 42,288 RSF on the 5/th/ and 6/th/
floors of the North Tower.
AGREEMENT:
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Landlord and Tenant agree as follows:
1. Capitalized Terms. All capitalized terms used but not otherwise defined in
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this Amendment have the same meanings as in the Lease.
2. Amendments to Lease. The Lease is amended as follows:
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(a) Leased Premises. The Leased Premises specified in Paragraph 1 of the
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Lease are expanded from approximately 68,765 RSF to approximately
111,053 RSF by the addition of Suite 500N (approximately 21,121 RSF)
on the 5/th/ floor of the North Tower, and Suite 600N (approximately
21,167 RSF) on the 6/th/ floor of the North Tower--see Exhibit J-1
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attached to this Amendment. Suites 500N and 600N are shown on Exhibit
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A-1 attached to this Amendment. All references to Exhibit A in the
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Lease are deemed hereafter to refer also to Exhibit A-1 attached to
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this Amendment.
(b) Minimum Rent. Exhibit J attached to the Lease is replaced with
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Exhibit J-1 attached to this Amendment, and all references to Exhibit
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J in the Lease are deemed to refer hereafter to Exhibit J-1 attached
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to this Amendment. All other provisions of the Lease regarding Minimum
Rent remain unchanged.
(c) Rent Payments. Upon execution of this Amendment, Tenant shall pay
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Landlord $79,290.00, which will be credited, along with the
$128,934.38 referred to in the first line of Paragraph 5(a) of the
Lease, against installments of Minimum Rent shown in Exhibit J-1. The
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second sentence in Paragraph 5(a) of the Lease is amended to provide
that the "aggregate credit" stated therein is $208,224.38, and the
"advance payment" referred to in the third sentence of Paragraph 5(a)
is deemed to include the additional advance payment under this
Paragraph 2(c).
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(d) Security Deposit. Upon execution of this Amendment, Tenant shall pay
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Landlord $82,814.00, which will increase the Security Deposit
specified in Paragraph 1 of the Lease from $134,664.79 to $217,478.79.
All other provisions of the Lease regarding the Security Deposit
remain unchanged.
(e) Parking. Paragraph 53(a)(3) of the Lease is amended to provide that
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Tenant may elect to convert up to 20, rather than 10, free unreserved
parking access cards to reserved parking access cards. All other
provisions of the Lease regarding parking remain unchanged.
(f) Option to Expand the Leased Premises. Paragraph 55(b) of the Lease is
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amended to provide that, if the Leased Premises is expanded as therein
provided, then the Leased Premises will thereafter consist of
approximately 133,716 RSF, and Tenant's pro rata share of Total
Electricity Costs will increase to 16.01%.
(g) Option to Extend Term for the Original Leased Premises. The Original
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Leased Premises as defined in Paragraph 56 of the Lease is amended to
include Suites 500N and 600N and, if Tenant has exercised the right of
first notice option set forth in Paragraph 60, the First Notice Space.
(h) Right of First Notice. Paragraph 60 of the Lease is amended as
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follows:
(i) The First Notice Space specified in Paragraph 60(a) is changed
to Suite 325N (approximately 7,497 RSF), located in the North
Tower. Exhibit H attached to the Lease is replaced with Exhibit
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H-1 attached to this Amendment, and all references to Exhibit H
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in the Lease are deemed to refer hereafter to Exhibit H-1
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attached to this Amendment.
(ii) The last sentence in Paragraph 60(a) is amended to state,
"Landlord's notice must specify the First Notice Rate (defined
below)."
(iii) Paragraph 60(d) is amended and restated in its entirety as
follows:
(d) If Tenant timely delivers a Response Notice electing to
lease all of the First Notice Space, then Tenant's lease
of the First Notice Space commences on the 61/st/ day
after the day Landlord delivers the First Notice Space to
Tenant and is on the same terms as this Lease except that
the Rent and other applicable terms for the First Notice
Space adjust based on the First Notice Rate (defined
below). Landlord shall prepare and deliver to Tenant an
appropriate amendment to this Lease adding the First
Notice Space to the Leased Premises upon the terms
specified in this Paragraph 60, Tenant will execute and
deliver the amendment to Landlord within 10 days after
Tenant's receipt of the amendment, and Landlord will
deliver to Tenant a counterpart of the amendment executed
by Landlord.
(iv) Paragraph 60(g) is deleted in its entirety.
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(j) Tenant Finish Construction. Exhibit F attached to the Lease is
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amended as follows:
(i) The 5/th/ paragraph in Paragraph A and the 6/th/ paragraph in
Paragraph B are amended to include Suites 500N and 600N.
(ii) The Work Allowance set forth in the fifth paragraph of
Paragraph B is increased by $444,024.00, to $1,166,056.50
($10.50 per RSF).
(iii) Paragraph C is amended to provide that Landlord shall also
cause the Core Area Compliance Work to be performed on the
5/th/ and 6/th/ floors of the North Tower.
3. Brokerage; Mutual Indemnities.
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(a) Tenant warrants that it has had no dealings with any broker or agent
in connection with the negotiation or execution of this Amendment
other than Landlord's Broker and Tenant's Broker (collectively,
Brokers). Tenant shall indemnify, defend, and hold Landlord harmless
against all costs, expenses, legal fees, or other liability for
commissions or other compensation or charges claimed by any broker or
agent other than Brokers claiming by, through, or under Tenant with
respect to this Amendment.
(b) Landlord warrants that it has had no dealings with any broker or agent
in connection with the negotiation or execution of this Amendment
other than Brokers. Landlord will indemnify, defend, and hold Tenant
harmless against all costs, expenses, legal fees, or other liability
for commissions or other compensation or charges claimed by any broker
or agent, including Brokers, claiming by, through or under Landlord
with respect to this Amendment.
(c) Any brokerage commissions payable to Brokers are payable by Landlord
pursuant to the terms of separate agreements between Landlord and
Brokers.
4. No Offsets. Tenant represents to Landlord that to the best of Tenant's
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knowledge, as of the date of this Amendment, Tenant has no defenses to or
offsets against the full and timely payment and performance of each and
every covenant and obligation required to be performed by Tenant under the
terms of the Lease.
5. Conflicts. The terms of this Amendment prevail if there is a conflict with
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the terms of the Lease.
6. Headings. The headings or captions of the paragraphs in this Amendment are
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for convenience only and do not and may not be implied to limit or expand
the construction and intent of the contents of the respective paragraph.
7. Binding Effect. This Amendment is binding upon and inures to the benefit
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of the parties and their respective successors and assigns (but this
reference to assigns is not a consent to an assignment by Tenant).
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8. Counterparts; Facsimile Signatures. This Amendment may be executed in two
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or more counterparts, each of which is deemed an original and all of which
together constitute one and the same instrument. Facsimile signatures are
binding on the party providing them.
9. Exhibits. Each exhibit attached to this Amendment is incorporated herein
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for all purposes.
10. Ratification. The Lease, as amended and modified by this Amendment, is
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ratified and confirmed by the parties and remains in full force and effect.
[Signatures on next page.]
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EXECUTED as of the date first above written.
LANDLORD:
114 MILLENNIUM, LTD.,
a Texas limited partnership
By: T114 Properties, Inc.,
a Delaware corporation, its general partner
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Associate Director
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TENANT:
DATA RETURN CORPORATION,
a Texas corporation
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: VP CFO
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