EXHIBIT 10.23
SECOND AMENDMENT TO LEASE
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THIS SECOND AMENDMENT TO LEASE is made this 6th day of March, 1996,
effective as of the Effective Date set forth in paragraph 11 below, by and
between HMS OFFICE, L.P. ("Landlord"), and TANNING TECHNOLOGY CORPORATION, a
Colorado corporation ("Tenant").
W I T N E S S E T H:
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WHEREAS, HD DELAWARE PROPERTIES, INC., a Delaware corporation, as Landlord,
and TANNING TECHNOLOGY CORPORATION, a Colorado corporation, as Tenant, entered
into that certain Lease Agreement dated January 31, 1995, for premises in the
office building located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the
"Building"), which Lease Agreement has been previously amended by a First
Amendment to Lease dated as of September 15, 1995 (as amended to date, the
"Lease"); and
WHEREAS, Landlord has succeeded to all right, title and interest of the
most recent owner of the Building (being HD Delaware Properties, Inc.); and
WHEREAS, the parties hereto now desire to further amend the Lease, as set
forth herein but not otherwise.
NOW, THEREFORE, in consideration of the covenants and conditions set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Defined Terms
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For purposes of this Second Amendment to Lease, capitalized terms and other
defined items used herein but not defined herein shall have the meanings
ascribed to them in the Lease. In the event any of the terms of the Lease
conflict with the terms of this Second Amendment, the terms of this Second
Amendment shall control.
2. Increase in Lease Premises
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Commencing on the Effective Date (as hereinafter defined) the Lease
Premises shall be increased from 6,048 square feet of Rentable Area located on
the third floor of the Building (the "Third Floor Premises") to include
approximately 5723 square
feet of Rentable Area located on the sixth floor of the Building as shown on
Exhibit A attached hereto and incorporated herein by this reference (the "Sixth
Floor Premises"). From and after the Effective Date, the term "Premises" as used
in the Lease shall be deemed to mean and include both the Third Floor Premises
and the Sixth Floor Premises. The Termination Date of the Lease as it applies to
the Sixth Floor Premises shall be the same as that with respect to the Third
Floor Premises.
3. Tenant's Proportionate Share
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Subject to adjustments in accordance with Section l.C.(12) of the
Lease, commencing on the Effective Date, Tenant's Proportionate Share shall be
increased to 4.463 percent.
4. Base Rent
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Commencing on the Effective , Base Rent for the Third Floor Premises
shall be as set forth in Paragraph 4 of the First Amendment to Lease, and Base
Rent for the Sixth Floor Premises shall be as follows: (i) for the period from
the Effective Date through and including May 31, 1996, no Base Rent shall be due
for the Sixth Floor Premises; (ii) for the period from June 1, 1996, through
March 31, 1997, $105,875.50 per annum (based on $18.50 per square foot of
Rentable Area) payable in equal monthly installments of $8822.96; (iii) for the
period from April 1, 1997, through March 31, 1998, $125,906.00 per annum (based
on $22.00 per square foot of Rentable Area) payable in equal monthly
installments of $10,492.16; (iv) for the period from April 1, 1998, through
March 31, 1999, $131,629.00 per annum (based on $23.00 per square foot of
Rentable Area) payable in equal monthly installments of $l0,969.08; and (v) for
the period from April 1, 1999, through the Termination Date, $140,213.5 per
annum (based on $24.50 per square foot of Rentable Area) payable in equal
monthly installments of $11,684.46. All of the foregoing rent shall be
calculated and paid in accordance with the terms of the Lease as herein amended.
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5. Operating Expense and Tax Base Amount.
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Section l.A.(3) is changed to read:
(3) Operating Expense and Tax Base Amount: For the Third Floor
Premises, the amount of Operating Expenses and Taxes payable during
calendar year 1995, and for the Sixth Floor Premises, the amount of
Operating Expenses and Taxes payable during calendar year 1996.
6. Brokerage Commissions
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Landlord and Tenant hereby represent and warrant to each other that no
commission is due and payable to any broker or other leasing agent in connection
with this Second Amendment as a result of its own dealings with such broker or
leasing agent, other than Tenant's agent Xxxxxx X. Xxxxx, to whom Landlord shall
pay $22,892.00 upon Landlord's execution of this Second Amendment, and Landlord
and Tenant hereby agree to indemnify and hold each other harmless from and
against all loss, damage, cost, and expense (including reasonable attorneys'
fees) suffered by the other party as a result of a breach of the foregoing
representation and warranty.
7. Tenant Improvements.
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a. Except as set forth below in this paragraph 7, the Sixth Floor
Premises shall be delivered by Landlord and accepted by Tenant in their "as-is"
condition on April 1, 1996. Tenant is not entitled to any improvement thereto or
thereof or to any allowance or credit for improvements thereto or thereof,
except as set forth specifically below. Landlord will act as construction
manager to perform those improvements and rehabilitation work described and
specified in the plans prepared by Gensler, dated 2/5/96 ("Tenant's Space Plan")
to reflect work to be performed in the Sixth Floor Premises. Landlord has agreed
to pay a maximum of $34,338.00 for the tenant improvements on Tenant's Space
Plan, which includes all architectural and engineering fees and all costs of
construction (all fees and costs in the aggregate being called "Tenant
Improvements Costs"). After Landlord has received executed copies of this Second
Amendment from
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Tenant, Landlord shall promptly cause working drawings (hereinafter called
"Tenant Working Drawings") of the tenant improvements on the Tenant's Space Plan
to be prepared. Upon receipt of the Tenant Working Drawings, Landlord will
promptly price the cost of constructing the tenant improvements and review with
Tenant the Tenant Improvement Costs and Tenant Working Drawings. Upon Tenant's
approval of the Tenant Working Drawings and the Tenant Improvement Costs,
Landlord agrees to act as construction manager in the installation of said
tenant improvements to the Sixth Floor Premises. If the Tenant Improvement Costs
exceed $34,338.00, Tenant shall pay all of such excess to Landlord upon
completion of the tenant improvements. If the Tenant Improvement Costs are less
than $34,338.00, Landlord will credit the savings against the rent next due
after completion of the tenant improvements. Landlord shall select the
contractor to complete the tenant improvements so described in Tenant Working
Drawings.
b. Landlord's obligations hereunder are limited to the provision of
items as set out above in this paragraph 7 and Landlord shall have no obligation
thereafter to repair or replace any such items that may require repair or
replacement except as provided in Section 7.A. of the Lease.
8. Additional Parking
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Commencing on the Effective Date, in addition to the parking spaces to
which Tenant is entitled under the Lease, Tenant shall have the following
parking spaces and shall pay the amounts applicable thereto: (i) eight
unassigned parking spaces in the garage, for which Tenant shall pay $30.00 per
month through 1996 and which charge shall increase on the first day of 1997 and
each Calendar Year thereafter by 5% of the charge for the preceding Calendar
Year; and (ii) nine unassigned parking spaces in the surface lot at no charge.
Except as set forth above, such additional parking spaces shall be given and
taken on the terms of Exhibit E to the Lease.
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9. Effect on Option to Extend
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Any exercise by Tenant of its Option to Extend granted by Rider No. 2
to the Lease shall include the Sixth Floor Premises. Upon exercise of the
Option to Extend, the rent for the entire Premises, including both the Third
Floor Premises and the Sixth Floor Premises, shall be calculated as one unit in
the same manner as provided in Rider No. 2, and the other provisions of Rider
No. 2 shall be applicable to the entire Premises as one unit.
10. Full Force and Effect
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Except as amended herein, all terms and conditions of the Lease shall
remain in full force and effect throughout the duration of the Term. The Lease,
as amended herein, constitutes the entire agreement between the parties hereto
and no further modification of the Lease, as amended herein, shall be binding
unless evidenced by an agreement in writing signed by Landlord and Tenant.
11. Effective Date
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The Effective Date shall be April 1, 1996.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Second Amendment
as of the day and year first above written.
LANDLORD:
HMS OFFICE, L.P.
By: Xxxxx Office Company, L.L.C.
Its General Partner
By: /s/ Xxx Xxxxx
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Manager
TENANT:
TANNING TECHNOLOGY CORPORATION
a Colorado corporation
By: /s/ Xxxxx X. Tanning
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Its: President
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EXHIBIT A
[Diagram of Floorplan]
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