Exhibit 10.40
FIFTH AMENDMENT TO OFFICE BUILDING LEASE
THIS FOURTH AMENDMENT TO OFFICE BUILDING LEASE ("Amendment") is made and entered
into by and between LIBERTY REAL ESTATE COMPANY ("Lessor") and DATA CRITICAL
("Lessee") for and in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
WITNESSETH
WHEREAS, Liberty Bank and Trust Co. of OKC, N.A. ("Original Lessor"), as
predecessor in interest to Lessor, and Lessee entered into that certain Office
Building Lease ("Lease"), dated January 1, 1995, providing for the rental by
Lessee of certain premises ("Premises") containing approximately 1,706 rentable
square feet, located on the twenty-second (22nd) floor, of the building
generally known as Bank One Center, located at 000 Xxxxx Xxxxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxx 0000 ("Original Space"); and
WHEREAS, Original Lessor and Lessee entered into a certain First Lease
Amendment ("First Amendment"), dated January 9, 1995, providing, inter alia, for
the expansion of the Premises by 1,202 rentable square feet (the "First
Expansion Space"); and
WHEREAS, Original Lessor and Lessee entered into a certain Second Lease
Amendment ("Second Amendment"), dated October 31, 1996, providing inter alia,
for the expansion of the Premises by 1,505 rentable square feet (the "Second
Expansion Space") (the Original Lease, as heretofore amended by the First
Amendment and the Second Amendment, shall hereinafter collectively be referred
to as the "Lease"); and
WHEREAS, Original Lessor and Lessee entered into a certain Third Lease
Amendment ("Third Amendment"), dated May 1, 1998, providing, inter alia, for the
expansion of the Premises by 273 rentable square feet (the "Third Expansion
Space") (the Original Lease, as heretofore amended by the First Amendment, the
Second Amendment and the Third Amendment, shall hereinafter collectively be
referred to as the "Lease"); and
WHEREAS, Original Lessor and Lessee entered into a certain Third Lease
Amendment ("Fourth Amendment"), dated January 24, 2000 providing inter alia, for
the expansion of the Premises by 984 rentable square feet (the "Fourth Expansion
Space"), (the Original Lease, as heretofore amended by the First Amendment, the
Second Amendment and the Third Amendment, and the Fourth Amendment shall
hereinafter collectively be referred to as the "Lease") and;
WHEREAS, Lessor and Lessee now desire to enter into a certain Fifth Lease
Amendment ("Fifth Amendment") to provide for the expansion of the Premises by an
additional 2,736 rentable square feet (the "Fifth Expansion Space"), so that the
Premises shall now be configured as shown on Exhibit A attached hereto and
incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereby agree to modify the Lease as follows, effective as of May 5,
2000:
1. Premises. Effective as of the date Lessee occupies the Expansion Space
("Occupancy Date"). The Premises shall include the Expansion Space, and
shall now contain approximately 8,406 rentable square feet. The
location and
configuration of the Premises shall be as shown on the attached
Exhibit A.
2. Relocation. Lessee shall move on May 12th - 14th to Suite 2500 ("New
Premises") as described in the attached Exhibit A.
3. Base Rent. The Base Rent shall be as follows:
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Date Rent/RSF Monthly Rent
---- -------- ------------
06/01/00 - 06/30/00 $ 0.00 $ 0.00
07/01/00 - 12/31/00 $11.00 $ 7,705.50
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YEAR 2000 REMAINING RENT $46,233.00
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4. Base Year. The Base Year under the Lease shall remain unchanged.
5. As-Is. Lessee accepts the Expansion Space in its "as-is" condition.
6. Operating Expenses. Lessee's pro-rata share of operating expenses shall
be increased from 1.11% to 1.64%.
7. It is understood that Tenant and Landlord are working towards the
renewal of the Tenant's lease at Bank One Center. Tenant agrees to the
following terms for said lease renewal:
Term: 60 months
Commencement Date: January 1, 2001
Rent Structure: Months 1-36 $11.00/rsf
Months 37-60 $11.50/rsf
Leasehold Improvement: Landlord shall Provide
. New carpet throughout the premises.
. Paint touch-up where necessary.
. Demolition of four walls to create
lab area.
. Construction of demising walls to
define premises.
. Tenant's signage for building common
area and lobby.
. Allowance for moving costs associated
with relocation.
Leasable area: See "Expansion Area" noted in Fifth
Amendment.
8. Force and Binding Effect: Governing Law: Ratification. The Lease, as
amended by this Amendment, will continue in full force and effect and is
hereby ratified by Lessor and Lessee . All defined and capitalized terms
as set forth in the Lease shall have the same meanings when used in this
Amendment unless otherwise provided herein. There are no modifications
of any of the provisions of the Lease, except as expressly provided for
herein. This Amendment embodies the
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entire agreement and understanding between Lessor and Lessee as may be
applicable with respect to the specific matters set forth herein, and
supersedes all prior agreements and understandings, written or oral,
between Lessor and Lessee related to such matters.
AGREED AND ACCEPTED effective as of May 5, 2000.
LESSOR: LESSEE:
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BANC ONE CORPORATION DATA CRITICAL
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. May
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. May
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Title: Authorized Signature Title: VP Operations
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Date: 6/6/00 Date: 5/10/2000
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Attachments:
Exhibit A - Premises
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