Exhibit 10.40
FOURTH AMENDMENT TO LEASE
This Fourth Amendment to Lease made as of this 20th day of May 1999, by and
between Connecticut General Life Insurance Company on behalf of its Separate
Account R ("Landlord") and Object Design, Inc. ("Tenant").
WHEREAS, 00 Xxxx Xxxx Trust ("Original Landlord") and Tenant entered into a
lease dated September 15, 1993 (the "Original Lease") for space in the building
known as 00 Xxxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the "Building");
WHEREAS, Original Landlord and Tenant entered into a First Amendment to Lease
dated June 28,1994 and a Second Amendment to Lease dated March 1,1996, amending
the Original Lease (as so amended, the "Amended Lease");
WHEREAS, Landlord succeeded to Original Landlords interest under the Lease;
WHEREAS, Landlord and Tenant entered into a Third Amendment to Lease dated
December 1,1997, amending the Amended Lease (as so amended, the "Lease");
WHEREAS, Tenant exercised its option to expand the Premises set forth in the
Third Amendment to Lease, thereby expanding the Premises into additional space
containing approximately 5,818 square feet of rentable floor area on the first
(1st) floor of the Building;
WHEREAS, Landlord and Tenant wish to further expand the Premises and otherwise
amend the Lease as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledge Landlord and Tenant agree to amend the Lease as
follows, effective April 15, 1999:
1. All capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Lease.
2 . Section 1.1 of the Lease is hereby amended by deleting the data which
corresponds to the subject set forth below and replacing it with the data set
forth below which follows each such subject:
` RENTABLE ELOOR AREA OF TENANT' S SPACE: 44,770 square feet (r.s.f.) on the
fifth (5th) floor of the Building and 14,568 square feet (r.s.f.) on the first
(1st) floor of the Building for a total of 59,338 square feet (r.s.f.), which
amount includes 5,123 square feet (r.s.f.) in the Third Expansion Premises (as
defined in the Fourth Amendment to Lease) (the "Rentable Floor Area of the Third
Expansion Premises)"
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"ANNUAL BASE RENT:
(a) With respect to the Original Premises (as defined in the ThirdAmendment to
Lease):
(i) $13.75 (p.r.s.f.) until November 30, 2001;
(ii) $17.50 (p.r.s.f.) from and after December 1, 2001;
(b) $19.50 (p.r.s.f.) with respect to the Expansion Premises (as defined in the
Third Amendment to Lease);
(c) $17.00 (p.r.s.f.) with respect to the Additional Expansion Premises (as
defined in the Third Amendment to Lease); and
(d) Effective on the earlier of occupancy of the Third Expansion Premises for
business purposes or July 1,1999 (the "Rent Commencement Date"), $25.50
(p.r.s.f.) with respect to the Third Expansion Premises."
"ANNUAL ESTIMATED ELECTRICAL COST TO TENANTS SPACE (INCLUDED IN ANNUAL RENT):
$59,338: $1.00 (P.R.S.F.)"
"ANNUAL RENT:
(a) With respect to the Original Premises:
(i) until November 30,2001, $750,244.00; .
(ii) from and after December 1, 2001, $878,126.50;
(b) $407,407.50 with respect to the Expansion Premises;
(c) $151,268.00 with respect to the Additional Expansion Premises; and
(d) Effective on the Rent Commencement Date, $135,759.50 with respect to the
Third Expansion Premises."
"ANNUAL RENT:
(a) With respect to the Original Premises:
(i) until November 30, 2001, $13.75 Annual Base Rent (p.r.s.f.)
+ $7.25 Annual Estimated Operating Costs (p.r.s.f.) +$l.OO
Annual Estimated Electrical Cost to Tenant' s Space (p.r.s.f.)
= $22.00 Total Rate (p.r.s.f.) X 34,102 rentable square feet =
$750,244.00; and
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(ii) from and after December 1, 2001, $17.50 Annual Base Rent
(p.r.s.f.) + $7.25 Annual Estimated Operating Costs (p.r.s.f.) + $1.00
Annual Estimated Electrical Cost to Tenant' s Space (p.r.s.f.) = $25.75
Total Rate (p.r.s.f.) X 34,102 rentable square feet = $878,126.50;
(b) With respect to the Expansion Premises, $19.50 Annual Base Rent
(p.r.s.f.) + $8.00 Annual Estimated Operating Costs (p.r.s.f.) +$1.00
Annual Estimated Electrical Cost to Tenant' s Space (p.r.s.f.) = $28.50
Total Rate (p.r.s.f.) X 14,295 rentable square feet = $407,407.50;
(c) With respect to the Additional Expansion Premises, $17.00 Annual Base
Rent (p.r.s.f.) + $8.00 Annual Estimated Operating Costs (p.r.s.f.) + $1.00
Annual Estimated Electrical Cost to Tenant' s Space (p.r.s.f.) = $26.00 Total
Rate (p.r.s.f.) X 5318 rentable square feet = $151,208.00; and
(d) Effective on the Rent Commencement Date, with respect to the
Third Expansion Premises, $25.50 Annual Base Rent (p.r.s.f.) +
$1.00 Annual Estimated Electrical Cost to Tenant' s Space (p.r.s.f.)
= $26.50 Total Rate (p.r.s.f.) ~1' 5,123 rentable square feet =
$135,759.50"
3. Section 1.2 of the Lease is hereby amended by inserting "Exhibit A-3
-Plan Showing the Additional Expansion Premises" and "Exhibit A-4 -
Plan showing the Third Expansion Premises" after "Exhibit A-2 (revised)
- Plan Showing the Expansion Premises" and attaching Exhibit A-3 and
Exhibit A-4 attached hereto to The Lease after Exhibit A-2.
4. Tenant acknowledges that Tenant has had an opportunity to inspect the
Third Expansion Premises shown on Exhibit A-4 attached hereto (the `
Third Expansion Premises"). The Third Expansion Premises, shall be
delivered to Tenant
As Is, Where Is with all faults and without representation, warranty or guaranty
of any kind by Landlord to Tenant, except that all Building systems and
structures shall be in good working order and conditon
Employing a contractor approved by Landlord, such approval not to be
unreasonably withheld or delayed, Tenant shall perform the work ("Tenant' s
Work") identified in plans and specifications for the Third Expansion Premises
(consisting of (i) partition layout plans, (ii) specifications for special HVAC,
mechanical and electrical requirements, and (iii) a schedule of finishes)
("Plans") to be prepared by or on behalf of Tenant and to be approved by
Landlord, such approval not to be unreasonably withheld or delayed, each party
agreeing to act reasonably and in good faith to agree upon the Plans as soon as
reasonably practicable. Subject to sound engineering practices and Landlord' s
approval of the Plans, Tenant shall be permitted as part of Tenant' s Work to
replace the four (4) panels of glass facing the lobby with thermal clear glass
in accordance with Exhibit B attached hereto. Tenant shall use reasonable and
diligent efforts to maintain the Building standard blinds on such windows in a
closed condition. Except as provided below, Tenant shall perform Tenant' s Work
at Tenant' s sole cost and expense.
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Landlord shall pay an amount to Tenant not to exceed $51,230 to reimburse Tenant
for out-of-pocket costs incurred by Tenant in performing Tenant' s Work. Such
amount shall be due and payable by Landlord to Tenant no later than thirty (30)
days after the later of (a) notice from Tenant to Landlord after completion of
Tenant' s Work enclosing a copy of a Certificate of Occupancy for the Third
Expansion Premises and documentation reasonably acceptable to Landlord showing
the costs incurred by Tenant in performing Tenant' s Work for which Tenant seeks
reimbursement, or (b) the Rent Commencement Date, provided in either case that
Tenant is not default of any of its obligations under the Lease.
5. Notwithstanding the provisions of Section 4.2 of the Lease, with
respect to the Third Expansion Premises only, "Operating Costs
Escalation" as defined in said Section 4.2 shall be determined by
substituting the actual Operating Costs incurred by Landlord in
calendar year 1999 (the "Third Expansion Premises Base") for the Annual
Estimated Operating Costs. In connection therewith, with respect to the
Third Expansion Premises only, references to "Annual Estimated
Operating Costs" shall be deemed to refer to the "Third Expansion
Premises Base" with respect to the Third Expansion Premises" and the
"Rentable Floor Area of Tenant' s Space" shall be deemed to refer to
the "Rentable Floor Area of the Third Expansion Premises".
6. Tenant and Landlord represent and warrant that each has dealt with no
broker in connection with this transaction other than Xxxxxxxx & Grew,
Inc. and Xxxxxxxxx and Xxxx and Tenant and Landlord agree to defend,
indemnify and hold the other harmless from and against any and all
costs, expense or liability for any compensation, commissions or
charges claimed by a broker agent with which such party has had any
dealings other than Xxxxxxxx & Grew, Inc. and Xxxxxxxxx and Xxxx (for
which Landlord shall be responsible) with respect to this Fourth
Amendment to Lease.
7. It is understood that Landlord is subject to the provisions of the
Employee Retirement Income Security Act of 1974, as amended and in
effect from time to time ("ERISA") and as a result may be prohibited by
law from engaging in certain transactions. Tenant represents and
warrants to the best of its knowledge after due inquiry that neither
Tenant nor its "affiliates" (as defined in Part V (c) of Prohibited
Transaction Exemption 84-14, issued March 12,1984) has, or within the
immediately preceding one year has exercised the authority to appoint
or terminate CIGNA Investments, Inc. or its affiliates as an asset
manager with respect to the assets of any plan identified on Exhibit C
attached hereto.
a. Except as amended hereby, the Lease shall remain unmodified and in
full force and effect and is hereby ratified and confirmed.
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EXECUTED as a sealed instrument on the date and year first written above.
LANDLORD:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on behalf of its Separate Account R
By: /s/ CIGNA Investments, Inc.
----------------------------
Tenant
OBJECT DESIGN, INC
By: /s/Xxxxx Xxxxxx
----------------------------
Title: CFO
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