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Exhibit 10.6
FIRST AMENDMENT TO SUB-SUBLEASE
This First Amendment of Sub-Sublease is made as of the _____ day of
April, 1998 between Rational Software Corporation, a Delaware corporation and
sucessor by merger to SQA, Inc., a Delaware corporation (the "Subtenant") and
SilverStream Software, Inc., a Delaware corporation (the "Sub-Sublessee").
WHEREAS, pursuant to the terms of that certain Lease dated as of
December 5, 1994, (the "Master Lease"), by and between Xxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxx as Trustees of Burlington Xxxxx Office Trust No. I
(collectively, "Owner"), as landlord, and Sybase, Inc., (the "Tenant"), Owner
leased to Tenant certain office space (the "Master Premises") commonly known as
Building No.1 of Burlington Xxxxx Office Park with an address of Xxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx; and
WHEREAS, Tenant and Subtenant entered into that certain Sublease dated
as of February 28, 1996 by and between Tenant, as sublandlord and Subtenant as
subtenant (the "Sublease") of a portion of the Master Premises consisting of
forty-three thousand one hundred twenty-one (43,121) rentable square feet (the
"Sublease Premises"); and
WHEREAS, Owner consented to the Sublease pursuant to that certain
Consent to Sublease dated as of March 12, 1996 (the "Consent"); and
WHEREAS, Tenant and Subtenant entered into a certain First Amendment to
Sublease dated as of January 9, 1997 (the "First Sublease Amendment") which
increased the size of the Sublease Premises to eighty thousand eight hundred
twenty-five (80,825) rentable square feet; and
WHEREAS, Owner consented to the First Sublease Amendment by executing
and delivering a consent dated January 15, 1997; and
WHEREAS, Tenant and Subtenant entered into a certain Second Amendment
to Sublease dated as of May __, 1997 (the "Second Sublease Amendment") which
increased the size of the Sublease Premises to eighty-three thousand twenty-five
rentable square feet (the "Expanded Sublease Premises"); and
WHEREAS, Subtenant and the Sub-Sublessee entered into a certain
Sub-Sublease dated as of February 14, 1997 by and between Subtenant as
sub-sublessor and Sub-Sublessee as sub-sublessee (the "Sub-Sublease"), for a
portion of the Sublease Premises consisting of eighteen thousand two hundred
twenty-five (18,225) rentable
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square feet on the second (2nd) floor of the building (the "Sub-Sublease
Premises"); and
WHEREAS, Owner and Tenant consented to the Sub-Sublease pursuant to
that certain Consent to Sub-Sublease dated as of March 4, 1997 (the
"Sub-Sublease Consent"); and
WHEREAS, Subtenant desires to sub-sublet the remainder of the second
floor, consisting of approximately nineteen thousand four hundred seventy-nine
(19,479) rentable square feet (the "Expansion Premises") to Sub-Sublessee; and
extend the term of the Sub-Sublease to July 30, 2000; and
WHEREAS, Subtenant and Sub-Sublessee acknowledge and agree that Owner
and Tenant's approval are required to this First Amendment to Sub-Sublease.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Subtenant and Sub-Sublessee hereby
agree as follows:
1. CAPITALIZED TERMS. All capitalized terms not otherwise
modified or defined herein shall have the same meanings as are ascribed to them
in the Sub-Sublease. For purposes of this First Amendment to Sub-Sublease, the
Sub-Sublease, as amended by this First Amendment to Sub-Sublease, shall be
hereinafter referred to as (the "Amended Sub-Sublease").
2. EFFECTIVENESS OF THIS FIRST AMENDMENT TO SUB-SUBLEASE. This
First Amendment to Sub-Sublease is subject to the consent of Owner and Tenant
(together, the "Required Consents"), and shall not become legally binding and
effective until the receipt by Subtenant and Sub-Sublessee of the Required
Consents. In the event the Required Consents are not obtained, neither party
shall have any rights or obligations hereunder.
3. DELIVERY OF EXPANSION PREMISES. Subject to obtaining the
Required Consents, the Subtenant shall deliver possession of the Expansion
Premises to Sub-Sublessee on a date (the "Expansion Premises Effective Date"),
which shall be not earlier than May 1, 1998 nor later than August 31, 1998.
Subtenant shall notify Sub-Sublessee of the Expansion Premises Effective Date
not less than sixty (60) days prior to the Expansion Premises Effective Date,
provided that if Subtenant fails to give such written notice, the Expansion
Premises Effective Date shall be August 31, 1998. Beginning on the Expansion
Premises Effective Date, the Expansion Premises shall be included in the
Sub-Sublease Premises for all purposes of the Amended Sub-Sublease and, except
as otherwise expressly set forth herein, all provisions of the Sub-Sublease
shall be applicable to the Expansion Premises.
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4. DEFINITION OF THE PREMISES. On and after the Expansion
Premises Effective Date, for all purposes of the Amended Sub-Sublease, the
Sub-Sublease Premises shall consist of thirty-seven thousand seven hundred four
(37,704) rentable square feet comprising the entire rentable area of the second
(2nd) floor of the building and the number of additional unreserved parking
spaces available for Sub-Sublessee's use shall be increased by sixty-four (64).
5. TERM. If this First Amendment becomes effective, the
Sub-Sublessee shall be deemed to have exercised its option to extend the Term of
the Sub-Sublease until July 30, 2000, upon the terms set forth in Section 12 of
the Sub-Sublease and, in such event, the Lease Term shall terminate on July 30,
2000, or such sooner date upon which the Lease Term may expire or terminate
under the Sub-Sublease or pursuant to law and, in addition, Subtenant waives its
option to terminate Sub-Sublessee's extension rights under Section 12 of the
Sub-Sublease.
6. CONDITION UPON DELIVERY OF POSSESSION. Sub-Sublessee has
inspected the Expansion Premises and acknowledges that the Expansion Premises
shall be delivered to Sub-Sublessee in their existing "as is" condition,
reasonable wear and tear excepted, but otherwise broom clean and free of all
occupants. Subtenant shall have no obligation to perform any work in the
Expansion Premises to prepare the same for Sub-Sublessee's occupancy.
Sub-Sublessee acknowledges that Subtenant has made no representations or
warranties concerning the Expansion Premises or their nature, condition or
usability, or their fitness for Sub-Sublessee's purposes.
7. ANNUAL BASE RENT.
(a) Commencing on the Expansion Premises Effective Date
and continuing through the Lease Term, the Annual Base Rent payable with respect
to the Sub-Sublease Premises shall be eight hundred twenty-nine thousand four
hundred eighty-eight and 00/100 dollars ($829,488.00) per annum (($69,124.00)
per month).
8. SUB-SUBLESSEE'S SHARE. On the Expansion Premises Effective
Date, the definition of "Sublessee's Share" as set forth in Paragraph 5 of the
Sub-Sublease shall be increased from 22.6% to 45.41%:
9. SECURITY DEPOSIT. Immediately upon delivery to the
Sub-Sublessee of a copy of the Required Consents, the Sub-Sublessee shall
increase the Security Deposit to $138,248.00 for the remainder of the Lease
Term.
10. PLAN SHOWING TENANT'S SPACE. Effective as of the Expansion
Premises Effective Date, Exhibit B to the Sub-Sublease shall be replaced with
the plan showing the expanded Sub-Sublease Premises, which plan is attached
hereto as Exhibit A.
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11. NOTICES. Paragraph 15 of the Sub-Sublease shall be amended by
deleting the notice address of Sublessor and inserting the following therefor:
If to Sublessor: Xxxx X. Xxxxxxx
Director of Operations
Rational Software Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxx, P.C.
Xxxxxxx, Procter & Xxxx LLP
Exchange Place
Boston, MA 02109-2881
12. BROKERAGE. Each party hereto represents and warrants to the
other party that it has not dealt with any real estate broker or agent in
connection with this First Amendment to Sub-Sublease, except for XxXxxx & Xxxx,
Inc ("XxXxxx"). Any fee due XxXxxx shall be the responsibility of the Subtenant.
Each party hereto shall indemnify the other party and hold the other party
harmless from any cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission or fees claimed by
any other real estate broker or agent in connection with this Amended
Sub-Sublease or its negotiation by reason of any acts of the other party.
13. AUTHORITY. Subtenant and Sub-Sublessee each warrant to the
other that the person or persons executing this First Amendment on its behalf
has or have authority to do so and that such execution has fully obligated and
bound such party to all terms and provisions of this First Amendment.
14. RATIFICATION. As modified by this First Amendment, the
Sub-Sublease is in full force and effect and Subtenant and Sub-Sublessee ratify
and confirm the same.
15. INTERPRETATION AND PARTIAL INVALIDITY. If any term of this
First Amendment, or the application thereof to any person or circumstances,
shall to any extent be invalid or unenforceable, the remainder of this First
Amendment, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this First Amendment shall be valid and enforceable to
the fullest extent permitted by law. The titles for the sections are for
convenience only and not to be considered in construing this First Amendment.
This First Amendment contains all of the agreements of the parties with respect
to the subject matter hereof, and supersedes all prior dealings between them
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this First Amendment as a
sealed instrument, in two or more counterparts, as of the day and year first
above written.
Subtenant:
RATIONAL SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Director of Operations
Hereunto duly authorized
Sub-Sublessee:
SILVERSTREAM SOFTWARE, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: CFO
Hereunto duly authorized
