EXHIBIT 10.22
FOURTH AMENDMENT TO SUBLEASE AGREEMENT
This FOURTH AMENDMENT TO SUBLEASE AGREEMENT (this "AMENDMENT") is made
as of the 15th day of November, 2002 by and between MEDIA ONE OF DELAWARE, INC.,
d/b/a AT&T Broadband, a Delaware corporation with an address of 000 Xxxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Services
("SUBLANDLORD") and SEGUE SOFTWARE, INC., a Delaware corporation with an address
of 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("SUBTENANT").
RECITALS
A. Xxxxxx X. Xxxxx, Trustee of 000 Xxxxxx Xxxxxx Trust, under
Declaration of Trust dated May 6, 1985 recorded with the Middlesex South
District Registry of Deeds in Book 16197, Page 583, as amended by Trustee's
Certificate dated as of April 15, 1994 recorded with said Registry of Deeds in
Book 24475, Page 408, but not individually ("LANDLORD") and Sublandlord entered
into that certain lease dated May 19, 1997 (as it may have been amended, the
"MASTER LEASE") for space (the "MASTER PREMISES") in the building located at and
commonly known as 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "BUILDING"),
as more particularly described in the Master Lease
B. Sublandlord and Subtenant entered into a certain Sublease
Agreement dated as of March 31, 1998, as amended by that certain First Amendment
to Sublease, effective July 15, 1998, as further amended by that certain Second
Amendment to Sublease Agreement, dated June 27, 2000, and as further amended by
that certain Third Amendment to Sublease Agreement, dated February 28, 2001 (as
amended, the "ORIGINAL SUBLEASE") for approximately 73,300 square feet of space
(the "SUBLEASED PREMISES") on the lower level, the first (1st) floor and the
second (2nd) floor of the Building, as more particularly described in the
Original Sublease.
C. Sublandlord and Subtenant desire to enter into this Amendment to
amend the Original Sublease as follows: (i) to reduce the Subleased Premises by
the entire rentable area on the second floor of the Building, consisting of
32,907 rentable square feet (the "REDUCTION PREMISES"), (ii) to provide for a
Security Deposit under the Sublease in the form of a $700,000 Letter of Credit
(as defined in the Sublease), (iii) to delete section 33 of the Original
Sublease, and (iv) such other terms and conditions of the Original Sublease as
more particularly set forth below.
D. In addition to this Amendment, the parties intend that
Sublandlord shall enter into an amendment (the "AB INITIO AMENDMENT") to the
sublease between Sublandlord and Ab Initio Software Corporation ("AB INITIO"),
and Subtenant and Ab Initio shall enter into an agreement with Ab Initio
regarding the delivery to and occupancy of the Reduction Premises by Ab Initio
(the "SEGUE/AB INITIO AGREEMENT"). This Amendment, the Ab Initio Amendment and
the
1
Segue/Ab Initio Agreement are hereinafter collectively referred to as the
"REDUCTION PREMISES DOCUMENTS").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Sublandlord and Subtenant hereby agree as follows:
1. RECITALS; CAPITALIZED TERMS. All of the foregoing recitals are true and
correct. Any capitalized term not otherwise modified or defined herein
shall have the meaning ascribed to such term in the Original Sublease.
The Original Sublease, as amended by this Amendment, is hereinafter
referred to as the "SUBLEASE."
2. REDUCTION PREMISES. Subtenant shall vacate and deliver to Sublandlord,
in broom clean condition, the Reduction Premises as of the date (the
"REDUCTION DATE") that Sublandlord provides Subtenant and Ab Initio
with a copy of Landlord's consent to the Reduction Premises Documents,
subject to the requirement to relocate the server room and the UPS room
contained in the Reduction Premises pursuant to the terms and
conditions of the Segue/Ab Initio Agreement. From and after the day
immediately following the Reduction Date, Subtenant shall have no
further obligations with respect to the Reduction Premises. From the
day immediately following the Reduction Date, the Subleased Premises
shall thereafter consist solely of the remaining portions of the
original Subleased Premises located on the 1st floor and garden level
of the Building as shown on EXHIBIT A, consisting of 40,393 rentable
square feet.
3. AMENDMENT OF TERMS. Commencing on the Reduction Date, the following
terms, whenever used in the Sublease, shall have the following
meanings:
3.1 SUBLEASED PREMISES: The space consisting of the entire rentable
area of the 1st floor and a portion of the garden level of the Building, all as
shown on EXHIBIT A.
3.2 MONTHLY RENT: TIME PERIOD MONTHLY RENT
Reduction Date - 6/30/03 $ 125,708.33
7/1/03 - 6/30/05 $ 131,338.33
7/1/05 - 10/31/07 $ 131,816.67
3.3 RENTABLE AREA OF THE SUBLEASED PREMISES: 40,393 rentable square
feet.
3.4 SUBTENANT'S SHARE: 37.999%
3.5 PARKING SPACES: 141
2
4. OPERATING EXPENSES. As of the Reduction Date, the following language is
hereby inserted after the third sentence of Section 5(c):
In addition to the foregoing, Subtenant shall pay to Sublandlord,
monthly, in advance, 1/12th of an annual amount equal to: (a) for the
calendar year 2003, the amount by which the product of 32,907 and the
budgeted 2003 Operating Expenses per rentable square foot (including
the real estate taxes for the fiscal year ending June 30, 2003 and
electricity for calendar year 2003) exceeds $297,150.21, and (b) for
each subsequent calendar year of the term, the amount by which the
product of 32,907 and the actual calendar year 2003 Operating Expenses
per rentable square foot (the Operating Expense Base of Ab Initio for
calendar year 2003 pursuant to the Ab Initio Amendment (the "AB INITIO
OPERATING EXPENSE BASE")) exceeds $297,150.21. If during any calendar
year, the Operating Expenses per rentable square foot for such calendar
year are less than the Ab Initio Operating Expense Base (or, for
calendar year 2003, the budgeted 2003 Operating Expenses) then
Sublandlord shall reimburse Subtenant an amount equal to the product of
32,907 and the difference between the Ab Initio Operating Expense Base
per rentable square foot and the greater of (i) the actual Operating
Expenses for the respective calendar year per square foot (or, for
calendar year 2003, the budgeted 2003 Operating Expenses), and (ii)
$9.03 per rentable square foot. Sublandlord shall settle annually with
Subtenant pursuant to subparagraph (d) below. Sublandlord and Subtenant
acknowledge and agree that the foregoing payment of Operating Expenses
with respect to the Reduction Premises is in addition to Subtenant's
other payments of Operating Expenses otherwise due under the Sublease,
and in no event shall Subtenant be required to pay any amount of
Operating Expenses with respect to the Reduction Premises that equal or
exceed the Operating Expenses for calendar year 2003.
5. ELECTRICITY. Sublandlord and Subtenant acknowledge that,
notwithstanding the provisions of Section 5(e), Sublandlord has not
submetered the Subleased Premises to determine Subtenant's usage of
electricity and amount of the Electricity Charges, as defined in the
Sublease. Prior to the date of this Amendment, Sublandlord has included
the cost of providing electricity to the Premises in the Operating
Expenses under the Sublease, and Subtenant has paid for Subtenant's
Share of escalations in electricity costs over the Operating Expenses
Base. Sublandlord and Subtenant agree that this procedure for
reimbursing Sublandlord for the costs of electricity shall continue for
the remainder of the Term, and Section 5(e) is hereby amended to delete
the requirement that Sublandlord install submeters in the Building.
6. SECURITY DEPOSIT. On the date that the Reduction Premises Documents
have been executed by all three parties, Subtenant shall deliver to
Sublandlord, and Sublandlord shall accept, a Letter of Credit (as
defined in the Sublease), in an amount equal to Seven Hundred Thousand
Dollars ($700,000.00). The Letter of Credit shall constitute an
"Initial Letter of Credit" under Section 5(f) of the Sublease, and
shall be held by Sublandlord subject to all of the terms and conditions
of the Sublease, including, without
3
limitation, the annual reduction of the Letter of Credit and the
obligation of Sublandlord to return the Letter of Credit when
Subtenant's Current Assets equal or exceed $20,000,000, as provided in
Section 5(f)(1) of the Sublease, provided however, that for purposes of
the annual reductions of $350,000, the amount of the Letter of Credit
shall be deemed to be $1,100,000, and no reductions shall occur to the
Initial Letter of Credit unless and until the annual reductions have
reduced the amount of $1,100,000 to an amount below $700,000.
Notwithstanding anything to the contrary contained in this Amendment or
any other agreement between the parties, Sublandlord and Subtenant
hereby agree that the provisions of this Section 6 shall be effective
and enforceable upon execution of this Amendment by both parties
without requirement for any third party approval or consent.
7. REIMBURSEMENT OF 3E ALLOWANCE. On the date that the Sublandlord is in
receipt of the Letter of Credit, Sublandlord shall deliver to Subtenant
a sum of money equal to One Hundred Forty Five Thousand Dollars
($145,000.00), constituting the payment of the 3E Allowance pursuant to
Section 5 of the Second Amendment to Sublease Agreement.
Notwithstanding anything to the contrary contained in this Amendment or
any other agreement between the parties, Sublandlord and Subtenant
hereby agree that the provisions of this Section 7 shall be effective
and enforceable upon execution of this Amendment by both parties
without requirement for any third party approval or consent.
8. SUBTENANT'S RIGHT TO CAUSE A TERMINATION OF THE MASTER LEASE. Section
33 of the Sublease, entitled "Subtenant's Right to Cause a Termination
of the Master Lease," is hereby deleted in its entirety and of no
further force or effect.
9. NOTICES TO AB INITIO. Subtenant acknowledges and agrees that
Sublandlord may deliver to Ab Initio copies of any notices of an Event
of Default delivered or received by Sublandlord to or from Subtenant
pursuant to the terms of the Sublease.
10. RATIFICATION. Except as expressly modified by this Amendment, the
Sublease shall remain in full force and effect and, as modified by this
Amendment, is expressly ratified and confirmed by the parties hereto.
11. BINDING AGREEMENT; NO WAIVER. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Subleased Premises, and this
document shall become effective and binding only upon the execution and
delivery of this Amendment by both Sublandlord and Subtenant.
12. BROKERAGE INDEMNITY. Sublandlord and Subtenant each represent and
warrant to the other that neither of them has employed or dealt with
any broker, agent or finder and that no broker is entitled to any
compensation or charges in connection with this Amendment or the
transaction contemplated hereby other than XxXxxx & Xxxx, Inc. (the
"BROKER"). Subtenant shall pay any compensation or charge due to the
Broker. Subtenant covenants
4
and agrees to defend, with counsel approved by Sublandlord, indemnify
and save Sublandlord harmless from and against any and all cost,
expense or liability for any compensation, commission or charges
claimed by any broker, agent or finder (other than the Broker) who
dealt with Subtenant. Similarly, Sublandlord covenants and agrees to
defend, with counsel approved by Subtenant, indemnify and save
Subtenant harmless from and against any and all cost, expense or
liability for any compensation, commission or charges claimed by any
broker, agent or finder who dealt with Sublandlord. The representations
and warranties contained in this Section 10 shall survive any
termination of the Sublease.
13. GOVERNING LAW; INTERPRETATION AND PARTIAL INVALIDITY. This Amendment
shall be governed and construed in accordance with the laws of the
Commonwealth of Massachusetts. If any term of this Amendment, or the
application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, the remainder of this 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 Amendment shall be valid and enforceable
to the fullest extent permitted by law. The titles for the paragraphs
are for convenience only and are not to be considered in construing
this Amendment. This 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. No
delay or omission on the part of either party to this Amendment in
requiring performance by the other party or exercising any right
hereunder shall operate as a waiver of any provision hereof or any
rights hereunder, and no waiver, omission or delay in requiring
performance or exercising any right hereunder on any one occasion shall
be construed as a bar to or waiver of such performance or right on any
future occasion.
14. COUNTERPARTS AND AUTHORITY. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same document. Sublandlord
and Subtenant each warrant and represent to the other that the person
or persons executing this 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 Amendment.
[Remainder of Page Intentionally Blank]
5
IN WITNESS WHEREOF, the undersigned executed this Amendment as of the
date and year first written above.
SUBLANDLORD
MEDIAONE OF DELAWARE, INC., d/b/a AT&T Broadband, a
Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
SUBTENANT
SEGUE SOFTWARE, INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
6
EXHIBIT A
PLAN OF SUBLEASED PREMISES
7
[GRAPHIC]
SPRING STREET
Boston Properties 0 Xxxxxxxxx Xxxxxx Xxxxxx XX 00000
Byans Heistges Architects 000 Xxxxxx Xx Xxx Xxxx XX 00000
[GRAPHIC]
000 XXXXXX XXXXXX
Xxxxxx Properties 0 Xxxxxxxxx Xxxxxx Xxxxxx XX 00000
Byans Heistges Architects 000 Xxxxxx Xx Xxx Xxxx XX 00000
January 22, 2003
VIA OVERNIGHT COURIER
Comcast MO of Delaware, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Segue Software, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
RE: 000 XXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX
Ladies and Gentlemen:
Reference is made to (i) that certain lease dated May 19, 1997 (the
"Lease") by and between the Trustee of 000 Xxxxxx Xxxxxx Trust ("Landlord") and
Comcast MO of Delaware, Inc. (formerly known as MediaOne of Delaware, Inc.,
"Tenant") with respect to certain premises at the above-referenced property,
(ii) that certain sublease dated as of March 31, 1998 (as amended by a First
Amendment to Sublease dated July 15, 1998, a Second Amendment to Sublease dated
as of June 27, 2000, a Third Amendment to Sublease dated as of February 28, 2001
and the Fourth Amendment to Sublease described below, the "Sublease") by and
between Tenant and Segue Software, Inc. ("Subtenant"), (iii) that certain
Consent Agreement dated September 14, 1998 (as affected by that certain letter
agreement dated June 22, 2000, the "Consent Agreement") by and among Landlord,
Tenant and Subtenant with respect to the Sublease and (iv) that certain Segue/Ab
Initio Agreement dated as of November 15, 2002 (the "Segue/Ab Initio Agreement")
by and between Subtenant and Ab Initio Software Corporation ("Ab Initio"). All
capitalized terms used herein and not otherwise defined herein shall be used
with the meanings as set forth in the Consent Agreement.
Tenant and Subtenant have requested that Landlord consent to the Segue/Ab
Initio Agreement and to that certain Fourth Amendment to Sublease Agreement
dated as of November 15, 2002 (the "Fourth Amendment") by and between Tenant and
Subtenant, true and correct copies of which are attached hereto as Exhbit A.
Pursuant to the terms of the Consent Agreement, Landlord's Consent is required
for any amendments to the Sublease. This letter is to provide such consent on
behalf of Landlord, subject to the following terms and conditions:
(i) Landlord shall be under no obligation to approve any of the
transactions contemplated by Section 3 of the Segue/Ab Initio
Agreement.
(ii) Promptly after the execution hereof, Subtenant shall, at its sole
cost and expense, remove any signage installed by Subtenant on the
exterior facade of the Building and any directional signage
installed by Subtenant elsewhere on the Property and restore any
damage caused to the Building or the Property by such removal.
Upon the removal by Subtenant of its signage in accordance
herewith, Section 20 of the Consent Agreement shall be deleted in
its entirety and shall be null and void and of no further force
and effect and Subtenant shall have no further rights to the
signage described therein. Subtenant hereby agrees to indemnify
and hold Tenant harmless from and against any and all costs,
losses, expenses and payments of every nature whatsoever
associated with Subtenant's obligations under this Section (ii).
Except as otherwise expressly provided to the contrary above, it is
understood and agreed that (x) this letter agreement is not intended to modify,
alter or waive any of the provisions of the Consent Agreement and (y) for the
purposes of the Consent Agreement, the term "Sublease" shall be deemed to refer
to the Sublease as amended by the Fourth Amendment and the Segue/Ab Initio
Agreement.
Kindly acknowledge your agreement with and acceptance of the foregoing by
countersigning a copy of this letter in the space provided below and returning
such countersigned copy to me at your earliest convenience (this letter
agreement being executable in several counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement).
Very truly yours,
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxx, for the Trustee of
000 Xxxxxx Xxxxxx Trust pursuant to
written delegation but not individually
(signatures continued on next page)
2
Agreed to and accepted:
COMCAST MO OF DELAWARE, INC.
By: [ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
-----------------------------------
Title: [ILLEGIBLE]
----------------------------------
Date: [ILLEGIBLE]
-----------------------------------
SEGUE SOFTWARE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
3
Agreed to and accepted:
COMCAST MO OF DELAWARE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
SEGUE SOFTWARE, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: XXXXXXX XXXXXXX
-----------------------------------
Title: CFO
----------------------------------
Date: JAN. 22, 2003
-----------------------------------
3
