EXHIBIT 10.19
SUB-SUBLEASE AGREEMENT
THIS AGREEMENT is made this 2nd day July, 1998, by and between
Scientific Research Corporation, a Georgia Corporation, with an office at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called
"SRC" and Manhattan Associates, Inc., a Georgia Corporation, with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, hereinafter called "MA".
W I T N E S S E T H:
WHEREAS, by Agreement of Lease, dated July 31, 1987, as amended
November 10, 1987, April 30, 1988, August 4, 1989, October 10, 1989, November 7,
1989, December 1, 1989, March 12, 1990, September 14, 1994, January 4, 1995,
April 3, 1995, April 24, 1995, May 26, 1995, June 30, 1995, November 20, 1996,
and November 10, 1997 and supplemented by that Supplemental Agreement, dated
July 31, 1987 (herein collectively called the "Prime Lease" and attached as
Exhibit "A"), International Business Machines Corporation ("Sublessor") leases
from Wildwood Associates (the "Prime Lessor") the third (3rd) and fourth (4th)
floor and certain additional space in the building known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, (South Tower), Wildwood Office Park, Atlanta, Georgia (the "Building");
and
WHEREAS, by Sublease Agreement, dated December 22, 1993, as amended
January 31, 1995, (herein collectively called "Sublease" and attached as Exhibit
"B") SRC subleases from Sublessor the third (3rd ) and fourth (4th) floors of
the South Tower; and
WHEREAS, SRC desires to sub-sublease to MA and MA desires to sub-
sublease from SRC a portion of the third (3rd) floor in the South Tower
consisting of approximately 6,551 rentable square feet [5,623 usable square feet
as measured per BOMA standards] (the "Premises") attached as Exhibit "C".
NOW, THEREFORE, for and in consideration of the foregoing and for
other good and valuable consideration and of the mutual agreements hereinafter
set forth, SRC and MA stipulate, covenant and agree as follows:
1. PREMISES
SRC does hereby Sub-sublease to MA a portion of the Building
consisting of approximately 6,551 square feet of rentable area on the
third (3rd) floor (the "Premises") as outlined in red and crosshatched
on Exhibit "A" attached hereto and made a part hereof. This Sub-
sublease includes the right of MA to use the Common Building
Facilities in common with other tenants in the Building and SRC's
parking spaces, as provided in Section 14 of this Sub-sublease.
2. TERM
The term shall commence on the Commencement Date, as defined in
Section 4 hereof, and shall expire on December 30, 2002.
3. USES
The Premises shall be used for office space in accordance with all
applicable laws, ordinances, rules and regulations of governmental
authorities and the Rules and Regulations attached to the Prime Lease.
MA covenants and agrees to abide by the Rules and Regulations in all
respects as
now set forth and as hereafter promulgated by Prime Lessor. Prime
Lessor shall have the right at all times during the Lease Term to
publish and promulgate and thereafter enforce such rules and
regulations or changes in the existing Rules and Regulations as it may
reasonably deem.
4. RENT
Beginning on the Commencement Date, MA shall pay annual Base Rent of
$20.00 per square foot, in the amount of one hundred thirty-one
thousand and twenty dollars ($131,020) per year, to be paid each year
while this Sub-sublease Agreement is in effect in twelve equal monthly
installments of ten thousand nine hundred and eighteen and 33/100
dollars ($10,918.33). The Commencement Date shall be the earlier of
(a) the date when MA has commenced doing business at the Premises or
(b) August 1, 1998. There will not be any increase of the Base Rent
throughout the entire term.
MA shall pay the Base Rent and Additional Rent, as described in
Paragraph 5, (collectively the "Rent") provided for hereunder in
advance on the first day of every month during the Term. Rent shall be
a prorated rate for fractions of a month if this Sub-sublease
commences or expires (as the case may be) for any reason on any day
other than the lst or last day of the calendar month, respectively. MA
shall make payment of Base Rent and any additional rent payable to
SRC, to SRC at the address in Paragraph 9.
5. ADDITIONAL RENT
If MA shall procure any additional services from the Building, such as
alterations or after-hour air-conditioning MA shall pay for same at
the rates charged therefor by the Prime Lessor and shall make such
payment to SRC or Prime Lessor, as SRC shall direct. Any Rent or other
sums payable by MA under this Paragraph 5 shall be considered
Additional Rent and collectible by SRC as such. If SRC shall receive
any refund from Prime Lessor, MA shall be entitled to the return of so
much thereof as shall be attributable to prior payments by MA.
However, MA is not responsible for paying any pass through in
operating expenses above the base year amount of $6.50 per rentable
square foot per annum.
6. PREPARATION FOR OCCUPANCY
On or before July 17, 1998, SRC shall at its own expense construct a
demising wall between the Premises and SRC's other space in the
Building. SRC shall pay for all costs associated with the demising of
the space including any permits or plans required to demise the space.
On or before July 17, 1998, SRC shall deliver possession of the
Premises to MA for the purpose of constructing tenant improvements, if
any. The Premises shall then be vacant and in broom clean condition.
MA will at its sole expense, perform or cause to be performed,
construction of the Premises as it desires, provided that prior to the
commencement of construction MA shall have obtained the written
consent of SRC, which consent shall not be unreasonably withheld or
delayed, to MA's construction plans. MA shall be responsible for
obtaining a certificate of occupancy for the Premises following the
completion of construction, if any.
7. INCORPORATION OF PRIME LEASE
(a) This Sub-sublease is subject to all of the terms of the Prime
Lease and the Sublease with the same force and effect as if fully
set forth herein at length, excepting only as otherwise
specifically provided herein. All of the terms with which Sublessor is
bound to comply under the Prime Lease shall, to the extent only that
they apply to the Premises and except as otherwise provided herein, be
binding upon MA, and all of the obligations of Prime Lessor set forth
in the Prime Lease shall, to the extent only that they apply to the
Premises and except as otherwise provided herein, inure to the benefit
of MA. It is the intention of the parties that, except as otherwise
provided in this Sub-sublease, the relationship between SRC and MA
shall be governed by the language of the various articles of the Prime
Lease as if they were typed out in this Sub-sublease in full, and the
words "Landlord," "Tenant" and "Lease" as used in the Prime Lease,
shall read, respectively "SRC," "MA" and "Sub-sublease".
(b) For the purpose of this Sub-sublease, the following provisions of the
Prime Lease are hereby deleted in their entirety:
Section 1.01(b); Section 2.01; Section 2.02; Section 2.03; Section
3.01; Section 3.02; Section 3.03; Section 3.04; Section 3.05; Section
3.06; Section 3.07; Section 3.08; Article 4, titled "Preparation for
Occupancy, Term Commencement Date"; Section 10.02(d); Section 10.02(e);
Section 10.02(g); Article 21, titled "Option for Additional Space";
Article 22; Article 23, titled "First Refusal Sale"; Article 25, titled
"Holdover"; Article 26, Article 27, titled "Assignment and Subletting";
Article 36, Article 37, titled "Broker"; and Section 39.07.
8. QUIET ENJOYMENT
(a) SRC covenants and agrees with MA that upon MA paying the rent and
additional rent reserved in this Sub-sublease and materially observing
and performing all of the other obligations, terms, covenants and
conditions of this Sub-sublease on MA's part to be observed and
performed, MA may peaceably and quietly enjoy the Premises and Common
Building Facilities (in common with other tenants) during the term;
provided, however, that this Sub-sublease shall automatically terminate
upon termination of the Prime Lease and MA shall have no claim against
SRC unless such termination was caused by the default of SRC in the
performance of those obligations (under the Prime Lease) which have not
been assumed by MA hereunder. SRC will indemnify and hold harmless MA
from and defend MA against all claims, liabilities, losses and damages
(excepting special and consequential damages) that MA may incur by
reason of, resulting from or arising out of any such termination of the
Sub-sublease due to SRC's default. SRC covenants and agrees that (i)
SRC will not enter into a consensual agreement with Sublessor to
terminate the Sublease, and (ii) SRC will not terminate the Sublease as
it pertains to the Premises unless SRC is entitled to do so by reason
of Sublessor's default or by the condemnation and casualty provisions
of the Sublease.
(b) MA covenants and agrees that MA shall not do or suffer or permit
anything to be done (within its control) which would constitute a
default under the Prime Lease or the Sublease or would cause the Prime
Lease or Sublease to be canceled, terminated or forfeited by virtue of
any rights of cancellation, termination, or forfeiture reserved or
vested in Prime Lessor under the Prime Lease and Sublessor under the
Sublease, and that MA will indemnify and hold harmless SRC from and
defend SRC against all claims, liabilities, losses and damages of any
kind whatsoever (excepting special and consequential damages) that SRC
may incur by reason of, resulting from or arising out of any such
cancellation, termination or forfeiture.
9. NOTICES
Any notice, demand, or request under this Sub-sublease shall be in writing
and shall be considered properly delivered when addressed as hereinafter
provided and delivered by hand or by nationally recognized overnight
courier service to the addressee set forth in the preamble of this
Agreement. Rejection or other refusal to accept or the inability to deliver
because of a changed address of which no notice was given shall be deemed
to be receipt of the notice, demand or request sent. Address for notice may
be changed by either party by giving 30 days written notice to the current
address of record.
10. ASSIGNMENT AND SUBLETTING
MA agrees that it shall not assign, mortgage, transfer, pledge or encumber
its interest in this Sub-sublease, in whole or in part, or sublet or permit
the subletting of the Premises, or permit the Premises or any part thereof
to be occupied or used by any person or entity other than MA, in each case
without first obtaining the prior written consent of SRC, which consent SRC
will not unreasonably withhold or delay. Notwithstanding the foregoing, MA
may Sub-sublease or assign its interest in the Premises to an "Affiliate,"
as hereinafter defined, without Sublessor's consent, but MA shall notify
SRC in advance of such proposed assignment or Sub-sublease to an Affiliate
and shall promptly deliver to SRC copies of all documentation related to
such assignment or Sub-sublease. No such assignment or Sub-sublease shall
operate to release MA from its obligations under this Sub-sublease. Failure
of SRC to obtain the consent of Prime Lessor or submission by MA of a
proposed assignee or subtenant who, in the option of SRC reasonably
exercised, is a competitor of SRC shall in each case be a reasonable and
conclusive basis for withholding consent. The term "Affiliate" as used
herein shall mean any parent corporation or any subsidiary which controls
or is controlled by MA or any corporation in which or with which MA is
merged or consolidated, provided that by operation of law or by effective
provisions contained in the instruments of merger or consolidation the
liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or
created by such consolidation. The term "control" shall mean ownership of
not less than fifty-one percent (51%) of the voting rights attributable to
the shares of the controlled corporation.
11. PRIME LESSOR'S RESPONSIBILITIES
MA recognizes that SRC is not in a position to furnish the services set
forth in the Prime Lease, obtain an agreement of nondisturbance, or to
perform certain other obligations which are not within the control of SRC,
such as, without limitation, maintenance, repairs and replacements to the
Building and Premises, compliance with laws and restoration of the Premises
and Building after casualty or condemnation. Therefore, notwithstanding
anything to the contrary contained in this Sub-sublease, MA agrees that MA
will look solely to the Prime Lessor, to furnish all services and to
perform all obligations which are applicable to MA as agreed upon by Prime
Lessor under the Lease to furnish and perform. Except as specifically set
forth in this ▇▇▇▇▇▇▇ ▇▇, ▇▇▇ shall not be liable to MA or be deemed in
default hereunder for failure of Prime Lessor to furnish or perform the
same. However, whenever under the terms of the Prime Lease, Prime Lessor
shall fail to perform any of its Prime Lease obligations pertaining to the
Premises. MA may, at its option, enforce performance thereof if and to the
extent authorized by the terms of the Prime Lease, and SRC shall cooperate
with MA in such enforcement. In addition, SRC agrees to use reasonable good
faith efforts to enforce Prime Lessor's obligations under the Prime Lease.
12. FAILURE TO PROVIDE SERVICES
Provided MA is not in default hereunder, in the event that there is a
failure to furnish the janitorial, water, electricity, elevator or HVAC
services specified in the Prime Lease, and if the loss of such service is
of a material nature so as to render the Premises substantially unusable
for the purposes contemplated by this Sub-sublease, after written notice
thereof by MA to SRC and Prime Lessor, and if Prime Lessor does not
promptly commence action to restore same or if so commenced, does not
continue such action with reasonable diligence until the same are restored,
then, in such event, and upon the giving of written notice to SRC and Prime
Lessor, and if such default continues to remain uncured for more than five
(5) consecutive business days after such written notice, MA's Rent shall
▇▇▇▇▇, based upon the portion or portions of the Premises affected by such
interruption of service and the degree of adverse affect of the
interruption upon the normal conduct of MA's business at the Premises,
until such interruption is remedied. Notwithstanding the forgoing, SRC may
prevent or stop any such abatement of Base Rental by providing
substantially the same service by temporary or alternative means until the
cause of loss of service can be corrected, and provided further, abatement
under this stipulation shall be MA's sole remedy for failure to provide
services. In the event that such services are not substantially restored
within thirty (30) consecutive days after such written notice, then MA
shall have the right, upon written notice to SRC given within forty-five
(45) days after such written notice, to terminate this Sub-sublease.
13. CASUALTY AND CONDEMNATION
Article 10.01, titled "Damage or Destruction," and Article 12, titled
"Condemnation," of the Prime Lease are modified to provide that if by
operation of either of these two Articles the Prime Lease is not terminated
and continues in full force and effect, this Sub-sublease shall not be
terminated but shall also continue in full force and effect, except that
until the Premises are restored in accordance with these two Articles there
shall be a proportionate abatement of annual rent and additional rent
payable hereunder to the extent of damage to the Premises; provided,
however, that such abatement shall in no event exceed the abatement granted
to SRC under the Prime Lease for the Premises and, provided further, that
no compensation or claim or reduction will be allowed or paid by SRC by
reason of inconvenience, annoyance or injury to MA's business arising from
the necessity of affecting repairs to the Premises or any portion of the
Building, whether such repairs are required by operation of these two
Articles or any other provision of the Prime Lease. Notwithstanding the
foregoing, if the Premises cannot be restored within one hundred twenty
(120) days after damage, destruction or condemnation (in the reasonable
opinion of SRC, then MA may elect to terminate this Sub-sublease by written
notice (to SRC) given within thirty (30) days after MA's receipt of
Sublessor's estimate of the time required to restore the Premises.
14. PARKING
SRC, through Prime Lessor, shall make available to MA twenty-four (24)
hours per day, seven (7) days per week, throughout the term of the Sub-
sublease, without additional charge, on-site, non-reserved deck parking for
3.5 cars per 1,000 square feet of rentable area subleased, for the use of
MA, its employees and invitees, in the garage attached to the Building in
the area delineated as Exhibit "C" in the Sublease Agreement attached as
Exhibit "B".
15. INSURANCE
(a) MA shall maintain comprehensive general liability insurance covering
the legal liability of SRC and MA against all claims for any bodily
injury or death of persons and for damage to or destruction to property
occurring on, in or about the Premises and arising out of the use or
occupation of the Premises by MA in the minimum amount of $2,000,000.00
in connection with any single occurrence of bodily injury or death and
$500,000.00 in connection with claims for property damage. Such policy
shall provide that it may not be canceled or materially changed
without at least thirty (30) days prior written notice to each name
insured.
(b) SRC and MA shall each have included in all policies of commercial
property insurance and other insurance (required under the Prime Lease
or this Sub-sublease) obtained by them covering the Premises, the
Building and the contents therein, a waiver by the insurer of all right
or subrogation against the other in connection with any loss or damage
thereby insured against. Any additional premium for such waiver shall
be paid by the primary insured. To the full extent permitted by law,
SRC and MA each waive all right to recovery against the other for, and
agrees to release the other from liability for, loss or damage to the
extent such loss or damage is covered by valid and collectible
insurance in effect at the time of such loss or damage or would be
covered by the insurance required to be maintained under this Sub-
sublease by the party seeking recovery.
(c) The Introductory clauses in Sections 11.01 and 11.02 of the Prime Lease
which read "Subject to the provisions of Section 10.20(d)" shall be
deemed to refer to the provisions of the foregoing Subsection 14(b).
16. BROKERAGE
▇▇▇▇▇▇ & Associates, LLC has acted as agent for SRC in this transaction and
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ has acted as agent for MA in this transaction. SRC shall
pay a fee to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ equal to one full month's rent in addition to
four percent (4%) of the remaining aggregate rental payments. This amount
shall be payable one-half upon execution of this document and one-half upon
MA's occupancy of the premises. MA represents and warrants to SRC that,
except as stated herein, no broker, agent or other person has represented
MA in the negotiations for and procurement of the Sub-sublease and that,
except as set forth herein no commissions, fees or compensation of any kind
are due and payable in connection herewith to any broker, agent, or other
person as a result of any act or agreement of MA. MA agrees to indemnify
and hold SRC harmless from all loss, liability, damage, claim, cost or
expense (including reasonable attorneys' fees and court costs) suffered or
incurred by SRC as a result of a breach by MA of the representations and
warranties contained in the immediately preceding sentence. SRC represents
and warrants to MA that no broker, agent, or other person has represented
SRC in the negotiations for and procurement of the Sub-sublease and that
except as set forth herein, no commissions, fees or compensation of any
kind are due and payable in connection herewith to any broker, agent, or
other person as a result of any act or agreement of SRC. SRC agrees to
indemnify and hold MA harmless from all loss, liability, damage, claim,
cost or expense (including reasonable attorneys' fees and court costs)
suffered or incurred by MA as a result of a breach by SRC of the
representations and warranties contained in the immediately preceding
sentence.
17. BINDING AND ENTIRE AGREEMENT
This Sub-sublease shall be binding on MA and its heirs and executors, and
on the respective legal representatives, successors and assigns of the
parties. This Sub-sublease contains the entire agreement of the parties
with respect to the subject matter herein and may not be modified except by
instrument in writing which is signed by both parties.
18. CONSENT OF PRIME LESSOR
Anything hereinabove to the contrary notwithstanding, it is understood and
agreed that this Sub-sublease shall not become effective unless and until
SRC has obtained the written consent of Prime Lessor and Sublessor to the
subletting herein. SRC agrees to provide MA with a copy of the fully
executed Consent to Sublease document within ten (10) days of receipt from
Prime Lessor.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sub-sublease as of the day and year first above written.
WITNESS: SCIENTIFIC RESEARCH CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇
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Title: VP Administrator
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(CORPORATE SEAL)
WITNESS: MANHATTAN ASSOCIATES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: : /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -------------------------
Title: Chief Financial Officer
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(CORPORATE SEAL)
SUBLEASE AGREEMENT
THIS AGREEMENT, made the 22nd of December, 1993, between INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York corporation, having its principal
office at ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter called "Sublessor" and SCIENTIFIC
RESEARCH CORPORATION, a Georgia corporation, with an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called
"Sublessee."
W I T N E S S E T H:
--------------------
WHEREAS, by Agreement of lease, dated July 31, 1987, as amended November
10, 1987, April 30, 1988, August 4, 1989, October 10, 1989, November 7, 1989,
December 1, 1989, and March 12, 1990, and supplemented by that Supplemental
Agreement, dated July 31, 1987 (herein collectively called the "Prime Lease"),
Sublessor leases from Wildwood Associates (the "Prime Lessor") the third (3rd)
and fourth (4th) floor and certain additional space in the building known as
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (South Tower), Wildwood Office Park (the "Building");
and
WHEREAS, Sublessee desires to sublease the entire third (3rd) and fourth
(4th) floor(s) of the South Tower from Sublessor.
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration and of the mutual agreements hereinafter set
forth, Sublessor and Sublessee stipulate, covenant and agree as follows:
1. Premises. Sublessor does hereby sublease to Sublessee a portion of the
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Building consisting of approximately 51,474 square feet of rentable area on
the third (3rd) and fourth (4th) floor(s) (the "Premises") as outlined in
red and crosshatched on Exhibit "A" attached hereto and made a part hereof.
This Sublease includes the right of Sublessee to use the Common Building
Facilities in common with other tenants in the Building and Sublessee's
parking spaces, as provided in Section 12 of this Sublease.
2. Term. The term shall commence as of the date of this Agreement and shall
----
expire on December 30, 2002.
3. Uses. The Premises shall be used for executive, general administrative and
----
office space purposes, for scientific and computer research, and no other
purposes, and in accordance with all applicable laws, ordinances, rules and
regulations of governmental authorities and the Rules and Regulations
attached to the Prime Lease. Sublessee covenants and agrees to abide by the
Rules and Regulations in all respects as now set forth and as hereafter
promulgated by Prime Lessor. Prime Lessor shall have the right at all times
during the Lease Term to publish and promulgate and thereafter enforce such
rules and regulations or changes in the existing Rules and Regulations as
it may reasonably deem necessary to protect the tenantability, safety,
operation, and welfare of the Premises, the Project and Wildwood Office
Park; provided, however, any such changes shall not have a material adverse
effect on Sublessee's ability to maintain a security area in accordance
with Special Stipulation No. 7 of this Sublease.
4. Rents and Additional Rent. Sublessee shall pay base annual rental in
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accordance with the following schedule:
-1-
Rental Rate
Calendar Year Per Square Foot Annual Rental Monthly Rental
------------- ----------------------------- --------------
5/l/94 thru 12/31/94
1/1/95 thru 12/31/95
1/1/96 thru 12/31/96
1/1/97 thru 12/31/97
1/1/98 thru 12/31/98
1/1/99 thru 12/31/99
1/1/00 thru 12/31/00
1/1/01 thru 12/31/01
1/1/02 thru 12/31/02
Sublessor acknowledges and agrees that no rent shall be due under this
Sublease for the time period prior to May 1, 1994.
All Rents are due in advance on the first day of each month during the term
of this Sublease without deduction, set off or demand, except as
specifically set forth in Special Stipulation No. 6. Rents shall be
delivered to Sublessor's office located at Scribcor, Inc., As Agent for IBM
Lease Administration, Suite 1200, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, or such other place as Sublessor may designate.
Sublessee shall pay as Additional Rental its prorata share of increases in
operating expenses, as that term is defined in Section 3.04 of the Prime
Lease, incurred over $6.50 per square foot of Rentable Floor Area per annum
as outlined under Section 3.04 of the Prime Lease. Sublessor's prorata
share is 8.32%, which is the ratio that 51,474 square feet of rentable area
of the Premises bears to 618,540 square feet of rentable area in the
building. Sublessor shall furnish Sublessee with a true copy of the
statement of operating expenses, delivered by Prime Lessor to Sublessor
pursuant to the Prime Lease and include thereon a detailed statement of
Sublessee's prorata share of any increase in operating expenses. Sublessee
shall reimburse Sublessor within thirty (30) days after the operating
expense statement is furnished to Sublessee.
5. Preparation for Occupancy. Sublessor shall deliver the Premises to
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Sublessee on or before fifteen (15) days after full Sublease execution for
the purpose of allowing Sublessee to make certain improvements thereto
pursuant to Special Stipulation No. 2. At such time, Sublessee shall
accept the Premises in its then "as is" condition (which shall not be
materially different from its current condition), "broom clean," and all of
Sublessor's furniture, fixtures, equipment and other personal property
shall be removed therefrom at Sublessor's expense prior to such date.
Sublessor shall not be required to perform work of any kind or nature, and
all work performed by Sublessee or any other party shall be subject to
provisions of this Sublease and the Prime Lease. Sublessor shall not
remove any cabling and shall leave all labeling of communication wiring,
path devices and patch panel. In addition, any whiteboards and screens for
visual images shall remain with the Premises.
6. Incorporation of Prime Lease. (a) This Sublease is subject to all of the
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terms of the Prime Lease with the same force and effect as if fully set
forth herein at length, excepting only as otherwise specifically provided
herein. All of the terms with which Sublessor is bound to comply under the
Prime Lease shall, to the extent only that they apply to the Premises and
except as otherwise
-2-
provided herein, be binding upon Sublessee, and all of the obligations of
Prime Lessor set forth in the Prime Lease shall, to the extent only that
they apply to the Premises and except as otherwise provided herein, inure
to the Sublessee's benefit. It is the intention of the parties that, except
as otherwise provided in this Sublease, the relationship between Sublessor
and Sublessee shall be governed by the language of the various articles of
the Prime Lease as if they were typed out in this Sublease in full, and the
words "Landlord," "Tenant" and "Lease" as used in the Prime Lease, shall
read, respectively, "Sublessor," "Sublessee" and "Sublease."
(b) For the purposes of this Sublease, the following provisions of the
Prime Lease are hereby deleted in their entirety:
Section 1.01(b); Section 2.01; Section 2.02; Section 3.01;
Section 3.02; Article 4, titled "Preparation for Occupancy,
Term Commencement Date"; Section 10.02(d); Section 10.02(e);
Section 10.02(g); Article 23, titled "First Refusal Sale";
Article 25, titled, "Holdover"; Article 21, titled "Option
for Additional Space"; Article 27, titled "Assignment and
Subletting"; Article 37, titled "Broker"; and Section 39.07.
7. Quiet Enjoyment. (a) Sublessor covenants and agrees with Sublessee that
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upon Sublessee paying the rent and additional rent reserved in this
Sublease and observing and performing all of the other obligations, terms,
covenants and conditions of this Sublease on Sublessee's part to be
observed and performed, Sublessee may peaceably and quietly enjoy the
Premises and Common Building Facilities (in common with other tenants)
during the term; provided, however, that this Sublease shall automatically
terminate upon termination of the Prime Lease and Sublessee shall have no
claim against Sublessor unless such termination was caused by the default
of Sublessor in the performance of those obligations (under the Prime
Lease) which have not been assumed by Sublessee hereunder. Sublessor will
indemnify and hold harmless Sublessee from and defend Sublessee against all
claims, liabilities, losses and damages (excepting special and
consequential damages) that Sublessee may incur by reason of, resulting
from or arising out of any such termination of the Prime Lease, due to
Sublessor's default. Sublessor covenants and agrees that (i) Sublessor will
not enter into a consensual agreement with Prime lessor to terminate the
Prime Lease, and (ii) Sublessor will not terminate the Prime Lease as it
pertains to the Premises unless Sublessor is entitled to do so by reason of
Prime Lessor's default or by the condemnation and casualty provisions of
the Prime Lease.
(b) Sublessee covenants and agrees that Sublessee shall not do or suffer
or permit anything to be done (within its control) which would constitute a
default under the Prime Lease or would cause the Prime Lease to be
canceled, terminated or forfeited by virtue of any rights of cancellation,
termination, or forfeiture reserved or vested in Prime Lessor under the
Prime Lease, and that Sublessee will indemnify and hold harmless Sublessor
from and defend Sublessor against all claims, liabilities, losses and
damages of any kind whatsoever (excepting special and consequential
damages) that Sublessor may incur by reason of, resulting from or arising
out of any such cancellation, termination or forfeiture.
8. Notices. Any notice, demand or request under this Sublease shall be in
-------
writing and shall be considered properly delivered when addressed as
hereinafter provided and delivered by hand or by nationally recognized
overnight courier service. After May 1, 1994, any notice, demand or
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request by Sublessor to Sublessee shall be addressed to Sublessee at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the
attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇ until otherwise directed in writing by
Sublessee. Prior to said date, all such notices shall be sent to Sublessee
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Any
notice, demand or request by Sublessee to Sublessor shall be addressed to
Sublessor, attention of the Regional Manager, Trex ▇▇▇▇▇▇, IBM Corporation,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy sent
simultaneously to Sublessor, attention of IBM Counsel, IBM Corporation, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, until otherwise directed in writing by
Sublessor. Either party may change its notice address by notice to the
other party given in accordance with the provisions of this Article 8.
Rejection or other refusal to accept or the inability to deliver because of
a changed address of which no notice was given shall be deemed to be
receipt of the notice, demand or request sent.
9. Assignment and Subletting. Sublessee agrees that it shall not assign,
---------------------------
mortgage, transfer, pledge or encumber its interest in this Sublease, in
whole or in part, or sublet or permit the subletting of the Premises, or
permit the Premises or any part thereof to be occupied or used by any
person or entity other than Sublessee, in each case without first obtaining
the prior written consent of Sublessor, which consent Sublessor will not
unreasonably withhold or delay. Notwithstanding the foregoing, Sublessee
may sublease or assign its interest in the Premises to an "Affiliate," as
hereinafter defined, without Sublessor's consent, but Sublessee shall
notify Sublessor in advance of such proposed assignment or sublease to an
Affiliate and shall promptly deliver to Sublessor copies of all
documentation related to such assignment or sublease. No such assignment or
sublease shall operate to release Sublessee from its obligations under this
Sublease. Failure of Sublessor to obtain the consent of Prime Lessor or
submission by Sublessee of a proposed assignee or subtenant who, in the
opinion of Sublessor reasonably exercised, is a competitor of Sublessor
shall in each case be a reasonable and conclusive basis for withholding
consent. The term "Affiliate" as used herein shall mean any parent
corporation or any subsidiary which controls or is controlled by Sublessee,
or any corporation in which or with which Sublessee is merged or
consolidated, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation the liabilities of
the corporations participating in such merger or consolidation are assumed
by the corporation surviving such merger or created by such consolidation.
The term "control" shall mean ownership of not less than fifty-one percent
(51%) of the voting rights attributable to the shares of the controlled
corporation.
10. Prime Lessor's Responsibility. Sublessee recognizes that Sublessor is not
-----------------------------
in a position to furnish the services set forth in the Prime Lease, obtain
an agreement of nondisturbance, or to perform certain other obligations
which are not within the control of Sublessor, such as, without limitation,
maintenance, repairs and replacements to the Building and Premises,
compliance with laws, and restoration of the Premises and Building after
casualty or condemnation. Therefore, notwithstanding anything to the
contrary contained in this Sublease, Sublessee agrees that Sublessee shall
look solely to Prime Lessor to furnish an services and to perform all
obligations agreed upon by Prime Lessor under the Lease to furnish and
perform. Except as specifically set forth in this Section 10 and Special
Stipulation No. 6, Sublessor shall not be liable to Sublessee or be deemed
in default hereunder for failure of Prime Lessor to furnish or perform the
same. However, whenever under the terms of the Prime Lease, Prime Lessor
shall fail to perform any of its Prime Lease obligations pertaining to the
Premises, Sublessee may, at its option, enforce performance thereof if and
to the extent authorized by the terms of the Prime Lease, and
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Sublessor shall cooperate with Sublessee in such enforcement. In addition,
Sublessor agrees to use reasonable good faith efforts to enforce Prime
Lessor's obligations under the Prime Lease.
11. Casualty and Condemnation. Article 10.01, titled "Damage or Destruction,"
-------------------------
and Article 12, titled "Condemnation," of the Prime Lease are modified to
provide that if by operation of either of these two Articles the Prime
Lease is not terminated and continues in full force and effect, this
Sublease shall not be terminated but shall also continue in full force and
effect, except that until the Premises are restored in accordance with
these two Articles there shall be a proportionate abatement of annual rent
and additional rent payable hereunder to the extent of damage to the
Premises; provided, however, that such abatement shall in no event exceed
the abatement granted to Sublessor under the Prime Lease for the Premises
and, provided further, that no compensation or claim or reduction will be
allowed or paid by Sublessor by reason of inconvenience, annoyance or
injury to Sublessee's business arising from the necessity of affecting
repairs to the Premises or any portion of the Building, whether such
repairs are required by operation of these two Articles or any other
provision of the Prime Lease. Notwithstanding the foregoing, if the
Premises cannot be restored within one hundred twenty (120) days after
damage, destruction or condemnation (in the reasonable opinion of
Sublessor), then Sublessee may elect to terminate this Sublease by written
notice (to Sublessor) given within thirty (30) days after Sublessee's
receipt of Sublessor's estimate of the time required to restore the
Premises.
12. Parking. Sublessor, through Prime Lessor, shall make available to Sublessee
-------
twenty-four (24) hours per day, seven (7) days per week, throughout the
term of the Sublease, without additional charge, on-site, non-reserved deck
parking for 3.05 cars per 1,000 square feet of rentable area subleased, for
the use of Sublessee, its employees and invitees, in the garage attached to
the Building in the area delineated on Exhibit "C" attached hereto and made
a part hereof. As a portion of the aforesaid parking allowance, Sublessor,
through Prime Lessor, shall make available to Sublessee throughout the term
of the Sublease ten (10) reserved spaces on ▇▇▇▇▇ ▇ (being space nos. 31-35
and 50-54).
13. Insurance. (a) Sublessee shall maintain comprehensive general liability
---------
insurance covering the legal liability of Sublessor and Sublessee against
all claims for any bodily injury or death of persons and for damage to or
destruction to property occurring on, in or about the Premises and arising
out of the use or occupation of the Premises by Sublessee in the minimum
amount of $2,000,000.00 in connection with any single occurrence of bodily
injury or death and $500,000.00 in connection with claims for property
damage. Such policy shall provide that it may not be canceled or materially
changed without at least thirty (30) days prior written notice to each
named insured.
(b) Sublessor and Sublessee shall each have included in all policies of
commercial property insurance and other insurance (required under the Prime
Lease or this Sublease) obtained by them covering the Premises, the
Building and the contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by
the primary insured. To the full extent permitted by law, Sublessor and
Sublessee each waive all right of recovery against the other for, and
agrees to release the other from liability for, loss or damage to the
extent such loss or damage is covered by valid and collectible insurance in
effect at the time of such loss or damage or would be covered by the
insurance required to be maintained under this Sublease by the party
seeking recovery.
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(c) The introductory clauses in Sections 11.01 and 11.02 of the Prime
Lease which read "Subject to the provisions of Section 10.02(d)" shall be
deemed to refer to the provisions of the foregoing Subsection 13(b).
14. Brokerage. Cousins Real Estate Corporation and ▇▇▇▇▇▇ (referred to
---------
collectively as "Broker") are entitled to a lease commission from Sublessor
by virtue of this Sublease, which commission shall be paid by Sublessor to
Broker in accordance with the terms of a separate agreement between
Sublessor and Broker. Cousins Real Estate Corporation has acted as agent
for Sublessor in this transaction, and ▇▇▇▇▇▇ has acted as agent for
Sublessee in this transaction. Sublessee represents and warrants to
Sublessor that, except as stated herein, no broker, agent, or other person
has represented Sublessee in the negotiations for and procurement of the
Sublease and that, except as set forth herein, no commissions, fees or
compensation of any kind are due and payable in connection herewith to any
broker, agent, or other person as a result of any act or agreement of
Sublessee. Sublessee agrees to indemnify and hold Sublessor harmless from
all loss, liability, damage, claim, cost or expense (including reasonable
attorneys' fees and court costs) suffered or incurred by Sublessor as a
result of a breach by Sublessee of the representations and warranties
contained in the immediately preceding sentence. Sublessor represents and
warrants to Sublessee that, except as stated herein, no broker, agent, or
other person has represented Sublessor in the negotiations for and
procurement of the Sublease and that, except as set forth herein, no
commissions, fees or compensation of any kind are due and payable in
connection herewith to any broker, agent, or other person as a result of
any act or agreement of Sublessor. Sublessor agrees to indemnify and hold
Sublessee harmless from all loss, liability, damage, claim, cost or expense
(including reasonable attorneys' fees and court costs) suffered or incurred
by Sublessee as a result of a breach by Sublessor of the representations
and warranties contained in the immediately preceding sentence.
15. Binding and Entire Agreement. This Sublease shall be binding on Sublessee
----------------------------
and its heirs and executors, and on the respective legal representatives,
successors and assigns of the parties. This Sublease contains the entire
agreement of the parties with respect to the subject matter herein and may
not be modified except by instrument in writing which is signed by both
parties.
16. Consent of Prime Lessor. Anything hereinabove to the contrary
-----------------------
notwithstanding, it is understood and agreed that this Sublease shall not
become effective unless and until Sublessor has obtained and delivered to
Sublessee the written consent of Prime Lessor to the subletting herein on
or before December 30, 1993, failing which either party may, at its option
------------------
exercised by giving the other notice on or before January 15, 1994,
terminate this Sublease. If this Sublease is terminated as aforesaid,
neither party hereto shall have any further claim against the other
hereunder.
17. The terms and conditions contained in Exhibit "B" titled "Special
-----------
Stipulations," attached hereto, are hereby incorporated into and agreed to
be a party of this Sublease.
-6-
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sublease as of the day and year first above written.
WITNESS: INTERNATIONAL BUSINESS
MACHINES CORPORATION
/s/ ▇▇▇ ▇▇▇▇▇ [sp]
---------------------------------
By: /s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------
Title: Proj. Manager
-------------------------
[CORPORATE SEAL]
WITNESS: SCIENTIFIC RESEARCH
CORPORATION
/s/ ▇. ▇▇▇▇▇▇
---------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: President
------------------------
[CORPORATE SEAL]
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FIRST SUBLEASE AMENDMENT
THIS AGREEMENT, made the 31st of January, 1995, between INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York corporation, having its principal
office at ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter called the "Sublessor" and
SCIENTIFIC RESEARCH CORPORATION, a Georgia corporation, with an office at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
hereinafter called "Sublessee".
WITNESSETH:
WHEREAS, the Sublessor and the Sublessee entered into a written agreement
of Sublease dated December 22, 1993 (herein collectively called the "Sublease")
whereby Sublessor subleased to the Sublessee approximately 51,474 square feet of
rentable area on the 3rd and 4th floors (the "Subleased Premises") in the
building known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (South Tower), Wildwood Office Park
(the "Building"); and
WHEREAS, Sublessee desires to sublease additional office space on the
second (2nd) floor of the South Tower from Sublessor.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration and of the mutual agreements hereinafter set forth, it is
hereby mutually agreed as follows:
1. The Sublessee hereby subleases from the Sublessor approximately 2,928
square feet of rentable floor area (the "Additional Sublease Space"), as more
particularly shown (cross-hatched) on the floor plan attached and marked Exhibit
A, thereby increasing the square feet of rentable area comprising the Subleased
Premises to 54,402.
2. Effective February 1, 1995, the annual rent due for the Additional
Sublease Space on the second floor shall be Forty-six Thousand Eight Hundred
Forty-eight and no/100 Dollars ($46,848.00) annually to be paid in equal monthly
installments of Three Thousand Nine Hundred Four and no/100 Dollars ($3,904.00)
3. The term for the Additional Sublease Space shall commence on February
1, 1995 and expire on December 31, 1998.
4. Sublessor shall accept the Additional Sublease Space in its then "as
is" condition. Sublessor shall not be required to perform work of any kind or
nature and all such work and performance hereof shall be subject to the
provisions of this Sublease and the Prime Lease.
5. The Tenant's share of operating expenses and real estate taxes under
Section 4 are hereby increased from 8.32% to 8.80%.
6. Sublessor shall provide a used ten ton Liebert unit to Sublessee.
Sublessee shall accept the unit in its then "as is" condition. The unit is
currently located on the 6th/7th floor of the Building. Sublessee shall be
responsible for relocating the unit to the Additional Sublease Space by March 1,
1995 and will assume responsibility and liability for this relocation.
7. Extension Option. Provided that this Sublease is then in effect and no
event of default under this Sublease then exists, and subject to the terms and
conditions herein set forth Sublessee shall have the option to extend the Term
for the Additional Sublease Space for one (1) consecutive extended
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term of (4) years (such period being herein referred to as the "Extended Term").
Such option shall be exercised by irrevocable written notice to Sublessor given
on or before December 31, 1997, and such notice shall be irrevocable. The
Extended Term shall be upon the same covenants, agreements, term, provisions and
conditions that are contained in the Sublease dated December 22, 1993, except
that the annual Base Rental amount shall be Forty Thousand and Nine Hundred and
Ninety-two and no/100 Dollars ($40,992.00), to be paid in equal monthly
installments of Three Thousand Four Hundred and Sixteen and no/100 Dollars
($3,416.00).
Sublessee shall continue to pay as Additional Rental its prorata share of
increase in operating expenses, as that term is defined in Section 3.04 of the
Prime Lease, incurred over $6.50 per square feet of rentable floor area.
8. Except as herein modified, the Sublease shall continue in full force
and effect without change.
IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized representatives of the parties as of the day and year first above
written.
WITNESS: SCIENTIFIC RESEARCH CORPORATION
/s/ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
WITNESS: INTERNATIONAL BUSINESS MACHINES
CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ [sp] By: /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------------- ------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Proj. Manager
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