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EXHIBIT 10.3
SUB-SUBLEASE AGREEMENT
THIS AGREEMENT is made this ___ day of July, 1998, by and between The
Profit Recovery Group International I, Inc., a Georgia corporation with its
principal place of business at 2300 Windy Ridge Parkway, Suite 100 North,
Atlanta, Georgia 30339-8426 (hereafter called "PRG") and Manhattan Associates,
Inc., a Georgia corporation with its principal place of business at 2300 Windy
Ridge Parkway, Suite 700 North, Atlanta, Georgia 30339 (hereinafter called
"Manhattan").
W I T N E S S E T H:
WHEREAS, pursuant to a Lease, dated July 31, 1987, as subsequently amended
on November 10, 1987, April 30, 1988, August 4, 1989, October 10, 1989, November
7, 1989, December 1, 1989 and March 12, 1990 (herein collectively called the
"Prime Lease" and attached as Exhibit "A"), International Business Machine
Corporation, a New York corporation (hereinafter called the "Prime Sublessor")
leased from Wildwood Associates, a Georgia general partnership (hereinafter
called the "Prime Lessor") certain portions of the building known as 2300 Windy
Ridge Parkway, Wildwood Office Park, Atlanta Georgia (the "Building"), including
but not limited to the third (3rd) floor thereof; and
WHEREAS, pursuant to a Sublease, dated October 29, 1993, (herein called the
"Prime Sublease" and attached as Exhibit "B"), PRG's predecessor in interest
sublet from the Prime Sublessor the third (3rd) floor of the Building; and
WHEREAS, PRG desires to Sub-Sublease to Manhattan and Manhattan desires to
Sub-Sublease from PRG the third (3rd) floor consisting of approximately 23,776
rentable square feet (the "Premises").
NOW THEREFORE, for and in consideration of the foregoing and for other good
and valuable consideration and of the mutual agreements hereinafter set forth,
PRG and Manhattan stipulate, covenant and agree as follows:
1. PREMISES
PRG does hereby Sub-Sublease to Manhattan a portion of the Building
consisting of approximately 23,776 square feet of rentable area on the third
(3rd) floor of the North Tower thereof (the "Premises") as outlined in red and
crosshatched on Exhibit "C" attached hereto and made a part hereof.
2. DELIVERY OF PREMISES
On or before September ___, 1998, PRG shall make available to Manhattan
that portion of the Premises consisting of approximately 7,998 square feet of
rentable area as identified on
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Exhibit "C". On or before March 1, 1999, PRG shall make available to Manhattan
the remaining portion of the Premises.
3. TERM
The term shall commence on the date of delivery specified in Section 4
hereof, and except as provided herein, shall expire on December 30, 2002.
4. 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, as same may have been
modified or amended by virtue of the Prime Sublease. Manhattan 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.
5. RENT
Commencing on the date the Premises, or the applicable portion thereof,
shall be delivered to Manhattan, Manhattan shall pay to PRG Annual Base Rent
equal to (a) $20.76 per rentable square foot for portions of the Premises which
it occupies, plus (b) $20.76 per rentable square foot for its pro-rata portion
of the "common area" described in Paragraph 7, and computed by multiplying the
Annual Base Rent by a fraction, the numerator of which shall be the number of
rentable square feet of the Premises occupied by Manhattan, and the denominator
of which shall be the number of square feet of the Premises occupied by
Manhattan plus the number of square feet of the Premises occupied by PRG
(exclusive of any portion of the Premises designated as "common area").
In addition to Annual Base Rent, Manhattan shall pay Additional Rental as
described in Paragraph 6, (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 first or last day
of the calendar month, respectively. Manhattan shall make payment of Rent to
PRG, at the address specified the preamble of this Agreement and directed to the
attention of ________.
6. ADDITIONAL RENTAL
(a) In addition to Annual Rent, Manhattan shall pay as Additional Rental
its pro-rata share of increases in operating expenses over and above $6.50 per
rentable square foot of the
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Premises, as defined in Article 3.04 of the Prime Lease. PRG shall furnish
Manhattan with a true copy of the statement of operating expenses delivered by
Prime Lessor to PRG pursuant to the Prime Lease and the Prime Sublease.
Manhattan shall reimburse PRG with twenty (20) days after the operating expense
statement is furnished to Manhattan.
For purposes of this Sub-Sublease, Manhattan shall pay Additional Rent on the
Premises and its pro-rata portion of the "common area" described in Paragraph 7
hereof. Manhattan's share of said "common area" shall be equal to a fraction
having as its numerator the number of rentable square feet of the Premises
actually occupied by Manhattan, and as its denominator, the number of square
feet of the Premises occupied by Manhattan plus the number of square feet of the
Premises occupied by PRG; both the numerator and denominator shall exclude any
portion of the Premises designated as "common area."
(b) In addition to the foregoing, if Manhattan shall procure any services
from the Building beyond the Building standard services specified in the Prime
Lease, (such as alterations or after-hour air-conditioning) Manhattan shall pay
for same at the rates charged therefor by the Prime Lessor and shall make such
payment to PRG or Prime Lessor, as PRG shall direct.
(c) Any Additional Rent or other sums payable by Manhattan under this
Paragraph 6 shall be considered rent and collectible by PRG as such. If PRG
shall receive any refund from either the Prime Sublessor or the Prime Lessor,
Manhattan shall be entitled to the return of so much thereof as shall be
attributable to prior payments by Manhattan.
7. PREPARATION FOR OCCUPANCY
Prior to delivery of the first portion of the Premises, as described in
Paragraph 2, PRG shall arrange for the construction of certain demising walls,
corridors and doorways, as are indicated on Exhibit "C" to create a "common
area" within the Premises, consisting of approximately 1,491 rentable square
feet and identified on Exhibit "C". The cost of such construction shall be
evenly divided by PRG and Manhattan, and Manhattan shall reimburse PRG for its
share of such construction costs within thirty (30) days of an invoice therefor.
Manhattan shall at its sole expense, perform or cause to be performed, such
construction of the Premises as it desires; provided however, that prior to the
commencement of construction, Manhattan shall obtain the written consent of PRG,
the Prime Sublessor and the Prime Lessor, as same may be required under the
Prime Lease or the Prime Sublease, which consent shall not be unreasonably
withheld or delayed by PRG, to Manhattan's construction plans.
8. INCORPORATION OF PRIME LEASE
(a) This Sublease is subject to all of the terms of the Prime Lease and the
Prime Sublease with the same force and effect as if fully set forth herein at
length, excepting only those provisions specified herein. All of the terms with
which PRG is bound to comply under the
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Prime Lease or the Prime Sublease shall, to the extent they apply to the
Premises and except as otherwise provided herein, be binding upon Manhattan,
and all of the obligations of Prime Lessor set forth in the Prime Lease shall
and all of the obligations of IBM set forth in the Prime Sublease, to the
extent only that they apply to the Premises and except as otherwise provided
herein, inure to the benefit of Manhattan. It is the intention of the parties
that, except as otherwise provided in this Sub-Sublease, the relationship
between PRG and Manhattan shall be governed by the language of the various
articles of the Prime Lease and the Prime Sublease as if they were typed out in
this Sub-Sublease in full, and the words "Lessor" "Lessee and "Prime Lease" as
used in the Prime Lease, and the words "Sublessor" "Sublessee" and "Sublease",
shall read, respectively "PRG" "Manhattan" and "Sub-Sublease".
(b) For the purpose of the Sub-Sublease, the following provisions of the
Prime Sublease are hereby deleted in their entirety:
Section 4, 12, and 15 of the Sublease dated October 29, 1993; Sections 1,
2, 3, 4, 5, 11 and 12 of Exhibit "B" to the Sublease dated October 29,
1993; and all provisions of the First Sublease Amendment dated as of
February 12, 1996.
9. PARKING
PRG shall provide Manhattan with a total of seven (7) of PRG's reserved
parking spaces, in the area designated for reserved parking by the Prime Lessor,
and as subject to change by the Prime Lessor. Subject to the rights of the
Prime Lessor or Prime Sublessor, PRG shall have the sole authority to designate
which of its reserved parking spaces shall be provided to Manhattan hereunder.
Two (2) reserved parking spaces shall be provided to Manhattan upon
commencement of its occupancy of the first portion of the Premises, and the
remaining five (5) spaces shall be made available to Manhattan on or before
March 1, 1999.
10. QUIET ENJOYMENT
(a) PRG covenants and agrees with Manhattan that upon Manhattan paying
the Rent and Additional Rent reserved in this Sub-Sublease and observing and
performing all of the other obligations, terms, covenants and conditions of
this Sub-Sublease on Manhattan's part to be observed and performed, Manhattan
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 either the Prime
Lease or the Prime Sublease, and Manhattan shall have no claim against PRG
unless such termination was caused by the default of PRG in the performance of
those material obligations (under either the Prime Lease or the Prime Sublease)
which have not been assumed by Manhattan hereunder. PRG will indemnify and hold
harmless Manhattan from and defend Manhattan against all claims, liabilities
losses and damages that Manhattan may incur by reason of, resulting from or
arising out of any such termination of the Prime Lease or the Prime Sublease
due to PRG's default thereunder. PRG covenants and agrees that (i) PRG will not
enter into a consensual agreement
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with the Prime Lessor under the Prime Lease or with the Prime Sublessor under
the Prime Sublease to terminate either the Prime Lease or the Prime Sublease,
as the case may be, (ii) PRG will not terminate this Sub-Sublease as it
pertains to the Premises unless PRG is entitled to do so under the Sublease or
under this Sub-Sublease or by the condemnation and casualty provisions of this
Sublease.
(b) Manhattan covenants and agrees that Manhattan shall not do or suffer
or permit anything to be done (within its reasonable and direct control) which
would constitute a default under the Prime Lease or the Prime Sublease, or
would cause the Prime Lease or the Prime 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 or the Prime Sublessor
under the Prime Sublease, Manhattan will indemnify and hold harmless PRG from
and defend PRG against all claims, liabilities, losses and damages of any kind
whatsoever that PRG may incur by reason of, resulting from or arising out of
the cancellation, termination or forfeiture of the Prime Lease or the Prime
Sublease, which is caused by any act or omission of Manhattan.
11. 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 to
the addressee set forth in the preamble of this Agreement with all notices to
PRG being directed to the attention of Clinton McKellar, Jr., Esq. and all
notices to Manhattan being directed to the attention of its President.
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.
PRG agrees to provide, in a timely manner, copies of any notices it
receives from the Prime Lessor or the Prime Sublessor with respect to the
Premises.
12. ASSIGNMENT AND SUBLETTING
Except as permitted by Paragraph 9 of the Prime Sublease, Manhattan 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 Manhattan, without in each case having first
obtained the written consent of (a) PRG, which consent shall not be
unreasonably withheld, delayed or conditioned, and (b) the Prime Sublessor.
Failure of any party to obtain the consent of the Prime Lessor shall in each
case constitute a reasonable and conclusive basis for withholding consent.
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13. PRIME LESSOR'S RESPONSIBILITIES
Notwithstanding anything to the contrary contained in this Sub-Sublease,
Manhattan agrees and acknowledges that it will look solely to the Prime Lessor,
and to neither PRG nor Prime Sublessor, to furnish all services and to perform
all obligations of Prime Lessor pursuant to the Prime Lease. PRG shall not be
liable to Manhattan or be deemed in default hereunder for failure of Prime
Lessor to furnish such services or perform such obligations. If Prime Lessor
shall fail to perform any of its obligations under the Prime Lease, Manhattan
may, at its option, enforce performance thereof if and to the extent authorized
by the Prime Lease, and PRG shall cooperate with Manhattan in such enforcement.
14. DESTRUCTION AND EMINENT DOMAIN
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 Rental and payable hereunder to the extent of damage to the
Premises; provided, however, that such abatement shall in no event exceed the
abatement granted to PRG under the Prime Sublease for the Premises and,
provided further, that no compensation or claim or reduction will be allowed
or paid by PRG by reason of inconvenience, annoyance or injury to Manhattan'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 ninety (90) days after
damage, destruction or condemnation (in the reasonable opinion of the Prime
Lessor's architect), the Manhattan may elect to terminate this Sublease by
written notice (to PRG) given within thirty (30) days after PRG's receipt of
Sublessor's estimate of the time required to restore the Premises.
15. INSURANCE
(a) Manhattan shall maintain comprehensive general liability insurance
covering the legal liability of Manhattan and PRG 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 Manhattan in the minimum amount of $5,000,000.00 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. PRG shall be named as an additional
insured on the insurance policies required of Manhattan under this Sub-Sublease.
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(b) PRG and Manhattan shall each have included in all policies of commercial
property insurance and other insurance (required under the Prime Lease, the
Prime Sublease 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, PRG and Manhattan each
waives 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 Sublease by the party seeking recovery.
16. BROKERAGE
Each party represents and warrants to the other that no broker, agent, or
other person has represented such party in the negotiations for and procurement
of this Sub-Sublease and that except as may be 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 such party. Each party through which such a claim arises agrees to
indemnify and hold the other harmless from all loss, liability, damage, claim,
cost or expense (including reasonable attorneys' fees and court costs) suffered
or incurred as a result of a breach of the representations and warranties
contained in the immediately preceding sentence.
17. BINDING AND ENTIRE AGREEMENT
This Sub-Sublease shall be binding on PRG and Manhattan, and each of its
respective legal representatives, successors and permitted assigns. 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.
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18. CONSENT OF PRIME SUBLESSOR
In accordance with Section 9 of the Prime Sublease, it is understood and
agreed that this Sub-Sublease shall not become effective unless and until PRG
has obtained and delivered to Manhattan the written consent of Prime Sublessor
to the subletting herein on or before the Commencement Date.
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: MANHATTAN ASSOCIATES, INC.
- ------------------------ By:
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Title
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[CORPORATE SEAL]
- ------------------------ THE PROFIT RECOVERY GROUP
INTERNATIONAL I, INC.
By:
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Title
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[CORPORATE SEAL]