Exhibit 10(a)
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (the "Fifth Amendment") is made
and entered into as of the _____ day of April, 2004 (the "Effective Date"), by
and between SOUTHEAST COMMERCIAL, LLC, a Delaware limited liability company
("Landlord"), and SPARKS EXHIBITS & ENVIRONMENTS, INC., a Georgia corporation
("Tenant").
W I T N E S S E T H:
WHEREAS, Woodlands Joint Venture No. V534-3, as landlord, and Sparks
Exhibits Inc., as tenant, entered into that certain Lease Agreement dated August
12, 1993, as amended by that certain First Amendment to Lease Agreement dated
December 8, 1997, as further amended by that certain Second Amendment to Lease
Agreement dated March 30, 2000, as further amended by that certain Third
Amendment to Lease (the "Third Amendment") dated July 2002, and as further
amended by that certain Fourth Amendment to Lease (the "Fourth Amendment") dated
September 11, 2003 (as so amended, the "Lease") with respect to approximately
80,876 rentable square feet of space (the "8125 Space") located in Suite B of
the building having an address of 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the
"8125 Building") and located within that certain development known as Woodlands
at Riverside (the "Project"), and approximately 17,200 rentable square feet of
space (the "8055 Space") located in Suite A of the building having an address of
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "8055 Building") and located
within the Project; and
WHEREAS, Landlord is the successor in interest to Woodlands Joint
Venture No. V534-3, and is now the landlord under the Lease; and
WHEREAS, Tenant is the successor in interest to Sparks Exhibits Inc.,
and is now the tenant under the Lease; and
WHEREAS, Landlord and Tenant desire to enter into this Fifth Amendment
for the purpose of evidencing their mutual understanding and agreement regarding
the relocation of the 8055 Space and certain other matters relating thereto as
set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises and covenants contained herein and in the Lease, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Defined Terms. All terms used herein and denoted by their initial
capitalization shall have the meanings set forth in the Lease unless set forth
herein to the contrary.
2. Relocation of 8055 Space. Effective as of April 1, 2004 (the
"Relocation Commencement Date"), Landlord by these presents leases and rents
unto Tenant, and Tenant hereby leases from Landlord approximately Twenty-Five
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Thousand Five Hundred Fifty (25,550) rentable square feet of space in Suite C of
the building within the Project having an address of 0000 Xxxxx Xxxxxx (the
"8075 Building") as more particularly set forth on Exhibit "A" attached hereto
and incorporated herein by this reference (the "8075 Space"). Tenant hereby
leases the 8075 Space on the same terms and conditions as the 8055 Space, except
as otherwise set forth herein to the contrary; provided, however, Tenant shall
receive no concessions or allowances on account of leasing the 8075 Space,
except as otherwise specifically and expressly provided herein. Tenant has
given, granted and surrendered, and by these presents does give, grant and
surrender unto Landlord, its successors and assigns, the 8055 Space, the
improvements therein, and all the rights, title and interest of Tenant in and to
the same, effective as of the Relocation Commencement Date. From and after the
Relocation Commencement Date, Tenant shall have no interest in the 8055 Space.
Tenant agrees to vacate the 8055 Space and remove all of its personal effects
therefrom and relocate to the 8075 Space by the Relocation Commencement Date.
Tenant shall bear the expense of said removal from the 8055 Space to the 8075
Space. Effective as of the Relocation Commencement Date, the 8075 Space together
with the 8125 Space shall for all purposes hereof be deemed to be and to
constitute the "Premises" under the Lease and all terms, conditions, covenants,
warranties, agreements and provisions of the Lease shall continue in full force
and effect and shall apply to the 8075 Space, except as expressly set forth
herein to the contrary.
3. Base Rental. From and after the Relocation Commencement Date to and
through December 31, 2004, Tenant shall pay to Landlord Base Rental for the 8075
Space, as if the 8075 Space only contained 5,000 rentable square feet of space.
Thereafter for the duration of the Extended Term (as defined in the Fourth
Amendment), Tenant shall pay to Landlord Base Rental for the 8075 Space as if
the 8075 Space only contained 17,200 rentable square feet of space. Tenant shall
pay such Base Rental for the 8075 Space on the first day of each month without
demand, counter-claim or set-off in accordance with the following schedule:
Dates PSF Annual Rental Monthly Rental
4/01/04 - 12/31/04 $2.00 $10,000.00 $ 833.33
1/01/05 - 12/31/05 $2.00 $34,400.00 $2,866.67
1/01/06 - 12/31/06 $2.04 $35,088.00 $2,924.00
1/01/07 - 06/30/07 $2.08 $35,776.00 $2,981.33
4. Tenant's Share. From and after the Relocation Commencement Date, for
all purposes of the Lease, as amended hereby, the term "Pro Rata Share" shall
mean (i) with respect to the 8125 Space, the ratio of the total floor area of
the 8125 Space to the total floor area of the 8125 Building or the Project, as
applicable (and consistent with historic practice of allocating operating
expenses under the Lease), and (ii) with respect to the 8075 Space, and
notwithstanding anything to the contrary contained in the Lease, as amended
hereby, the ratio of 17,200 square feet to the total area of the 8075 Building
or the Project, as applicable (and consistent with historic practice of
allocating operating expenses under the Lease).
5. Condition of the 8075 Space/Use of 8075 Space.
(a) Notwithstanding anything to the contrary contained or implied in
this Fifth Amendment, Tenant agrees that it will accept possession of the 8075
Space during the remainder of the Extended Term in an "as is, where is"
condition, and that no representations, warranties, or inducements, with respect
to any condition of the 8075 Space have been made by Landlord, or its designated
representatives, to Tenant, or its designated representatives. In furtherance of
the foregoing, Tenant hereby acknowledges that no promises to decorate, alter,
repair or improve the 8075 Space either before or after the execution of this
Fifth Amendment have been made to Tenant, or its designated representatives, by
Landlord, or its designated representatives.
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(b) Notwithstanding anything to the contrary contained in the
Lease, as amended hereby, Tenant shall use the 8075 Space for dry storage
purposes only and for no other use. Tenant's use of the 8075 Space shall be in
compliance with any and all applicable laws, codes, rules, ordinances and
regulations from any and all applicable governing authorities.
6. Tenant's Termination Right for 8075 Space. Tenant shall have the
on-going right to terminate the Lease, as amended hereby, as the same applies to
the 8075 Space, effective as of December 31st of each calendar year during the
Extended Term commencing with December 31, 2004 (the specific December 31st on
which the Lease as the same applies to the 8075 Space terminates shall be
referred to as the "Effective Termination Date for the 8075 Space"), subject to
the following terms and conditions:
(a) Landlord shall have received from Tenant written notice delivered
in accordance with the notice provisions of the Lease that Tenant has
irrevocably exercised its right to terminate the Lease, as the same applies to
the 8075 Space, on or before the November 1st directly preceding the Effective
Termination Date for the 8075 Space, time being of the essence.
(b) On or before the Effective Termination Date for the 8075 Space, as
set forth above, Tenant shall have removed from the 8075 Space all its personal
property which the Lease allows Tenant to remove, Tenant shall have removed all
of its signage, and Tenant shall have peacefully surrendered the 8075 Space and
the keys thereto to Landlord in the same condition as on the date Tenant first
occupied the 8075 Space, only normal wear and tear excepted.
(c) The Lease, as amended hereby, shall be in full force and effect as
the same pertains to the 8075 Space on the date of the exercise of such
termination option and the Effective Termination Date for the 8075 Space, and,
further, there shall exist no bona fide material monetary default on the part of
Tenant under the Lease, as amended hereby, beyond any applicable notice and cure
period, on the date of the exercise of such termination option and on the
Effective Termination Date for the 8075 Space.
(d) If Tenant fails to exercise such termination option as provided in
and in strict accordance with the terms of this Section 6, or if the conditions
in subsections (a) through and including (c) above are not entirely satisfied,
Tenant's option to terminate the Lease, as amended hereby, as the same applies
to the 8075 Space for a specific December 31st shall automatically terminate and
be of no further force or effect, or if exercised, shall be void.
7. Landlord's Termination Right/Tenant's Right of First Refusal.
Notwithstanding anything to the contrary contained in the Lease, as amended
hereby, the parties acknowledge and agree that the 8075 Space contains a total
of approximately 25,550 rentable square feet; provided, however, from the
Relocation Commencement Date to and through December 31, 2004, Tenant is paying
Base Rental on the 8075 Space as if the 8075 Space contained 5,000 rentable
square feet and during the remainder of the Extended Term, Tenant is paying Base
Rental on the 8075 Space as if the 8075 Space contained 17,200 rentable square
feet. Notwithstanding anything to the contrary contained herein and in
consideration of the reduced Base Rental for the 8075 Space and Tenant's
termination right as set forth in Section 6 above, Tenant acknowledges that
Landlord shall have the right to terminate the Lease as the same applies to the
8075 Space in accordance with the terms and conditions set forth herein.
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(a) During the Extended Term, Landlord shall have the right to market
the 8075 Space to third parties upon terms and conditions acceptable to Landlord
in Landlord's sole discretion. Additionally, Landlord shall have the right, upon
reasonable prior oral or written notice to Tenant, to exhibit the 8075 Space to
prospective tenants and that during the duration of the Extended Term Landlord
has the right, but not the obligation, to market the 8075 Space to such
prospects.
(b) In the event Landlord obtains a written offer from a prospective
tenant to lease all or any portion of the 8075 Space and Landlord desires to
accept such offer, then Landlord shall promptly submit to Tenant in writing all
of the terms and conditions of such proposed offer to lease (hereinafter
referred to as the "Offer") and Tenant shall have the right and option to lease
the 8075 Space upon the same monetary terms and conditions, including any offer
of free rent and leasehold improvement allowances, and term length as embodied
in the copy of such Offer submitted to Tenant by Landlord, but otherwise upon
the same terms and conditions as the Lease, as amended hereby. Notwithstanding
the foregoing, in the event Tenant accepts the terms of the Offer, Tenant's
termination right for the 8075 Space as set forth in Section 6 above, shall
automatically terminate and be of no further force and effect.
(c) If Tenant shall elect to exercise its right to lease the 8075
Space, written notice of such election shall be given to Landlord within ten
(10) days from the time that Tenant first received a copy of the Offer from
Landlord (hereinafter referred to as the "Offer Period"). If Tenant does not
accept the terms of the Offer within the Offer Period or Tenant waives its
rights under the Offer (no notice is deemed to be a waiver of such right), then
Landlord, at Landlord's option shall have the right to terminate the Lease, as
amended hereby, as the same applies to the 8075 Space, upon thirty (30) days
advance written notice to Tenant.
(d) In the event the Lease, as amended hereby, is terminated as the
same pertains to the 8075 Space, in accordance with the terms of this Section 7,
then on or before the actual termination date, Tenant shall remove from the 8075
Space all its personal property which the Lease allows Tenant to remove, Tenant
shall remove all of its signage, and Tenant shall peacefully surrender the 8075
Space and the keys thereto to Landlord in the same condition as on the date
Tenant first occupied the 8075 Space, only normal wear and tear excepted.
(e) In the event Tenant accepts the terms of the Offer, Landlord and
Tenant shall enter into a written agreement modifying and supplementing the
Lease, as amended hereby, and specifying the appropriate terms and provisions
relating to the terms and conditions of the Offer, including, without
limitation, increasing, adjusting or augmenting rent.
8. Brokers. Tenant represents and warrants to Landlord that no broker,
agent, commission salesperson, or other person, including, without limitation,
Xxxxxx & Associates, LLC ("Xxxxxx") and/or New Southern Commercial Properties
and/or New South Commercial Properties, Inc., has represented Tenant in the
negotiations for and procurement of this Fifth Amendment and that no
commissions, fees or compensation of any kind are due and payable in connection
herewith to any broker, agent, commission salesperson or other person as a
result of any act or agreement of Tenant, including without limitation Xxxxxx,
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New Southern Commercial Properties and/or New South Commercial Properties, Inc.
Tenant agrees that, if any broker makes a claim for a commission based upon the
actions of Tenant, Tenant shall indemnify, defend and hold Landlord harmless
from any such claim. The parties hereto do hereby acknowledge and agree that
Xxxxxxx Xxxx Company has acted as agent for Landlord and not for Tenant in this
transaction and shall be paid a commission by Landlord in connection with this
transaction pursuant to the terms of a separate written commission agreement.
Landlord agrees that, if any other broker other than Xxxxxxx Xxxx Company makes
a claim for a commission based upon the actions of Landlord, Landlord shall
indemnify, defend and hold Tenant harmless from any such claim.
9. Miscellaneous. This Fifth Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, and shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, successors-in-title, representatives and permitted assigns. In the
event of any inconsistency or conflict between the terms of this Fifth Amendment
and of the Lease, the terms of this Fifth Amendment shall control. Time is of
the essence of all of the terms of this Fifth Amendment. The signatory of Tenant
represents to Landlord that he is duly authorized to execute and deliver this
Fifth Amendment on behalf of Tenant. The Lease together with this Fifth
Amendment constitutes and contains the sole and entire agreement of the parties
hereto with respect to the subject matter hereof and no prior or contemporaneous
oral or written representations or agreements between the parties and relating
to the subject matter hereof shall have any legal effect. Effective immediately,
and except for the options contained in Section 7 of the Fourth Amendment and
Sections 6 and 7 of this Fifth Amendment, any and all options, including without
limitation, expansion options, renewal options, termination options, extension
options, and rights of first refusal or negotiation, granted to Tenant pursuant
to the Lease are null and void and of no further force or effect. The submission
of this Fifth Amendment for examination does not constitute an offer to enter
into a contract and this Fifth Amendment shall be effective only upon execution
hereof by Landlord and Tenant. Except as hereinabove provided, all other terms
and conditions of the Lease shall remain unchanged and in full force and effect,
and are hereby ratified and confirmed by the parties hereto. Tenant hereby
acknowledges and agrees that, as of the date hereof, the Lease is subject to no
offsets, claims, counterclaims or defenses of any nature whatsoever. Landlord
acknowledges and agrees that to its actual knowledge, without investigation or
inquiry, Tenant is not in default under the Lease. This Fifth Amendment may not
be changed, modified, discharged or terminated orally in any manner other than
by an agreement in writing signed by Landlord and Tenant or their respective
heirs, representatives, successors and permitted assigns. If any clause or
provision of this Fifth Amendment is illegal, invalid or unenforceable under
present or future laws, the remainder of this Fifth Amendment shall not be
affected thereby, and in lieu of each clause or provision of this Fifth
Amendment which is illegal, invalid or unenforceable, there shall be added as a
part of this Fifth Amendment a clause or provision as nearly identical to the
said clause or provision as may be legal, valid and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment on the day and year first above written.
LANDLORD:
SOUTHEAST COMMERCIAL, LLC,
a Delaware limited liability company
By: AEW Capital Management, LP,
Its Asset Manager and Advisor,
By:
Name:
Title:
Duly Authorized
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TENANT:
SPARKS EXHIBITS AND ENVIRONMENTS INC.,
a Georgia corporation
By:
Name:
Title:
[CORPORATE SEAL]
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