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EXHIBIT 10.15
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is entered into by and
between PEOPLESOFT USA, INC., a Delaware corporation ("Sublessor"), and
RESOURCE/PHOENIX, INC. a California corporation ("Sublessee"), as of August 31,
1999 (the "Effective Date"). Sublessor and Sublessee hereby agree as follows:
1. DEFINED TERMS. The following terms shall have the following
meanings:
Broker means collectively, Xxxxxxx Realty Corporation
and Xxxxxxxxxx Company.
Building means the office building located at 0000
Xxxxxx Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx.
Commencement Date means the Possession Date.
Expiration Date means the earlier of (i) the date the
Lease terminates, or (ii) December 31, 2002.
Landlord means Lincoln-RECP Empire OPCO, LLC, a Delaware
limited liability company, and its successors and
assigns.
Landlord's Address means 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx 00000.
Lease means the following agreements between Empire
Parkway Centre, L.P. as Landlord and Intrepid Systems,
Inc, as Tenant: Empire Parkway Centre Office Lease dated
as of October, 1995 (the "Original Lease"), and First
Amendment to Lease dated as of January 15, 1997; the
following agreements between Lincoln-RECP Empire OPCO,
LLC as Landlord and Intrepid Systems, Inc. as Tenant:
Second Amendment to Lease Agreement dated as of July 17,
1997, Third Amendment to Lease Agreement dated as of
September 9, 0000, Xxxxxx Xxxxxxxxx to Lease Agreement
dated as of December 18, 1997, Fifth Amendment to Lease
Agreement dated as of May 13, 1998; the following
agreement between Intrepid Systems, Inc. as Assignor and
People Soft, Inc. as Assignee: Assignment and Assumption
Agreement; and the following agreement between People
Soft, Inc. and People Soft USA: Assignment and
Assumption Agreement dated as of January 2, 1999
(collectively, the "Lease"). A copy of the all
agreements comprising the Lease are attached hereto as
Exhibit A.
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Minimum Rent means the following annual Minimum Rental
rates per square foot of rentable square feet:
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PERIOD RENT
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November 1, 1999 - $.70 per square foot per month
May 1, 2000 or $47,237.40 per month.
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June 1, 2000 - $1.53 per square foot per month
December 1, 2002 or $103,247.46
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Permitted Uses means all uses permitted under the Lease.
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Possession Date means November 1, 1999.
Premises means 67,482 rentable square feet of space at
0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx.
Pro Rata Share means Sublessor's Percentage Shares for
the Building and the Complex as those terms are defined
in the Lease.
Rent Commencement Date means November 1, 1999.
Sublessee means ReSource/Phoenix, Inc. a California
corporation
Sublessee's Address means 0000 Xxxxxx Xxxxxxxxx, Xxx
Xxxxxx, XX 00000, Attn: General Counsel.
Sublessor means PeopleSoft USA, Inc., a Delaware
corporation.
Sublessor's Address means 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxx, 00000, Attn.: General Counsel,
with a copy to 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxx, 00000, Attn.: Vice President of Real Estate.
Term means the period of time beginning on the
Possession Date and ending on the Expiration Date.
1. SUBLEASE. Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, the Premises for the Term, upon all of the
terms, covenants and conditions contained herein.
2. CONDITION OF PREMISES.
(a) Sublessee Use and Ownership of Furniture. Simultaneously
with the mutual execution of this Sublease, Sublessee shall deliver to Sublessor
a check in the amount of Seventy Five Thousand Dollars ($75,000) which shall
represent payment in full for all furniture systems owned by Sublessor that are
located at the Premises (the "Furniture Payment"). Upon such payment, Sublessor
shall issue to Sublessee a xxxx of sale evidencing the sale and shall have no
rights or obligations in connection with the furniture systems located at the
Premises.
(b) "As is" Condition of Premises. Except as set forth in
Section 3(a) above, Sublessee shall accept possession of the Premises in their
present "as is" condition, without representation or warranty as to their
condition or suitability for Sublessee's intended use, and with no obligation on
the part of Sublessor to make any alterations or modifications to the Premises
or any area outside the Premises for the benefit of Sublessee. Any alterations
or improvements desired by Sublessee or required by any and all applicable laws
to the Premises shall be made by Sublessee at its sole cost and expense and
pursuant to the terms of this Section 3(b) and Section 5(f) below. Plans and
specifications for Sublessee's alterations and improvements shall be subject to
the prior written approval of Landlord and Sublessor, which approval shall not
be unreasonably withheld. Subject to Section 7.4 of the Original Lease,
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Sublessee shall, at Sublessee's sole cost and expense, comply promptly with all
applicable statutes, ordinances, rules, regulations, orders, restrictions of
record, and requirements (collectively, "Requirements") in effect during the
Term or any part of the Term hereof regulating the particular use by Sublessee
of the Premises except that Sublessee shall not be liable for any instance of
non-compliance with any Requirements arising prior to the Commencement Date.
Upon termination of this Sublease, Sublessee and Sublessor shall each be
responsible for (i) the cost of removing any alterations which were installed
for or by each of them in the Premises, except that neither Sublessee nor
Sublessor shall not be required to remove any alterations if under the
applicable provisions of the Original Lease such alterations may remain in the
Premises upon the termination of the Lease and (ii) any claims arising from the
condition of the Premises in excess of ordinary wear and tear attributable to
their respective tenancies.
3. CONDITIONS.
(a) This Sublease is conditioned upon the delivery to Sublessor
of a fully executed original of this Sublease, a check in the amount of Two
Hundred Twenty-Two Thousand, Two Hundred and Thirty Seven Dollars and Forty
Cents ($222,237.40) payable to Sublessor, and the receipt of Landlord's written
consent to this Sublease not later than thirty (30) days following delivery to
Landlord of a copy hereof executed by Sublessee and Sublessor, which consent
Landlord may give or withhold pursuant to Section 18.1 of the Original Lease.
This payment represents Sublessee's required Furniture Payment, the First
Installment (hereinafter defined) and the Deposit (hereinafter defined) to
Sublessor pursuant to Sections 3(a), 5(g), and 6(a), respectively.
(b) In the event the condition expressed above in this Section 4
is not timely satisfied, upon three (3) business days prior written notice,
Sublessor or Sublessee may terminate this Sublease by giving written notice of
termination to the other party at any time prior to the satisfaction of such
condition. In the event this Sublease is terminated due to the nonsatisfaction
of the foregoing condition, neither Sublessor nor Sublessee shall have any
further rights or obligations hereunder and Sublessor shall return to Sublessee
the Furniture Payment, the First Installment and the Deposit, Sublessee and
Sublessor each agrees to supply information and/or execute and acknowledge
further documents in connection with this Sublease which are reasonably required
by Landlord in connection with Landlord's review of this Sublease and the
satisfaction of the condition expressed in this Section 4.
4. PROVISIONS CONSTITUTING SUBLEASE.
(a) Relationship Between Sublessee and Landlord. This Sublease
is subject to all of the terms and conditions of the Original Lease. To the best
knowledge of Sublessor, Sublessor hereby represents and warrants that the
documents attached hereto as Exhibit A constitute all of the agreements
comprising the Lease. Sublessee hereby assumes and agrees to perform the
obligations of Sublessor as Tenant under the Original Lease to the extent such
terms and conditions are applicable to the Premises subleased pursuant to this
Sublease. Notwithstanding the foregoing, Sublessor shall pay directly to
Landlord rent and any other
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amounts required to be paid under the Lease as and when such amounts become due.
Sublessee shall not commit or permit to be committed on the Premises any act or
omission which shall violate any term, covenant or condition of the Original
Lease. Sublessor shall not voluntarily terminate the Lease or voluntarily (as a
result of an act by Sublessor) permit the Lease to be terminated so long as the
Sublease has not been terminated as a result of Sublessee's default.
(b) Relationship Between Sublessee and Sublessor. Except as
otherwise provided herein, all of the terms and conditions contained in the
Original Lease are incorporated herein as terms and conditions of this Sublease
with each reference therein to "Landlord," "Tenant," the "Lease," the
"Commencement Date" and the "Leased Premises," being deemed to refer to
Sublessor, Sublessee, this Sublease, the Commencement Date and the Premises,
respectively), except for the following provisions of the Original Lease which
are not incorporated into this Sublease: Sections 3.2, 4.2, 4.3, 6 (only to the
extent it relates to Sublessor), 11.3, 21.29 and 21.30. As between Sublessor and
Sublessee, in the event of any conflict between the terms of this Sublease and
the terms of any provision of the Original Lease which is incorporated herein,
the terms of this Sublease shall control.
(c) Notices. All notices or demands of any kind required or
desired to be given by Sublessor or Sublessee to the other hereunder shall be in
writing and shall be deemed delivered upon receipt if sent by United States
mail, certified postage prepaid, return receipt requested, of by facsimile
transmission with a following copy by first class mail, or by Federal Express,
addressed to the Sublessor or Sublessee respectively at the addresses set forth
in Section 1, or at such other addresses as the parties may specify by notice in
accordance with this section. All rent and other payments due under this
Sublease shall be made by Sublessee to Sublessor at the same address. Sublessor
and Sublessee shall each immediately deliver to the other a copy of every notice
received from Landlord affecting or relating to the Premises, or affecting or
relating to the rights and/or obligations hereunder or under the Lease.
(d) Services. Notwithstanding anything to the contrary contained
in this Sublease, including, but not limited to, Section 5(b) hereof, Sublessor
shall have no obligation to provide any of the services to be provided by
Landlord under the Original Lease or perform any of the obligations, including,
but not limited to, any maintenance obligations, or any other services, and
Sublessor's sole obligation with respect thereto shall be to use its best
efforts to obtain Landlord's compliance with the Original Lease upon Sublessee's
written request. Sublessor specifically agrees to cooperate with Sublessee in
requesting from Landlord that Sublessee be listed on the occupant directory in
the lobby of the Building. To the extent permitted by law and by Landlord,
Sublessee shall have the right to request all services directly from Landlord at
Sublessee's sole cost and expense. Sublessee shall promptly notify Sublessor in
writing of all such requests for services.
(e) Consents. In any circumstance where the Original Lease
requires that Landlord's approval or consent be obtained, Sublessee shall be
required to obtain the written approval or consent of Sublessor as well. Except
as otherwise provided in this Sublease, where the Original Lease specifies that
Landlord shall not unreasonably withhold its approval or consent, Sublessor
shall not unreasonably withhold its approval or consent as well.
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(f) Alterations. Sublessee shall have the rights concerning
alterations provided to Sublessor under Section 11.1 of the Original Lease.
(f) Signage. Sublessee shall have the rights concerning signage
provided to Sublessor under Section 21.28 of the Original Lease.
(g) Security Deposit. Simultaneously with the mutual execution
of this Sublease, Sublessee shall deliver to Sublessor the sum of One Hundred
Thousand Dollars ($100,000) as a security deposit (the "Deposit") insuring
Sublessee's faithful performance of all of the terms, conditions and covenants
of this Sublease to be performed or observed by Sublessee. Except as provided in
this Section 5(g), the terms and conditions of Section 6 of the Original Lease
shall apply to Sublessee's Deposit.
5. RENT.
(a) Minimum Rent. The Minimum Rent for the first full month of
the Term in the amount of Forty-Seven Thousand Two Hundred Thirty Seven Dollars
and Forty Cents ($47,237.40) (the "First Installment") shall be paid by
Sublessee simultaneously with the mutual execution of this Sublease. The First
Installment will be applied to Sublessee's Minimum Rent payment for the first
month of the Term. Commencing on December 1, 1999, Sublessee shall pay Minimum
Rent to Sublessor as rent for the Premises, in monthly installments in advance,
and thereafter on the first day of each calendar month of the Term, without
deduction, offset, prior notice or demand, in lawful money of the United States.
If the first day for which the monthly installment of Minimum Rent is payable is
not the first day of a calendar month, or if the last day of the Term is not the
last day of a calendar month, the monthly installment of Minimum Rent shall be
prorated for the fractional month(s). In the case of a proration at the
beginning of the Term, Sublessee shall pay the proration for such partial month
upon the due date for Minimum Rent for the second month of the Term. Sublessee
shall pay the proration for the last month of the Term when Minimum Rent for
such month is due.
(b) Additional Rent. Sublessee acknowledges that Sublessor is
obligated to pay to Landlord all amounts provided for in Section 5 of the
Original Lease, as amended ("Additional Rent"), provided that Sublessee's
Operating Expense Base Year shall be calendar year 2000. Sublessor shall be
responsible for Additional Rent attributable to the 1999 Operating Expense Base
Year and for any prior years. Subject to the foregoing and beginning on the
Commencement Date, Sublessee agrees to pay to Sublessor as Additional Rent
hereunder (i) its Pro Rata Share of all such Additional Rent under the Original
Lease, (ii) any and all other costs and expenses Sublessor incurs, as a result
of Sublessee's use of Building services that are in excess of those services
provided to Sublessor by Landlord under the Original Lease, and (iii) any other
costs and expenses incurred by Sublessor under the Original Lease, as a result
of or arising out of Sublessee's use and occupancy of the Premises, regardless
of whether such excess costs arise under the Original Lease or otherwise.
Without in any way limiting the generality of the foregoing, Sublessee and
Sublessor acknowledge and agree that such excess costs may result from, but may
not be limited to, after-hours HVAC usage and additional HVAC
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or electric equipment. Sublessee shall pay such Additional Rent within ten (10)
days of Sublessor's demand therefore.
(c) Late Charge. The parties hereby expressly agree that in the
event Sublessee shall fail to make payment of any installment of Minimum Rent or
any other sums due hereunder within five (5) days of the date that such amounts
are due, the provisions of Section 19 of the Original Lease shall apply.
6. USE OF PREMISES. Sublessee shall use the Premises for the Permitted
Uses and for no other purpose without the prior written consent of Sublessor
and, if required by the Original Lease, Landlord. Notwithstanding any other
provision hereof, and subject to any limitations in the Original Lease,
Sublessee shall have access to the Premises on a seven day a week, twenty four
hour a day basis.
7. TERM.
(a) Term. The Term of this Sublease shall be for a period
commencing on the Commencement Date and ending on the Expiration Date, unless
terminated sooner by termination of the Lease for any reason or otherwise
pursuant to this Sublease. Notwithstanding the foregoing, from and after thirty
(30) days from the Effective Date Sublessee shall have the right to enter onto
the Premises solely for the purposes of making approved Alterations and
installing its furniture, fixtures and equipment (the "Early Entry"). In the
event of Early Entry, all terms and conditions of this Sublease shall be in full
force and effect except for Sublessee's obligation to pay Minimum Rent.
(b) Delay in Delivery. In the event Sublessor is unable to
deliver possession of the Premises on the Possession Date, Sublessor shall not
be subject to any liability for any loss or damage to Sublessee, nor shall such
failure affect the validity of this Sublease or Sublessee's obligations
hereunder or extend the Term hereof, but in such case, the Rent Commencement
Date shall be extended on a day-for-day basis for each day delivery of
possession is delayed.
8. DAMAGE AND DESTRUCTION. In the event of damage or destruction to the
Premises or the Building, each party agrees to forward to the other, within
twenty-four (24) hours of receipt, a copy of each notice received from, or given
to, Landlord in connection therewith. Sublesse shall have the rights provided to
Sublessor under Section 13.2 of the Original Lease.
9. EMINENT DOMAIN. If, due to any taking or appropriation of all or a
part of the Premises or the Building, Landlord exercises its right to terminate
the Lease, this Sublease shall terminate. If part of the Premises shall be so
taken or appropriated and this Sublease shall not be terminated as provided
herein, then the rent thereafter to be paid hereunder shall be equitably
reduced, as provided in the Original Lease. Sublessee shall have the rights
provided to Sublessor in Section 13 of the Original Lease.
10. ENTRY BY SUBLESSOR. Sublessor reserves and shall at any and all
times (within ordinary business hours, except in the case of emergency) have the
right to enter the Premises to inspect the same, to post notices of
nonresponsibility, or to show the Premises to prospective
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subtenants (but only during the last six months of the Term), or in the event of
Sublessee's default with respect thereto, to perform any obligation of Sublessor
as Tenant under the Lease relating to the use, maintenance or repair of the
Premises. In the event that Sublessee shall not provide Sublessor with a key to
the Premises, Sublessee waives any claims for damages resulting directly from
Sublessor's use of force to enter the Premises in the event of an emergency.
Sublessee waives any claim for damages for any injury or inconvenience to or
interference with Sublessee's business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned by such entry, except to the
extent caused by the negligence of Sublessor, its agents or employees, provided
that the entrance to the Premises shall not be blocked thereby and further
provided that the business of Sublessee shall not be interfered with
unreasonably. Except in the case of emergency, Sublessor shall give Sublessee
reasonable prior notice of any intended entry of the Premises by Sublessor, and
shall obtain the permission of an officer of Sublessee (which permission shall
not be unreasonably withheld). Any entry to the Premises by Sublessor pursuant
to this Section 11 shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into or a detainer of the Premises or an
eviction of Sublessee from the Premises or any portion thereof.
11. INDEMNIFICATION.
(a) Sublessee shall hold Sublessor, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims or liability (i) arising
after the Commencement Date due to any breach or default in the performance of
any obligation of Sublessee hereunder, and (ii) for any injury or damage to any
person or property occurring in, on or about the Complex, Common Areas and
Premises or any part thereof, when such injury or damage shall be caused by the
act, neglect, default, or ommission of any duty with respect to the same by
Sublessee, its agents, employees or invitees, except to the extent such
liability arises from the negligence or willful misconduct of indemnitees; and
from and against all costs, counsel fees, expenses and liabilities incurred in
or in connection with any such claim or any action or proceeding brought
thereon.
(b) Sublessor shall hold Sublessee, and its subsidiaries,
affiliates, directors, officers, agents, contractors, servants, employees and
licensees (hereinafter "indemnitees") harmless from and shall indemnify and
defend indemnitees against any and all damages, claims or liability (i) arising
from and after the Commencement Date due to any breach or default in the
performance of any obligation of Sublessor hereunder, (ii) arising both before
and after the Commencement Date from a failure to perform an obligation under
the Lease except to the extent that Sublessee is required to perform such
obligation pursuant to this Sublease, (iii) both before and after the
Commencement Date, for any injury or damage to any person or property occurring
in, on or about the Building, the Premises or any part thereof, when such injury
or damage shall be caused by the act, neglect, default, or omission of any duty
with respect to the same by Sublessor, its agents, employees or invitees, except
to the extent such liability arises from the negligence or willful misconduct of
indemnitees; and from and against all costs, counsel fees, expenses and
liabilities incurred in or in connection with any such claim or any action or
proceeding brought thereon.
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12. BROKERS. Sublessor and Sublessee each represents to the other that
it has dealt with no brokers in connection with this Sublease other than the
Broker. Each of Sublessor and Sublessee shall indemnify, defend, and hold the
other harmless from and against any costs, expenses, liability, loss or damage
arising out of or relating to the falsity of the foregoing representation.
Sublessor agrees to pay all brokerage fees and commissions payable to Broker
with respect to this Sublease in accordance with the provisions of a separate
commission contract.
13. MISCELLANEOUS.
(a) Entire Agreement. This Sublease, together with its Exhibits,
constitutes the entire agreement of Sublessor and Sublessee with respect to the
matters described herein, and shall supersede all prior correspondence,
agreements and understandings concerning such matters, whether oral or written.
No addition to, or amendment or modification of, any term or provision of this
Sublease shall be effective unless set forth in writing and signed by Sublessor
and Sublessee.
(b) Authority. Each individual executing this Sublease on behalf
of either party represents and warrants that he or she is duly authorized to
execute and deliver this Sublease on behalf of such party.
(c) Attorneys' Fees. If either party commences an action against
the other party arising out of or in connection with this Sublease, or for
interpretation of any of its provisions, the prevailing party shall be entitled
to recover its costs and expenses, including reasonable attorneys' fees and
court costs, from the other party. In addition, if either Sublessor or Sublessee
becomes a party to any action concerning this Sublease or the Premises solely by
reason of the neglect or omission of any duty by the other party, the party
subjected to such action without fault shall be entitled to reimbursement for
any and all reasonable attorneys' fees and costs.
(d) Captions. All captions and headings in this Sublease are for
the purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
(e) Counterparts. This Sublease may be executed in one or more
counterparts, each of which shall constitute an original, and all of which shall
constitute a single agreement.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this
Sublease on the dates set out below.
SUBLESSOR: SUBLESSEE:
PEOPLESOFT USA, INC. RESOURCE/PHOENIX, INC.,
a Delaware corporation a California corporation
By:
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By:
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Title: Title:
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Date: Date:
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By:
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Title:
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Date:
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We consent to the foregoing.
LANDLORD:
LINCOLN RECP EMPIRE OPCO, LLC,
a Delaware limited liability company
By: Lincoln Property Company Management
Services, Inc.,
as agent for LINCOLN-RECP EMPIRE
OPCO, LLC
By:
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Title:
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Date:
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EXHIBIT A
LEASE
