Exhibit 10.39
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (hereinafter referred to as this "Sublease"), dated
this 15th day of January, 2000, between Xxxxxxx Central Holdings, Inc. a
Delaware corporation (hereinafter referred to as the "Sublandlord", as successor
in interest to Xxxxxxx Central, Inc., a Georgia corporation) and The Profit
Recovery Group USA, Inc., a Georgia corporation (hereinafter referred to as the
"Subtenant").
WHEREAS, Sublandlord and Resurgens Plaza South Associates, LP (hereinafter
referred to as "Landlord") entered into that certain Lease dated December 18,
1996 commencing January 1, 1998, and ending on December 31, 2002 (hereinafter
referred to as the "Prime Lease"), and
WHEREAS, Sublandlord wishes to sublease approximately 21,441 rentable square
feet on the 1st floor as shown on Exhibit "A" attached hereto and incorporated
herein by reference (hereinafter referred to as the "Premises"), in the building
located at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred
to as "the Building").
WHEREAS, Sublandlord and Subtenant wish to enter into this Sublease for the
occupancy by Subtenant of the Premises.
NOW, THEREFORE, for and in consideration of the rents herein agreed to be paid
and in consideration of the mutual covenants and agreements herein recited,
Sublandlord hereby subleases the Premises to Subtenant upon the following terms:
1. PROVISIONS CONSTITUTING SUBLEASE.
1.1 This Sublease and all of Subtenant's rights hereunder are expressly
subject and subordinate to the terms and conditions of the Prime
Lease, which is incorporated herein by reference and is attached
hereto as Exhibit "B" and Sublandlord shall possess all rights and
remedies of the Lessor under the Prime Lease with respect to the
Subtenant, and the Subtenant shall be responsible for and perform all
of the obligations of the lessee under the Prime Lease with respect to
the Sublandlord, except for the payment of the Base Rent, which is
otherwise provided in this Sublease. Subtenant hereby acknowledges
that it has received copies of the Prime Lease, has read all of the
terms and conditions thereof, and agrees to observe and perform all of
the terms and conditions of the Prime Lease to be observed or
performed by the lessee thereunder, except for the rent provided
therein.
1.2 Subtenant shall neither do nor permit anything to be done which would
cause the Prime Lease to be terminated or forfeited or any claims to
accrue to the benefit of Prime Landlord by reason of any right of
termination or forfeiture reserved by or vested in Prime Landlord
under the Prime Lease. Subtenant shall indemnify and hold Sublandlord
harmless from and against all loss, cost, damage or expense,
including, but not limited to attorney's fees and court costs,
incurred by Sublandlord by reason of any default on the part of
Subtenant by reason of which the Prime Lease may be terminated or
forfeited.
1.3 Notwithstanding anything to the contrary in the Prime Lease or this
Sublease, Subtenant hereby acknowledges that Subtenant shall look
solely to Landlord for the performance of all of the Landlord's
obligations under the Prime Lease, and that Sublandlord shall not be
obligated to provide any services to Subtenant or otherwise perform
any obligations in connection with this Sublease, but Sublandlord
shall exercise its best efforts to cause Landlord to perform such
obligations. Subtenant acknowledges that any termination of the Prime
Lease will result in a termination of this Sublease and that Subtenant
is subject to the holding over provision (Article 27 of the Prime
Lease).
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2. TERM.
The term of this Sublease (the "Sublease Term") shall be for a period
commencing on the later of January 15, 2001 or the date by which
Sublandlord has completely vacated the Premises (hereinafter referred to as
the "Commencement Date") and ending at midnight on December 31, 2002
(hereinafter referred to as the "Expiration Date"), unless sooner
terminated pursuant to any provision herein or under the Prime Lease or
this Sublease. Sublandlord and Subtenant shall execute a memorandum setting
forth the actual date of commencement of the Term.
2.1 Notwithstanding the foregoing, Subtenant shall commence rental
payments on March 1, 2001, which is the Rent Commencement Date.
2.2 DELAY IN COMMENCEMENT. If Sublandlord shall not have delivered
possession of the Premises by February 15, 2001, then the Rent
Commencement Date shall be delayed 1 day for each day beyond the date
herein listed.
2.3 EARLY POSSESSION. In the event that Sublandlord shall permit Subtenant
to occupy the Premises prior to the Commencement Date of the term,
such occupancy shall be subject to all of the provisions of this
Sublease. This early possession shall not advance the termination date
of the Sublease.
3. RENT.
Subtenant shall pay to Sublandlord as Base Rent for the Premises monthly
installments Twenty Eight Thousand One Hundred Forty-One and 31/100
($28,141.31) dollars ($15.75 per rentable square foot), in advance, on the
first day of each month for the term of this Sublease with the first rental
payment due on the Rent Commencement Date. Beginning on March 1, 2002, the
Base Rent shall be automatically increased and Subtenant shall pay in
monthly installments Twenty-Eight Thousand Nine Hundred Eighty-Five and
55/100 ($28,985.55) dollars (which is a three percent (3%) increase of the
prior Base Rent amount) in advance on the first day of each month for the
remainder of the Sublease Term. In addition to the above, Subtenant shall
also pay to Sublandlord any and all additional rent, proportionate common
operating expenses, and any other sums due to Landlord under the Prime
Lease during the Sublease Term. The Base Rent and any additional rent shall
be prorated for any portion of the Sublease Term which does not begin or
end on the first or last day of any month within the Sublease Term.
Notwithstanding the foregoing, Sublandlord shall not declare a default
hereunder based upon Subtenant's failure to pay rent or other charges due
hereunder, unless such failure shall continue for five (5) days after
delivery of written notice by Sublandlord to Subtenant of such failure.
4. POSSESSION.
Sublandlord and Subtenant both acknowledge and agree that Sublandlord shall
deliver possession of the Premises in an "as-is" condition, including a
raised floor computer room with supplemental HVAC, back-up power supply and
diesel generator which are Sublandlord's fixtures, and Subtenant shall
return the Premises to Sublandlord on the Expiration Date in broom clean
condition, reasonable wear and tear and approved alterations by both
Sublandlord and Landlord excepted. At the expiration of the Sublease term,
Subtenant may purchase the above fixtures from Sublandlord at their
respective fair market value as of such date. Sublandlord and Subtenant
both acknowledge and agree that Sublandlord makes no representations or
warranties about the suitability of the Premises for Subtenant's intended
use and that Subtenant acknowledges and agrees that its use of the Premises
is subject to the Prime Lease. IF the Prime Lease terminates, this Sublease
shall also terminate and the Sublandlord and Subtenant shall be relieved of
any further liability or obligation under this Sublease, provided, however,
that if the Prime Lease terminates as a result of a default or breach by
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Subtenant under this Sublease, then Subtenant shall be liable to
Sublandlord for any damages, cost or expenses incurred by Sublandlord as a
result of such breach.
5. INSURANCE AND INDEMNITIES.
Subtenant hereby agrees to indemnify and hold Sublandlord harmless, with
regard to the leasing and use of Premises, to the same extent that
Sublandlord is required to indemnify and hold Landlord harmless with
respect to the Premises. Likewise, Subtenant hereby agrees to obtain and
provide evidence satisfactory to Sublandlord, on or before the date of this
Sublease, that Subtenant is carrying insurance in the same amounts and of
the same types required to be carried by Sublandlord with regard to the
Premises.
Sublandlord and Subtenant shall each include in all policies of commercial
property insurance and other insurance required under the Prime Lease,
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, Sublandlord and Subtenant 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 Sublease by the party seeking recovery.
6. ALTERATIONS.
In the event that Subtenant requires alterations to be made to the
Premises, Subtenant shall submit its proposed changes to Sublandlord for
its written consent, which consent may not be unreasonably withheld.
Subtenant shall also obtain the written consent of Landlord.
7. BROKER.
In this transaction, Sublandlord has been represented by Xxxxxxxx & Co.,
and Subtenant has been represented by Xxxxxx & Associates. All commissions
owed in this transaction will be paid by Sublandlord pursuant to and in
accordance with the terms of a separate commission agreement. Except for
the foregoing, neither Subtenant nor Sublandlord has used any broker,
agent, or other person in the negotiations for and procurement of this
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.
8. DEFAULT.
Any act or omission by Subtenant that would constitute a default under the
Prime Lease shall, subject to the same notice and cure provisions provided
in the Prime Lease, whichever may apply, be deemed a default by Subtenant
under this Sublease. Any such default by Subtenant shall entitle
Sublandlord to exercise any and all remedies available to Landlord under
the Prime Lease, including, without limitation, the right to recover
possession of the Premises, and to eject the Subtenant and its property
therefrom, whichever may apply, or any other remedies available at law or
in equity under the laws of the State of Georgia.
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9. SUBLEASING AND ASSIGNMENT.
Subtenant shall have no further right to sublease or assign its rights
under this Sublease or its rights with regard to all or any part of the
Premises without (i) the prior written consent of Sublandlord, which
consent may not unreasonably be withheld; and (ii) the prior written
consent of Landlord, the granting of such consent being governed in
accordance with the terms of the Prime Lease.
10. NOTICES.
Notices by Sublandlord and Subtenant shall be given to each other in the
same manner provided by the Prime Lease:
Sublandlord: Xxxxxxx Central Holdings, Inc.
_____________________________
_____________________________
Attention: Xxxxxx XxXxxxxxx
Subtenant: The Profit Recovery Group USA, Inc.
Suite 100-North
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxxx, Xx., Esq.
(b) Sublandlord agrees to provide, in a timely manner, copies of any
notices it receives from the Prime Landlord with respect to the Premises.
11. CONTINGENCY.
This Sublease is expressly contingent upon Sublandlord obtaining the
consent of Landlord. If Sublandlord has not been able to obtain such
consent by March 1, 2001, either party may terminate this Sublease and
neither party shall have any further rights, duties or liabilities to the
other party.
If at any time after 15, 2001, Sublandlord has failed to deliver possession
of the Premises to Subtenant due to Landlord's failure to consent to this
Sublease, Sublandlord may give written notice to Subtenant of Sublandlord's
intention to cancel this Sublease. Said notice shall set forth an effective
date for such cancellation which shall be the next day after delivery of
said notice to Sublessor; whereupon this Sublease shall be canceled, in
which case all rent and security deposits previously paid by Subtenant to
Sublandlord, if any, shall be returned to Subtenant, this Sublease shall
thereafter be of no further force or effect, and Sublandlord shall have no
further liability to Subtenant on account of such delay or cancellation.
12. QUIET ENJOYMENT.
Sublandlord covenants and agrees with Subtenant that upon Subtenant 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 Subtenant's part to be observed and performed, Subtenant
may peaceably and quietly enjoy the Premises during the Term; provided,
however, that this Sublease shall automatically terminate upon termination
of the Prime Lease, and Subtenant shall have no claim against Sublandlord
unless such termination was caused by the default of Sublandlord in the
performance of those material obligations under the Prime Lease which have
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not been assumed by Subtenant hereunder. Sublandlord covenants and that
Sublandlord will not enter into a consensual agreement with the Prime
Landlord to terminate the Prime Lease.
Sublandlord shall neither do nor permit anything to be done which would
cause the Prime Lease to be terminated or forfeited or any claims to accrue
to the benefit of Prime Landlord by reason of any right of termination or
forfeiture reserved by or vested in Prime Landlord under the Prime Lease.
Sublandlord shall indemnify and hold Subtenant harmless from and against
all loss, cost, damage or expense, including, but not limited to attorney's
fees and court costs, incurred by Subtenant by reason of any default on the
part of Sublandlord by reason of which the Prime Lease may be terminated or
forfeited.
12. CONFLICT.
In the event of a conflict between the terms of this Sublease and the terms
of the Prime Lease, the terms of this Sublease shall prevail as between
Sublandlord and Subtenant.
13. LAWS OF GEORGIA.
Sublandlord and Subtenant both agree that this Sublease shall be construed
and governed under the laws of the State of Georgia.
14. HOLDING OVER.
Subject to the subsections (i) and (ii) below, if for any reason, other
than as a result of the breach or fault of Subtenant, Sublandlord does not
deliver possession to Subtenant on the Commencement Date, Sublandlord shall
not be subject to any liability for such failure, the Termination Date
shall not be extended by the delay and the validity of this Sublease shall
not be impaired, but rent shall xxxxx until delivery of possession.
Notwithstanding the foregoing,
(i) If Sublandlord has failed to deliver possession of the Premises to
Subtenant on or before February 1, 2001, Subtenant shall be entitled
to one (1) day of "free rent" for each day during the Term after
February 1, 2001 until February 28, 2001; and
(ii) If Sublandlord has failed to deliver possession of the Premises to
Subtenant on or before Xxxxx 0, 0000, Xxxxxxxxxxx shall pay Subtenant
liquidated damages in the amount equal to one hundred percent (100%)
of Subtenant's rent obligations under its existing lease for certain
property located at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000 Xxxx, Xxxxxxx,
Xxxx Xxxxxx, Xxxxxxx 00000. Such amounts shall constitute liquidated
damages for Sublandlord's delay in delivering the Premises. The
parties acknowledge that Subtenant's actual damages in the event of
such delay by Sublandlord will exceed such amounts and be difficult or
impossible to ascertain, and that such liquidated damages represent
the parties' best estimate of such damages. The parties expressly
acknowledge that the foregoing liquidated damages, as permitted by
O.C.G.A. ss. 13-6-7, in the event of Sublandlord's delay in delivering
possession of the Premises. Such liquidated damages shall be the sole
and exclusive remedy of Subtenant by reason of such delay by
Sublandlord under this Sublease, and Subtenant hereby waives and
releases any right to xxx Sublandlord for damages occasioned by such
delay or to prove that Subtenant's actual damages for delay exceed the
amount which is herein provided Subtenant as liquidated damages for
delay.
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In lieu of the foregoing remedies, at any time after February 15, 2001,
Sublandlord fails to deliver the Premises to Subtenant, Subtenant may give
written notice to Sublandlord of Subtenant's intention to cancel this Sublease.
Said notice shall set forth an effective date for such cancellation which shall
be the next day after delivery of said notice to Sulandlord; whereupon this
Sublease shall be canceled, in which case all rent and security deposits
previously paid by Subtenant to Sublandlord, if any, shall be returned to
Subtenant, this Sublease shall thereafter be of no further force or effect, and
Sublandlord shall have no further liability to Subtenant on account of such
delay or cancellation.
If Sublandlord permits Subtenant to take possession of the Premises prior
to the Commencement Date, such early possession shall not advance the
Termination Date and shall be subject to the provisions of this Sublease,
excluding the obligations regarding payment of rent.
14. MISCELLANEOUS.
This Sublease constitutes the entire agreement between Sublandlord and
Subtenant with respect to the subject matter hereof, and all prior
negotiations, understandings, arrangements and agreement with respect to
the Sublease of the Premises are hereby superseded by this Sublease. No
modification of this Sublease shall be effective except on the execution by
the parties hereto of a written amendment to this Sublease. If any clause,
section, or part of this Sublease shall be subsequently declared invalid by
any court of competent jurisdiction, then the remainder of this Sublease
Agreement shall remain in full force and effect.
SUBLANDLORD:
XXXXXXX CENTRAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: SVP Corporate Relations
(Corporate Seal)
SUBTENANT:
THE PROFIT RECOVERY GROUP USA, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Exec. VP & CFO
(Corporate Seal)
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SUBLEASE EXHIBIT "A"
[INSERT FLOOR PLAN OF PREMISES]
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SUBLEASE EXHIBIT "B"
[INSERT COPY OF PRIME LEASE]
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1350372
