Florida-Ft. Myers-5220 Summerlin Commons Boulevard Lease - Alanda Ltd. and FindWhat.com
COLONIAL BANK PLAZA
AT SUMMERLIN CENTER PROFESSIONAL PARK
OFFICE BUILDING LEASE
THIS LEASE is made as of the 31st day of January, 2002, by
and between Alanda, Ltd., a Florida limited partnership ("Landlord"), and
FindWhat.com, a Nevada corporation authorized to transact business in the State
of Florida ("Tenant").
1. INTRODUCTORY PROVISIONS.
1.1 FUNDAMENTAL LEASE PROVISIONS. Certain fundamental provisions
are presented in this Section in summary form to facilitate
convenient reference by the parties.
(a) Tenant's Trade Name: FindWhat.com
(b) Anticipated Commencement Date: November 30, 2002
(c) Term: Ten (10) years
(d) Suite Number: 3rd, 4th and 5th Floors
(e) Permitted Use: Corporate offices and headquarters
(f) Size of Premises: 32,820 rentable sq. ft. (10,940 rentable
sq. ft. per floor)
(g) Annual Base Rent: $443,070.00. Annual Base Rent is based on
an average rate of $13.50 per rentable sq. ft. for the
initial Lease Year, as set forth in Section 4.1.
(h) Annual Rental Increase: Three (3%) percent. See
Section 4.2.
(i) Additional Rent: Tenant's Pro Rata Share Common Area
Maintenance Expenses (see Section 4.3)
(j) Tenant Estimated Pro Rata Share: 32,823 sq.ft./51,653 sq.ft.
(i.e. 63.545%), subject to the limitations set forth in
Section 4.3.
(k) Security Deposit: $100,000.00
(l) Initial Tenant Improvements. See Section 7.1 below.
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1.2 AGREEMENT. In consideration of the rent and other sums payable
to Landlord hereunder and the covenants and agreements to be
observed and performed by Tenant, Landlord hereby Leases to
Tenant, and Tenant hereby rents from Landlord, the Premises
for the Term, at the rental and upon the conditions and
agreements hereinafter set forth.
2. PREMISES.
2.1 PREMISES DEFINED. The term "Premises" means Tenant's suite, as
identified in Section 1.1 above, which is located within Colonial
Bank Plaza at Summerlin Center Professional Park, with an address
of 5220 Summerlin Commons Boulevard, Ft. Myers, Florida (the
"Office Building"), to be constructed by Landlord upon the real
property described on Exhibit "A" hereto (the "Real Property"), in
accordance with the site plan attached as Exhibit "B" hereto. The
Premises shall consist of three (3) floors having the approximate
dimensions and square footage as stated in Section 1.1 as shown on
the floor plans of the Office Building, which are attached as
Exhibit "C" to this Lease. For purposes of this Lease, the term
Rentable Square Footage shall mean the usable square footage of the
Premises, determined in accordance with BOMA standards, plus a
common area factor based upon the ratio of usable floor area and
total floor area of the floor on which the Premises are located, as
certified by Landlord's architect or engineer. Prior to the
Commencement Date, Landlord shall furnish Tenant with a statement
from Landlord's architect or engineer certifying the as-built
measurements of the Premises. In the event that the Premises are
determined to contain more or less Rentable Square Footage than
indicated in Section 1.1 of this Lease, then the Base Rent shall be
adjusted based upon the actual Rentable Square Footage and the
rental rates set forth in Section 1.1, above. The Premises shall
not include any space above the interior surface of the ceiling as
it exists on the Commencement Date of the Term. Tenant shall have
the non-exclusive right to use space above the interior surface of
the ceiling and within and behind the walls constituting or
surrounding the Premises for wiring, piping, lines, sprinkler
systems, communication systems, security systems, mechanical and
other systems serving the Premises or used in connection with
Tenant's business, as determined by Tenant. Landlord shall
construct the Office Building and site improvements (including, but
not limited to, all parking, driveway, sidewalks, landscaping and
other improvements) and perform Landlord's Work as set forth on
Exhibit "E" attached hereto in substantial compliance with the
architectural drawings, floor plans, site plans and Office Building
plans and specifications provided to Tenant, and in compliance with
all zoning and other laws, rules, regulations, orders and
ordinances of all governmental authorities.
2.2 PRO RATA SHARE. Tenant's Pro Rata Share, shall be determined
by dividing the Rentable Square Footage of the Premises by the
Total Rentable Square Footage within the Office Building, as
determined by Landlord's architect or engineer, based upon BOMA
standards. Tenant's Pro Rata Share is subject to adjustment by
Landlord based on the foregoing formula if the Total Rentable
Square Footage of the Office Building is diminished by casualty,
condemnation or similar takings, or other events reducing the Total
Rentable Square Footage or if the Total Rentable Square Footage is
increased by additions to the Office Building.
3. TERM.
3.1 COMMENCEMENT AND EXPIRATION DATES OF TERM. The term of this
Lease (the "Term") shall commence on the earlier of: (1) fifteen
(15) days after notice from Landlord that all of the Landlord's
Work, including the Initial Tenant Improvements, has been
substantially completed, as evidenced by a certificate of occupancy
for the Premises; or (2) the date that Tenant actually opens for
business in the Premises, but in either event not sooner than
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December 1, 2002. Tenant may take possession of the Premises prior
to the Commencement Date provided that the Landlord's Work,
including the Initial Tenant Improvements, have been completed. The
Term shall continue for the number of Lease Year(s) set forth in
Section 1.1, and shall end, unless extended or sooner terminated in
accordance with the provisions herein contained, on the last day of
the last Lease Year (as hereinafter defined). Tenant agrees to
execute an Amendment to this Lease, after the Commencement Date and
within ten (10) days after Landlord's request, to confirm Tenant's
acceptance of the Premises, the Rentable Square Footage of the
Premises, the Annual Base Rent, Tenant's Pro Rata Share, and the
actual Commencement Date of this Lease.
3.2 LEASE YEAR AND ANNIVERSARY DATE. The term "Lease Year" shall mean
a period of twelve (12) consecutive full calendar months. The term
"Anniversary Date" shall mean the date twelve months after the
Commencement Date, and each twelve (12) months thereafter through
the term of this Lease. If the Commencement Date is not the first
day of a calendar month, then the first Lease Year shall consist of
twelve (12) consecutive full calendar months plus the partial month
beginning on the Commencement Date and ending on the last day of
that partial month, and the first Anniversary Date shall be the
first day of the calendar month coinciding with or following the
date which is twelve (12) months after the Commencement Date. Each
subsequent Anniversary Date shall be the date that is twelve (12)
months after the first Anniversary Date, and each succeeding Lease
Year shall commence upon the Anniversary Date.
3.3 FAILURE OF TENANT TO ACCEPT POSSESSION. In the event Landlord
notifies Tenant in writing that the Premises have been completed,
and if Tenant fails to take possession within sixty (60) days
thereafter, then Landlord shall have, in addition to any and all
remedies herein provided, the right to immediately cancel and
terminate this Lease.
3.4 QUIET ENJOYMENT. Upon Tenant's paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions, and
provisions on Tenant's part to be observed and performed hereunder,
Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to the provisions of this Lease.
4. RENT. Tenant shall pay to Landlord at the office of Landlord, or at
such other place designated by Landlord, without notice, demand or
off-set, the following rentals (collectively, the "Rent"):
4.1 ANNUAL BASE RENT. The Annual Base Rent (referred to herein as the
"Base Rent") for each Lease Year shall be paid in monthly
installments in advance Commencing on the Commencement Date, and on
or before the first day of each calendar month thereafter during
the Term, plus any sales, use or other taxes assessed from time to
time on the Base Rent or on the use and occupancy of the Premises.
If the Commencement Date is other than the first day of a calendar
month, the Rent for the period from the Commencement Date to the
first day of the next succeeding month shall be prorated on a per
diem basis and shall be payable with and in addition to the first
monthly installment of Base Rent on the Commencement Date. Annual
Base Rent is based on an average rate of $13.50 per rentable sq.
ft.for the initial Lease Year, as follows: (i) $13.00 per rentable
sq. ft. for the 3rd floor; (ii) $13.50 per rentable sq. ft. for the
4th floor; and (iii) $14.00 per rentable sq. ft. for the 5th floor.
4.2 ANNUAL RENT INCREASE. Base Rent shall increase each Lease Year,
effective on the Anniversary Date of the Commencement Date, by an
amount equal to the Annual Rental Increase, as set forth in Section
1.1.
4.3 ADDITIONAL RENT. In addition to the Base Rent, Tenant shall be
responsible for payment of
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the following sums, as Additional Rent:
4.3.1 COMMON AREA MAINTENANCE. Tenant shall pay to Landlord for
the operation of the Office Building and the maintenance of
the Common Areas, an amount equal to Tenant's Pro Rata
Share of the Common Area Maintenance Expenses, as that term
is defined in Section 5.2 of this Lease. Any increases in
Common Area Maintenance Expenses shall not exceed three
(3%) percent per annum, with the exception of real estate
taxes, insurance and utilities.
4.3.2 OTHER ADDITIONAL RENT. Tenant shall pay, as Additional
Rent, all other sums of money or charges required to be
paid by Tenant under this Lease, whether or not the same be
specifically designated "additional rent" and all sales,
use, or other taxes assessed, levied, or imposed from time
to time on any Additional Rent. If such amounts and charges
are not paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectible as
Additional Rent with the next installment of Base Rent
thereafter becoming due, but nothing herein shall be deemed
to suspend or delay the payment of any amount of money or
charge.
4.4 PAYMENT OF ESTIMATED ADDITIONAL RENT. Within sixty (60)
days after the end of each calendar year, Landlord shall
deliver to Tenant a statement setting forth the actual
Common Area Maintenance Expenses expended by Landlord
during the previous calendar year. In the event that the
amounts paid by Tenant during the course of the calendar
year are less than Tenant's Pro Rata Share of the actual
expenses, then Tenant shall, within thirty (30) days after
receipt of the annual statement, pay the entire amount of
the deficiency, and thereafter the monthly installment of
Additional Rent shall be adjusted accordingly for the
current calendar year to more closely approximate the
expected actual Additional Rent. In the event that the
amounts paid by Tenant during the course of the calendar
year are more than Tenant's Pro Rata Share of the actual
Common Area Maintenance Expenses, then Tenant shall be
entitled to a credit against the amount of Base Rent and
Additional Rent next due under the Lease. Landlord reserves
the right to revise the estimate of Common Area Maintenance
Expenses, at any time during the course of the year, and
from time to time, to more closely approximate the actual
Common Area Maintenance Expenses incurred by Landlord
during the course of the year. Tenant shall pay to
Landlord, without notice or demand, on the first day of
each month during the Term of this Lease, the monthly
installment of estimated Common Area Maintenance Expenses,
as set forth in the most recent statement received by
Tenant from time to time continuing throughout the Term of
this Lease.
4.5 PRORATION. If the first year of the Term of this Lease
commences on any day other than the first day of January,
or if the last year of the Term of this Lease ends on any
day other than the last day of December, any payment due to
Landlord by reason of any Additional Rent or estimated
installment thereof shall be prorated, and Tenant shall pay
any amount due to Landlord within thirty (30) days after
being billed therefor. This covenant shall survive the
expiration or termination of this Lease.
4.6 LATE CHARGE. Any payment of Rent, including Base Rent and
Additional Rent, which is not received by Landlord within
ten (10) days after the date when due, shall be subject to
a late charge in an amount equal to five (5%) percent of
the payment then due.
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4.7 SECURITY DEPOSIT.
4.7.1 Tenant has deposited the Security Deposit with
Landlord, as set forth in Section 1.1. The Security
Deposit shall be held by Landlord as security for the
faithful performance by Tenant of all the terms of
this Lease to be observed and performed by Tenant.
Tenant shall be entitled to interest on any unapplied
portion of the Security Deposit at the rate of three
(3%) percent per annum. The Security Deposit shall
not be mortgaged, assigned, transferred or encumbered
by Tenant, and any such act on the part of Tenant
shall be without force and effect and shall not be
binding upon Landlord. The Security Deposit shall not
constitute prepaid Rent or liquidated damages, but
may be applied by Landlord to other amounts due under
this Lease.
4.7.2 If any of the Rent herein reserved or any other sum
payable by Tenant to Landlord shall be overdue and
unpaid or should Landlord make payments on behalf of
the Tenant, or Tenant shall fail to perform any of
the terms of this Lease, or Tenant or any of its
agents, employees, or customers, shall physically
damage the Premises and such damages shall not have
been corrected, then Landlord may, at its option and
without prejudice to any other remedy which Landlord
may have on account thereof, appropriate and apply
the entire Security Deposit or so much thereof as may
be necessary to compensate Landlord toward the
payment of Rent or Additional Rent or loss or damage
sustained by Landlord due to such breach on the part
of Tenant; and Tenant shall, within five (5) days of
written demand, deposit cash with Landlord to restore
the Security Deposit to the original amount. Should
Tenant comply with all of the terms and provisions of
this Lease, including without limitation, the
obligation to promptly pay all of the Rent as and
when due hereunder, and provided that Tenant vacates
the Premises in the condition required hereunder at
the end of the Term, then Landlord shall return the
Security Deposit to Tenant within fifteen (15) days
after the end of the term of this Lease or any
extension hereof.
5. COMMON AREAS.
5.1 USE OF COMMON AREAS. Tenant, its guests, visitors, employees and
business invitees shall have the non-exclusive right to use the
common areas, including sidewalks, driveways, parking areas,
service roads, and loading facilities within the Office Building,
together with such other facilities as may be designated from time
to time by Landlord (collectively referred to as the "Common
Areas"), in common with other persons entitled to the use thereof,
and provided, however, that use of the Common Areas shall be
subject to the Rules and Regulations for the use thereof as may be
reasonably prescribed by Landlord from time to time. Landlord
reserves the right to designate visitor parking areas, to grant
exclusive use of the Common Area during certain time periods when
deemed by Landlord to be in the best interest of the Office
Building as a whole, provided, however, such exclusive use of the
Common Areas shall be on a temporary basis and shall not interfere
with Tenant's business operations or use of the Premises.
5.2 COST OF MAINTENANCE. Tenant shall reimburse Landlord for Tenant's
Pro Rata Share of all Common Area Maintenance Expenses. The term
"Common Area Maintenance Expenses" shall mean the total cost and
expenses incurred by or on behalf of Landlord in connection with
the administration, operation, maintenance, and repair of the
Office Building, including without limitation, the cost of
cleaning, maintaining and repairing all portions of the Common
Area; all real and personal property taxes and assessments
(including without limitation waste collection, extraordinary or
special assessments, and all costs and fees,
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including reasonable attorneys' fees, incurred by Landlord in
contesting or negotiating the same with public authorities subject
to Tenant's reasonable approval) levied, imposed, or assessed upon
the Office Building during each Lease Year (collectively,
"Taxes"), except that Taxes shall not include any sales or use
taxes, income taxes or other taxes on the income received by
Landlord from the operation of the Office Building; premiums for
public liability insurance, casualty insurance, worker's
compensation insurance and such other insurance coverage as
Landlord may from time to time determine to be necessary or
appropriate; painting, facade maintenance, lighting, exterior
maintenance and roof repairs; repair and resurfacing of all
parking areas and sidewalks; maintenance, repair and replacement
of all heating, ventilation and air conditioning systems;
gardening and landscaping; sign maintenance; electricity; water,
sewer, removal of trash, rubbish, garbage and other refuse;
security; depreciation or rental on machinery or equipment used in
such maintenance; the cost of personnel to implement such
services; legal fees, accounting fees and property management
fees; and such other expenses which, according to generally
accepted accounting principles would be considered to be common
area maintenance expenses. Common Area Maintenance Expenses shall
not include any leasing commissions paid by Landlord, any tenant
improvements or other amounts expended by Landlord on behalf of
any individual tenant or for which Landlord would be entitled to
reimbursement from any individual tenant or any portion of
principal or interest paid by Landlord in connection with any
mortgage loan Office Building. Notwithstanding anything to the
contrary set forth above, the following items are specifically
excluded from Common Area Maintenance Expenses: (i) repairs or
other work occasioned by fire, windstorm, or other casualty of an
insurance nature or by exercise of eminent domain, to the extent
covered by insurance or condemnation proceeds, (ii) depreciation
and amortization except for items specifically included above;
(iii) items of a capital nature, including, but not limited to,
capital improvements, alterations or replacements, except to the
extent that such capital improvements, alterations or replacements
are required by law or reduce the operating expenses of the Office
Building, in which event the total capital expenditure shall be
amortized over the expected useful life of the improvement; (iv)
expenses in connection with services or benefits of a type which
are not provided to Tenant but which are provided to another
tenant or occupant whether or not reimbursable by such other
tenant; (v) costs incurred due to violation by Landlord or any
other tenant of the terms and conditions of any other lease or
agreement; (vi) any costs, fines, or penalties incurred due to
violation by Landlord of any governmental rule, law or regulation
or the noncompliance of the Office Building with any rule, code,
law or regulation; (vii) costs of sculpture, paintings or works of
art; (viii) costs of correcting structural or other defects in any
part of the Office Building; (ix) costs relating to the testing,
monitoring, control or renewal of any hazardous substances; (x)
attorneys fees and other costs in connection with negotiating and
drafting other leases within the Office Building, or in connection
with any disputes arising in connection with any lease or other
tenant or occupant of the Office Building; (xi) Landlord's general
overhead and administrative expenses not relating directly to
management and operation of the Office Building; (xii) advertising
and promotional expenses incurred with respect to leasing any part
of the Office Building; (xiii) bad debt and uncollected rent; and
(xiv) premiums for business interruption or rent interruption
insurance. Any administrative and/or management fees shall not
exceed the fee that would be charged by an independent third party
management company for comparable services for office buildings of
comparable size and quality in Lee County, Florida.
5.3 ALTERATIONS. Landlord reserves the right to make alterations,
additions, changes, reconfigurations or improvements to the Common
Areas including, without limitation, the main lobby, parking
areas, driveways, sidewalks and entrances to the Office Building;
provided that Landlord makes reasonable accommodations to provide
Tenant with unimpeded access to the Premises. No alteration,
addition, change, reconfiguration or
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improvement shall in any event be deemed to be a Common Area
Maintenance Expense. Tenant's consent shall not be required with
respect to any such alterations, additions, changes,
reconfigurations or improvements.
6. USE OF PREMISES.
6.1 USE. Tenant shall use and occupy the Premises only for the use
set forth in Section 1.1 hereof and any and all ancillary and
related uses thereto, and shall not use or occupy the Premises or
permit the same to be used for any other purpose without the prior
written consent of Landlord, such consent not to be unreasonably
withheld. Tenant agrees that it will use the Premises in such a
manner so as not to interfere with or infringe on the rights of
other tenants in the Office Building. Tenant shall not use or
occupy the Premises in violation of any law, ordinance,
regulation, or directives of any governmental authority having
jurisdiction thereof or of any condition of the certificate of
occupancy issued for the Office Building, and shall, upon five (5)
days' written notice from Landlord, discontinue any use of the
Premises which is declared by any governmental authority having
jurisdiction to be in violation of any law, ordinance, regulation,
or directive of said certificate of occupancy. During the Term,
Tenant shall be in continuous use and occupancy of the Premises
and shall not vacate or abandon the same.
6.2 SIGNAGE.
6.2.1 Landlord shall install a "FindWhat.com" sign on the exterior
facade of the Office Building and on any pylon or monument
sign for the Office Building, at Tenant's expense, as shown
on the Signage Plan attached as Exhibit "F" hereto. Tenant's
signage shall be the maximum size allowable by the City of
Ft. Myers. subject to Landlord's approval, which will not be
unreasonably withheld, delayed or conditioned. Landlord
agrees that no other signs, except for Tenant's and one
other tenant of the Office Building shall be placed on the
exterior facade of the Office Building during the term of
the Lease. If Tenant vacates the 3rd and 4th floor pursuant
to the Relocation Option, as described in the Addendum to
Lease, which is attached hereto, then Landlord shall have
the right to remove Tenant's signage.
6.2.2 Tenant shall be permitted to maintain signage on the
Office Building directories and on the entrance to its
Premises, provided all such signs shall be uniform in
appearance, as approved by Landlord. Landlord shall also
list Tenant on any building directory sign installed by
Landlord in the lobby of the Office Building and on the
floor of the Office Building on which Tenant's Premises are
located.
6.3 NAME OF BUILDING. Landlord reserves the right to change the name
of the Office Building, from time to time, at Landlord's
discretion.
6.4 USE RESTRICTION. Tenant acknowledges that no portion of the
Premises may be used for retail banking purposes. The term "retail
banking purposes" shall mean receiving deposits and making loans
to the general public, whether done by a state bank, national
bank, savings and loan association, credit union, mutual fund or
other entity, whether the same be state or federally chartered,
whether by walk-up or drive-in teller facility, automated teller
machine or otherwise.
7. TENANT IMPROVEMENTS; ALTERATIONS, REPAIRS, AND MAINTENANCE.
7.1 INITIAL TENANT IMPROVEMENTS. Landlord shall, at Landlord's
expense, construct the initial tenant improvements (the "Initial
Tenant Improvements") for the Premises, on behalf of
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Tenant, in accordance with the plans and specifications prepared
by Design 2000, Inc., which have been separately initialed by the
parties (the "Plans"). No further changes shall be made to the
planned construction, except with the written consent of Landlord
and Tenant, and any such change shall be performed at Tenant's
expense. Landlord shall be responsible for obtaining all permits
that may be required to construct the Initial Tenant Improvements.
Landlord shall endeavor to keep Tenant reasonably apprised of the
status of the construction and the Anticipated Completion Date.
Upon completion of the Initial Tenant Improvements, and prior to
delivery of possession of the Premises to Tenant, Landlord shall
give notice to Tenant to examine the Premises, with Landlord's
representative, at the time specified in such notice. Upon
completion of the inspection, Tenant shall sign and give to
Landlord a statement setting forth any items that the parties
agree are incomplete or otherwise deviate from the Final Plans.
Landlord shall complete or correct any items that Landlord agrees
are incomplete or insufficient within a reasonable period of time
after the date that Tenant takes possession of the Premises.
7.2 SUBSEQUENT ALTERATIONS. Upon completion of the Initial Tenant
Improvements, Tenant shall have the right, from time to time, to
paint and redecorate the interior of the Premises without
Landlord's consent. Any additions, alterations, partitions,
changes, or improvements in or to the Premises, or any part
thereof, shall require the prior written consent of Landlord, such
consent not to be unreasonably withheld, and shall be performed
only by licensed contractors approved, in advance, by Landlord,
such approval not to be unreasonably withheld. Tenant shall not
have the right to make any additions, alterations, partitions,
changes, or improvements that affect the structure, structural
strength, or outward appearance of the Premises or the building.
Tenant shall submit to Landlord plans and specifications for such
work at the time approval is sought. Any additions, alterations,
changes, or improvements made in or to the Premises by Tenant
shall be in compliance with all insurance requirements and
regulations and ordinances of governmental authorities and shall,
upon the expiration or sooner termination of the Term, become the
property of Landlord unless removed by Tenant in Tenant's
discretion. In the event Tenant elects to remove any such addition
or improvement, Tenant shall promptly repair any damage to the
Premises resulting from such removal.
7.3 REPAIRS BY LANDLORD. Landlord agrees to keep and maintain in
good order and repair in a first class condition the roof,
structural components, and exterior walls of the Premises, all
heating, ventilation, and air conditioning systems (HVAC),
landscaping, parking areas, and Common Areas. Landlord gives to
Tenant exclusive control of the Premises and shall be under no
obligation to inspect the Premises. Tenant shall at once report in
writing to Landlord any defective condition known to Tenant that
Landlord is required to repair pursuant to this Section 7.3.
Landlord's obligation to repair is expressly limited to those
items set forth in this Section 7.3.
7.4 REPAIRS BY TENANT. Tenant shall, at its own cost and expense, keep
and maintain the Premises and appurtenances thereto and every part
thereof, in good order and repair, with the exception of those
portions of the Premises to be repaired by Landlord pursuant to
Section 7.3 hereof. Without limiting the foregoing, Tenant agrees
to keep in good order and repair and to replace as needed all
fixtures pertaining to water, sewer, electrical and sprinkler
systems (if any) and Tenant shall be liable for any damage to such
systems. All damage or injury to the Premises, the building, or
the Common Areas caused by the act or negligence of Tenant,
employees, agents, contractors, invitees or licensees, shall be
promptly repaired by Tenant at its sole cost and expense and to
the satisfaction of Landlord to the extent the same is not covered
by proceeds of insurance carried by Landlord. Landlord may make
such repairs that are not promptly made by Tenant and charge
Tenant for the cost thereof, and Tenant hereby agrees to pay such
amounts on demand as additional rent hereunder.
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7.5 RUBBISH REMOVAL. Tenant shall keep the Premises clean and will
remove all garbage and rubbish from the Premises. Tenant shall not
burn any materials of any kind upon the Premises or Common Areas.
Tenant agrees to keep all accumulated garbage and rubbish in
covered containers and to have same removed regularly and in no
event less frequently than as required by the Rules and
Regulations. Should Tenant fail to abide by its obligations on
this Section, then Landlord may, in addition to any other rights
and remedies, cause the same to be done for and on account of
Tenant, and Tenant hereby agrees to pay the expense thereof on
demand as Additional Rent.
7.6 COMMON HALLWAYS. Tenant shall neither encumber nor obstruct the
common hallways of the Office Building nor allow the same to be
obstructed or encumbered in any manner.
8. TENANT'S PROPERTY.
8.1 TAXES ON LEASEHOLD. Tenant shall pay prior to delinquency all
taxes, both real and personal, assessed against or levied upon the
leasehold and upon its fixture, furnishings, equipment, leasehold
improvements, and all other personal property of any kind owned by
or used in connection with the Premises by Tenant.
8.2 INDEMNITY.
8.2.1 Tenant shall indemnify and hold harmless Landlord
from any liability, loss, claim or damage and expense,
including attorney's fees and costs in settlement, at trial
and on appeal, in connection with loss of life, personal
injury or property damage arising from any occurrence in,
upon, at or from the Premises or the common areas,
occasioned wholly or in part by any act or omission of
Tenant, its employees, agents, contractors, invitees or
licensees to the extent such liability, loss, claim, damage
or expense is not covered by proceeds of insurance.
8.2.2 Tenant shall store its property in and shall occupy
the Premises and all other portions of the Office Building
at its own risk, and hereby releases Landlord, to the full
extent permitted by law, from all claims of every kind
resulting from loss of life, personal injury or property
damage occurring on the Premises, excluding only the gross
negligence or willful misconduct of Landlord, its
employees, agents or contractors.
8.2.3 Landlord shall not be responsible or liable to Tenant
for any loss or damage to either the person or property of
Tenant that may be occasioned by or through the acts or
omissions of tenants occupying any other portions of the
Office Building or the acts or omissions of any other
person or entity, excluding only Landlord's employees,
agents and contractors.
8.2.4 Landlord shall not be responsible or liable for any
injury, loss or damage to any person or to any property
caused by or resulting from bursting, breakage, leakage,
steam, running, backing up, seepage, or the overflow of
water or sewage in any part of said premises or for any
injury or damage caused by or resulting from acts of God or
the elements, or for any injury or damage caused by or
resulting from any defect or negligence in the occupancy,
construction, operation or use of any of said Premises,
building, machinery, apparatus or equipment by any occupant
of the Premises other than Landlord, its employees, agents
and contractors.
8.2.5 Tenant shall give prompt written notice to Landlord
in case of any fire or other
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casualty or accident in or about the Premises or the Office
Building, or of any defective or dangerous conditions of
which Tenant may become aware.
9. INSURANCE AND INDEMNITY.
9.1 TENANT'S INSURANCE. Tenant shall at all times during the Term of
this Lease maintain the following insurance coverage:
9.1.1 LIABILITY INSURANCE. Tenant shall carry at its own expense
comprehensive general public liability and property damage
insurance with combined single limits of not less than
$1,000,000;
9.1.2 CASUALTY INSURANCE. A standard form policy of casualty
insurance with standard form of extended coverage
endorsement covering all furniture, fixtures, equipment and
other personal property located in the Premises and used by
Tenant in connection with its business.
9.1.3 WORKER'S COMPENSATION AND EMPLOYER LIABILITY COVERAGE.
Worker's compensation and employer liability coverage, as
required by law.
9.2 EVIDENCE OF INSURANCE. All insurance coverage required to be
maintained by Tenant hereunder shall be maintained with
insurance companies authorized to do business in the State of
Florida and reasonably acceptable to Landlord. All policies shall
name Landlord as an additional insured and shall require that
Landlord be provided with at least thirty (30) days prior written
notice of any modification or cancellation. Tenant shall deliver
duplicate original policies or certificates thereof to Landlord
upon execution of this Lease, and thereafter Tenant shall deliver
renewal policies or certificates to Landlord not less than fifteen
(15) days prior to the expiration of the policies of insurance.
The failure of Tenant either to effect said insurance in the names
herein called for or to pay the premiums therefor or to deliver
said policies or certificates to Landlord shall, at Landlord's
option, permit Landlord to procure the insurance and pay the
requisite premiums therefor on behalf of Tenant, which premiums
shall be paid to Landlord with the next installment of Rent.
Landlord's procurement or maintenance of such insurance on behalf
of Tenant shall not be a waiver of such default.
9.3 LANDLORD'S INSURANCE. Landlord shall maintain a policy or
policies of casualty insurance covering the full replacement value
of the Office Building with standard form of extended coverage
endorsement and standard form of lender's loss payable endorsement
issued to the holders of a mortgage or deed of trust secured by
the Premises, together with vandalism, malicious mischief, and
sprinkler leakage coverage. Tenant shall reimburse Landlord for
Tenant's Pro Rata Share of such insurance as provided in Article 4
hereof.
9.4 WAIVERS OF SUBROGATION. Each of the parties hereto waives any
and all rights of recovery against the other or against any
other tenant or occupant of the building or the Office Building or
against the officers, employees, agents, representatives,
invitees, customers, and business visitors of such other party or
of such other tenant or occupant of the building or the Office
Building for loss of or damage to such waiving party or its
property or the property of others under its control arising from
any cause insured against under the standard form of fire
insurance policy with all permissible extensions and endorsements
covering additional perils, or under another policy of insurance
carried by such waiving party in lieu thereof, to the extent of
the insurance proceeds paid thereunder. If obtainable without
additional expense, each party shall obtain a waiver of
subrogation from its insurance carrier.
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10. DESTRUCTION.
10.1 PARTIAL DESTRUCTION. Subject to the provisions of Sections
10.2 and 10.3, if the Premises, Office Building or Common Areas
shall be partially damaged by any casualty, Landlord shall
commence to repair the damage within sixty (60) days and shall
thereafter diligently pursue repair of the damage to completion,
in order to restore the Premises, Office Building or Common Area
to their condition at the time of the occurrence of the damage.
The Base Rent and Additional Rent shall be abated proportionately
as to that portion of the Premises rendered untenantable.
10.2 SUBSTANTIAL OR TOTAL DESTRUCTION. If the Premises, Common
Areas or Office Building shall be totally destroyed or damaged by
casualty, or if the Premises, Office Building or Common Areas
shall be so damaged or destroyed to such an extent that Tenant is
unable to conduct its business at the Premises in the ordinary
course, as determined by Tenant, and if the estimated time to
repair or replace such damage or destruction exceeds two hundred
forty (240) days from the date of such damage or destruction, then
either party may terminate this Lease by written notice to the
other within sixty (60) days after the date of such damage or
destruction, such termination to be effective as of the date of
the damage or destruction. If neither party terminates this Lease
as set forth above, Landlord shall promptly repair or replace such
damage or destruction, and the Base Rent and Additional Rent shall
abate until the Premises have been restored to their condition at
the tine of the occurrence of the damage.
10.3 SCOPE OF WORK. Notwithstanding the provisions of Section 10.1
and 10.2, above, Landlord's scope of work to the Premises shall
not exceed the scope of work to be performed by Landlord in
originally constructing the Premises on behalf of Tenant. Unless
this Lease is terminated by Landlord or Tenant, Tenant shall
repair and refixture at Tenant's expense the interior of the
Premises in a manner and to at least a condition equal to that
existing prior to its destruction or casualty and the proceeds of
all insurance carried by Tenant on its property and improvements
shall be held in trust by Tenant for the purpose of said repair
and replacement.
11. CONDEMNATION.
11.1 TOTAL CONDEMNATION. If the whole of the Premises shall be
acquired or taken pursuant to the power of eminent domain by any
governmental entity, then this Lease and the term herein shall
cease and terminate as of the date of title vesting in the public
authority in such proceeding.
11.2 PARTIAL CONDEMNATION. If any part of the Premises or Common
Areas, but less than all, shall be acquired or taken pursuant
to the power of eminent domain by any governmental entity, and
such partial taking shall render that portion not so taken
unsuitable for the business of Tenant as determined by Tenant,
then this Lease and the Term herein shall cease and terminate as
aforesaid. If such partial taking does not render the Premises
unsuitable for the business of Tenant, then this Lease shall
continue in effect except that the Base Rent and Additional Rent
shall equitably abate and Landlord shall, upon receipt of the
award in condemnation, make all necessary repair or alterations to
the building in which the Premises are located or Common Areas so
as to constitute the portion of the building or Common Areas not
taken a complete architectural unit, but such work shall not
exceed the scope of the work to be performed by Landlord in
originally constructing the portion of the building housing the
Premises and Common Areas, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount
received by Landlord as damages for the part of the Premises so
taken. The provisions herein governing application of condemnation
proceeds shall control over any mortgage now or hereafter
encumbering the
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Premises.
11.3 COMPENSATION. All compensation awarded or paid upon such a
total or partial taking of the Premises shall belong to and be the
property of Landlord without any participation by Tenant. Tenant
shall, however, be entitled to claim, prove and receive in such
condemnation proceedings such award as may be allowed for taking
any of Tenant's property, including, but not limited to, leasehold
improvements and fixtures, relocation costs and loss of Tenant's
business. To the extent that the Tenant has a claim in
condemnation proceedings, as aforesaid, Tenant may claim from
condemning authority, but not from Landlord, such compensation as
may be recoverable by Tenant.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, mortgage or
encumber this Lease, in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably or in bad
faith withheld, delayed or conditioned. Tenant shall have the right to
sublease all or a portion of the Premises, with the prior written
consent of Landlord, which consent shall not be unreasonably or in bad
faith withheld, delayed or conditioned, provided that the proposed
sublessee meets the then current reasonable credit criteria of Landlord
(which credit criteria shall not be more stringent than that which is
customarily utilized by similarly situated lessors of similar
commercial properties in Lee County, Florida), including, without
limitation, a minimum net worth of not less than the minimum net worth
of Tenant as of the Commencement Date of this Lease, with comparable
business experience and reputation. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity
for such consent to any subsequent assignment or subletting. If this
Lease is assigned or if the Premises or any part thereof are occupied
by any party other than Tenant in violation of this Section, Landlord
may collect Rent from the assignee, or occupant and apply the net
amount collected to the Rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this
provision or an acceptance of the assignee, undertenant or occupant as
lessee, or as a release of Tenant from the further performance by
Tenant of the provisions on its part to be observed or performed
herein. Notwithstanding any assignment or sublease, or Landlord's
consent thereto, Tenant shall remain fully liable and shall not be
released from performing any of the terms of this Lease. Tenant shall
not permit any business to be operated in or from the Premises by any
concessionaire or licensee without the prior written consent of
Landlord, such consent not to be unreasonably withheld.
13. SUBORDINATION AND NON-DISTURBANCE. This Lease and Tenant's rights
hereunder are and shall be subject and subordinate to any mortgage,
deed to secure debt or other security instrument now or hereafter
placed against the Real Property, the Office Building or the Premises,
or any part thereof; and to all renewals, modifications, replacements,
consolidations and extensions thereof; provided, however, that Landlord
shall, prior to the Commencement Date, procure and deliver to Tenant a
Non-Disturbance Agreement from any then existing mortgagee, pursuant to
the terms which such mortgagee shall agree not to disturb Tenant's
rights to possession under the terms of this Lease so long as Tenant
remains current and is not in default hereunder. In furtherance of this
section, Landlord and Tenant agree that this Lease shall act as a
subordination agreement and shall automatically subordinate this Lease
to any such mortgage, deed to secure or other security interest. Upon
request of Landlord, Tenant shall execute and deliver any further
instruments, acts, things or documents to evidence such subordination
within ten (10) days after Landlord's request therefore; provided that
the then existing mortgagee agrees to provide the Non-Disturbance
Agreement contemplated herein.
14. ESTOPPEL STATEMENT. Within ten (10) days after Landlord's written
request, Tenant shall promptly execute and deliver to Landlord a
written statement confirming, to the extent that same is accurate, the
following: (1) that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended (except by such
writings as shall be stated in Tenant's statement); (2) the
commencement and termination dates of this Lease; (3) that all
conditions under this Lease to be performed by Landlord have been
satisfied (or any exceptions thereto); (4) that there are no defenses
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or offsets against the enforcement of this Lease by the Landlord, or
stating those claimed by Tenant; (5) the amount of the then current
monthly Base Rent and Additional Rent paid by Tenant; (6) the date to
which Rent has been paid; (7) the amount of Security Deposit held by
Landlord; and (8) such other information as may be reasonably requested
by Landlord. Such statement shall be executed and delivered by Tenant
from time to time as may be requested by Landlord. It is expressly
understood that any such statement may be relied upon by Landlord and
any prospective purchaser or lender. Tenant's failure to deliver such
statement within the allotted time shall be conclusive upon Tenant that
this Lease is in full force and effect without modification, except as
may be represented by Landlord, and that there are no uncured defaults
in Landlord's performance or other outstanding obligations of Landlord
hereunder.
15. ATTORNMENT. Tenant shall in the event of the sale or assignment of
Landlord's interest in the Office Building, or in the event of any
foreclosure of, or in the event of exercise of the power of sale under
any mortgage made by Landlord covering the Premises, attorn to the
purchaser and recognize such purchaser as Landlord under this Lease.
16. DEFAULT.
16.1 EVENTS OF DEFAULT BY TENANT. Each of the following occurrences
shall constitute an Event of Default by Tenant under this Lease:
16.1.1 Tenant's failure to pay the Rent, including Base Rent
and any Additional Rent, which default shall continue for
more than ten (10) days after written notice; provided,
however, that Landlord shall not be required to provide
Tenant with notice of default more than two (2) times
within any twelve (12) month period. Thereafter, Tenant
shall be in default under this Lease if it fails to pay the
Rent, including Base Rent and any Additional Rent, within
ten (10) days after the date when due hereunder, without
notice.
16.1.2 Tenant vacates or abandons the Premises or ceases doing
business therein for a period of thirty (30) consecutive
days;
16.1.3 The appointment of a receiver for all or substantially all
of Tenant's property,
16.1.4 The voluntary filing by Tenant or any guarantor of any
petition in bankruptcy or other similar petition under
State law, the filing of any answer by Tenant or any
guarantor admitting to insolvency or to an inability to pay
its debts as they become due, or the filing of any
involuntary petition against Tenant or any guarantor that
is not dismissed within one hundred twenty (120) days;
16.1.5 The dissolution or liquidation of Tenant;
16.1.6 Any assignment or sublease of Tenant's interest
hereunder in violation of this Lease without the prior
written consent of Landlord;
16.1.7 The breach by Tenant of any representations and warranties
set forth in this Lease;
16.1.8 Tenant's failure to keep and perform any other obligations
set forth in this Lease within thirty (30) days after
written notice from Landlord of its failure to do so;
16.2 LANDLORD REMEDIES. Upon the occurrence of an Event of Default, and
with appropriate judicial process, Landlord may, at its option,
exercise any one or more of the following rights and remedies:
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16.2.1 Terminate this Lease, and all rights of Tenant hereunder,
by giving not less than three (3) days written notice of
termination, whereupon Landlord may re-enter upon and take
possession of the Premises;
16.2.2 Take possession of the Premises without terminating
this Lease and rent the same for the account of Tenant
(which may be for a term extending beyond the Term of this
Lease) in which event Tenant covenants and agrees to pay
any deficiency after crediting it with the rent thereby
obtained less all repairs and expenses, including the costs
of remodeling and brokerage fees, and Tenant waives any
claim it may have to any rent obtained on such releting
which may be in excess of the Rent required to be paid
herein by Tenant;
16.2.3 Accelerate the Tenant's obligation to pay Rent for the
remaining term of the Lease;
16.2.4 Perform such obligation (other than payment of Rent)
on Tenant's behalf and charge the cost thereof, to Tenant
as Additional Rent; or
16.2.5 Exercise any and all other rights granted to Landlord under
this Lease or by applicable law or in equity.
16.3 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
granted to Landlord may be exercised concurrently and shall be
cumulative and in addition to any other rights and remedies as may
be available to Landlord by law or in equity, and the exercise of
one or more rights or remedies shall not impair Landlord's right
to exercise any other right or remedy. The failure or forbearance
of Landlord to enforce any right or remedy in connection with any
default shall not be deemed a waiver of such default nor a consent
to a continuation thereof, nor waiver of the same default at any
subsequent date.
16.4 ATTORNEY'S FEES. In the event of any litigation arising under
this Lease, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs (including without
limitation, all such fees, costs and expenses incident to
pre-trial, trial, appellate, bankruptcy, post-judgment and
alternative dispute resolution proceedings), incurred in that
suit, action or proceeding, in addition to any other relief to
which such party is entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, expert
witness fees, administrative costs and all other charges billed by
the attorney to the prevailing party.
17. ACCESS TO PREMISES. Landlord shall have the right to enter the Premises
at all reasonable times, during normal business hours, to inspect or to
exhibit the same to prospective purchasers, mortgagees, lessees, and
tenants and to make such repairs, additions, alterations or
improvements, as Landlord may deem desirable. Landlord shall provide
Tenant with reasonable advance notice of any planned entry upon the
Premises, and shall not interfere with the conduct of Tenant's business
from the Premises. Landlord shall be allowed to take all material in,
to and upon the Premises that may be required therefore without the
same constituting an eviction of Tenant in whole or in part and the
Rents reserved shall in no way abate while said work is in progress so
long as the same does not interrupt Tenant's business. If Tenant shall
not be personally present to permit an entry into the Premises when for
any reason an entry therein shall be permissible, Landlord may enter
the same (or in the event of emergency or to prevent waste, by the use
of force) without rendering Landlord liable therefore and without in
any manner affecting the obligations of this Lease. The provisions of
this paragraph shall in no wise be construed to impose upon Landlord
any obligation whatsoever for the maintenance or repair of the building
or any part thereof except as otherwise herein specifically provided.
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18. SALE BY LANDLORD. In the event of any sale or other transfer of
Landlord's interest in the Premises or the Office Building, other than
a transfer for security purposes only, Landlord shall be automatically
relieved of any and all obligations and liabilities on the part of
Landlord occurring from and after the date of such transfer; provided,
that the transferee shall assume all of the obligations of Landlord
under this Lease and that Tenant's Security Deposit and any prepaid
Rent shall be turned over to the transferee. It is intended hereby that
the covenants and obligations contained in this Lease on the part of
the Landlord shall be binding on Landlord only during its period of
ownership of the Office Building. Tenant agrees to took solely to
Landlord's estate and property in the Office Building (or the proceeds
thereof) for the satisfaction of Tenant's remedies for the collection
of a judgment or other judicial process requiring the payment of money
by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord shall be subject to levy,
execution, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship
of Landlord and Tenant hereunder, or Tenant's use or occupancy of the
Premises.
19. END OF TERM. At the expiration of this Lease, Tenant shall surrender
the Premises in the same condition as it was in upon the delivery of
possession thereto under this Lease, reasonable wear and tear excepted,
and shall deliver all keys to Landlord. Before surrendering the
Premises, Tenant shall remove all its personal property. Tenant may,
but shall not be obligated to, remove all trade fixtures, alterations,
additions and decorations, and shall repair any damage caused thereby.
Tenant's obligations to perform this provision shall survive the end of
the Term of this Lease. If Tenant fails to remove its property which it
is required to remove upon the expiration of this Lease, the said
property, at Landlord's option, shall be deemed abandoned and shall
become the property of Landlord.
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20. HOLDING OVER. Any holding over after the expiration of this Term or any
renewal term shall, by lapse of time or otherwise, be construed to be a
tenancy at sufferance and Tenant shall pay to Landlord an amount equal
to two (2) times the Rent, including Base Rent and Additional Rent, for
all of the time Tenant shall retain possession of the Premises or any
part thereof. The provisions of this paragraph shall not operate as a
waiver by the Landlord of any right of reentry herein provided, nor
shall any act or receipt of money by Landlord in apparent affirmance of
the holding over operate as a waiver of the right to terminate this
Lease for any breach of covenant by the Tenant; nor shall any waiver by
the Landlord of its right to terminate this Lease for any later breach
of the same or another covenant.
21. INABILITY TO PERFORM. The time for performance by either of the parties
shall be extended by the number of days that their performance is
delayed as a result of fire, hurricane, flood, inclement weather or
other acts of God, governmental action or inaction, strikes, riot,
civil disturbance, insurrection, unavailability of materials, acts or
omissions of unaffiliated independent contractors or other causes
beyond their reasonable control; provided that, the party claiming such
delay notifies the other party in writing within five (5) days of the
commencement of the condition preventing its performance and its intent
to rely thereon to extend the time for its performance of this
Agreement.
22. RULES AND REGULATIONS. Tenant shall observe faithfully and comply
strictly with the Rules and Regulations adopted by Landlord from time
to time for the safety, care, and cleanliness of the Office Building or
the preservation of good order therein. Wherever the Rules and
Regulations shall require the consent or approval of Landlord, Landlord
shall not unreasonably withhold its consent or approval to any
reasonable request of Tenant. Landlord shall not be liable to Tenant
for any violation of the Rules and Regulations or for the breach of any
covenant or condition in any Lease by any other tenant in the Office
Building, but Landlord shall use commercially reasonable efforts to
enforce the Rules and Regulations, including issuance of warning
notices, but Landlord shall not be required to evict or file other
legal actions against any other tenant. The Rules and Regulations
currently prescribed by Landlord are attached hereto as Exhibit "D".
Landlord reserves the right to reasonably amend the Rules and
Regulations from time to time, which amendments shall become effective
upon delivery of a copy of same to Tenant. Landlord grants to Tenant a
variance from the Rules and Regulations to allow Tenant to operate food
and beverage vending machines for Tenant's employees.
23. HAZARDOUS SUBSTANCES OR CONDITIONS. If Tenant's business requires the
use of any hazardous or toxic substances, as defined by any state or
federal law, Tenant shall so advise Landlord and shall obtain Landord's
consent prior to bringing such substances onto the Premises. Tenant
shall use, handle and dispose of any such substances in accordance with
all applicable laws and permits, and shall, in no event, dispose of any
such substances on or about the Premises. In no event shall Tenant keep
or permit flammable, combustible or explosive substance nor any
substance that would create or tend to create a dangerous or
combustible condition on or about the Premises. Furthermore, Tenant
shall not install electrical or other equipment that Landlord
determines might cause impairment or interference with the provisions
of services to the Office Building.
24. CONTRACTOR'S LIENS. Tenant shall have no authority to subject the
Real Property, the Office Building or the Premises or any interest of
Landlord therein to any contractor's or other liens. Should any
contractor's or other liens be filed against the Real Property, the
Office Building or the Premises or any interest of Landlord therein, by
reason of Tenant's act or omissions or because of a claim against
Tenant, Tenant shall cause the same to be canceled and discharged of
record by bond or otherwise within ten (10) days after notice by
Landlord. Tenant hereby indemnifies Landlord against, and shall keep
the Premises and Office Building free from, any and all contractor's
liens and other liens arising from any work performed, material
furnished, or obligations incurred by Tenant in connection with the
Premises or the Office Building, and agrees to obtain discharge of any
lien which attached as a result of such work immediately after such
liens attaches or payment for the labor or materials due.
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25. SECURITY INTEREST. Landlord hereby waives any and all rights to a
landlord's lien or other lien, whether statutory or otherwise, on any
and all of Tenant's property located at the Premises during the Term of
this Lease.
26. WAIVER. Failure of Landlord to insist upon the strict performance of
any provisions or to exercise any option contained herein or
enforce any rules and regulations shall not be construed as a waiver
for the future of any such provision, rule or option. The receipt by
Landlord of Rent with knowledge of the breach of any provision of this
Lease shall not be deemed a waiver of such breach. No provision of this
Lease shall be deemed to have been waived unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly Rent shall be deemed to be other
than on account of the earliest Rent then unpaid nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment as Rent be deemed an accord and satisfaction and
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease or by law and no waiver by Landlord
in respect to one tenant shall constitute a waiver in favor of any
other tenant in the Office Building.
27. NO ESTATE BY TENANT. This Lease shall create the relationship of lessor
and lessee between Landlord and Tenant; no estate shall pass out of
Landlord. Tenant's interest shall not be subject to levy or sale, and
shall not be assignable by Tenant except as provided in Section 12
hereof. Nothing contained in this Lease shall, or shall be deemed or
construed so as to, create the relationship or principal-agent, joint
venturers, co-adventurers, partners or co-tenants between Landlord and
Tenant; it being the express intention of the parties that they are and
shall remain independent contractors one as to the other.
28. OTHER TENANTS. Landlord does not warrant the continuous operation by
any co-tenant in the Office Building. The cessation of operations by
any co-tenant, pursuant to such Tenant's respective rights to vacate,
shall not effect a right of termination in Tenant.
29. REPRESENTATIONS AND WARRANTIES OF TENANT. Tenant, and the individual
executing this Lease on behalf of Tenant, hereby represents and
warrants and to Landlord that: (a) Tenant is a corporation, duly
organized and validly existing under the laws of the State of Nevada,
and qualified with the Secretary of State of the State of Florida to
transact business in the State of Florida; (b) Tenant has all necessary
power and authority to enter into this Lease and has all necessary
licenses to conduct its business for the uses contemplated hereunder;
(c) Tenant has obtained any necessary approvals of Tenant's Board of
Directors and shareholders to the execution and performance by Tenant
of its obligations under this Lease; and (d) this Lease constitutes a
binding and enforceable obligation of Tenant and does not conflict with
any provision of Tenant's organizational documents or of any other
lease or other agreement to which Tenant is a party or by which Tenant
may be bound.
30. BROKERS. Landlord and Tenant each represent and warrant to the other
that it has not dealt with, consulted or contacted any real estate
broker, agent, or finder in connection with or in bringing about the
leasing of the property, other than Florida Fidelity Realty Advisors,
Inc. and Grubb & Ellis/VIP-D'Alessandro. Landlord agrees to pay the
brokers named herein per separate agreement. Each party hereby agrees
to defend, indemnify and hold the other harmless of and from any and
all expense, cost, damage, loss and liability arising out of a breach
of the foregoing representations, warranties and covenants by the
defaulting party.
31. NOTICES. Any notice, demand, request or other instruments which may be
or required to be given under this Lease shall be delivered in person
or sent by United States Certified or Registered Mail, postage prepaid,
and shall be addressed, as follows:
If to Landlord: Alanda, Ltd.
12800 University Drive, Suite 240
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Ft. Myers, Florida 33907
Attention: O.J. Buigas
With a copy to: Bolanos Truxton, P.A.
12800 University Drive, Suite 340
Ft. Myers, Florida 33907
Attention: Gregg S. Truxton
If to Tenant: FindWhat.com
12751 Westlinks Drive, Suite 3,
Ft. Myers, Florida 33919
Attention: Craig A. Pisaris-Henderson, President
With a copy to: Porter Wright Morris & Arthur
5801 Pelican Bay Blvd., Suite 300
Naples, Florida 34108-2709
Attention: Kevin Lottes
Either party may designate such other address as shall be given by
written notice.
32. MISCELLANEOUS.
32.1 ENTIRE AGREEMENT. This Lease, together with any exhibits or
addenda hereto, constitutes the entire agreement by and between
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, by and between the parties
hereto with respect to such subject matter. No representations,
warranties or agreements have been made or, if made, have been
relied upon by either party, except as specifically set forth
herein. This Lease may not be amended or modified in any way
except by a written instrument executed by each party hereto.
32.2 BINDING EFFECT. All terms and provisions of this Agreement
shall be binding upon, inure for the benefit of and be enforceable
by and against the parties hereto and their respective personal or
other legal representatives, heirs, successors and permitted
assigns.
32.3 HEADINGS. The article headings in this Lease are for
convenient reference only and shall not have the effect of
modifying or amending the expressed terms and provisions of this
Lease, nor shall they be used in connection with the
interpretation hereof.
32.4 PRONOUNS; GENDER. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the personal liability or obligation
with respect to same.
32.5 TIME. Time shall be of the essence. Any reference herein to
time periods of less than six (6) days shall in the computation
thereof exclude Saturdays, Sundays and legal holidays, and any
time period provided for herein which shall end on a Saturday,
Sunday or legal holiday shall extend to 5:00 p.m. of the next full
business day.
32.6 SEVERABILITY. The invalidity of any provision of this Lease
shall not affect the enforceability of the remaining provisions of
this Lease or any part hereof. In the event that any provision of
this Lease shall be declared invalid by a court of competent
jurisdiction, the parties agree that such provision shall be
construed, to the extent possible, in a manner which would render
the provision valid and enforceable or, if the provision cannot
reasonably be construed in a manner which would render the
provision valid and enforceable, then this
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18
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Lease shall be construed as if such provision had not been
inserted.
32.7 COUNTERPARTS. This Lease may be executed in any number of
counterparts and by the separate parties hereto in separate
counterparts, all of which shall be deemed to be an original and
one and the same instrument.
32.8 GOVERNING LAW, JURISDICTION AND VENUE. This Lease shall be
governed by, and construed and interpreted in accordance with,
the laws of the State of Florida without regard to principles of
conflicts or choice of laws. Each of the parties irrevocably and
unconditionally: (i) agrees that any suit, action or legal
proceeding arising out of or relating to this Lease shall be
brought in the courts of record of the State of Florida in Lee
County; (ii) consents to the jurisdiction of each such court in
any suit, action or proceeding; and (iii) waives any objection
which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts.
32.9 TRIAL BY JURY. The parties hereby waive any right they may
have under any applicable law to a trial by jury with respect to
any suit or legal action which may be commenced by or against
the other concerning the interpretation, construction, validity,
enforcement or performance of this Lease.
32.10 RECORDING. Neither this Lease nor a Memorandum thereof shall be
recorded in the Public Records of Lee County, Florida.
32.11 RADON DISCLOSURE AND DISCLAIMER. The following notification is
required by Florida law and is provided for your information:
"Radon is a naturally occurring radioactive gas that, when it is
accumulated in buildings in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels
of radon that exceed Federal and State guidelines have been
found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your country public
health unit."
Landlord has not tested for Radon gas at the Property and
therefore, makes no representation regarding the presence or
absence of such gas. Tenant hereby waives any and all actions
against Landlord related to the presence of such gas.
32.12 EXHIBITS. Each of the Exhibits, as identified on the Index of
Exhibits set forth below, are incorporated into and made a
part of this Lease.
32.13 ADDENDUM. Contemporaneously with the execution of this Lease,
the parties have also entered into an Addendum to Lease, which
is incorporated into and made a part of this Lease.
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19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
LANDLORD:
ALANDA, LTD., a Florida limited partnership
By: Alanda Corp., a Florida corporation
As general partner
Craig Strugh By:/s/ O.J. Buigas, President
---------------------------- ------------------------------
Charlie Moore O.J. Buigas, President
----------------------------
Witnesses
TENANT:
FindWhat.com,
A Nevada Corporation
Dave Rae By: /s/ Craig A. Pisaris-Henderson
----------------------------- --------------------------------
Craig A. Pisaris-Henderson
Tony Gargano President
-----------------------------
Witnesses
-------- Tenant Initials
-------- Landlord Initials
20
<PAGE>
COLONIAL BANK PLAZA
AT SUMMERLIN CENTER PROFESSIONAL PARK
ADDENDUM TO LEASE
This Addendum to Lease is made as of the 31st day of January, 2002,
by and between ALANDA, LTD., a Florida limited partnership ("Landlord"), and
Findwhat.com, a Nevada corporation authorized to transact business in the State
of Florida ("Tenant").
PRELIMINARY STATEMENT
Landlord and Tenant have, on this date, entered into an Office Building
Lease (referred to herein as the "Lease"), pursuant to the terms of which
Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from
Landlord certain Premises consisting of approximately 32,820 rentable sq. ft. of
space located on the 3rd, 4th and 5th floors of the Office Building known as
Colonial Bank Plaza at Summerlin Center Professional Park, to be constructed by
Landlord in Ft. Myers, Florida.
The parties have further agreed, as follows:
1. PRELIMINARY STATEMENT. The Preliminary Statement is true and
correct and, by this reference, is incorporated into and made a
part of this Addendum to Lease.
2. DEFINED TERMS. Unless otherwise defined herein, all terms shall
have the meanings set forth in the Lease.
3. COMPLETION GUARANTY. Landlord shall complete the Premises,
including the Initial Tenant Improvements, by no later than
November 30, 2002, subject only to delays that may be caused by
Tenant. In the event that Landlord does not timely complete the
Premises, then Landlord shall pay, as liquidated damages for the
delay, the holdover rent and any other sums, including additional
rent, that Tenant is required to pay under the terms of Tenant's
lease for Tenant's then current premises at 12751 Westlinks
Drive, Ft. Myers, Florida, commencing December 1, 2002, until
such time as the Premises have been completed. Alternatively,
Landlord may provide Tenant with suitable alternative space,
reasonably acceptable to Tenant, until such time as the Premises
have been completed. In the event that the Premises, including
the Initial Tenant Improvements, have not been completed by March
31, 2003, then Tenant may terminate the Lease, whereupon the
parties shall be released from any further liability or
obligations under the Lease.
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4. RIGHT OF FIRST OFFER.
(a) If, at any time after the Commencement Date of the Lease,
any additional space (the "Additional Space") within the
Office Building shall become vacant and available for
leasing to the general public, Landlord shall first offer
the Additional Space to Tenant by delivering written notice
to Tenant of the availability of the Additional Space.
Tenant shall have ten (10) days after receipt of Landlord's
notice within which to elect to lease the Additional Space
at the same rental rate in effect for the Premises, based
upon the then current average rental rate in effect, and on
the same terms and conditions as set forth in the Lease,
except that the term of the lease for the Additional Space
shall expire contemporaneously with the expiration of the
term of the Lease for the Premises. Further, Landlord shall
have no obligation to construct any leasehold improvements
on behalf of Tenant, and Tenant shall accept the Additional
Space in its then current condition. Upon delivery of the
Additional Space, the Lease shall be automatically amended
to include the Additional Space, and each party shall, at
the request of the other party, execute and deliver an
amendment to the Lease to confirm the inclusion of the
Additional Space.
(b) In the event that Tenant does not timely elect to lease the
Additional Space, then Landlord shall be free to offer the
Additional Space for lease to any third party at a rental
rate (after taking into account any rent or other lease
concessions) no less than that offered to Tenant, without
regard to the right of first offer granted to Tenant
hereunder; provided, however, that Tenant shall retain the
right of first offer for any other space within the Office
Building that may subsequently become available during the
term of the Lease. Nothing herein shall require Landlord to
deny to any tenant the right to renew or extend its lease at
the expiration of the term thereof. Further, the right of
first offer set forth herein shall not apply during the last
twenty-four (24) months of the Lease Term or if Tenant has,
at any time, exercised either the early termination option
set forth in Section 5 of this Addendum to Lease or the
relocation option set forth in Section 6 of this Addendum to
Lease.
5. EARLY TERMINATION.
(a) Within sixty (60) days after the occurrence of a Triggering
Event, as defined below, Tenant shall have the right to
terminate the Lease as to all or any portion of the
Premises, upon delivery of not less than sixty (60) days
notice (the "Early Termination Date"), and thereby be
released from any further obligation thereunder, upon
payment to
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Landlord of an Early Termination Payment in an
amount equal to the lesser of:
(1) One-half (1/2) of the remaining Rent (including Base
Rent and CAM) for the remaining term of the Lease for
the portion of the Premises to be surrendered to
Landlord; or
(2) The sum of: (i) Rent (including Base Rent and CAM) for
the twenty-four (24) months following the Early
Termination Date for the portion of the Premises to be
surrendered to Landlord, and (ii) Landlord's actual
cost of the Initial Tenant Improvements (but not to
exceed $490,000), or if Tenant has returned less than
all of the Premises to Landlord, then such prorated
portion of the cost of the Initial Tenant Improvements
(up to a maximum total cost of the Initial Tenant
Improvements of $490,000) attributable to the portion
of the Premises to be surrendered to Landlord.
(b) The Early Termination Payment shall be due and payable as a
single lump sum payment on or before the Early Termination
Date. Provided that Tenant leaves all or that portion of the
Premises for which Tenant has elected to terminate the Lease
in good condition, normal wear and tear excepted, and except
in the event of a partial termination, the security deposit
shall be returned to Tenant in accordance with the terms of
the Lease.
(c) For purposes of this section, the term "Triggering Event"
shall mean any one or more of the following events: (i) a
bona fide sale of a majority of the voting common stock of
the Tenant in a single transaction; (ii) a bona fide sale of
substantially all of the assets of the Tenant in a single
transaction; (iii) the merger or consolidation of Tenant
with another business entity resulting in a change of
majority ownership; or (iv) the relocation by Tenant of all
or a portion of its business operations to a geographic
location other than Lee, Collier, Sarasota or Charlotte
Counties, Florida.
(d) In the event that Tenant terminates the Lease as to less
than all of the Premises, the Base Rent shall be adjusted by
an amount equal to the portion of the Base Rent attributable
to the portion of the Premises returned to Landlord, with a
corresponding adjustment in Tenant's Pro Rata Share of the
Common Area Maintenance Expenses. In the event that Tenant
terminates the Lease as to less than an entire floor, the
portion of the Premises returned to Landlord shall consist
of at least 5,000 sq. ft of contiguous space with adequate
access to the common areas. Further, Tenant
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may terminate the Lease as to less than all of the Premises,
no more than three (3) times during the term of the Lease.
6. RELOCATION OPTION.
(a) Tenant shall have the option, exercisable by delivery of
written notice to Landlord of relocating from all or any
portion of the 3rd and 4th floors of the Office Building to
alternative space (the "Alternative Space"), at a lower
rental rate, as follows:
(1) at any time during the first three (3) Lease Years,
within a building(s) to be constructed by Landlord
within the Summerlin Center Professional Park; or
(2) at any time during the term of the Lease, within a
building to be constructed by Landlord within a five
(5) mile radius of the Premises.
The Alternative Space shall be of comparable or greater
square footage as the vacated space, and each party's
obligation hereunder shall be subject to the ability of the
parties to reach final agreement on the plans and
specifications for the Alternative Space. Tenant's notice
shall identify the portion of the Premises to be surrendered
to Landlord and shall identify any special needs that Tenant
may have for the Alternative Space.
(b) The Base Rent for the Alternative Space shall be calculated
based upon the market rental rate for comparable space
within the general vicinity of the Office Building (the
"Market Rate"). In the event that the parties are unable to
reach agreement on the Base Rent for the Alternative Space,
then, at the request of either party, Landlord and Tenant
shall mutually select an independent MAI appraiser to
determine the Market Rate. If the parties are unable to
agree upon a single appraiser, then they shall each select
one appraiser, and the two (2) appraisers shall select a
third appraiser to determine the Market Rate. Any appraisal
costs shall be borne equally by the parties.
(c) Upon delivery of the Alternative Space, Tenant shall have a
period of thirty (30) days to vacate the portion of the
Premises to be surrendered to Landlord, at which time the
Base Rent shall be reduced by an amount equal to the portion
of the Base Rent attributable to the portion of the Premises
returned to Landlord and increased by the Base Rent
attributable to the Alternative Space, with a corresponding
adjustment in Tenant's Pro Rata Share of the Common Area
Maintenance Expenses. Upon delivery of the
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Alternative Space to Tenant, each party shall, at the
request of the other party, execute and deliver an amendment
to the Lease to confirm the exclusion of the portion of the
Premises vacated by Tenant and the inclusion of the
Alternative Space.
(d) In the event that Tenant relocates less than an entire
floor, the portion of the Premises returned to Landlord
shall consist of at least 5,000 sq. ft. of contiguous space
with adequate access to the common areas. If Landlord is not
able to provide Tenant with Alternative Space within twelve
(12) months after the receipt of notice from Tenant, then
Tenant shall have the right to terminate this Lease as to
that portion of the Premises for which Tenant has requested
Alternative Space.
7. EXPANSION SPACE.
(a) In the event that Tenant shall, at any time during the first
three (3) Lease years, determine that Tenant will require
any additional space, but in no event less than 5,000 sq.
ft. and in no event more than 30,000 sq. ft. (the "Expansion
Space"), then Tenant shall so notify Landlord. Tenant's
notice shall identify the amount of Expansion Space required
by Tenant and shall identify any special needs that Tenant
may have for the Expansion Space. Upon receipt of Tenant's
notice, Landlord shall endeavor to provide Tenant with
suitable Expansion Space, reasonably acceptable to Tenant,
within the Office Building or, within a building(s) to be
constructed by Landlord within the Summerlin Center
Professional Park.
(b) The Base Rent for the Expansion Space shall be calculated
based upon the market rental rate for comparable space
within the general vicinity of the Expansion Space (the
"Market Rate"). In the event that the parties are unable to
reach agreement on the Base Rent for the Expansion Space,
then, at the request of either party, Landlord and Tenant
shall mutually select an independent MAI appraiser to
determine the Market Rate. If the parties are unable to
agree upon a single appraiser, then they shall each select
one appraiser, and the two (2) appraisers shall select a
third appraiser to determine the Market Rate. Any appraisal
costs shall be borne equally by the parties.
(c) Upon delivery of the Expansion Space to Tenant, the Lease
shall be automatically amended to include the Expansion
Space, and each party shall, at the request of the other
party, execute and deliver an amendment to the Lease to
confirm the inclusion of the Expansion Space. Alternatively,
Tenant shall, at the request of Landlord
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execute a separate lease for the Expansion Space containing
terms and conditions substantially the same as the Lease.
(d) If Landlord is not able to provide Tenant with the Expansion
Space, within the Office Building or within Summerlin Center
Professional Park, within twelve (12) months after the
receipt of notice from Tenant, then Tenant shall have the
right, exercisable within sixty (60) days thereafter, to
notify Landlord of its election to seek alternative space to
satisfy its requirements for the Expansion Space and/or to
terminate this Lease. In the event that Tenant elects to
terminate the Lease, then Tenant shall return the Premises
to Landlord in the condition required by the Lease, within
ninety (90) days after delivery of Tenant's notice. Provided
that Tenant returns the Premises to Landlord in the
condition required by the Lease, Tenant shall be entitled to
the return of its security deposit and shall be discharged
from any further obligation under the Lease from and after
the termination date.
(e) To the extent that Landlord has provided Tenant with
Expansion Space under this Section 7, Landlord shall be
relieved of its obligation to provide Tenant with
Alternative Space pursuant to Section 6. Conversely, to the
extent that Tenant has exercised its right to relocate to
Alternative Space pursuant to Section 6, Landlord shall be
relieved of its obligation to provide Tenant with Expansion
Space pursuant to this Section 7.
8. ABSENCE OF DEFAULT. Upon the occurrence of any Event of Default
by Tenant under the terms of the Lease, which has not been cured
within any applicable grace or notice provisions, the rights
granted to Tenant under the provisions of Sections 4, 5, 6 and 7
of this Addendum shall automatically terminate and be of no
further force and effect.
9. TIME TO PERFORM. All time periods set forth in this Addendum
shall be subject to the provisions of Section 21 of the Lease.
10. PRESS RELEASE. Landlord and Tenant shall agree upon a mutual
press release to be issued upon the execution of the Lease.
11. RATIFICATION. All other terms of the Lease are hereby ratified
and confirmed In the event of any inconsistencies between the
terms of this Addendum and the terms of the Lease, the terms of
this Addendum shall control.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
ALANDA, LTD.,
a Florida limited partnership
By: Alanda Corp., a Florida
corporation, as general partner
Craig Strugh By: /s/ OJ Buigas
----------------------------------- ---------------------------------
OJ Buigas, President
Charlie Moore
----------------------------------
FindWhat.com,
A Nevada Corporation
Craig Strugh By: /s/ Craig A. Pisaris-Henderson
----------------------------------- ---------------------------------
Craig A. Pisaris-Henderson
Tony Gargaro President
----------------------------------
7