Fourth Amendment to Lease
Fourth Amendment to
Lease
This Fourth Amendment to Lease (the
“Fourth Amendment”) is made and entered into this 31st day of March, 2010, by
and between Xxxx Xxxxxxx
(referred to herein as the “Landlord”), and Vertro, Inc., a Delaware
corporation, as successor to Miva, Inc., a Delaware corporation and XxxxXxxx.xxx
Corporation, a Nevada corporation (referred to herein as the
“Tenant”).
Preliminary
Statement
On January 31, 2002, Landlord
predecessor’s in title, Xxxxxx, Ltd. (referred to herein as “Xxxxxx”), as
Landlord, and Tenant entered into a Lease (the “Lease”) for 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 Xxxxxxxxx Center
Professional Park, in Ft. Xxxxx, Florida, located on real property legally
described as Lots 3 and 4 of Xxxxxxxxx Commons, according to the Plat thereof,
as recorded in Plat Book 70, Page 81, of the Public Records of Xxx County,
Florida (the “Property”). Also on January 31, 2002, Xxxxxx and
Tenant, amended the Lease by Addendum to Lease (the “First
Addendum”).
On December 3, 2002, Xxxxxx and Tenant,
amended the Lease by a Second Addendum to Lease (the “Second
Addendum”).
Xxxxxx conveyed the Property to
Landlord by that certain Deed recorded July 30, 2003 in O.R. Book 4009, Page
1023, of the Public Records of Xxx County, Florida.
On February 4, 2005, Landlord and
Tenant amended the Lease by an Amendment of Lease (the “First Amendment”). The
First Amendment expanded the Premises to include an additional 3,576 rentable
square feet on the 1st floor
of the Office Building and an additional 5,655 rentable square feet on the
2nd
floor of the Office Building for a total of 9,251 additional rentable square
feet.
On or about June 21, 2007, Landlord and
Tenant further amended the Lease by a Second Amendment to Lease (the “Second
Amendment”). The Second Amendment provides for Landlord’s consent to
the sublease of a portion of the Premises to Accudata Holdings, Inc.,
a Delaware corporation (“Accudata”), consisting of 3,576 rentable square feet on
the 1st floor
of the Office Building, 5,655 rentable square feet on the 2nd floor
of the Office Building and 10,940 rentable square feet on the 3rd floor
of the Office Building for a total of 20,171 rentable square feet (the
“Subleased Premises”).
On or about December 15, 2009, Landlord
and Tenant further amended the Lease by a Third Amendment to Lease (the “Third
Amendment”). The Third Amendment released Tenant from its obligations
relating to the Subleased Premises.
Tenant has requested that Tenant be
allowed to vacate the 4th Floor
premises and that Landlord enter into a direct lease with Southwest Florida
Health Systems, Inc., d/b/a Consult-a-Nurse.
Contemporaneously herewith, Landlord
and Southwest Florida Health Systems, Inc. are entering into a separate lease
for the 4th Floor
of the Office Building (the “Consult-A-Nurse Lease”).
Landlord
and Tenant have agreed to make certain further modifications to the Lease,
effective as of April 12, 2010, as follows:
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1.
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Preliminary
Statement. The Preliminary Statement is true and correct and, by
this reference, is incorporated into and made a part of this Third
Amendment.
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2.
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Definitions.
All terms shall have the meanings given to them in the Lease, unless
otherwise defined herein. All references to the Lease shall mean the Lease
as previously amended.
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3.
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Premises. The
parties agree that the Premises shall mean 5th
floor of the Office Building.
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4.
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Size of
Premises. The parties agree that the Premises, as
constructed, shall consist of 10,940 rentable square
feet.
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5.
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Rent. Effective
April 12, 2010, Tenant shall be obligated to pay Annual Base Rent in the
amount of $188,386.80, at a rate of $17.22 per square foot, payable in
equal monthly installments of $15,698.90, together with sales tax thereon,
in accordance with the provisions set forth in Section 4.1 of the Lease,
plus Additional Rent as set forth in the Lease and which shall also be
subject to Annual Rent Increases, as set forth in Section 4.2 of the
Lease. The Annual Base Rent for April 2010 shall be prorated on
a per diem basis.
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6.
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Consult-A-Nurse
Rent. The parties acknowledge that: (i) the
Consult-A-Nurse’s Annual Base Rent for the 4th
floor of the Office Building is based upon a rate of $12.00 per rentable
square foot; (ii) the Annual Base Rent for the 4th
floor under the terms of this Lease is based upon a rate of $16.60 per
rentable square foot; (iii) the differential between the rental rate under
the Consult-A-Nurse Lease and this Lease is $4.60 per rentable square foot
(“Rent Differential”) and (iv) commencing April 6, 2010, and on the first
day of each month thereafter for three (3) months, Tenant shall pay
directly to Landlord three (3) monthly installments of $10,940.00, plus
sales, use and other taxes, representing the first three (3) months of the
Base Rent under the Consult-a-Nurse Lease. Accordingly,
effective April 12, 2010 and throughout the remaining Term of this Lease,
Tenant shall be obligated to pay directly to Landlord the annual amount of
$50,324.00, payable in equal monthly installments of $4,193.67, together
with sales tax thereon, in accordance with the provisions set forth in
Section 4.1 of the Lease and which shall also be subject to Annual Rent
Increases, as set forth in Section 4.2 of the Lease, in order to
compensate Landlord for the Rent Differential. The
Consult-a-Nurse Base Rent and the Rent Differential shall be prorated on a
per diem basis for the month of April
2010.
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7.
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Consult-A-Nurse
Additional Rent. The parties acknowledge that
Consult-a-Nurse is not paying its Pro Rata Share of Common Area
Maintenance Expenses, as set forth in the Consult-a-Nurse
Lease. Tenant shall be obligated to pay the Pro Rata Share of
Common Area Maintenance Expenses allocable to the 4th
Floor, including sales tax and/or other taxes levied or imposed from time
to time, throughout the remaining Term of this Lease and therefore
Tenant’s Estimated Pro Rata Share as set forth in Section 6 of the Third
Amendment shall not be reduced as a result of the Consult-A-Nurse
Lease.
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8.
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Tenant
Improvements. As
part of the consideration to induce Consult-A-Nurse to enter into the
Lease, Tenant agrees to contribute an amount not to exceed
$15,000.00 toward the cost of the Tenant Improvements to be constructed by
Consult-A-Nurse; and
(ii) certain items
of personal property, as listed in on Exhibit “D” to the
Consult-A-Nurse Lease, which shall become property of Consult-A-Nurse upon
installation in the Premises. Tenant agrees to join in the
execution of the Consult-A-Nurse Lease for the limited purpose of
confirming its agreement with the
foregoing.
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9.
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Rights and
Obligations. Tenant hereby relinquishes any and all
rights that it may have, under the terms of the Lease, to the portions of
the Premises located on 4th
floor of the Office Building.
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10.
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Guaranty. In
the event that Consult-A-Nurse defaults under the terms of the
Consult-A-Nurse Lease, Tenant shall upon demand be obligated to fulfill
Consult-A-Nurse’s obligations, including, among other things, payment of
Base Rent and Additional Rent thereunder for the remaining term of this
Lease. Tenant shall have the right to seek collection of any amounts paid
by Tenant to Landlord as a result of the failure of Consult-A-Nurse to
make any payment or to perform any obligation of Consult-A-Nurse under the
terms of the Consult-A-Nurse Lease; provided that Landlord has first been
paid all amounts due to Landlord thereunder, including without limitation
any subsequent amounts due to Landlord under the terms of the
Consult-A-Nurse Lease.
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11.
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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.
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12.
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Ratification.
All other terms and provisions of the Lease are hereby ratified and
confirmed and shall remain in full force and effect, except to the extent
amended hereby. Each party represents and warrants to the other
party that it is aware of no default by the other party under the terms of
the Lease as of the date hereof. In the event on any
inconsistency between the terms of this Fourth Amendment and the terms of
the Lease, the terms of this Fourth Amendment shall
control.
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13.
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Landlord’s Legal
Fees. Within ten (10) business days of the date hereof,
Tenant shall pay Landlord $10,000 for Landlord’s legal expenses associated
with this Fourth Amendment and the Consult-A-Nurse
Lease.
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14.
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Commission. Any
commission payable to Commercial Property of Southwest Florida, LLC in
connection with the Consult A Nurse Lease shall be allocated between the
parties such that: (i) Tenant shall be responsible for the commission
relating to the period between the Commencement Date of the Consult A
Nurse Lease and the remaining term of this Lease, and (ii) Landlord shall
be responsible for the commission relating to the period following the
expiration of the term of this
Lease
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Landlord:
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By:
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/s/ Xxxx Xxxxxxx | |
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Xxxx Xxxxxxx
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Tenant:
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Vertro
Inc.,
A
Delaware corporation formerly known as Miva, Inc
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By:
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/s/ Xxxx X. Xxxxxxx | |
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Name:
Xxxx X. Xxxxxxx
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Title:
General Counsel
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