SUBLEASE AGREEMENT
This
Sublease Agreement (this "Sublease")
is executed this 31st day of March, 2010, by and between
Vertro, Inc., a Delaware corporation ("Sublandlord")
and MIVA AK, Inc., a Delaware
corporation ("Subtenant").
WITNESSETH:
WHEREAS,
Xxxx Xxxxxxx ("Master
Landlord"), and Sublandlord, as Tenant, executed that certain Office
Building Lease, dated January 31, 2002, (as amended, modified
and/or supplemented, the "Master
Lease"), a copy of which is attached hereto as Exhibit
A, with respect to certain "Premises"
described therein (the "Premises")
known as CNL Bank Building located in Fort Xxxxx, Florida (the "Building");
and
WHEREAS,
Sublandlord desires to sublease the Premises consisting of approximately 3,646
square feet (the "Subleased
Premises Rentable Area") as more particularly described in Exhibit
B hereto (the "Subleased
Premises") and Subtenant desires to lease the Subleased Premises from
Sublandlord under and subject to the terms of the Master Lease.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto covenant and agree as
follows:
1. Sublease; Condition of
Subleased Premises. Effective April 12, 2010, Sublandlord
hereby leases to Subtenant, and Subtenant hereby hires and subleases from
Sublandlord, the Subleased Premises in an "AS IS" condition and upon and subject
to all of the terms, covenants, and conditions provided for
herein. Subtenant may remove the glass dividing wall at the west end
of the Premises.
2. Term. The
term for possession of the Premises under this Sublease shall be for the period
commencing on April 12, 2010 and continuing through term of the Master
Lease. Notwithstanding anything to the contrary herein, the Base Rent
for the Subleased Premises shall not commence until July 12, 2010, and
Additional Rent and electric shall commence on the date hereof.
3. Rent.
(a) Base
Rent. Subtenant shall pay Sublandlord for the use and
occupancy of the Subleased Premises "Base
Rent" as and when the same is due under the Master Lease. For
purposes of this Agreement the “Base Rent” shall be $43,760 per annum, subject
to an annual rent increase of 3%.
(b) Common Area Maintenance
Expenses. Subtenant shall not be required to pay to
Sublandlord any “Common
Area Maintenance Expenses” (as defined in the Master
Lease) for the Subleased Premises.
(c) Additional
Rent. Subtenant shall pay to Sublandlord as "Additional
Rent" when the same is due under the Master Lease all amounts set forth
in Sections 6, 7, 8 and 10 of the Fourth Amendment to Lease dated March 31, 2010
(“Fourth
Amendment”), by and between Sublandlord and Master Landlord, as well as
$12,501 per annum, payable in monthly installments of $1,041.75, for Subtenant’s
contribution for parking lot expenses. All Base Rent and Additional
Rent is collectively referred to as, "Rent".
In the
event Subtenant is required to make a payment to Sublandlord pursuant to Section
10 of the Fourth Amendment, Sublandlord agrees to take commercially reasonable
efforts to assist Subtenant as Subtenant may from time to time request in
seeking to collect any such amounts from Southwest Florida Health System, Inc.
(“Consult-A-Nurse”),
however, Subtenant shall reimburse Sublandlord for any all reasonable costs and
expenses (including reasonable attorneys' fees) actually incurred by Sublandlord
in connection therewith. If Subtenant gives notice to Sublandlord
requesting that Sublandlord institute an appropriate action or proceeding for
the enforcement of said obligations against Consult-A-Nurse and Sublandlord
shall fail to do so within a reasonable time after Subtenant’s written request
therefor (no less than 20 days after receipt of such written request), then
Subtenant shall have the right to institute an appropriate action or proceeding
against Consult-A-Nurse in the name of Sublandlord to enforce Sublandlord’s
rights under the Office Building Lease for the fourth floor of the Premises
between Sublandlord and Consult-A-Nurse which are applicable to Subtenant by
virtue of this provision (and Sublandlord shall reasonably cooperate with such
reasonable requests of Subtenant as may be necessary to enable Subtenant to
proceed in Sublandlord’s name).
(d) Electric. Subtenant
acknowledges that the Subleased Premises do not have a separate electric
meter. Subtenant shall pay one-third (1/3) of Sublandlord’s electric
xxxx for the 5th Floor
of the Building. Such payment shall be made within 30 days of receipt
of invoice from Sublandlord.
(e) Payment. Subtenant
shall pay all Rent to Sublandlord at the address Sublandlord may designate from
time to time in writing.
(f) Late
Payment. If Subtenant fails to pay any Rent or other amounts
due under the Master Lease when due and owing pursuant to this Sublease,
Subtenant shall pay any and all late charges and interest charges due and owing
under the Master Lease. Further, Subtenant shall pay to Sublandlord
any actual costs reasonably incurred by Sublandlord as a result of Subtenant's
failure to pay such amounts when due and owing within five (5) days of receipt
of notice from Sublandlord regarding such amounts.
4. Termination. If
at any time prior to the expiration of the term of the Sublease, the Master
Lease shall terminate or be terminated for any reason, or Sublandlord's right to
possession shall terminate without termination of the Master Lease, this
Sublease shall simultaneously terminate.
5. Use. Subtenant
may use the Subleased Premises for any purpose that is permitted under the
Master Lease.
6. Notice. Notices
given hereunder shall be given in the same manner as required under the Master
Lease to the parties at the following addresses:
SUBLANDLORD:
|
|
0000
Xxxxxxxxx Xxxxxxx Xxxx.
|
Xxxx
Xxxxx, XX 00000
|
|
Attn: General
Counsel
|
|
|
SUBTENANT:
|
MIVA AK,
Inc.
|
|
|
0000 Xxxxxxxxx Xxxxxxx Xxxx.,
Xxxxx 000
|
Xxxx
Xxxxx XX 00000
|
|
Attn: General
Manager
|
|
With a copy to:
|
Adknowledge,
Inc.
|
| 0000 Xxxxxxxxxx Xxxx., Xxxxx Xxxxx | |
| Xxxxx Xxxxxx, XX 00000 | |
|
|
Attn: General
Counsel
|
2
7. The Master
Lease.
(a) It
is hereby agreed that Sublandlord leases the Subleased Premises to Subtenant
upon each and all of the terms, conditions, covenants and obligations of the
Master Lease, and Subtenant hereby unconditionally and irrevocably accepts this
Sublease and the Subleased Premises subject to and upon, and hereby irrevocably
and unconditionally assumes and agrees to be bound by and perform, each and all
of the terms, conditions, covenants and obligations of the Master Lease binding
on the "Tenant" thereunder with respect to the Subleased Premises, and such
terms, conditions, covenants and obligations of the Master Lease are hereby
incorporated by reference herein as if Sublandlord were the "Landlord"
thereunder and Subtenant were the "Tenant" thereunder and the "Premises" therein
were the Subleased Premises, except as otherwise expressly provided herein and
except to the extent that the terms of the Master Lease are inconsistent with
the express terms of this Sublease.
(b) Subtenant
shall look solely and directly to the Master Landlord for any and all services
to be provided to the Subleased Premises pursuant to the Master Lease or
otherwise. Failure on the part of the Master Landlord or any party to
provide these services shall not be a default by Sublandlord of its obligations
under this Sublease.
(c) Sublandlord
agrees to take commercially reasonable efforts to assist Subtenant as Subtenant
may from time to time request in seeking to enforce Master Landlord's
obligations to provide services and rights pursuant to the Master Lease;
provided, however, that Subtenant shall reimburse Sublandlord for any all
reasonable costs and expenses (including reasonable attorneys' fees) actually
incurred by Sublandlord in connection therewith. If and to the extent
Sublandlord receives an abatement of rent with respect to all or any portion of
the Subleased Premises on account of such lack of services, then Sublandlord
shall grant a parallel abatement (pertaining to such portion of the Subleased
Premises) to Subtenant. If Master Landlord shall default in the
performance of any of Master Landlord's obligations under the Master Lease,
Sublandlord shall, at Subtenant's written reasonable request, use commercially
reasonable efforts to cause Master Landlord to remedy such default (including
but not limited to promptly sending notice of such default to Master Landlord);
and if (x) such default shall continue uncured beyond the applicable cure period
provided in the Master Lease, and (y) Subtenant shall give notice to Sublandlord
requesting that Sublandlord institute an appropriate action or proceeding for
the enforcement of said Master Landlord obligations and Sublandlord shall fail
to do so within a reasonable time after Subtenant’s written request therefor (no
less than 20 days after receipt of such written request), then Subtenant shall
have the right to institute an appropriate action or proceeding against Master
Landlord in the name of Sublandlord to enforce Sublandlord’s rights under the
Master Lease which are applicable to Subtenant (and shall reasonably cooperate
with such reasonable requests of Subtenant as may be necessary to enable
Subtenant to proceed in Sublandlord’s name), using counsel reasonably acceptable
to Sublandlord (it being agreed that Xxxxxx, Xxxx & Xxxxxxxx LLP is hereby
deemed acceptable).
(d) Sublandlord
shall not (A) (1) do anything which would constitute a violation or breach of
any of the terms, conditions or provisions of the Master Lease or which would
cause the Master Lease to be terminated or forfeited. or (2) permit any such
violation or breach, (B) voluntarily cancel or surrender the Master Lease, or
(C) assign or sublease its interest thereunder (other than pursuant to this
Sublease).
3
(e) Sublandlord
may not modify, or cause to be modified, the Master Lease, without the consent
of Subtenant, which consent may be granted or withheld in Subtenant's reasonable
discretion.
(f) Sublandlord
shall promptly furnish Subtenant with copies of all notices relating to the
Subleased Premises which Sublandlord receives from Master Landlord.
(g) Sublandlord
agrees to pay all Rent with respect to that portion of the Premises not
subleased hereunder according to the terms and conditions set forth in the
Master Lease.
(h) Sublandlord
hereby represents and warrants to Subtenant that (i) the Master Lease is in full
force and effect as of the date hereof; (ii) a true, correct and complete copy
of the Master Lease has been
delivered to Subtenant, together with any amendments, modifications and
supplements thereto, and is attached hereto as Exhibit
A; (iii) Sublandlord has received no notice or claim that the Subleased
Premises do not comply with applicable legal requirements for general office
use, (iv) Sublandlord has fully performed its obligations under the Master Lease
in all material respects through the date of this Sublease, (v) to the knowledge
of Sublandlord, there are no pending claims against Sublandlord nor, to the
knowledge of Sublandlord, any facts that would reasonably be expected to give
rise to a claim against Sublandlord, under the Master Lease by the
counterparties thereto, (vi) there exists no defaults by Sublandlord
(or any event that, with the giving of notice or the passage of time or both,
would constitute a default on the part of Sublandlord) under the Master Lease
and (vii) to Sublandlord’s knowledge, there exists no defaults by Master
Landlord (or any event that, with the giving of notice or the passage of time or
both, would constitute a default by Master Landlord) under the Master
Lease.
(i) Sublandlord
shall not modify the Master Lease without Subtenant's prior consent, and any
such modification shall not be effective against Subtenant without Subtenant's
written consent.
(j) Wherever
in the Master Lease the Tenant thereunder is required to obtain the consent of
Master Landlord prior to taking any action, Subtenant shall notify Sublandlord
of such request and Sublandlord shall use commercially reasonably efforts to
obtain the consent of Master Landlord. Subtenant shall not take any
such action without obtaining the consent of Master Landlord and the reasonable
consent of Sublandlord.
8. Brokerage. Except
for Commercial Property Southwest Florida, LLC, each party represents and
warrants to the other that it has not dealt with any broker, consultant, finder
or agent in connection with this Sublease and Sublandlord and Subtenant each
hereby indemnifies and holds harmless the other against and from any and all
claims for any brokerage commissions and all costs, expenses and liabilities in
connection therewith including, without limitation, attorneys' fees and
expenses, arising from any breach by such party of the foregoing representation
and warranty made by it.
9. Sublease. Subtenant
may not assign this Sublease, or sublet the Subleased Premises, or any part
thereof, without the prior written consent of the Sublandlord, which may be
withheld in Sublandlord's reasonable discretion. This Sublease shall
not be assigned by operation of law. Any attempt to sell, assign, or
sublet without the reasonable consent of Sublandlord and Master Landlord (if
required under the Master Lease) shall constitute a default hereunder by
Subtenant.
10. Defaults. The
occurrence of any of the following shall constitute an Event of Default by
Subtenant:
(a) Failure
to pay Base Rent or Additional Rent or any other amount due under the Master
Lease when due and owing by Subtenant and such failure continues for three (3)
business days of after written notice of such has been given to Subtenant by
Sublandlord.
4
(b) Failure
to perform any other provision of this Sublease if (i) the failure to perform is
not curable, or (ii) the failure to perform is curable, but is not cured within
thirty (30) days after notice has been given to Subtenant. If the
default is curable, but cannot reasonably be cured within thirty (30) days,
Subtenant shall not be in default of this Sublease if Subtenant commences to
cure the default within the thirty (30) day period and diligently and in good
faith continues to cure the default, provided, however that in no event shall a
default remain uncured for a period of more than ninety (90) days.
11. Indemnification by
Subtenant. Subtenant agrees to indemnify Sublandlord and hold
Sublandlord harmless from and against any and all claims, damages, costs and
expenses (including reasonable attorneys’ fees) arising from (i) the breach or
default by Subtenant of any term, covenant, or agreement on the part of
Subtenant to be performed pursuant to the terms of this Sublease or the Master
Lease; (ii) any damage or injury to persons or property occurring upon or in
connection with the use or occupancy of the Subleased Premises resulting from
any act or omission of Subtenant, its agents, contractors, servants, employees,
invitees, concessionaires or licensees; or (iii) any injury or damage to the
person, property, or business of Subtenant, its employees, agents, contractors,
or invitees entering upon the Subleased Premises, provided, however, and
notwithstanding anything to the contrary contained in this section, Subtenant
shall not be obligated to indemnify Sublandlord against any such loss, cost,
damage, expense or liability to the extent caused by Sublandlord’s gross
negligence or willful misconduct. In case any action or proceeding is
brought against Sublandlord by reason of any such claim, Subtenant, upon notice
from Sublandlord, covenants to diligently defend such action or proceeding, and
to retain legal counsel reasonably satisfactory to Sublandlord in connection
therewith.
12. Indemnification by
Sublandlord. Sublandlord agrees to indemnify Subtenant and
hold Subtenant harmless from and against any and all claims, damages, costs and
expenses (including reasonable attorneys' fees) arising from (i) the breach or
default by Sublandlord of any term, covenant, or agreement on the part of
Sublandlord to be performed pursuant to the terms of this Sublease or the Master
Lease Premises due to the gross negligence or willful misconduct of Sublandlord;
or (ii) any damage or injury to persons or property occurring upon or in
connection with the use or occupancy of the Premises due to the gross negligence
or willful misconduct of Sublandlord. In case any action or
proceeding is brought against Subtenant by reason of any such claim,
Sublandlord, upon notice from Subtenant, covenants to diligently defend such
action or proceeding, and to retain legal counsel reasonably satisfactory to
Subtenant in connection therewith.
13. Guaranty. The
parties agree that contemporaneously with the execution of this Sublease, the
parent company of Subtentant shall finalize, execute and deliver a guaranty of
sublease in a form substantially similar to that set out at Exhibit 1, attached
hereto and incorporated herein.
14. Governing
Law. This Sublease shall be construed and enforced in
accordance with the laws of the State in which the Building is
located.
15. Right of First
Refusal. Subtenant shall have
the right of first refusal to sublease (i) the space located immediately to the
west of the Subleased Premises (as outlined in Exhibit B) (the “HR
Space”); or (ii) any or all of the remainder of the 5th Floor
of the Office Building (the “Remainder”). In
the event Sublandlord receives an offer to rent the Remainder or the HR Space
which it desires to pursue, Sublandlord shall communicate the terms of the offer
to Subtenant and Subtenant shall have five (5) business days to elect whether or
not to lease the space on the terms set forth in the offer. In the
event Subtenant shall not respond in writing during such time period it shall be
deemed to have waived its right of first refusal as to such space.
Notwithstanding the foregoing, if at any time the HR Space or the Remainder is
unoccupied by Sublandord or any other party and Sublandlord has not received an
offer to rent the HR Space or the Remainder, as applicable, Subtenant may upon
notice to Sublandlord elect to lease the HR Space and/or the Remainder based on
a rate of $12.00 per rentable square foot, subject to an annual rent
increase of 3%.
5
16. Miscellaneous.
(a) This
Sublease may not be modified or amended without the prior written consent of
Sublandlord and Subtenant.
(b) If
any provision of this Sublease shall be invalid or unenforceable, such provision
shall be severable and such invalidity or unenforceability shall not impair the
validity of any other provision of this Sublease.
(c) This
Sublease may be executed in several counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same
instrument.
(d) This
Sublease shall be binding upon and inure to the benefit of the parties’
respective successors and permitted assigns, subject to all agreements and
restrictions contained in the Master Lease and this Sublease with respect to
sublease, assignment or other transfer. The agreements contained
herein and the Master Lease constitute the entire understanding between the
parties with respect to the subject matter hereof and supersede all prior
agreements except for the Master Lease, written or oral, inconsistent
herewith.
(e) Capitalized
terms which are not otherwise defined shall have the meanings ascribed to such
terms in the Master Lease.
(f) The
parties acknowledge and agree that the square footage of the Subleased Premises
as set forth in the recitals to this Agreement are estimates and the parties
stipulate that any discrepancy between actual square footage and the estimate
shall have no bearing on this Sublease, including, but not limited to, the
amount of Base Rent paid hereunder.
(g) Subtenant
shall leave all of the items listed on Exhibit 2 on the 4th floor
of the Building and title thereto shall transfer to South West Florida Health
System, Inc.
[signature
page to follow]
6
IN
WITNESS WHEREOF, the parties hereto have executed this Sublease Agreement the
day and year first above written.
| SUBLANDLORD: | |||
| Vertro, Inc. | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | ||
| Title: | General Counsel | ||
| SUBTENANT: | |||
| MIVA AK, Inc. | |||
| By: | /s/ Xxxxx Gaon | ||
| Name: | Xxxxx Gaon | ||
| Title: | General Manager | ||
7
EXHIBIT
A
MASTER
LEASE
8
EXHIBIT
B
SUBLEASED
PREMISES
9
EXHIBIT 1
FORM
OF GUARANTY
This GUARANTY is entered into this __
day of March 2010, by Adknowledge, Inc. (the “Guarantor”) having an address of
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx Xxxx, XX 00000.
WHEREAS, on the __ day of March 2010,
MIVA AK, Inc., a Delaware corporation (“Sublessee”) entered into a Sublease
Agreement (the “Lease”) with Vertro, Inc., a Delaware corporation
(“Sublessor”).
WHEREAS, the Guarantor desires to
become the surety for and guarantee the prompt and faithful performance by the
Sublessee under the Lease.
In consideration of the Sublessor’s
execution of the Lease and other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Guarantor agrees as
follows:
1. The
Guarantor is and shall be the surety and guarantor for the prompt and faithful
performance by Sublessee of the Lease and all th terms, covenants and conditions
therof, including without limitation, the payment by Sublessee of all rent
(minimum, percentage and additional rent) and all other sums to become due
thereunder.
2. Guarantor
agrees that (1) this obligation shall be binding upon Guarantor without any
further notice of acceptance hereof; immediately upon each and every default by
Sublessee, after notice to or demand upon Guarantor, Guarantor will pay to
Sublessor the sum or sums in default and will comply with or perform all of the
terms, covenants and conditions of the Lease which are binding upon the
Sublessee as provided in the Lease; (2) no extension, forbearance or
leniency extended by Sublessor to the Sublessee shall discharge Guarantor; (3)
Sublessee may exercise any or all of the extensions or options to renew the term
of the Lease without notice to Guarantor, and Guarantor will remain as surety
and guarantor during any extension or option periods; (4) Sublessor and
Sublessee without notice or consent of Guarantor (provided that it does not
increase the monetary liability of Guarantor) may at any time or times enter
into such modifications, extensions, amendments, assignments or other covenants
respecting the Lease and that Guarantor shall not be released hereunder, it
being intended that any joinder, waiver, consent or agreement by Sublessee by
its own operation, shall be deemed to be a joinder, consent, waiver or
agreement by Guarantor with respect hereto and that Guarantor shall continue as
Guarantor with respect to the Lease as so modified, extended, amended, assigned
or otherwise affected, except as to any provisions which increase Guarantor’s
monetary liability without Guarantor’s express agreement
hereto.
The
obligations of Guarantor herein shall be extensive with and shall remain in
effect as long as Sublessee’s obligations in and under the Lease and all
extensions or modifications thereof shall continue. In the event of
the termination of this Lease by a trustee in bankruptcy, the Guarantor shall
automatically replace the Sublessee and shall become the Sublessee under the
Lease, subject to all the same terms and conditions as contained within the
Lease, but only for the unexpired term thereof. Guarantor agrees to
be bound by each and every covenant, obligation, power and authorization,
without limitation, in the Lease, with the same force and effect as if it were
designated in and had executed the Lease as Sublessee. The
obligations created hereunder shall be joint and several.
10
IN
WITNESS WHEREOF, the Guarantor has set hand(s) and seal(s) the __ day of March,
2010.
| WITNESSES: | GUARANTOR | |||
| Adknowledge, Inc. | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
|
|
Name: | Xxxxxxx Xxxxx | ||
| Title: | General Counsel | |||
| Sate of California | ) | |
| ) | ss | |
| County of Los Angeles | ) |
The foregoing instrument was
acknowledged before me this 9th day of April, 2010, by Xxxxxxx Xxxxxxx. He (__) is
personally known to me or ( x
) has produced drivers
license as identification.
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Notary Public | |||
| Print Name: Xxxxxxx Xxxxxxx | |||
| My Commission Expires: 9-21-11 | |||
11
EXHIBIT 2
12
