SUBLEASE BETWEEN NEW CINGULAR WIRELESS SERVICES, INC. f/k/a AT&T WIRELESS SERVICES, INC., SUBLANDLORD and BANKRATE, INC., SUBTENANT
Exhibit
10.4
BETWEEN
NEW
CINGULAR WIRELESS SERVICES, INC.
f/k/a
AT&T WIRELESS SERVICES, INC.,
SUBLANDLORD
and
BANKRATE,
INC.,
SUBTENANT
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
Dated:
November 18,
2004
|
TABLE OF
CONTENTS |
Page | ||
|
1. |
1 | ||
|
2. |
PARKING |
2 | |
|
3. |
PRIME
LEASE |
2 | |
|
4. |
DEFINITIONS |
3 | |
|
5. |
PRIME
LANDLORD |
3 | |
|
6. |
TERM |
4 | |
|
7. |
RENT |
5 | |
|
8. |
REFUNDS |
6 | |
|
9. |
SECURITY
DEPOSIT |
7 | |
|
10. |
LETTER
OF CREDIT |
7 | |
|
11. |
SUBTENANT
FIT-UP |
7 | |
|
12. |
ALTERATIONS |
8 | |
|
13. |
REPAIRS
AND MAINTENANCE |
9 | |
|
14. |
UTILITIES
AND SERVICES |
9 | |
|
15. |
ASSIGNMENT
AND SUBLEASING |
9 | |
|
16. |
INSURANCE |
10 | |
|
17. |
NON-BINDING
MEDIATION |
10 | |
|
18. |
COMPLIANCE
WITH LAWS |
10 | |
|
19. |
LIMITATIONS
ON SUBLANDLORD S LIABILITY |
11 | |
|
20. |
ESTOPPEL
CERTIFICATES |
12 | |
|
21. |
▇▇▇▇▇▇▇▇▇▇▇▇▇ |
▇▇ | |
|
▇▇. |
CASUALTY
AND CONDEMNATION |
13 | |
|
23. |
CONSENT
OR APPROVAL OF PRIME LANDLORD |
13 | |
|
24. |
NOTICES |
13 | |
|
25. |
BROKERS |
15 | |
|
26. |
SUBLANDLORD
S AND SUBTENANT S POWER TO EXECUTE |
15 | |
|
27. |
TABLE
OF CONTENTS - CAPTIONS |
15 | |
|
28. |
CONSENT
TO SUBLEASE BY PRIME LANDLORD |
15 | |
|
29. |
ENTIRE
AGREEMENT |
16 | |
|
30. |
INDEMNIFICATION |
16 | |
-i-
|
TABLE
OF CONTENTS |
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|
(continued) |
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Page | |||
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31. |
MISCELLANEOUS |
18 | |
|
EXHIBIT
A |
DESCRIPTION
OF SUBLEASED PREMISES |
22 | |
|
EXHIBIT
B |
PRIME
LEASE |
23 | |
|
EXHIBIT
C |
▇▇▇▇▇▇▇-▇▇▇▇▇▇
GROUP, INC. BID FOR REPAIRS |
24 | |
* * *
*
The
mailing, delivery or negotiation of this Sublease shall not be deemed an offer
to enter into any transaction or to enter into any other relationship, whether
on the terms contained herein or on any other terms. This Sublease shall not be
binding nor shall either party have any obligations or liabilities or any rights
with respect thereto, or with respect to the premises, unless and until both
parties have executed and delivered this Sublease and the Prime Landlord has
consented in writing to this Sublease. Until such execution and delivery of, and
consent to this Sublease, either party may terminate all negotiation and
discussion of the subject matter hereof, without cause and for any reason,
without recourse or liability.
* * *
*
-ii
This
Sublease is entered into as of this 18th day
of November, 2004 by and between NEW
CINGULAR WIRELESS SERVICES, INC. f/k/a AT&T WIRELESS SERVICES,
INC., a
Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Sublandlord") and BANKRATE,
INC., a
Florida corporation, with offices at
▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇,
▇▇
▇▇▇▇▇
(hereinafter "Subtenant").
INTRODUCTORY
STATEMENTS
A. By Lease
dated August 7th, 2002,
(the "Prime Lease") Griphon Marlins Investors, Ltd., a
Florida limited partnership ("Griphon") leased to Sublandlord certain space in
the building known as ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter called the "Building"). Gardens Plaza Investors, LLC, a Florida
limited liability company, (the "Prime Landlord") is the successor in interest
to Griphon.
B. Subtenant
has agreed to sublet from Sublandlord certain portions of the
Building.
C. The
parties desire to enter into this Sublease defining their respective rights,
duties and liabilities relating to the Subleased Premises (defined
below).
WITNESSETH
NOW
THEREFORE, Sublandlord and Subtenant, in consideration of the mutual promises
and covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and each with intent to
be legally bound, for themselves and their respective successors and assigns,
agree as follows:
1. SUBLEASE
Sublandlord,
for and in consideration of the Subtenant s payment of the rent and performance
of the covenants contained in this Sublease, does hereby demise and lease to
Subtenant for
general office use the
following portions of the Building: Fifth floor containing approximately 12,388
rentable square feet as shown on the floor plan which is attached hereto as
Exhibit A (the "Subleased Premises").
2. PARKING
Subtenant
shall be entitled to the non-exclusive use of 49 parking spaces in common with
other tenants in the Building. Such parking shall be a part of Sublandlord s
parking allocation under the Prime Lease and not supplemental to such
allocation.
3. PRIME
LEASE
A true
copy of the Prime Lease (with certain financial provisions deleted for reasons
of confidentiality) is attached hereto as Exhibit
B. Where
not expressly inconsistent with the terms hereof and except as otherwise stated
herein to the contrary, this Sublease shall be subject and subordinate to all of
the terms and conditions contained in the Prime Lease as said terms and
conditions affect the Subleased Premises, and all of the terms and conditions of
the Prime Lease, except as otherwise set forth herein, are hereby incorporated
into this Sublease and shall be binding upon Subtenant with respect to the
Subleased Premises to the same extent as if Subtenant were named as tenant and
Sublandlord as landlord under the Prime Lease. For purposes of this Sublease,
references in the Prime Lease to the ["term"] shall mean the Term of this
Sublease and references to the ["premises"] in the Prime Lease shall mean the
Subleased Premises. [Except as otherwise provided herein, when any fraction,
factor or formula, which is based on the number of square feet leased, is
expressed in the Prime Lease, it will be adjusted by substituting the number of
square feet of the Subleased Premises for the number of square feet of the
[Premises] leased in the Prime Lease.] Each party agrees that it shall not do or
omit to do anything which would result in a default under the Prime Lease, and
each party agrees to indemnify and hold the other harmless from and against all
claims, demands or liabilities resulting from such party s breach, violation or
nonperformance of any of its obligations under the Prime Lease, as incorporated
herein. With the exceptions set forth herein, Subtenant shall be entitled to all
of the rights and privileges of the Sublandlord as tenant under the terms of the
Prime Lease with respect to the Subleased Premises. The following provisions of
the Prime Lease shall
not be
incorporated into this Sublease: Sections: 1.01 Demised Premises, 1.02 Temporary
Premises, 2.01 Term, 2.02 Options to renew the Term of this Lease, 2.03
Vacation, 2.04 Acknowledgment of Term, 3.01 Base Annual Rent, 3.02 Base Annual
Rent Adjustments, 3.03 Sixth Floor Premises Rent, 4.01 Definition of Taxes, 4.02
Tenant s Proportionate Share of Taxes, 4.03 Payment of Taxes, 4.04 Tax Refund,
4.05 Additional Taxes, 5.01 Definition of Common Area Expenses, 5.02 Tenant s
Proportionate Share of Common Area Expenses, 5.03 Payment of Common Area
Expenses, 5.04 Tenant s Audit, 6.01 Financial Statements, 7.04 Landlords
Contribution For Tenants Work, 7.06 Pre Commencement Date Work, 8.02 The Option
Period Alterations Allowance, 9.02 Restriction On Competitor Signage, 10.01
Assignment and Subletting, 10.02 Sublease Assignment and Subtenant Subleases,
14.02 Valet or Other Parking, 28.01 Brokerage Commission, 31.02 Notices, 31.04
Successors, 31.12
Covenant to Pay Rent; Late Charge, and
31.13
Satellite Dish.
1
4. DEFINITIONS
All terms
not expressly defined in this Sublease shall have the meanings given to them in
the Prime Lease.
5. PRIME
LANDLORD
At
Subtenant s expense and request, Sublandlord will take all reasonable actions
necessary to enable Subtenant to enforce the Sublandlord s rights as tenant
under the Prime Lease with respect to the Subleased Premises.
6. TERM
The term
of this Sublease (the "Term")
shall be approximately three (3) years, two (2) months, commencing on execution
(the"Commencement Date") and ending on 12/31/2007. Subtenant has the one time
right to cancel this sublease effective May 1, 2005 with at least two (2) months
written notice to Sublandlord only under the following two
conditions:
(i) Prime
Landlord does not approve or agree to make available adequate power required by
Subtenant in the Subleased Premises;
Power
needed includes the following:
Nominal
input voltage 208 3PH V
Input
frequency ▇▇/▇▇ ▇▇ ▇/- ▇ ▇▇ (▇▇▇▇ ▇▇▇▇▇▇▇)
Input
Connection Type Hard Wire 5-wire (3PH + N + G)
Input
voltage range for main operations 177 - 240 V
Input
Power Factor at Full Load 0.99
Main
Input Breaker Size 90 VA;
and
(ii) Prime
Landlord does not approve Subtenant
s
installation and use of a Cummins 75 KW propane powered generator unit that is 5
feet high, 3 feet wide and 6 feet long which could be installed in a parking
garage/sub-basement and vented outdoors.
Should
Subtenant exercise
its termination right
herein,
Subtenant shall, upon giving written notice to Sublandlord, pay to Sublandlord a
termination fee equal to one months rent plus unamortized
commissions, as calculated on a straight line basis. At such time, this Sublease
for the remainder of Term
shall terminate and neither party shall have any further rights, duties or
obligations to the other except any rights, duties or obligations that may
survive the termination hereof.
7. RENT
Subtenant
covenants and agrees to pay to Sublandlord gross
rent (which includes Tenant s electric, HVAC uses during Building Business Hours
(8 a.m. to 6 p.m.), and janitorial services)
according to the following schedule:
Term:
Commencement - 12/31/2007
Monthly
Rent: $23,743.67
plus Applicable Sale Tax
Annualized
Rent: $23.00 per
square foot totaling $284,924.00 plus
Applicable Sales Tax
(a) Monthly
rent shall include applicable Sales Tax due, which
is currently 6%, subject to change. Sales Tax is an obligation of the Subtenant.
Rent shall be payable on the first day of each and every month of said Term.
Concurrently with Subtenant s execution of this Sublease Agreement, Subtenant
shall pay Sublandlord an amount equal to Forty eight thousand, nine hundred
eleven Dollars and ninety six Cents ($48,911.96), a portion of which, or Twenty
five thousand, one hundred sixty eight Dollars and twenty nine Cents
($25,168.29), is to be applied as first month s rental, the remaining portion,
or Twenty three thousand, seven hundred forty three Dollars and sixty seven
Cents ($23,743.67), shall be held as a refundable security deposit in accordance
with Section 9 of this Sublease. Rent for any period of occupancy of less than
one month shall be prorated in proportion to the number of days of occupancy in
that month.
2
(b) Any
services provided by Prime Landlord or Sublandlord to Subtenant which are not
contained in the Prime Lease (including but not limited to after-hours
HVAC to be
charged to Subtenant at Prime Landlord or Sublandlord s actual cost for such
after-hours HVAC without ▇▇▇▇-up or administrative fee by Sublandlord as
evidenced by an invoice to be provided to Subtenant in accordance with Section
15.04 Extra Services of the Prime Lease) shall
be at Subtenant s sole cost and shall be paid directly to Prime Landlord or
Sublandlord, as the case may be.
(c) The term
basic rent is sometimes referred to herein as Rent or rent and shall include all
sums due from Subtenant to Sublandlord under the terms of this Sublease. All
Rent shall be payable at the office of the Sublandlord at the following
address:
New
Cingular Wireless Services, Inc.
c/o
Wireless Asset Management
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at
such other address as directed by notice from Sublandlord to
Subtenant.
(d) If Rent
is more than five (5) days past due, Subtenant shall be required to pay to
Sublandlord a fee equal to Twelve Percent (12%) of Rent due ( Late Charge ) in
addition to the past due Rent owed to Sublandlord.
(e) If Rent
is more than five (5) days past due twice, then, in addition to the Late Charge,
Subtenant shall immediately prepay rent every three months in advance throughout
the term of the lease to Sublandlord. These provisions in no way affect
Sublandlord s rights to enforce its other remedies incorporated under this
Sublease Agreement in the event Rent is past due.
8. REFUNDS
Provided
Subtenant is not in default under this Sublease beyond all applicable cure
periods, Sublandlord shall pay to Subtenant any sums which Sublandlord is
entitled to receive from the Prime Landlord under the Prime Lease with respect
to the Subleased Premises during the Term, including, but not limited to, any
refunds of basic rent which has been paid by Subtenant; however, such sums shall
be paid to Subtenant only if Sublandlord has received payment of same from Prime
Landlord. Payment (less any sums expended by Sublandlord for collection thereof)
shall be made by Sublandlord to Subtenant within thirty (30) days of Sublandlord
s receipt of any such sum.
3
9. SECURITY
DEPOSIT
Subtenant
has deposited with Sublandlord the sum of twenty-three
thousand seven hundred forty-three Dollars
and
sixty-seven Cents ($23,743.67) as
security for the full and faithful performance of every portion of this Sublease
to be performed by Subtenant (the Security Deposit ). If Subtenant defaults with
respect to any provision of this Sublease, Sublandlord may use, apply or retain
all or any portion of this Security Deposit to remedy such default. If any
portion of said Security Deposit is so used or applied, Subtenant shall, within
ten (10) days after demand therefor, deposit cash with Sublandlord in an amount
sufficient to restore the Security Deposit to its original amount, and Subtenant
s failure to do so shall be a material breach of this Sublease. Sublandlord
shall not be required to keep this Security Deposit separate from its general
funds, and Subtenant shall not be entitled to interest on such deposit.
Provided Subtenant
has fully
and faithfully performed its obligations under this Sublease (any defaults cured
by Subtenant throughout the Term shall not be considered a violation of this
provision), the
Security Deposit or any balance thereof shall be returned to Subtenant within
thirty (30) days of termination of the Term.
10. LETTER OF
CREDIT.
intentionally
deleted
11. SUBTENANT
FIT-UP
Subtenant
shall accept the Subleased Premises in its current As-Is, Where-Is condition
with all cable being left in place. Where necessary, cable will be coiled back
to the wall. Notwithstanding
the foregoing, it is understood and agreed by the parties that the Sublandlord
has remediated the mold due to water damage in the Subleased Premises. The
removal and replacement of all affected drywall and carpeting ( Repairs ) in
association with this water damage shall be managed by and funded by Subtenant.
Sublandlord shall provide Subtenant with a one time Repair Allowance to do the
work outlined in the bid received for Sixty-seven thousand five hundred forty
Dollars ($67,540.00) by
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Group, Inc. to complete the Repairs, a copy of such bid being
attached hereto as Exhibit
C .
Sublandlord will provide the Repair Allowance by wire or check to SubTenant
within seven (7) business days of receipt of Prime Landlord s consent to this
Sublease. The Repairs must be conducted following all applicable laws and code,
must be approved by Sublandlord and is subject to all conditions in the Prime
Lease. Sublandlord shall inspect the Repairs and give approval upon completion.
Subtenant shall indemnify Sublandlord for any and all issues related to such
repairs.
Sublandlord
shall also provide Subtenant with evidence reasonably satisfactory to Subtenant
as to the air quality and lack of the presence of mold as a result of the water
damage to the Subleased Premises.
12. ALTERATIONS
Subject
to the terms and conditions of the Prime Lease, Subtenant shall not make any
material alterations, improvements or additions in or to the Subleased Premises
without the prior written consent of Sublandlord, which shall not be
unreasonably withheld, conditioned or delayed. Alterations shall have the same
definition as in Section 8.01 Tenant s Alterations of the Prime Lease. All
alterations and improvements shall be subject to the terms and conditions of the
Prime Lease, and in those instances, if required, shall be subject to the Prime
Landlord s approval as provided in the Prime Lease. Except as otherwise provided
for herein relating to the Repairs, any alterations, improvements or additions
consented to by Sublandlord shall be made by Subtenant or Subtenant s
contractors at the sole cost and expense of Subtenant.
4
13. REPAIRS
AND MAINTENANCE
Any
repair and maintenance obligations with respect to the Subleased Premises which
are the responsibility of the Sublandlord, as tenant under the Prime Lease,
shall be performed by Subtenant at Subtenant s sole cost and expense. Subtenant
agrees that it will notify Sublandlord promptly of the need for any repair to
the Subleased Premises, even if Sublandlord is not responsible for any such
repair. Notwithstanding anything contained herein to the contrary, in the event
that a condition exists in the Subleased Premises that Prime Landlord is
obligated to repair under the terms of the Prime Lease, Subtenant shall so
advise Sublandlord, and Sublandlord, in turn, shall promptly advise Prime
Landlord thereof. Sublandlord shall have no liability to Subtenant for Prime
Landlord s failure to make any such repair.
14. UTILITIES
AND SERVICES
Subtenant
shall be entitled to all those services and utilities which Prime Landlord is
required to provide under the terms of the Prime Lease. To the extent that Prime
Landlord charges Sublandlord for any services or utilities or increases the cost
of such services or utilities and such charge or increase is due to Subtenant s
use of the Subleased Premises or such utilities or services, Subtenant agrees to
pay the charges therefore promptly upon receipt of Sublandlord s
▇▇▇▇.
15. ASSIGNMENT
AND SUBLEASING
Subject
to the terms and conditions of the Prime Lease, Subtenant shall not have the
right to assign this Sublease or sublet the Subleased Premises, in whole or in
part, without the prior written consent of Sublandlord, which shall not be
unreasonably withheld, conditioned or delayed.
16. INSURANCE
Subtenant
agrees to comply with all of the insurance requirements and obligations of
Sublandlord as set forth in the Prime Lease and to name both Sublandlord and
Prime Landlord and such other parties as required in the Prime Lease as
additional insured on any required insurance policies. Subtenant may not
self-insure.
17. NON-BINDING
MEDIATION
(a) If a
dispute arises out of or relates to this Sublease, or its breach, and the
parties have not been successful in resolving such dispute through negotiation,
the parties agree to attempt to resolve the dispute through non-binding
mediation by submitting the dispute to a sole mediator selected by the parties
or, at the option of a party, to mediation by the American Arbitration
Association ( AAA ). If such
dispute is not resolved by such non-binding mediation, the parties shall have
the right to resort to any remedies permitted by law. All defenses based on
passage of time shall be tolled during the mediation.
5
(b) The
direct expenses of the mediation, including the compensation and expenses of the
mediator and the fees of the AAA, shall be borne equally by the parties. All
other costs incurred by the parties to this Sublease, including the parties
legal expenses and their witnesses expenses, shall be borne by the party
incurring the expense. The parties, their representatives, other participants
and the mediator shall hold the existence, content and result of the mediation
in confidence.
18. COMPLIANCE
WITH LAWS
In
addition to any obligations under the Prime Lease, Subtenant shall promptly
comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and municipal Governments and of any and all
their Departments and Bureaus applicable to the use and occupancy of the
Subleased Premises by Subtenant or any subtenant or assignee of Subtenant, for
the correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with the Subleased Premises during the Term or
any renewal thereof, including without limitation all laws relating to
environmental matters and the Americans with Disabilities Act, and shall also
promptly comply with, and execute all rules, orders and regulations of the Board
of Fire Underwriters for the prevention of fires (collectively referred to as
Legal Requirements ) at its own cost and expense. Nothing in this paragraph
shall be deemed a consent to the alteration, subletting or assignment of all or
any portion of the Subleased Premises or of all or any of Subtenant s interests
in this Sublease.
If
Subtenant shall fail or neglect to comply with the aforesaid Legal Requirements,
or if Subtenant shall fail or neglect to make any repairs required by the terms
of this Sublease, and if such breach continues for a period of ten (10) days
after notice from Prime Landlord or Sublandlord regarding same, or, if the
breach cannot be cured within thirty (30) days, if Subtenant has not begun to
cure the breach within such period and does not thereafter diligently prosecute
the cure to completion, then Sublandlord or its agents may (but shall not be
obligated to) enter the Subleased Premises and take such actions as necessary to
cure the breach and comply with any and all of the said Legal Requirements, at
the cost and expense of Subtenant; and, in case of Subtenant s failure to pay
therefor, the said cost and expense shall be added to the next month s Rent and
be due and payable as such.
19. LIMITATIONS
ON SUBLANDLORD S LIABILITY
(a) Subtenant
acknowledges that Sublandlord has made no representations or warranties with
respect to the Building or the Subleased Premises except as provided in this
Sublease and Subtenant accepts the Subleased Premises in AS IS
condition.
6
(b) If
Sublandlord assigns its leasehold estate in the Building in
accordance with the terms of the Prime Lease,
Sublandlord shall have no obligation to Subtenant that arises after that
assignment. Subtenant shall then recognize Sublandlord s assignee as Sublandlord
of this Sublease.
(c) Sublandlord
shall not be required to perform any of the covenants and obligations of the
Prime Landlord under the Prime Lease. If the Prime Landlord shall default in the
performance of any of its obligations under the Prime Lease or breach any
provision of the Prime Lease pertaining to the Subleased Premises, Subtenant
shall have the right to take such default or breach to Sublandlord, which shall
be at Subtenant s sole cost and expense, and in the name of Sublandlord make any
demand or institute any action or proceeding, in accordance with and not
contrary to any provision of the Prime Lease, against the Prime Landlord under
the Prime Lease for the enforcement of the Prime Landlord s obligations
thereunder. Subtenant shall defend, indemnify and hold Sublandlord harmless from
and against any suit, action, cost, expense, damage or liability which arises
out of or results from Subtenant s exercise of its rights under this
paragraph.
20. ESTOPPEL
CERTIFICATES
Either
party hereto (the requested party) agrees that from time to time upon not less
than fifteen (15) days prior notice by the other party (requesting party), the
requested party or its duly authorized representative having knowledge of the
following facts will deliver to the requesting party, or to such person or
persons as the requesting party may designate, a statement in writing certifying
(a) that this Sublease is unmodified and in full force and effect (or if there
have been modifications, that the Sublease as modified is in full force and
effect); (b) the date to which the Rent and other charges have been paid; (c)
that to the best of the requested party s knowledge, the requesting party is not
in default under any provision of this Sublease or if in default, the nature
thereof in detail.
21. SUBORDINATION
This
Sublease shall be subject and subordinate to the Prime Lease, any ground lease
and to any mortgage or deed of trust thereon or on the fee simple interest in
the Building or the land on which the Building is located.
22. CASUALTY
AND CONDEMNATION
If the
Prime Lease is terminated with respect to the Subleased Premises pursuant to the
provisions of the Prime Lease, this Sublease shall automatically terminate at
the same time and Subtenant shall have no claim against Sublandlord or Prime
Landlord for the loss of its subleasehold interest or any of Subtenant s
property. If the Prime Lease is not terminated with respect to the Subleased
Premises upon the occurrence of a casualty or condemnation, the provisions of
the Prime Lease with respect to casualty or condemnation shall apply to this
Sublease and the Subleased Premises.
23. CONSENT
OR APPROVAL OF PRIME LANDLORD
If the
consent or approval of Prime Landlord is required under the Prime Lease with
respect to any matter relating to the Subleased Premises, Subtenant shall be
required first to obtain the consent or approval of Sublandlord with respect
thereto (which consent or approval shall not be unreasonably withheld or
delayed) and, if Sublandlord grants such consent or approval, Sublandlord or
Subtenant may forward a request for consent or approval to the Prime Landlord,
but Sublandlord shall not be responsible for obtaining such consent or approval.
Sublandlord shall have no liability to Subtenant for the failure of Prime
Landlord to give its consent.
7
24. NOTICES
All
notices given pursuant to the provisions of this Sublease shall be in writing,
addressed to the party to whom notice is given and sent registered or certified
mail, return receipt requested, in a postpaid envelope or by nationally
recognized overnight delivery service as follows:
To
Subtenant:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
President
and CEO
Bankrate,
Inc
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
and
▇▇▇▇▇ ▇.
▇▇▇▇▇
Senior
Vice President - Chief Marketing/Communications Officer
Bankrate,
Inc
▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
with a
copy to:
▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
Gunster,
Yoakley & ▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
To
Sublandlord:
New
Cingular Wireless Services, Inc.
c/o
Wireless Asset Management
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone
▇▇▇-▇▇▇-▇▇▇▇
Fax
▇▇▇-▇▇▇-▇▇▇▇
With a
copy to:
New
Cingular Wireless Services, Inc.
▇.
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: Law
Department (▇▇▇
▇▇▇▇▇)
8
It is
understood and agreed that unless specifically modified by this Sublease,
Sublandlord shall be entitled to the length of notice required to be given Prime
Landlord under the Prime Lease and shall
be entitled to give Subtenant the amount of notice required to be given tenant
under the Prime Lease. All
notices shall be deemed given upon receipt or rejection.
Either
party by notice to the other may change or add persons and places where notices
are to be sent or delivered. In no event shall notice have to be sent on behalf
of either party to more than three (3) persons.
25. BROKERS
The
parties warrant that they have had no dealings with any real estate broker or
agent in connection with this Sublease, except ▇▇▇▇▇ ▇▇▇▇ LaSalle and
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇
Partners, Inc.
(who represented the Sublandlord) and no broker (represented the Subtenant),
known collectively as the Brokers . Each party covenants to pay, hold harmless
and indemnify the other from and against any and all costs, expenses or
liabilities for any compensation, commissions and charges claimed by any other
broker or agent with respect to this Sublease or the negotiation thereof, based
upon alleged dealings with the indemnifying party. Sublandlord agrees to pay a
commission to Brokers pursuant to a separate commission agreement.
26. SUBLANDLORD
S AND SUBTENANT S POWER TO EXECUTE
Sublandlord
(subject to Prime Landlord s consent) and Subtenant covenant warrant and
represent that they have full power and proper authority to execute this
Sublease.
27. TABLE OF
CONTENTS - CAPTIONS
The Table
of Contents and the captions appearing in this Sublease are inserted only as a
matter of convenience and do not define, limit, construe or describe the scope
or intent of the sections of this Sublease nor in any way affect this
Sublease.
28. CONSENT
TO SUBLEASE BY PRIME LANDLORD
This
Sublease shall not become operative until and unless the Prime Landlord has
given to Sublandlord its consent hereto. Sublandlord shall not be responsible
for Prime Landlord s failure to consent to this Sublease but
shall endeavor in good faith to obtain Prime Landlord s consent. Should
Prime Landlord not consent to this Sublease, each party shall be released from
all obligations with respect hereto and neither party shall have any further
rights in law or in equity with respect to this Sublease.
29. ENTIRE
AGREEMENT
This
Sublease (which includes each of the Exhibits attached hereto) contains the
entire agreement between the parties and all prior negotiations and agreements
are merged into this Sublease. This Sublease may not be changed, modified,
terminated or discharged, in whole or in part, nor any of its provisions waived
except by a written instrument which (a) shall expressly refer to this Sublease
and (b) shall be executed all
parties hereto.
9
30. INDEMNIFICATION
(a) Subtenant
shall indemnify,
defend and hold
Sublandlord and its agents, employees, contractors, licensees or invitees,
harmless from and against all claims, causes of action, liabilities, losses,
costs and expenses (including
attorney s fees) arising
from or in connection with any
injury or damage to any person or property which occurs in the
Subleased Premises, except to the extent caused by the gross negligence or
willful misconduct of Sublandlord.
(b) Sublandlord
shall indemnify, defend and hold Subtenant and its agents, employees,
contractors, licensees or invitees, harmless from and against all claims, causes
of action, liabilities, losses, costs and expenses (including attorney s fees)
arising from or in connection with any injury or damage to any person or
property which occurs as a result of Sublandlord s use and occupancy of the
Building (other than the Subleased Premises, except to the extent caused by
Sublandlord s gross negligence or willful misconduct).
The
parties hereto, release each other and their respective agents, employees,
successors and assigns from all liability for damage to any property that is
caused by or results from a risk which is actually insured against or which
would normally be covered by the standard form of all risk property insurance,
without regard to the negligence of the entity so released. Each party shall use
its best efforts to cause each insurance policy it obtains to provide that the
insurer thereunder waives all right of recovery by way of subrogation as
required herein in connection with any damage covered by the policy. In
addition, Sublandlord shall request that Prime Landlord obtain a similar
subrogation waiver from Prime Landlord s insurer for the benefit of Subtenant;
however, Sublandlord shall have no liability to Subtenant if such subrogation
waiver is not obtained from Prime Landlord s insurer.
(b) Sublandlord
will indemnify, defend, protect, and hold Subtenant and each of Subtenant s
employees, agents, attorneys, successors and assigns, free and harmless from and
against any and all claims, liabilities, penalties, forfeitures, losses or
expenses (including attorney s fees) or death of or injury to any person or
damage to any property whatsoever, arising or caused in while or in part,
directly or indirectly by:
(i) the
presence in, on, under or about the Subleased Premises or discharge in or from
the Subleased Premises of any Hazardous Materials placed in, under or about, the
Subleased Premises by Sublandlord or at Sublandl
(ii) Sublandlord
s use, analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the Subleased Premises; or
(iii) Sublandlord
s failure to comply with any Hazardous Materials Law applicable under the Prime
Lease to Sublandlord.
(c) Subtenant
will indemnify, defend, protect, and hold Sublandlord and each of Sublandlord s
employees, agents, attorneys, successors and assigns, free and harmless from and
against any and all claims, liabilities, penalties, forfeitures, losses or
expenses (including attorney s fees) or death of or injury to any person or
damage to any property whatsoever, arising or caused in while or in part,
directly or indirectly by:
(i) the
presence in, on, under or about the Subleased Premises or discharge in or from
the Subleased Premises of any Hazardous Materials placed in, under or about, the
Subleased Premises by Subtenant or at Subtenant s direction; or
(ii) Subtenant
s use, analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the Subleased Premises; or
(iii) Subtenant
s failure to comply with any Hazardous Materials Law applicable under the Prime
Lease to Subtenant.
10
31. MISCELLANEOUS
(a) In no
event shall Subtenant s obligation to surrender the Subleased Premises require
Subtenant to repair or restore the Subleased Premises to a condition better than
the condition in which the Subleased Premises existed as of the commencement
date of the Sublease (subject
to reasonable wear and tear) and
Subtenant shall only be responsible for repairing or restoring those elements of
the Subleased Premises damaged during the Term.
Additionally, Subtenant shall not be required to remove at the expiration of the
Term or
otherwise, alterations or improvements to the Subleased Premises unless
required to do so in accordance with the terms of the Prime Lease.
(b) Sublandlord
represents and warrants that as of the Commencement
Date of this
Sublease, no condition exists that does or would with the passage of time
constitute a default under the terms of the Prime Lease and Sublandlord
is not in
breach of any of the terms of the Prime Lease.
(c) Sublandlord
represents and warrants that, to the best of Sublandlord s actual knowledge,
there are no Hazardous Materials on or about the Subleased
Premises.
(d) Subject to the
time period reflected in the Prime Lease, prior to Subtenant s nonperformance
being deemed a default under this Sublease, Subtenant shall have (i) five (5)
days from the date any monetary obligation is due and owing to Sublandlord to
cure same and (ii) thirty (30) days from receipt of written notice from
Sublandlord that a nonmonetary obligation has not been performed to cure same
(provided, however, if such nonperformance is not curable within said thirty
(30) day period and Subtenant is diligently pursuing said cure, the cure period
shall be extended for up to an additional thirty (30) days.
(e) Except as
provided by Prime Lease, Subtenant shall have access to the Subleased Premises
twenty-four (24) hours a day, seven (7) days a week, three hundred sixty-five
(365) days per year.
(f) The
covenants, agreements and obligations established herein shall extend to, bind
and inure to the benefit of the parties hereto and to their successors and
assigns.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the parties hereto have caused this Sublease to be properly
executed as of the day and year first above written.
| WITNESS: | SUBLANDLORD: | ||
| New Cingular Wireless Services, Inc. | |||
| f/k/a AT&T Wireless Services, Inc., | |||
| a Delaware corporation | |||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (SEAL) | |||
|
|
| ||
|
Print name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Network
CFO |
| WITNESS: | SUBTENANT: | ||
| BANKRATE, INC., a Florida corporation | |||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL) | ||
|
|
Print name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Senior Vice President-Chief Financial Officer | ||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
|
|
12
PRIME
LANDLORD S CONSENT TO SUBLEASE
Prime
Landlord executes this Sublease solely as evidence of its consent to the
Sublease and
Prime Landlord s waiver, with respect to this Sublease only, of the right to
recapture pursuant to Section 10.01(i) of the Prime Lease. Prime
Landlord s consent to this Sublease shall not in any way be deemed a
modification of the Prime Lease. Prime Landlord s consent to this Sublease shall
not relieve Sublandlord of the obligation to obtain Prime Landlord s consent to
any further subleasing.
Prime
Landlord s consent to this Sublease shall not relieve Sublandord of any of its
obligations as tenant under the Prime Lease.
In the
event of a default by Sublandlord under the Prime Lease resulting in Prime
Landlord terminating the Prime Lease, Prime Landlord hereby agrees to provide
Subtenant with sixty (60) days notice prior to requiring Subtenant to vacate the
Subleased Premises.
| ATTEST/WITNESS: | PRIME LANDLORD: | ||
| GARDENS PLAZA INVESTORS, LLC, | |||
| a Florida limited liability company | |||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇ |
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice
President | ||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
|
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇ |
13