Document for Baystar Holdings Llc Vs Mclaughlin, Kyle D

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                                11-2018-CA-002183-0001-XX

Filing # 75597507 E-Filed 07/27/2018 10:01:04 AM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION

898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company

Plaintiff,

Vv.
BAYSTAR HOLDINGS, LLC, a Florida Case No.
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,

Defendants.

COMPLAINT FOR EVICTION AND DAMAGES

PLAINTIFF, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC (“Landlord”), sues
DEFENDANTS, BAYSTAR HOLDINGS, LLC (“Tenant”), and KYLE D. MCLAUGHLIN
(“McLaughlin”), and DANAN JON DELSING (“Delsing”) (collectively McLaughlin and
Delsing shall be referred to as “Guarantors”, and alleges:

PARTIES, JURISDICTION AND VENUE

1. 898 Fifth Avenue South Holdings, LLC, is a foreign limited company authorized
to do business in the State of Florida.

2. Baystar Holdings, LLC, is an administratively dissolved Florida limited liability
company with its principal place of business located at 11983 Tamiami Trail North, Suite 127,
Naples, FL 34110.

3. Kyle D. McLaughlin is a resident of Collier County, Florida, who executed a

personal guaranty in favor of Landlord.

FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/30/2018 10:09:12 AM4. Danan Jon Delsing is a resident of Collier County, Florida, who executed a personal
guaranty in favor of Landlord.

5. This Court has jurisdiction over this action because this is an action to evict a tenant
from, and for possession of, non-residential property located in Collier County, Florida, and for
damages that exceed $15,000, exclusive of attorneys’ fees and costs

6. Venue in Collier County, Florida, is appropriate because the cause of action accrued
in Collier County, Florida, and the dispute involves real property located in Collier County,
Florida.

GENERAL ALLEGATIONS

7. On April 1, 2015, Tenant entered into that certain Lease with Marolax Naples, Inc.
(“Lease”), the prior landlord, for commercial real property located in Collier County, Florida. A
true and correct copy of the Lease is attached hereto as Exhibit “1.”

8. On April 1, 2016, Marolax Naples, Inc., assigned the Lease to Landlord. A true
and correct copy of the Assignment of Tenant Leases and Security Deposits is attached hereto as
Exhibit “2.”

9. The Lease was for the commercial real property described as: 898 Fifth Avenue
South, Suite 201, Naples, FL 34102 (“Leased Premises”).

10. The Lease was for a term of five (5) years, commencing on April 1, 2015, and
ending on March 31, 2020.

11. Tenant breached the Lease by failing to pay the rent, including CAM and additional
rent, due on April 1, 2018 and thereafter as required under the terms of the Lease, and is thereby

in default under the Lease.12. On July 11, 2018, Landlord posted on the Leased Premises a Three-Day Notice to
Pay Rent or Vacate. A true and correct copy of the Three-Day Notice to Pay Rent or Vacate is
attached hereto as Exhibit “3.”

13. Landlord has accelerated all rents due under the Lease through the end of the Lease.

14. | Guarantor, McLaughlin, has breached his obligations under the Lease Personal
Guaranty (“McLaughlin Guaranty”) by failing to pay all accelerated amounts due Landlord
under the Lease. A true and correct copy of the McLaughlin Guaranty is attached to this Complaint
as Exhibit “4.”

15. Guarantor, Delsing, has breached his obligations under the Lease Guaranty
(“Delsing Guarantee”) by failing to pay all accelerated amounts due Landlord under the Lease.
A true and correct copy of the Delsing Guaranty is attached to this Complaint as Exhibit “5.”

16. Tenant has failed to surrender possession of the Leased Premises or pay rent as
required by the Three Day Notice posted on the Leased Premises.

17. As of the date of this Complaint, Tenant and the Guarantors owe Landlord
accelerated rent in the total amount of $60,451.60. A true and correct copy of Tenant’s ledger
showing all accelerated rent amounts due Landlord is attached to this Complaint as Exhibit “6.”

18. Landlord has retained the law firm of Coleman, Yovanovich & Koester, P.A., and
must pay them a reasonable fee for their services.

19. As the prevailing party in this action, Landlord shall be entitled to recover its
reasonable attorneys’ fees and costs incurred in this action.

20. All conditions precedent to the filing of this Complaint have been satisfied or have

been otherwise waived.COUNT I
NON-RESIDENTIAL TENANT EVICTION

21. — Landlord reasserts each of the allegations contained in paragraphs 1 through 20
above, as though fully set forth in this paragraph.

22. This is an action for a non-residential eviction, pursuant to Chapter 83, Florida
Statutes, to evict Tenant from the Leased Premises.

23. Tenant has failed to pay rent, and other payments, due on April 1, 2018 and
thereafter as required under the Lease, and has failed to properly surrender possession of the
Leased Premises.

24. Landlord is entitled to possession of the Leased Premises.

25. Landlord is entitled to the Summary Procedure pursuant to Chapter 51, Florida
Statutes.

WHEREFORE, Plaintiff, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, respectfully
requests this Court to: (i) enter a judgment for possession of the Leased Premises in favor of the
Landlord and against the Tenant, BAYSTAR HOLDINGS, LLC; (ii) issue a Writ of Possession
placing Landlord in immediate possession of the Leased Premises; (iii) grant the Landlord its
attorneys’ fees and costs incurred in prosecuting this matter, and (iv) award the Landlord any

further relief this Court deems just and appropriate.

COUNT I
BREACH OF CONTRACT - LEASE

26. Landlord reasserts each of the allegations contained in paragraphs | through 20
above, as though fully set forth in this paragraph.
27. This is an action for damages exceeding $15,000.00 exclusive of attorneys’ fees

and costs.28. Landlord and Tenant entered into the Lease.

29. Tenant breached the Lease by failing to make all of the payments required by the
Lease.

30. Landlord has suffered damages as a result of the Tenant’s breach.

WHEREFORE, Plaintiff, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, respectfully
requests this Court to: (i) grant the Landlord, all damages suffered as a result of Tenant’s breach
of the Lease, including, but not limited to, accelerated rent and prejudgment interest; (ii) grant the
Landlord its attorneys’ fees and costs incurred in prosecuting this matter, and (iii) award the

Landlord any further relief this Court deems just and appropriate.

COUNT II
BREACH OF PERSONAL GUARANTY — KYLE D. MCLAUGHLIN

31. Landlord reasserts each of the allegations contained in paragraphs | through 20
above, as though fully set forth in this paragraph.

32. | Guarantor, McLaughlin, executed a Personal Guaranty in favor of Landlord.

33. Guarantor breached the Personal Guaranty by failing to make all of the payments
required by the Lease upon Tenant’s failure to make such payments.

34. Landlord has been damaged as a result of McLaughlin’s breach of his Personal
Guaranty.

WHEREFORE, Plaintiff, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, respectfully
requests this Court to: (i) hold that Defendant, KYLE D. MCLAUGHLIN, has breached his
Personal Guaranty by failing to make all of the payments required by the Lease upon Tenant’s,
breach of the Lease; (ii) enter a judgment for all of Landlord’s damages suffered as a result of
McLaughlin’s breach of the Personal Guaranty, including but not limited to, accelerated rent and
prejudgment interest; (iii) grant the Landlord its attorneys’ fees and costs incurred in prosecuting

5this matter; and (iv) award the Landlord any further relief this Court deems just and appropriate.

COUNT IV
BREACH OF PERSONAL GUARANTY — DANAN JON DELSING

35. Landlord reasserts each of the allegations contained in paragraphs | through 20

above, as though fully set forth in this paragraph.

36. Guarantor, Delsing, executed a Personal Guaranty in favor of Landlord.

37. | Guarantor breached the Personal Guaranty by failing to make all of the payments
required by the Lease upon Tenant’s failure to make such payments.

38. Landlord has been damaged as a result of Delsing’s breach of his Personal
Guaranty.

WHEREFORE, Plaintiff, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, respectfully
requests this Court to: (i) hold that Defendant, DANAN JON DELSING, has breached his Personal
Guaranty by failing to make all of the payments required by the Lease upon Tenant’s, breach of
the Lease; (ii) enter a judgment for all of Landlord’s damages suffered as a result of Delsing’s
breach of the Personal Guaranty, including but not limited to, accelerated rent and prejudgment
interest; (iii) grant the Landlord its attorneys’ fees and costs incurred in prosecuting this matter;

and (iv) award the Landlord any further relief this Court deems just and appropriate.Dated this 27th day of July, 2018.

COLEMAN, YOVANOVICH & KOESTER, P.A.

By: _/s/ Alex Figares

Alex R. Figares

Florida Bar No. 14305

4001 Tamiami Trail North, Suite 300
Naples, Florida 34103

239.435.3535

239.435.1218 Facsimile

Attorneys for the Landlord

Primary: afigares@cyklawfirm.com
Secondary: cykservice@cyklawfirm.com~Landlord, —

Kyle Helaashlin
Kyle. mc @ me.com
239 - 64/-/8%2

Danan Delsing

239-938 -F3 87
LEASE

BETWEEN

MAROLAX NAPLES, INC
("LANDLORD")

AND
BAYSTAR HOLDINGS, LLC

("TENANT")

Exhibit 1TABLE OF CONTENTS

ARTICLE 1 - PREMISES AND TERM.

13
14
1S
16
17
ARTICLE 2- RENT AND SECURITY DEPOSIT... sotessnnanesnaensernnenttereesseeseseeserseesee a is 6
21
22
23
24
2.5. MOVE-IN AND DEPOSITS
ARTICLE 3 - UTILITIES. 8
3.1 SEPARATE METER .. 8
3.2 FEES ....
33 INTERRUPTIONS 9
ARTICLE 4 - CONDUCT OF BUSINESS BY TENANT... oD
4. USE OF LEASED PREMISES AND EXCLUSIVE USE RIGHT. 2

42 RULES AND REGULATIONS.
43 GOVERNMENTAL REGULATIC

44 LENS ..
45 FLORIDA LIENNOTICE..
4.6 SiGns ....

ARTICLE 5S - IMPROVEMENTS.....
SA LANDLORD’S RIGHTS

52 TENANT'S WORK...
$3 OWNERSHIP OF IMPROVEMENTS ..

ARTICLE 6 - MAINTENANCE OBLIGATIONS...

61 MAINTENANCE BY TENANT.
62 MAINTENANCE BY LANDLORD.

ARTICLE 7- INSURANCE AND INDEMNITY......

7 TENANT’S GENERAL LIABILITY INSURANCE,
72 TENANT'S PROPERTY INSURANCE...

73 EMPLOYER'S LIABILITY INSURANCE .
14 INDEMNITY BY TENANT AND LANDLOI
75. WAIVER OF SUBROGATION...

ARTICLE 8 - ASSIGNMENT AND SUBLETTING.....

eo Lobel iee 2 16

84 TRANSFER OF LANDLORD’S INTEREST
ARTICLE 9 - DEFAULT... smeveveesee

91 DEFAULT OF TENANT...

9.2 LANDLORD’S REMEDIES ..

93 ‘SURRENDER OF THE PREMISES
94 DEFAULT OF LANDLORD..

Page 1 of 31ARTICLE 10- ACCESS BY LANDLORD. oe
101 RIGHT TOENTER......

ARTICLE 11 - CONDEMNATION.....
UA CONDEMNATION.
112 AWARD...

n3 RESTORATION.
ARTICLE 12 - DESTRUCTION OF PREMISES.

12.1 LANDLORD’S TERMINATION.
1222 RESTORATION.

ARTICLE 13 - REPRESENTATIONS AND WARRANTIES. oscssccss--

13.1 TENANT.
132 LANDL(

ARTICLE 14 - ESTOPPEL CERTIFICATE, SUBORDINATION, NON-DISTURBANCE AND. ATTORNMENT
AGREEMENT....... geen anese enh

14.0 ESTOPPEL CERTIFICATE...

ed
142 TENANT SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. ‘AGREEMENT FOR FUTURE
MORTGAGES.

ARTICLE 15 - HAZARDOUS SUBSTANCES.

151 DEFINITIONS.
152 TENANT’S REPRESENTATION

ARTICLE 16 - MISCELLANEOUG.......

16.1 NOTICE,
162 WAIVER.
163
16.4 ENTIREAGREEMENT
16.5 TENANT AND LANDLORD DEFINED,
16.6, PARTIAL INVALIDITY.
16.7
16.8
16.9
16.10,
16.11
16.12
16.13
16.14. CONSTRUCTION...
16.15. LEASENOTAN OFFER
16.16 SURVIVAL OF REMEDIES.
16.17 RADON Gas Discosure..
16.18 WAIVER OF JURY TRIAL
16.19 ANTI-TERRORISM REPRESENTATION AND WARRANTY
1620 CONFIDENTIALITY...
16.21 DEPosrs...
EXHIBITS:

EXHIBIT A —Location of Premises ~Page 29
EXHIBIT B — Personal Guaranty +Page 30

EXHIBIT C— Personal Guaranty - Page 31

Page 2 of 31LEASE

ARTICLE I- PREMISES AND TERM.

11 DATE AND PARTIES. This lease (“Lease”) is made effective this 7th day of
April 2015 and will commence on April 1", 2015 (the “Commencement Date"), between
MAROLAX NAPLES, INC., a Florida corporation, having an address of 898 Fifth Avenue
South #304, Naples FL 34102 and Baystar Holdings, LLC., a Florida corporation, having an
address of 2120 River Beach Dr. Apt. II, Naples, FL 34104 ("Tenant").

1.2 PREMISES. In consideration of the rents, covenants, and agreements herein set
forth, Landlord hereby leases to Tenant and Tenant hereby rents from Landlord that part of the
building located at 898 Fifth Avenue South, Naples, Florida 34102 (the “Building”), consisting
approximately 945 rentable square feet ("RSF") (collectively the “Premises") on the second floor
as depicted on Exhibit A, Suite 201. In general, Tenant and its agents, employees, and invitees
have the nonexclusive right to the use of the shared area of the Building. The shared area
consists of all means of access to and from the exterior of the Building, including all corridors,
all stairwells and elevators, and all utility lines and equipment within the Building (collectively,
the "Shared Area"). The shared facilities include sidewalks, driveways, parking lots, landscaping

and designated balcony area adjacent to the premises shall collectively be called the "Shared
Facilities".

13 RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, exercisable without liability to Tenant for damage or injury to property, person or
business and without effecting an eviction, constructive or actual, or disturbance of Tenant's use
Or possession or giving rise to any claim:

Q @ To name the Building and to change the name or street address of
the Building (provided in either case that Tenant shall have the tight to be reimbursed by

Landlord such reasonable-costs as Tenant Taay incur as a direct result of Landlord's change of the
Building's name or address);

Gi) To approve any and all signs that may be proposed by Tenant tobe
placed on the exterior or interior of the Building (which signs must in each case fully comply

with the Landlord’s signage criteria in effect from time to time); All of the existing signs and
widows have been approved.

Gii) During the last ninety (90) days of the Term or extension, if Tenant
has vacated the Premises, to decorate, remodel, repair, alter or otherwise prepare the Premises for
Teoccupancy, without affecting Tenant's obligation to pay Rent for the Premises.

Page 3 of 31(iv) On reasonable prior notice to Tenant, to exhibit the Premises to
any prospective purchaser, mortgagee or assignee of any mortgage on the Building and to others
having an interest therein at any time during the Term, and any extension, and to prospective
tenants during the last six months of the Term and any extension.

(v) To take any and all measures, including entering the Premises for
the purpose of making inspections, repairs, alterations, additions and improvements to the
Premises or to the Building (including for the purpose of checking, calibrating, adjusting and
balancing controls and other parts of the building systems), as may be necessary or desirable for
the operation, improvement, safety, protection or preservation of the Premises or the Building, or
in order to comply with all laws, orders and tequirements of governmental or other authority, or
as may otherwise be permitted or required by this Lease: provided, however, that Landlord shall

use its best efforts (except in an emergency) to minimize interference with Tenant's business in
the Premises;

(vi) To install, maintain, use, repair and replace wires, ducts, pipes,
conduits and structural elements which are located within the Premises and serve other premises

within the Building, in locations which will not materially interfere with Tenant's use of the
Premises; and

(vii) To relocate various facilities within the Building if Landlord shall
determine such location to be in the best interest of the Building, provided that such relocation
shall not materially restrict the access to the Premises.

1.4 TERM.

A Initial Term. This Lease is effective, binding and the Lease term begins
on the Commencement Date indicated above. Except as otherwise hereinafter set forth, Tenant
shall be obligated to pay Base Rent, as hereinafter defined, and Additional Rent, as hereinafter
defined, for the entire five (5) year term of the Lease commencing in monthly installments as set
forth below in Section 2.1 commencing on the Rent Commencement Date and ending a full 60

months after, unless sooner terminated as provided elsewhere in this Lease (the “Expiration
Date").

B. Lease Year. For purposes of this Lease, a "Rent Year" shall be defined as.
that twelve (12) calendar month period commencing on the Rent Commencement Date or the
annual anniversary thereof, as may be applicable, Last Rent Year ends on March 31, 2020. -

C. Inspection and Acceptance As-Is. Tenant accepts the Premises in its "as
is" condition on the Commencement Date of this Lease and waives any and all claims as to the
condition of the Premises. Tenant acknowledges having the opportunity to make inspection of
the Premises and if it has not done so, waives all Tights to such an inspection or if it has
conducted an inspection, acknowledges its satisfaction and acceptance of the condition of the
Premises. Tenant shall be responsible at Tenant's sole cost for any alterations or other

Page 4 of 31improvements Tenant may desire to make pursuant and subject to the provisions of Article 5
below.

1.5 COMMON AREAS. Tenant and its customers, employees and invitees are
during the Term the non-exclusive right to use, in common with Landlord, other
uilding, without charge (except as may be specifically set forth in this Lease), the
Shared Areas and Shared Facilities (collectively, the “Common Areas") for the normal or
intended purposes of such areas, and only the balcony area adjacent to the premises as depicted
in Exhibit A. Tenant is responsible to keep balcony area clean (no pressure cleaning).

1.6 SURRENDER OF PREMISES. Upon the expiration of the Term or any earlier
termination of this Lease, and at the conclusion of any holdover period, Tenant shall surrender
the Premises in a broom clean condition, excepting only reasonable wear and tear, subject to
alterations, additions and improvements made pursuant to the terms of this Lease, items which
are the responsibility of Landlord or which result from Landlord’s failure to comply with its
obligations hereunder, and Tenant shall surrender all keys for the Premises to Landlord. Before
surrendering the Premises, Tenant shall remove all of Tenant’s personal property and unattached
movable trade items (unless Tenant is then in default and Landlord exercises its right of distraint
as to any of such personal property and items). At the option of Landlord, Tenant, at Tenant's
sole cost, shall also remove any or all improvements, alterations, additions, fixtures, equipment
and decorations at any time made or installed by Tenant in, upon or to the interior or exterior of
the Premises without the consent of Landlord or if made with the consent of Landlord where
Landlord conditioned its approval of such alterations upon removal thereof upon Lease
termination. If Tenant fails to timely remove said improvements, alterations, additions, fixtures,
equipment and decorations, Landlord may remove said items and may deduct the cost of said
Temoval and related repairs to the Premises from the Move-In Deposit held by Landlord as set
forth in Section 2.5 below. Should said costs exceed said the amount of the Move-In Deposit,
Tenant shall remain liable for the prompt reimbursement to Landlord of all such excess costs. If
Tenant fails to remove any of Tenant’s personal property or trade fixtures or other items, said
property shall, at the option of Landlord, either be deemed abandoned and become the exclusive
property of Landlord, or Landlord shall have the right to remove said property and Landlord
shall not be liable for any damages to said property as a result of said removal by Landlord, at
the expense of Tenant, without further notice to or demand upon Tenant, and Tenant shall pay to
Landlord upon demand any and all charges and expenses incurred by Landlord. If the Premises
are not so surrendered, Tenant shall indemnify Landlord against any loss or liability resulting
from the delay by Tenant in so surrendering the same, including, without limitation, any claims
made by any succeeding occupant arising from any such delay. Tenant’s obligations under this
Section shall survive the expiration or sooner termination of the Term.

1.7. HOLDING OVER. This Lease and the tenancy created by this Lease shall cease
and terminate at the end of the initial Term hereof, unless extended as provided herein, without
the necessity of notice, and Tenant hereby waives notice and agrees that Landlord shall be
entitled to summary recovery of the Premises. Any holding over after the expiration of the Term
hereof, without the consent of Landlord, shall be construed to create a tenancy at sufferance,
under all the terms, covenants and conditions of this Lease, except that: (a) Landlord shall be
entitled to collect rent in the amount of two hundred percent (200%) of Base Rent (as defined in
Section 2.1 below), together with Additional Rent (as defined in Section 2.2 below), due

Page 5 of 31hereunder; (b) any obligation of Landlord for services, maintenance and repairs pursuant to the
Lease shall terminate; (c) Section 14.2 of this Lease, providing for quiet possession shall be
cancelled, terminated, and of no further force or effect; and (d) Tenant shall be liable to Landlord
for any damages suffered by Landlord because of Tenant’s holding over. Any holding over after
the Term or extension with the consent of Landlord shall be construed to create tenancy from
month-to-month at the Base Rent and Additional Rent in effect for the last month of the Term
and under all the other terms, covenants and conditions of this Lease.

ARTICLE 2 - RENT AND SECURITY DEPOSIT

21 BASE RENT. Tenant agrees to pay to Landlord commencing on April 1, 2015
("Rent Commencement Date"), the "Base Rent" as follows:

Lease Year Monthly Base Rent Annual Base Rent
Year 1 $1,885.00* $22,620.00*

Year 2 $2.085.00 $25,020.00

Year 3 $2,185.00 $26,220.00

Year 4 $2,285.00 $27,420.00

Year 5 $2,385.00 $28,620.00

“First Year Base Rent: First two months (April, May 2015) no payment is due, this
months are rent-free; only “Additional Rent” (CAM) $315.00 payable.

The monthly installments of Base Rent and Tenant’s monthly installment of Additional
Rent (as defined in Section 2.2, below), shall be due and payable each month, in advance, on the
first (1") day of each calendar month without demand, setoff, or deduction, to Landlord. at the
address set forth herein (Marolax Naples, Inc.) or as otherwise designated by subsequent written
notice. The term "Rent" as used in this Lease shall mean Base Rent, Additional Rent, and any
and all other sums of money due from or otherwise required of Tenant pursuant to this Lease.
Upon execution of this Lease, Tenant shall prepay to the Landlord, the first and last month’s
payment of Base Rent and estimated Additional Rent plus applicable sales tax. The term "sales
tax" shall mean and refer to any excise, sales, use, gross receipts or other taxes (other than a new
income or excess profits tax) which may be imposed on or measured by Rent or may be imposed
on or on account of the leasing to or occupancy by Tenant of the Premises hereunder and which
Landlord may be required to pay or collect under any law now or in effect or hereafter enacted.
Landlord represents and warrants that the RSF square footage figure set out above was made by
Landlord in good faith and is, to the best of Landlord's knowledge and belief, accurate and
teflects the actual square footage within the Premises. Tenant agrees that such RSF square
footage figure is accurate and not subject to challenge. ~

Page 6 of 312.2 ADDITIONAL RENT. In Conjunction with the payment of Base Rent, Tenant
shall also pay as “Additional Rent”, also known as Common Area Maintenance (CAM), the
following:

Lease Year Rate Monthly Add. Rent Annual Add. Rent
Year 1 $4.00/RSF $315.00 $3,780.00
Year 2 $4.00/RSF $315.00 $3,780.00
Year 3 $6.50/RSF $511.88 $6,142.50
Year 4 $6.50/RSF $511.88 $6,142.50
Year 5 $6.50/RSF $511.88 $6,142.50

Additional Rent (CAM) is a flat rate.

Operating Expenses. All Landlords’ operating expenses attributable to the Operation,
maintenance, management, and repair of the Common Areas and Building, as determined under
generally accepted accounting principles consistently applied, including without limitation

_ (hereinafter collectively referred to as "Operating Expenses"):

@ Premiums and other charges. including, without limitation,
deductibles, incurred by Landlord for insurance, including:

(a) fire insurance, extended coverage insurance, windstorm,
and explosion insurance;

(6) public liability and property damage insurance;

(©) _ other insurance as is customarily carried by operators of
comparable buildings in the Naples, Florida area:

Gi) other costs reasonably necessary to Operate, repair, manage,
and maintain the Common Areas in a first class manner and condition comparable to similar
buildings in the Naples, Florida area: and

ii) real property taxes and assessments levied or assessed against

the Building, special or otherwise, imposed by any lawful - governmental authority’ for such
calendar year.

B. Estimated Payments and Reconciliation. Landlord shall provide Tenant
with an estimate of the monthly Additional Rent due from Tenant not later than the
commencement of the third Lease Year and prior to each subsequent Lease Year, which amount
Tenant shall pay along with the monthly Base Rent, Each Lease year, Landord shall endeavor to
deliver to Tenant a statement of the actual Additional Rent payable by Tenant for the prior year.
Any further Additional Rent amount due to Landord shall be paid by Tenant, without prejudice

Page 7 of 31to any written exception, within thirty (30) days following Landord’s delivery of said statement.
If the total Additional Rent payment received by Landord is greater than the actual Additional
Rent due for the same period, Tenant shall receive a credit in the amount of the overpayment
against the next required payment of Additional Rent. In the event Landord estimates that
Additional Rent will be paye able by Tenant following Lease expiration, then Landord tay deduct
such estimated sums from Tenant’s Security Deposit prior to return of same to Tenant, but such
deductions shall not remove Tenant’s obligation to pay its Pro Rata Share of actual Additional
Rent once such determination is made. Should a credit be due Tenant at the termination of this
Lease, Landord shall remit payment to Tenant within thirty (30) days of statement issuance date.
Tenant shall, within thirty (30) days following Landord’s issuance of such a statement and upon
not less than five (5) days prior written notice to Landord, have the authorization to examine
Landord’s books and records during normal business hours to verify Landord’s annual statement
of actual Additional Rent payable by Tenant. Following expiration of the foregoing inspection
period, Landord’s annual statement of actual Additional Rent shall be considered as final and
accepted by Tenant.

Cc. Taxes on Tenant’s Personal Property. Tenant shall be responsible for and
shall pay before delinquency all municipal, county, state and federal taxes assessed during the

Term of this Lease against personal property of any kind owned by or placed in, upon or about
the Premises by Tenant.

2.3 OTHER CHARGES. Tenant shall pay to Landlord all sales, excise. rental and
use taxes imposed by law_on the monthly Base Rent, Additional Rent. and all other Tental

2.4 LATE CHARGE. If any monthly installment of Rent or portion thereof is not
paid within ten (10) days after its due date, Tenant agrees to pay a late charge equal to five
percent (5%) of the late amount, not to exceed $250.00, to compensate Landlord for the
additional administrative expense and inconvenience occasioned thereby (the "Late Charge"),
plus interest at eighteen percent (18%) per annum or the maximum then allowed by applicable
Jaw, whichever is less, on the remaining unpaid balance of Rent, retroactive to the date originally
due until paid (the "Default Rate"). In addition, Landlord may assess a Fifty and No/100 Dollars
($50.00) charge for any check from Tenant returned to Landlord for insufficient funds.

2.5 MOVE-IN AND DEPOSITS. SEE 16.21

ARTICLE 3 — UTILITIES

3.1. SEPARATE METER. Tenant shall contract in its own name for any and all
separately metered utilities or specialty services which are unique to the Tenant’s business and/or
exclusively serve the Tenant and Premises, such as but not limited to, electric, cable, gas, internet
or telephone as examples.

3.2. FEES. The local government or utility authority may require the payment of
certain impact and other fees for public utility facilities, infrastructure and services. These fees

Page 8 of 31are derived for one (1) of two (2) purposes: (a) to pay for the usage of a proportionate share of
the local government’s facilities for future capacity and infrastructure improvements or to pay
for a new user’s utilization of oversized facilities paid for by other parties, including. the local
government or utility authority (collectively, the "Connection Fees" or “Impact Fees"); or (b) to
pay for local government's time and expense to program or tum on the public utility facilities to
a building or structure for each new customer (the "Turn On Fees"). Tenant shall be responsible
for payment of all Tum-On Fees and Impact Fees over and above the Impact Fees previously
paid by Landlord. Tenant may also be responsible for the payment of any unused or expired
Impact Fees previously paid to Collier County or the City of Naples. Tenant shall also be solely

responsible for any permit fees, inspection fees, or any other fees related to the construction of
Tenant’s Work.

3.3. INTERRUPTIONS. Landlord does not warrant that utilities or any services
Landlord supplies will not be interrupted. Such utilities and services may be interrupted because
of accidents, repairs, alterations, improvements, or any reason beyond the reasonable control of
Landlord, Any interruption shall not: (a) be considered an eviction or disturbance of Tenant’s
use and possession of the Premises; (b) make Landlord liable to Tenant for damages; (c) abate
Base Rent or Additional Rent; or (d) relieve Tenant from performing Tenant’s Lease obligations.
In the future, if the tenant pays such utilities to avoid any interruptions, said amount shall be
deducted from the additional rent and shall give written notice to Landlord of such.

ARTICLE 4 - CONDUCT OF BUSINESS BY TENANT

41. USE OF LEASED PREMISES AND EXCLUSIVE USE RIGHT. Subject.to
applicable governmental codes, regulations, zoning and ordinances, Tenant shall have the right
to use the Premises for the operation of an office space/foot massage business (the “Permitted
Exclusive Use"), and shall only use the Premises for that purpose. Tenant shall operate its
business in an efficient, high class and reputable manner and shall not create a nuisance nor
permit any immoral or illegal activities to occur on the Premises.

4.2 RULES AND REGULATIONS. Tenant shall keep the Premises neat, clean,
sanitary and reasonably free from dirt, rubbish, insects and pests at all times. Tenant will store
all trash and garbage within the area designated by Landlord from time to time, and only in
teceptacles of the size, design and color from time to time agreed upon by Landlord and Tenant.
Tenant shall not operate an incinerator or burn trash or garbage within the Premises. Tenant
shall not permit any noxious odors to emanate from the Premises. Tenant agrees to pay to
Landlord any increase in premiums for any casualty insurance which might be required as a
result of the manner in which Tenant carries on such business. Tenant covenants not to use or
maintain the Premises in such a manner as to constitute an actionable nuisance to Landlord, or
violate the quiet enjoyment of other tenants, owners, occupants or invitees of the Building: and
not to commit or permit waste of the Premises. Tenant shall not solicit business in the parking
area or the Common Areas, or distribute handbills or other advertising material in or upon
automobiles parked in the parking area unless approved by Landlord or building manager.
Tenant shall maintain the inside of the Premises at a temperature and humidity sufficiently to
prevent the potential growth of any molds or mildew within the Premises. Tenant shall comply
with such additional Rules and Regulations applicable to all tenants of the Building as Landlord
may establish from time to time, in Landlord’s sole commercially reasonable discretion.

Page 9 of 3143 GOVERNMENTAL REGULATION. Tenant shall, at its expense, obtain all
licenses and permits required for, and comply with all Federal, State and local laws, ordinances,
orders, rules and regulations pertaining to the operation of the Premises for its Permitted Use.

44 LIENS. Tenant shall have no power to subject Landlord’s interest in the
Premises to construction, mechanic’s or materialmen’s liens of any kind. The existence of any
such lien, which lien is not discharged of record by Tenant or bonded off within thirty (30) days
of Tenant’s receipt of notice of the recording of any such lien, shall be a breach of this Lease.
All contracts for work on the Premises performed on behalf of Tenant must contain a waiver of
lien by Tenant’s contractor against Landlord's interest in the Premises. All persons performing
work, labor or supplying materials at the Premises on behalf of Tenant shall look solely to
Tenant and not to the interest of Landlord in the Premises for sums owed. Landlord shall have
the right, but not the obligation to discharge of record or transfer to bond any lien recorded
against the Premises by Tenant or Tenant’s contractor that has not been discharged of record or
transferred to bond within thirty (30) days from Tenant’s receipt of notice of the recording
thereof and any reasonable cost or expense, including reasonable attorney’s fees, incurred by
Landlord as a result thereof shall be due and payable within fifteen (15) days of demand therefor.

45 FLORIDA LIEN NOTICE. In accordance with Florida Statutes, Section
713.10, notice is hereby given that the Premises are not subject to liens for improvements made
by, through or under Tenant.

4.6 SIGNS. Tenant shall not place or suffer to be placed or maintained upon any
exterior door, roof, wall or window of the Premises or on any portion of the Building any sign,
awning, canopy or advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on the glass of any window or door of the
Premises, without first obtaining: (a) Landlord’s express prior written consent; (b) complying
fully with Landlord’s signage criteria as may be in effect from time to time; and (c) providing
adequate proof to Landlord that same complies with all applicable local regulations (i.e. copy of
Tenant’s signage permit). Tenant further agrees to maintain such sign, lettering or other thing as
may be approved by Landlord in good condition and repair at all times at Tenant’s expense and
to remove the same at the end of the Term or extension of this Lease, as and if requested by
Landlord. Upon removal thereof, Tenant agrees to tepair any damage caused by such installation
and/or removal. All signs or items in place at this time comply with this section.

ARTICLE 5— IMPROVEMENTS

5.1. LANDLORD’S RIGHTS. Landlord shall have the right to run utility lines,
Pipes, roof’ drainage lines, conduits, duct work and/or component parts of mechanical and
electrical through the Premises to service other tenants and building areas, and Landlord shall
have the right to repair, alter, replace or remove the same, and to require Tenant to maintain
proper access to any panels thereto installed by Landlord; provided, however, in performing such
work Landlord shall use reasonable efforts to not reduce the useable area of the Premises or
unreasonably impair Tenant’s ability to operate its business in the Premises.

5.2. TENANT’S WORK. Tenant, at Tenant’s sole cost and expense, shall obtain all
permits, licenses, and other approvals for, and perform and complete, all work, alternations,

Page 10 of 31additions, or improvements to the Premises required to prepare the same for Tenant’s use and
occupancy of the Premises, and Tenant shail pay at Tenant's sole cost all impact fees, tap-in fees,
connection fees, and the like for the same (collectively “Tenant’s Work"). As of the execution
date of this Lease, Tenant confirms that all Tenant’s Work has already been completed.

D. Plans and Approvals. No new Tenant’s Work shall be commenced unless
and until: (1) written plans and specifications have been submitted to and approved by Landlord,
in Landlord’s reasonable discretion; and (2) Tenant shall have recorded in the Public Records of
Collier County and posted on the Premises a Notice of Commencement in a form approved in
advance in writing by Landlord. Said plans and specifications shall include a floor plan,
elevations, electrical panel schedules, load calculations, HVAC equipment specifications, system
diagrams (i.e. ductwork, diffusers), and a reflective ceiling plan. Landlord shall have fifteen (15)
days from receipt thereof to disapprove of such plans and specifications. Any disapproval shall
contain the specific changes desired by Landlord to obtain its approval. Landlord shall have
seven (7) days from receipt thereof to disapprove any revised plans and specifications; provided
that if the changes requested by Landlord have been made, Landlord’s approval shall be deemed
given. The Tenant’s Work shall be performed in accordance with the plans approved by
Landlord and shall be done in a good and workmanlike manner using new materials. All work
shall be done in compliance with all other applicable provisions of this Lease and with all
applicable laws, ordinances, directives, rules, regulations, and other tequirements of any
governmental authorities having or asserting jurisdiction over the Premises, including the making
of any alterations or improvements to the Premises which are required to comply with the

Americans with Disabilities Act and the payment by Tenant of any impact fees or assessments
arising from the Tenant’s Work. Before the commencement of any work by Tenant, Tenant shall
fumish to Landlord a recorded Notice of Commencement in form and substance Satisfactory to

_ Landlord, certificates evidencing the existence of builder’s risk, commercial general liability, and

-_ workers’ compensation insurance complying with the requirements set forth below. Any
damage to any part of the Building (including without limitation any Common Areas) that occurs
as a result of the Tenant’s Work shall be promptly repaired by Tenant, or at Landlord’s election,
by Landlord, but in either case, at Tenant’s sole expense.

hall i at te and
af g. }000,000: i jlord as an additional insured thereon. All
entries on the Premises after the Commencement Date and all work done by or on behalf of the
Tenant shall be at Tenant’s sole risk. Prior to the commencement of Tenant’s Work, Tenant
shall provide Landlord with copies of the building permit and the contractor’s certificate of
insurance for Fenant’s Work.

F. Additional Requirements. Tenant shall also ensure compliance with the
following requirements concerning construction:

@ Tenant and all construction personnel shall abide by Landlord’s
job site rules and regulations and fully cooperate with Landlord’s construction representatives in
coordinating all construction activities, including rules and regulations concerning working
‘hours, parking, and use of construction entrances and elevators;

Page 11 of 31: Gi) Tenant shall be responsible for cleaning up any refuse or other
materials left behind by construction personnel at the end of each work day;

Gii) Tenant shali deliver to Landlord all forms of approval provided by
the appropriate local governmental authorities to certify that Tenant’s Work has been completed
and the Premises are ready for occupancy, including a final, unconditional certificate of
occupancy;

(iv) _ At all times during construction, Tenant shall allow Landlord
access to the Premises for inspection purposes. On completion of Tenant’s Work, Tenant’s
general contractor shall review the Premises with Landlord and Tenant and secure Landlord's
and Tenant’s acceptance of Tenant’s Work;

(vy) At Landlord’s sole discretion, workers shall provide their own
temporary toilet facilities, trash facilities, water coolers, and construction materials dumpsters
and shall locate them along with any construction trailers or field offices in areas specifically
designated by Landlord or building managers;

(vi) No painting or spraying of chemicals, varnishes, lacquers, finishes,
or paint will be allowed during normal business hours. Such activities shall occur during days
and times specifically preapproved by Landlord or building managers.

(vil) Any work that may disturb owners or tenants of the Building
(including welding, cutting torch, drilling or cutting of the concrete floor slab or temporary
interruption of any utility service), shall only occur on days and times specified by Landlord or
building managers;

(viii) Any work that will involve the draining of a sprinkler line or
otherwise affect the Building’s fire sprinkler system must be approved by Landlord in advance.
In all instances where this is done, the system shall not be left inoperable overnight or over a
prolonged period. Any disruption to any existing fire sprinkler system or damage as a result of
contractor’s work will be the sole responsibility of Tenant;

Gx) _ All workers must stay in their designated work areas and the use of
tadios, loud music, alcoholic beverages, narcotics, or cigarette smoking is prohibited in the
Building; and

(x) All additional electrical circuits added to existing electrical panels
or any new circuits added to new electrical panels will be appropriately labeled as to the area or

equipment serviced by the circuit in question. Any electrical panel covers removed to facilitate
installation or connection shall be reattached.

5.3. OWNERSHIP OF IMPROVEMENTS. Landlord shall be considered for all
purposes to be the owner of the improvements constructed on the Premises by Tenant. Upon
termination of this Lease, the ownership of said improvements constructed on the Premises by
Tenant shall remain the property of Landlord, except for Tenant’s trade fixtures, equipment and
other property placed on the Premises by Tenant and any alterations or replacements thereof.
Upon the expiration or earlier termination of this Lease, any such trade fixtures, equipment and

Page 12 of 31other property belonging to Tenant which Tenant has failed to remove from the Premises shall
become the property of Landlord. If Tenant fails to timely remove said trade fixtures, equipment
and other property, as provided for in Section 1.6 above, Landlord may remove said items and
Tenant shall remain liable for the prompt reimbursement to Landlord. Should Tenant remove
any such fixture affixed to the Premises that was placed on the Premises by Tenant, Tenant, at its
sole cost and expense shall repair any damage to the Premises caused ‘by such removal.

ARTICLE 6 - MAINTENANCE OBLIGATIONS

6.1 MAINTENANCE BY TENANT. Tenant shall at all times keep and maintain, at
its cost and expense, the Premises, all partitions, doors, fixtures, equipment and appurtenances
thereof exclusively serving the Premises, including lighting, electrical equipment, plumbing
fixtures and equipment, heating, HVAC equipment, in good order and repair and in a clean and
sanitary condition, and shall make all necessary repairs, including all necessary replacements,
alterations and additions, using material and equipment of similar or superior kind and quality to
the original improvements. Tenant shall enter into a contract with a duly licensed air
conditioning service company for the maintenance of the HVAC system exclusively serving the
Premises as Tenant shall have sole responsibility for the maintenance, repair and replacement of
such HVAC system. Tenant shall also enter into a pest control contract for the Premises at
Tenant's sole cost and expense, which contract shall provide for monthly pest inspections.
Landlord shall, whenever reasonably practical, extend to Tenant the benefit of any available
manufacturer's or other warranties. Tenant shall be responsible for protecting the Premises and
the property located therein from theft and robbery and shall keep all doors and windows
securely fastened when not in use.

Jf Tenant fails to maintain the Premises as required hereunder, then fifteen (15) days after
written request (or such longer period as is necessary if the repair cannot reasonably be
completed within the fifteen (15) day period and Tenant promptly commences and diligently
pursues the completion of such repair), Landlord shall have the right to enter the Premises and to
make such repairs at Tenant’s expense, and upon completion thereof Tenant shall pay as
Additional Rent Landlord’s reasonable costs for making such repairs. In addition, in the event
such a failure results in a material interference with another tenant’s operation of its business,
any use of the Common Areas, or the use of any other part of the Building, and Tenant does not
immediately, after notice from Landlord, commence, and with all due diligence, continue the
cure of such failure, including taking any immediate steps necessary to lessen the impact on
other tenants of the Building, Landlord shall have the right to undertake and complete such
taintenance or repairs at Tenants cost and expense. Such payment shall be due within thirty
(30) days after Tenant’s receipt of an invoice therefor. :

62 MAINTENANCE BY LANDLORD. Landlord covenants and agrees, at its cost
and expense, to keep, maintain and replace (or cause to be kept, maintained and replaced), if
necessary, the foundation, exterior paint, utilities and plumbing system up to and including the
connections to the Premises and the sprinkler mains, if any, structural systems including the roof,
roof membrane, roof covering (including interior ceiling damage by leakage), load bearing walls,
floor slabs, exterior masonry walls, and the Common Areas (excluding sprinkler heads extending
below the ceiling of the Premises or any modifications of the sprinkler as may be requested by
Tenant), in good condition and repair, in a neat and clean condition and in compliance with all

Page 13 of 31applicable governmental laws, regulations and other requirements. Notwithstanding the above, if
Landlord is requited to make or cause repairs to be made to the Premises or Common Areas by.
Treason of Tenant's negligent act or failure to act, Tenant shall pay as Additional Rent the
reasonable cost of making such repairs. Such payment shall be due within thirty (30) days after
Tenant's receipt of an invoice therefor. Any Landlord maintenance costs which qualify as
Operating Expenses shall be included in Operating Expenses.

ARTICLE 7 - INSURANCE AND INDEMNITY

_ 71 TENANT’S GENERAL LIABILITY INSURANCE. Tenant will keep in force
at its own expense, throughout the Term of this Lease, commercial general liability insurance
with respect to the Premises and the business operated by Tenant and construction performed by
Tenant with companies licensed to do business in the state in which the Premises are located and
rated A- or better in the then most current issue of Best’s Insurance Reports with coverage of not
less than Two Million and No/100ths Dollars ($2,000,000.00) per occurrence. Tenant shall have
all such public liability policies endorsed to show Landlord named as an additional insured with
Tespect to occurrences upon the Premises. Tenant’s insurance policy will further provide for at
least thirty (30) days notice to Landlord before cancellation. Tenant will furnish Landlord with
certificates of such insurance annually prior to each expiration of such insurance policy. If
Tenant shall not comply with the provisions of this Section, then subject to notice and
Opportunity to cure, Landlord shall have the right to obtain insurance as required by this Section
and, in such event, Tenant agrees to pay to Landlord the cost of the premium for such insurance

promptly upon Landlord’s demand, plus interest thereon at the Default Rate (as defined in
Section 2.4 above).

72. TENANT’S PROPERTY INSURANCE. Tenant will keep in force at its own
expense, commencing on the date Tenant actually takes possession of the Premises, and
continuing throughout the Term, property insurance with respect to Tenant’s improvements and
betterments, personal property in the Premises and the HVAC and other equipment exclusively
serving the Premises with companies licensed to do business in the State of Florida and rated A-
or better in the then most current issue of Best’s Insurance Reports, against loss or damage by
fire and such other hazards on a replacement cost basis. Tenant’s insurance policy will further
provide for at least thirty (30) days notice to Landlord before cancellation. Tenant will furnish
Landlord with certificates of such insurance annually prior to each expiration of such insurance
policy. If Tenant shall not comply with the provisions of this Section, then subject to notice and
opportunity to cure, Landlord shall have the right to obtain insurance as required by this Section
and, in such event, Tenant agrees to pay to Landlord the cost of the premium for such insurance

promptly upon Landlord’s demand, plus interest thereon at the Default Rate (as defined in
Section 2.4 above). 2

7.3 _EMPLOYER’S