NET LEASE
EXHIBIT
10.1
NET
LEASE
STATE
OF FLORIDA:
COUNTY
OF HILLSBOROUGH:
THIS
LEASE (this
“Lease”), is made this 16th day of April, 2007, by and between FLA OWNER
LLC, a Delaware limited liability company (“Landlord”) and
NFINANSE, a Nevada corporation (“Tenant”).
1. GENERAL.
1.1
Consideration. Landlord enters into this Lease in
consideration of the payment by Tenant of the rents herein reserved and the
keeping, observance and performance by Tenant of the covenants and agreements
herein contained.
1.2 Exhibits
and Addenda
to Lease. The Exhibits and Addenda listed below shall be
attached to this Lease and be deemed incorporated in this Lease by this
reference. In the event of any inconsistency between such Exhibits
and Addenda and the terms and provisions of this Lease, the terms and provisions
of the Exhibits and Addenda shall control. The Exhibits and Addenda
to this Lease are:
Exhibit
A – Premises
Exhibit
B - Monthly Rent
Schedule
Exhibit
C - Rules and
Regulations
Exhibit
D – Work Letter
2. DEMISE
OF PREMISES.
2.1 Demise. Subject
to the provisions, covenants and agreements herein contained, Landlord hereby
leases and demises to Tenant, and Tenant hereby leases from Landlord, the
Premises as hereinafter defined, together with a non-exclusive right to use
the
Parking Area (as hereinafter defined) for the Term (as hereinafter defined)
of
the Lease, subject to existing covenants, restrictions, easements and
encumbrances affecting the same.
2.2 Premises. The
term "Premises" shall mean the space in the Building (as hereinafter defined)
known as Suite 107 containing the number of rentable square feet as set forth
in
Section 2.3 of this Lease and more fully described on Exhibit A attached
hereto.
2.3 Square
Footage and
Address. The Premises contains eleven thousand five hundred
eighty (11,580) rentable square feet. The address of the Premises is
0000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000.
2.4 Building. The
term "Building" shall mean the Sabal Business Center One containing forty-one
thousand three hundred eighty-two (41,382) rentable square feet.
2.5 Improvements. The
term "Improvements" shall mean the Building, the Parking Area, and all other
real property improvements, including landscaping.
2.6 Property. "Property"
shall mean the Building and real property on which it is situated, the
Improvements, and any fixtures and personal property used in operation and
maintenance of same, other than fixtures and personal property of Tenant and
other users of space in the Building.
2.7 Common
Facilities. "Common Facilities" shall mean all of the Property
except the Premises and other space in the Building leased or held for lease
to
other tenants. Common Facilities shall include the Parking Area and
any walks or driveways designated for common use by Tenant and other users
of
space in the Building.
2.8 Parking
Area. "Parking Area" shall mean that portion that of the
Property which is for the parking of motor vehicles. The Parking Area
is to be shared by Tenant in common with other users of space in the Building,
provided, however, that Tenant shall, at no time during the Term of this Lease,
use more than five (5) parking spaces per each one thousand (1,000) rentable
square feet contained in the Premises.
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2.9 Park. The
Property is located in and is part of the development commonly known as Sabal
Park.
2.10 Use
of Common
Facilities. Tenant is hereby granted the non-exclusive right to
use, in common with other users of space in the Building, so much of the Common
Facilities as are needed for the use of the Premises.
2.11 Covenant
of Quiet
Enjoyment. If Tenant promptly and punctually complies with each
of its obligations hereunder, it shall peacefully have and enjoy the possession
of the Premises during the Term hereof, provided that no action of Landlord
or
other tenants working in other space in the Building, or in repairing or
restoring the Premises, shall be deemed a breach of this covenant, or give
to
Tenant any right to modify this Lease either as to term, rent payable, or other
obligations to be performed.
2.12
Condition
of
Premises. Tenant covenants and agrees that, upon taking
possession of the Premises, it will have accepted the Premises "as-is" and
Tenant waives any warranty of condition or habitability, suitability for
occupancy, use of habitation, fitness for a particular purpose, or of
merchantability, express or implied, relating to the Premises.
3. TERM
OF LEASE.
3.1 Term
of
Lease. The Term (the "Term") of this Lease is for sixty (60)
months, and shall commence on the date of substantial completion of the Tenant
Improvements (as defined in the Work Letter attached hereto as Exhibit D) (the
"Commencement Date"), and shall expire (unless sooner terminated or extended
as
herein provided) at noon on the date that is sixty (60) months after the
Commencement Date (the "Expiration Date"). In the event Landlord
shall permit Tenant to take possession of the Premises prior to the Commencement
Date referenced above, all the terms and conditions of this Lease shall
apply.
3.2 Delivery
of Possession. If Landlord, for any reason whatsoever, cannot
deliver possession of the Premises to Tenant on the Commencement Date, then
this
Lease shall not be void or voidable, no obligation of Tenant shall be affected
thereby, and neither Landlord nor Landlord's agents shall be liable to Tenant
for any loss or damage resulting from the delay in delivery of possession;
provided, however, that in such event, the Commencement Date and Expiration
Date
of this Lease, and all other dates that may be affected by their change, shall
be revised to conform to the date of Landlord's delivery of possession to
Tenant. The above, however, is subject to the provision that the
period permitted for the delay of delivery of possession of the Premises shall
not exceed ninety (90) days after the Commencement Date set forth in the first
sentence of this Section 3 (except that those delays beyond
Landlord's control, including, without limitation, those encompassed in the
meaning of the term "force majeure", or caused by Tenant (the "Delays") shall
be
excluded in calculating such period). If Landlord does not deliver
possession to Tenant within such period, then Tenant may terminate this Lease
by
written notice to Landlord; provided, that written notice shall be ineffective
if given after Tenant takes possession of any part of the Premises, or if given
more than one hundred (100) days after the original Commencement Date plus
the
time of any Delays. Unless expressly otherwise provided herein, Rent
(as hereinafter defined) shall commence on the earlier of: (i) the Commencement
Date; (ii) occupancy of the Premises by Tenant; (iii) the date Landlord has
the
Premises ready for occupancy by Tenant, as such date is adjusted under the
Work
Letter, if any, attached hereto; or (iv) the date Landlord could have had the
Premises ready had there been no Delays attributable to
Tenant. Unless the context otherwise so requires, the term "Rent" as
used herein includes both Base Rent (as hereinafter defined) and Additional
Rent
(as hereinafter defined).
3.3 Adjustment
of Expiration Date. If the Expiration Date, as determined
herein, does not occur on the last day of a calendar month, then Landlord,
at
its option, may extend the Term by the number of days necessary to cause the
Expiration Date to occur on the last day of the last calendar month of the
Term. Tenant shall pay Base Rent and Additional Rent for such
additional days at the same rate payable for the portion of the last calendar
month immediately preceding such extension. The Commencement Date,
Term (including any extension by Landlord pursuant to this Section
3) and Expiration Date may be set forth in a commencement letter (the
"Commencement Letter") prepared by Landlord and executed by Tenant.
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4. RENT
AND OTHER AMOUNTS PAYABLE.
4.1 Base
Rent. Tenant covenants and agrees to pay to Landlord, without
prior demand and without offset, deduction or abatement, minimum base rent
for
the full Term of this Lease in the amount of Seven Hundred Thirty-Seven Thousand
Six Hundred Forty-Six and No/100 Dollars ($737,646.00) ("Base Rent"), plus
applicable Florida state sales tax.
Landlord
shall notify Tenant in
writing, giving calculations of the amount of Additional Rent, which Additional
Rent shall be payable at the same time as, and in addition to, the Base Rent,
but minimum Base Rent may never be less than that stated in this Section
4.1. Tenant shall further pay as Additional Rent any sales
or use tax imposed on rents collected by Landlord or any tax on rents in lieu
of
ad valorem taxes on the Building, even though laws imposing such taxes may
attempt to require Landlord to pay the same. If any such sales or use
tax shall be imposed upon Landlord, and Landlord shall be prohibited by
applicable law from collecting the amount of such tax from Tenant as Additional
Rent, then Landlord, upon sixty (60) days prior written notice to Tenant, may
terminate this Lease, unless Tenant legally can and does in fact reimburse
Landlord for such tax.
4.2 Monthly
Rent. Base Rent shall be payable in advance, in monthly
installments ("Monthly Rent") as set forth in Exhibit B, plus applicable Florida
state sales tax, commencing on the first day of the first month of the Term
of
this and continuing on the same day of each month thereafter for the balance
of
the Term of this Lease, unless the Commencement Date of the Term of this is
other than the first day of a calendar month, in which event Rent shall be
payable on the Commencement Date for the remaining number of days in that month
prorated for such partial month, and thereafter as provided above.
4.3 Place
of
Payments. Base Rent and all other sums payable by Tenant to
Landlord under this Lease shall be paid to Landlord at the place for payments
specified for notices in Section 13.8, or such other place as
Landlord may, from time to time, designate in writing. In addition to
such remedies as may be provided under the Default provisions of this Lease,
Landlord shall be entitled to collect a late charge of five percent (5%) of
the
amount of each monthly payment not received within five (5) days of the date
when due, and a charge of the lower of the maximum lawful bad check fee or
five
percent (5%) of the amount of any check given by Tenant and not paid when first
presented by Landlord.
4.4 Lease
a Net Lease
and Rent Absolute. It is the intent of the parties that the Base
Rent provided in this Lease shall be a net payment to Landlord; that the Lease
shall continue for the full Term of this Lease notwithstanding any occurrence
preventing or restricting use and occupancy of the Premises, including any
damage or destruction affecting the Premises, and any action by governmental
authority relating to or affecting the Premises, except as otherwise
specifically provided in this Lease; that the Base Rent shall be absolutely
payable without offset, reduction or abatement for any cause except as otherwise
specifically provided in this Lease; that Landlord shall not bear any costs
or
expenses relating to the Premises or provide any services or do any act in
connection with the Premises except as otherwise specifically provided in this
Lease; and that Tenant shall pay, in addition to Base Rent, Additional Rent
to
cover costs and expenses relating to the Premises, the Common Facilities, and
the Property.
4.5 Additional
Rent. Tenant covenants and agrees to pay, as Additional Rent,
its Proportionate Share of: (i) all costs and expenses incurred by Landlord
relating to the Premises; (ii) all costs and expenses relating to the Common
Facilities; and (iii) certain costs and expenses relating to the Property and
the Park, all as hereinafter provided and to pay all other amounts payable
by
Tenant under the terms of this Lease ("Additional Rent"). Costs and
expenses, the Proportionate Share of which is payable by Tenant as Additional
Rent (as aforesaid) shall include, without limitation, (a) Taxes and Assessments
(as defined in Section 5 below); (b) insurance costs (as provided in Section
6
below); (c) operating expenses (as provided in Section 7.2
below); (e) maintenance and repair expenses (as provided in Section
7.3 below); and, (f) other costs and expenses relating to the Premises,
the Common Facilities, the Property, and the Park during or attributable to
the
Term of this Lease, all as hereinafter provided in this Lease.
4.6 Tenant's
Proportionate Share. "Tenant's Proportionate Share" shall mean
the percentage derived by dividing the rentable square footage of the Premises,
as set forth in Section 2.3, by the rentable square footage
within the Building as set forth in Section
2.4. Tenant's Proportionate Share on the date of this Lease
is twenty-seven and ninety-eight hundredths percent (27.98%).
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4.7 Monthly
Deposits for
Costs and Expenses Payable as Additional Rent. Tenant covenants
and agrees to pay to Landlord, monthly in advance, without notice, on each
day
that payment of Monthly Rent is due, amounts as hereinafter specified (the
"Monthly Deposits") for: (i) payment of Taxes and Assessments (as hereinafter
defined); (ii) insurance premiums payable with respect to the Property
("Insurance Premiums"); and (iii) utility charges, operating expenses and
maintenance and repair expenses, as specified in Section 7 below, and other
costs and expenses relating to the Common Facilities and the Park (other than
the Premises) ((i), (ii) and (iii) collectively, the "Expenses"), and, if the
Monthly Deposits are insufficient to pay the Expenses, to pay to Landlord,
within ten (10) days after demand by Landlord, amounts necessary to provide
Landlord with funds to pay the same. The Monthly Deposits shall each
be equal to the aggregate of 1/12 of the amount, of Tenant's Proportionate
Share
of the annual Expenses, as reasonably estimated by
Landlord. Beginning on the first day of the first month of the Term
of this Lease, Tenant agrees to pay a Monthly Deposit of Thirty-Seven and 1/2
Cents ($0.375) per rentable square foot, namely the sum of Four Thousand Three
Hundred Forty-Two and 50/100 Dollars ($4,342.50) per month. After the
end of each calendar year and after receipt by Landlord of all necessary
information and computations, Landlord shall promptly furnish Tenant with a
statement of the Expenses for the year, and an adjustment shall be made between
Landlord and Tenant with payment to or repayment by Landlord, as the case may
require to the end that Landlord shall receive the entire amount actually owed
by Tenant for Expenses for such year. Any payment adjustment owed by
Tenant will be due forthwith. To the extent the Monthly Deposits
exceed the Expenses, the excess amount shall, at Landlord's option, except
as
may be otherwise provided by law, either be paid to Tenant or credited against
future Monthly Deposits or against Base Rent, or other amounts payable by Tenant
under this Lease. The amount of Expenses payable by Tenant for the
years in which the Term of this Lease commences and expires shall be subject
to
the provisions hereinafter contained in this Lease for proration of such amounts
in such years. Prior to the dates on which payment becomes delinquent
for Expenses, Landlord shall make payment of such amounts to the extent of
funds
from Monthly Deposits available therefor and, upon request by Tenant, shall
furnish Tenant with a copy of any receipt for such payments. Except
for Landlord's obligation to make payments out of funds available from Monthly
Deposits, the making of Monthly Deposits by Tenant shall not limit or alter
Tenant's obligation to pay any part of the Expenses, as elsewhere provided
in
this Lease.
4.8 Park
Expenses. In addition to all other amounts payable by Tenant
pursuant to the terms of this Lease, Tenant shall pay, as Additional Rent
payable pursuant to the provisions hereinabove for Monthly Deposits, Tenant's
Proportionate Share of the Park Expenses which are deemed allocated to the
Property. "Park Expenses" shall mean all items listed in paragraph
4.5 hereof as Additional Rent which relate to the Park and which are not
separately attributable to the Property or any other portion of the
Park.
4.9 Proration
at
Commencement and Expiration of Term. Expenses shall be prorated
between Landlord and Tenant for the year in which the Term of this Lease
commences and for the year in which the Term of this Lease expires as of,
respectively, the date of commencement of the Term of this Lease and the date
of
expiration of the Term of this Lease, except as hereinafter
provided. Tenant shall be liable without proration for the full
amount of any Taxes and Assessments relating to improvements, fixtures,
equipment or personal property installed by or on behalf of Tenant which are
levied, assessed, or attributable to the Term of this
Lease. Proration of Expenses shall be made on the basis of the actual
Expenses, billed during the calendar years of the Term of this
Lease. The Tenant's Proportionate Share of Expenses for the years in
which the Term of this Lease commences and expires shall be paid and deposited
with the Landlord through Monthly Deposits as hereinabove provided, but, in
the
event actual Expenses for either year are greater or less than as estimated
for
purposes of Monthly Deposits, appropriate adjustment and payment shall be made
between the parties, at the time the actual amounts are known, as may be
necessary to accomplish payment or proration, as herein provided.
4.10 Security
Deposit. Simultaneously with the execution of this Lease, Tenant
shall deposit with Landlord, the sum of Seventeen Thousand Five Hundred and
No/100 Dollars ($17,500.00) as a security deposit ("Security
Deposit"). The Security Deposit shall be retained by Landlord and may
be applied by Landlord, to the extent necessary, to pay and cover any loss,
cost, damage or expense, including attorney's fees sustained by Landlord by
reason of the failure of Tenant to comply with any provision, covenant or
agreement of Tenant contained in this Lease. To the extent not
necessary to cover such loss, cost, damage or expense, the Security Deposit
shall be returned to Tenant within sixty (60) days after expiration of the
Term
of this Lease, or as may be otherwise provided by law. The Security
Deposit shall not be considered as an advance payment of rent or as a measure
of
the loss, cost, damage or expense which is or may be sustained by Landlord,
and
shall not be applied as an offset to the last month's rent due from
Tenant. In the event all or any portion of the Security Deposit is
applied by Landlord to pay any such loss, cost, damage or expense, Tenant shall,
from time to time, promptly upon demand, deposit with Landlord such amounts
as
may be necessary to replenish the Security Deposit to its original
amount.
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4.11 General
Provisions
as to Monthly Deposits and Security Deposit. Landlord shall be
free to commingle the Monthly Deposits and Security Deposit with Landlord's
own
funds and Landlord shall not be obligated to pay interest to Tenant on account
of the Monthly Deposits and Security Deposit. In the event of a
transfer by Landlord of Landlord's interest in the Premises, Landlord may
deliver the Monthly Deposits and Security Deposit to the transferee of
Landlord's interest and Landlord shall thereupon be discharged from any further
liability to Tenant with respect to such Monthly Deposits and Security
Deposit. In the event of a transfer by Tenant of Tenant's interest in
the Premises (Tenant's right to do being limited by Section
8.17), Landlord shall be entitled to deliver the Monthly Deposits and
Security Deposit to Tenant's successor in interest and Landlord shall thereafter
have no liability with respect to the Monthly Deposits and Security
Deposit.
5. TAXES
AND ASSESSMENTS.
5.1
Covenant
to Pay Taxes and
Assessments. Tenant covenants and agrees to pay, as Additional
Rent, Tenant's Pro Rata Share of Taxes and Assessments, which are billed during
any calendar year falling partly or wholly within the Term of this Lease,
payable pursuant to the provisions hereinabove for Monthly
Deposits. "Taxes and Assessments" shall mean all taxes, assessments
or other impositions, general or special, ordinary or extraordinary, of every
kind or nature, which may be levied, assessed or imposed upon or with respect
to
the Property or any part thereof, but shall not include income tax or franchise
tax of Landlord.
5.2 Special
Assessments. In the event any Taxes or Assessments are payable
in installments over a period of years, Tenant shall be responsible only for
installments billed during the calendar years within the Term of this Lease,
with proration, as above provided, of any installment payable prior to or after
expiration of the Term of this Lease.
5.3 New
or Additional
Taxes. Tenant's obligation to pay Tenant's Pro Rata Share of
Taxes and Assessments shall include any Taxes and Assessments of a nature not
presently in effect but which may hereafter be levied, assessed or imposed
upon
Landlord or upon the Property if such tax shall be based upon or arise out
of
the ownership, use or operation of, or the rents received from, the Property,
other than income taxes and franchise taxes of Landlord. For the
purposes of computing Tenant's liability for such new type of tax or assessment,
the Property shall be deemed the only property of Landlord.
5.4 Landlord's
Sole
Right to Contest Taxes. Landlord shall have the sole right to
contest any Taxes or Assessments. Landlord shall pay to or credit
Tenant with Tenant's Pro Rata Share of any abatement, reduction or recovery
of
any Taxes and Assessments attributable to the Term of this Lease, less Tenant's
Proportionate Share of all costs and expenses incurred by Landlord, including
attorneys' fees, in connection with such abatement, reduction or
recovery.
6. INSURANCE. Tenant
shall comply with all applicable laws, ordinances and regulations affecting
the
Premises, now existing or hereafter adopted.
6.1
Casualty
Insurance. Landlord covenants and agrees to obtain and keep in
full force and effect during the Term of this Lease, Casualty Insurance as
hereinafter defined. "Casualty Insurance" shall mean fire and
extended coverage insurance with respect to the Property, in an amount equal
to
the full replacement cost thereof, with coinsurance clauses of no less than
80%,
and with coverage, at Landlord's option, by endorsement or otherwise, for all
risks, vandalism and malicious mischief, sprinkler leakage, boilers, and rental
loss and with a deductible in an amount for each occurrence as Landlord, in
its
sole discretion, may determine from time to time. Casualty Insurance
obtained by Landlord need not name Tenant as an insured party but may, at
Landlord's option, name any mortgagee or holder of a deed of trust as an insured
party as its interest may appear. Tenant covenants and agrees to pay
its Proportionate Share of the cost of Casualty Insurance obtained by Landlord
as Additional Rent, payable pursuant to the provisions hereinabove for Monthly
Deposits.
6.2 Liability
Insurance. Throughout the Term, Tenant, at its sole cost and
expense, shall keep or cause to be kept for the mutual benefit of Landlord,
Landlord's managing agent,
(presently
Eola Capital LLC) and Tenant, Commercial General Liability Insurance (1986
ISO
Form or its equivalent) with a combined single limit, each Occurrence and
General Aggregate-per location of at least TWO MILLION DOLLARS ($2,000,000),
which policy shall insure against liability of Tenant, arising out of and in
connection with Tenant's use of the Premises, and which shall insure the
indemnity provisions contained herein. In the event that Tenant
exercises the Renewal Option provided for in Exhibit E attached hereto, then
at
the time of such renewal, Landlord may require the limits to be increased if
in
its reasonable judgment (or that of its mortgagee) the coverage is
insufficient. Tenant shall also carry the equivalent of ISO Special
Form Property Insurance on its personal property and fixtures located in the
Premises and any improvements made by Tenant for their full replacement value
and with coinsurance waived, and Tenant shall neither have, nor make, any claim
against Landlord for any loss or damage to the same, regardless of the cause
thereof.
Prior
to
taking possession of the Premises, and annually thereafter, Tenant shall deliver
to Landlord certificates or other evidence of insurance satisfactory to
Landlord. All such policies shall be non-assessable and shall contain
language to the extent obtainable that: (i) that the policies are
primary and non-contributing with any insurance that Landlord may carry, and
(ii) that the policies cannot be canceled, non-renewed, or coverage reduced
except after thirty (30) days' prior written notice to Landlord. If
Tenant fails to provide Landlord with such certificates or other evidence of
insurance coverage, Landlord may obtain such coverage and Tenant shall reimburse
the cost thereof on demand.
Anything
in this Lease to the contrary notwithstanding, Landlord hereby releases and
waives unto Tenant (including all partners, stockholders, officers, directors,
employees and agents thereof), its successors and assigns, and Tenant hereby
releases and waives unto Landlord (including all partners, stockholders,
officers, directors, employees and agents thereof), its successors and assigns,
all rights to claim damages for any injury, loss, cost or damage to persons
or
to the Premises or any other casualty, as long as the amount of which injury,
loss, cost or damage has been paid either to Landlord, Tenant, or any other
person, firm or corporation, under the terms of any Property, General Liability,
or other policy of insurance, to the extent such releases or waivers are
permitted under applicable law. As respects all policies of insurance
carried or maintained pursuant to this Lease and to the extent permitted under
such policies, Tenant and Landlord each waive the insurance carriers’ rights of
subrogation. Subject to the foregoing, Tenant shall indemnify and
hold Landlord harmless from and against any and all claims arising out of (i)
Tenant's use of the Premises or any part thereof, (ii) any activity, work,
or
other thing done, permitted or suffered by Tenant in or about the Premises
or
the Building, or any part thereof, (iii) any breach or default by Tenant in
the
performance of any of its obligations under this Lease, or (iv) any act or
negligence of Tenant, or any officer, agent, employee, contractor, servant,
invitee or guest of Tenant; and in each case from and against any and all
damages, losses, liabilities, lawsuits, costs and expenses (including attorneys'
fees at all tribunal levels) arising in connection with any such claim or claims
as described in (i) through (iv) above, or any action brought
thereon.
If
such
action is brought against Landlord, Tenant upon notice from Landlord shall
defend the same through counsel selected by Tenant's insurer, or other counsel
acceptable to Landlord. Tenant assumes all risk of damage or loss to
its property or injury or death to persons in, on, or about the Premises, from
all causes except those for which the law imposes liability on Landlord
regardless of any attempted waiver thereof, and Tenant hereby waives such claims
in respect thereof against Landlord. The provisions of this paragraph
shall survive the termination of this Lease.
Tenant’s
insurance policies required by this Lease shall: (i) be issued by insurance
companies licensed to do business in the state in which the Premises are located
with a general policyholder's ratings of at least A- and a financial rating
of
at least VI in the most current Best's Insurance Reports available on the
Commencement Date, or if the Best's ratings are changed or discontinued, the
parties shall agree to a comparable method of rating insurance companies; (ii)
name the non-procuring party as an additional insured as its interest may appear
[other landlords or tenants may be added as additional insureds in a blanket
policy]; (iii) provide that the insurance not be canceled, non-renewed or
coverage materially reduced unless thirty (30) days advance notice is given
to
the non-procuring party; (iv) be primary policies; (v) have no deductible
exceeding Ten Thousand and No/100 Dollars ($10,000.00), unless accepted in
writing by Landlord; and (vi) be maintained during the entire Term and any
extension terms.
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7. SERVICES
AND UTILITIES, OPERATING, MAINTENANCE AND REPAIR EXPENSES.
7.1 Service
and Utility
Charges. Tenant covenants and agrees to pay all charges for
water, sewage disposal, gas, electricity, light, heat, power, telephone,
janitorial, vermin and pest control, trash removal (including container removal)
or other utility services used, rendered or supplied to or for the Premises
and
to contract for the same in Tenant's own name. In no event shall
Landlord be liable for any interruption or failure in the supply of any such
utilities to the Premises, provided, however, Landlord shall make commercially
reasonable efforts to cause the restoration of such utilities.
7.2 Operating
Expenses. Tenant covenants and agrees to pay all costs and
expenses of operations on or relating to the Property and the Park, including
costs and expenses for common area utilities, gardening and landscaping
services. Tenant also covenants and agrees to pay to Landlord the
cost of personnel to implement such service, to police or secure the common
areas and property management fees and expenses. All Landlords
expenses and costs associated with the operation, management, repairs or
maintenance of the Property and Park shall be included as operating expenses.
Tenant's Proportionate Share of any such costs and expenses incurred by Landlord
relating to the Property and Park or which are not separately allocated to
premises in the Building leased or held for lease to tenants, such costs and
expenses shall be payable pursuant to the provisions hereinabove for Monthly
Deposits.
7.3 Maintenance
and
Repair Expenses. Upon substantial completion of the Tenant
Improvements described on Exhibit D, Landlord shall deliver the Premises to
Tenant in a condition that is in compliance with the Americans with Disabilities
Act and all other applicable governmental regulation. Tenant
covenants and agrees to thereafter maintain, repair, replace and keep the
Premises and all improvements, fixtures and personal property thereon in good,
safe and sanitary condition, order and repair and in accordance with all
applicable laws, ordinances, orders, rules and regulations (including, without
limitation, the Americans with Disabilities Act "ADA") of governmental
authorities having jurisdiction, now existing or hereafter enacted; to pay
all
costs and expenses in connection therewith; and to contract for the same in
Tenant's own name; and to pay to Landlord, pursuant to the provisions
hereinabove for Monthly Deposits, Tenant's Proportionate Share of any such
costs
and expenses incurred by Landlord relating to the Property and Park or which
are
not separately allocated to premises in the Building leased or held for lease
to
tenants. Such costs and expenses as to the Property and Park may
include, without limitation, the costs and expenses of maintenance and upkeep
of
grass, trees, shrubs and landscaping, including replanting where necessary;
keeping parking areas, landscaped areas, sidewalks and driveways safe and secure
(with guards or watchmen where Landlord deems necessary) and free from litter,
dirt, debris, snow, and obstructions; and ordinary maintenance and repair of
the
Property and Park. All maintenance and repairs by Tenant shall be
done promptly, in a good and workmanlike fashion, and without diminishing the
original quality of the Premises or the Property. Tenant’s
obligations hereunder include the responsibility to repair and maintain at
its
own expense the HVAC equipment and system serving the
Premises. Tenant, at its sole cost and expense, shall obtain its own
service contract for the HVAC equipment and systems servicing the Premises
with
a vendor approved by Landlord with such service contract specifically including
regular maintenance in accordance with the HVAC manufacturer’s specifications on
at least a quarterly basis, with a copy of each maintenance report to be
provided to Landlord. Notwithstanding anything contained herein to
the contrary, if and to the extent that HVAC equipment and systems servicing
the
Premises require major repairs or replacement due to ordinary wear and tear
and
the cost of such major repair or replacement exceeds Five Hundred and No/100
Dollars ($500.00) per unit in any calendar year during the Term of this Lease
(the “Tenant’s Repair Limit”) then Landlord, at Landlord’s option, shall either
pay for or reimburse Tenant the reasonable and actual cost in excess of Tenant’s
Repair Limit for such repair or replacement, provided that (i) the cost of
the
aforementioned HVAC maintenance contract shall not be included in Tenant’s
Repair Limit, (ii) Landlord shall in no way be responsible for any costs
associated with any supplemental HVAC units installed by Tenant pursuant to
this
Section 7.3, (iii) prior to any repair or replacement, Tenant first
submits to Landlord a written quotation from a Landlord approved vendor for
the
repair or replacement, (iv) Tenant shall be solely responsible for the cost
of
any repair or replacement up to the amount of Tenant’s Repair Limit, (v) the
repair or replacement was in no part necessary due to the act or negligence
of
Tenant, its employees, officers, agents, contractors or invitees, (vi) Tenant’s
service contract for the HVAC equipment and systems as required by this Section
7.3 is in full force and effect, and (vii) Landlord, at its sole discretion,
makes the determination whether to repair or
replace. Landlord shall be responsible for and shall bear
the costs and expenses of replacement of, or extraordinary maintenance and
repairs to, roofs, exterior walls, and structural elements of the Building
and
Improvements, capital improvements, and costs incurred to bring the Building
into compliance with building code and applicable governmental regulations
(collectively, the “Landlord Building Costs”) unless the need for such
replacement or repair is caused by the act or neglect of Tenant, it’s agents,
servants, employees, invitees or an damage caused by breaking and entering,
in
which case said Tenant shall pay to Landlord the actual cost of such maintenance
and repair. The Landlord Building Costs shall be paid by Landlord and
shall not be included in the Additional Rent, except to the extent that the
work
resulting in the Landlord Building Costs results in reductions in operating
expenses. Tenant shall have the right to install supplemental air
conditioning units in the Premises with the cost of purchase, engineering,
installation, operation and maintenance (including but not limited to cost
of
electricity to operate such unit) of the units to be paid solely by Tenant,
provided that (i) Landlord shall determine the location of such supplemental
unit(s), and (ii) any such units, without payment of consideration to Tenant,
shall become the property of Landlord upon the expiration or earlier termination
of this Lease, provided further, that Landlord may require Tenant to remove
such
supplemental air conditioning units upon the expiration or earlier termination
of this Lease, in which event Tenant shall, at its sole cost and expense, remove
such units and repair any damage resulting from such removal.
-6-
8. OTHER
COVENANTS OF TENANT.
8.1 Limitation
on Use by
Tenant. Tenant covenants and agrees to use the Premises only for
general office purposes in connection with Tenant’s stored value card business
and for no other purposes, except with the prior written consent of
Landlord.
8.2 Compliance
with
Laws. Tenant covenants and agrees that nothing shall be done or
kept on the Premises in violation of any law, ordinance, order, rule or
regulation of any governmental authority having jurisdiction, and that the
Premises shall be used, kept and maintained in compliance with any such law,
ordinance, order, rule or regulation (now existing or hereafter enacted) and
with the certificate of occupancy issued for the Building and the
Premises.
8.3 Compliance
with
Insurance Requirements. Tenant covenants and agrees that nothing
shall be done or kept on the Premises which might make unavailable or increase
the cost of insurance maintained with respect to the Premises or the Property,
which might increase the insured risks or which might result in cancellation
of
any such insurance.
8.4 No
Waste or
Impairment of Value. Tenant covenants and agrees that nothing
shall be done or kept on the Premises or the Property which might impair the
value of the Premises or the Property, or which would constitute
waste.
8.5 No
Hazardous
Use. Tenant covenants and agrees that nothing shall be done or
kept on the Premises or the Property and that no improvements, changes,
alterations, additions, maintenance or repairs shall be made to the Premises,
which might be unsafe or hazardous to any person or property. Tenant
shall at all times comply with its representations, warranties and covenants
as
set forth in Exhibit C.
8.6 No
Structural or
Overloading. Tenant covenants and agrees that nothing shall be
done or kept on the Premises or the Building and that no improvements, changes,
alterations, additions, maintenance or repairs shall be made to the Premises
which might impair the structural soundness of the Building, which might result
in an overload of the weight capacity of floors or of electricity lines serving
the Building, or which might interfere with electric or electronic equipment
in
the Building or on any adjacent or nearby property. In the event of
violations hereof, Tenant covenants and agrees to remedy immediately the
violation at Tenant's expense and in compliance with all requirements of
governmental authorities and insurance underwriters.
8.7 No
Nuisance, Noxious
or Offensive Activity. Tenant covenants and agrees that no
noxious or offensive activity shall be carried on upon the Premises or the
Property; nor shall anything be done or kept on the Premises or the Property
which may be or become a public or private nuisance or which may cause
embarrassment, disturbance, or annoyance to others in the Building or on
adjacent or nearby property.
8.8 No
Annoying Lights,
Sounds or Odors. Tenant covenants and agrees that no light shall
be emitted from the Premises which is unreasonably bright or causes unreasonable
glare; no sound shall be emitted from the Premises which is unreasonably loud
or
annoying; and no odor shall be emitted from the Premises which is or might
be
noxious or offensive to others in the Building or on adjacent or nearby
property.
-7-
8.9 No
Unsightliness. Tenant covenants and agrees that no unsightliness
shall be permitted on the Premises or the Property. Without limiting
the generality of the foregoing, all unsightly conditions, equipment, objects
and conditions shall be kept enclosed within the Premises; hallways adjoining
the Premises may not be used for discarding or storing any materials; no refuse,
scrap, debris, garbage, trash, bulk materials or waste shall be kept, stored
or
allowed to accumulate on the Premises or the Property except as may be enclosed
within the Premises; all pipes, wires, poles, antenna and other facilities
for
utilities or the transmission or reception of audio or visual signals or
electricity shall be kept and maintained underground or enclosed within the
Premises or appropriately screened from view; and no temporary structure shall
be placed or permitted on the Premises or the Property without the prior written
consent of Landlord.
8.10
No
Animals. Tenant covenants and agrees that no animals shall be
permitted or kept on the Premises or the Property.
8.11 Restriction
on
Signs and Exterior Lighting. Tenant may not erect, install or
display any sign or advertising material upon the Building exterior, the
exterior of the Premises (including any exterior doors), or the exterior walls
thereof, or in any window therein, and no exterior lighting shall be permitted
on the Premises or the Property except as approved in writing by Landlord,
without the prior written consent of Landlord. Landlord shall install
Landlord’s standard signage at Tenant’s entrance and on the Monument Sign as
part of Tenant Improvements.
8.12 No
Violation of
Covenants. Tenant covenants and agrees not to commit, suffer or
permit any violation of any covenants, conditions or restrictions affecting
the
Premises or the Property, provided that Landlord has provided a copy of such
covenants, conditions and restrictions to Tenant prior to execution of this
Lease or made same available at Landlord’s office for Tenant’s
review.
8.13 Restriction
on
Changes and Alterations. Tenant shall make no structural or interior
alterations of the Premises without Landlord’s prior written
consent. If Tenant requires alterations, Tenant shall provide
Landlord’s managing agent with a complete set of construction drawings, and such
agent shall then determine the actual cost of the work to be done (to include
a
construction supervisions fee of three percent (3%) to be paid to Landlord’s
managing agent). Tenant may then either agree to pay Landlord to have
the work done, or with Landlord’s consent, engage their own contractor, approved
by Landlord to perform the alterations. If requested by Landlord at
the termination of this Lease or vacation of the Premises by Tenant, Tenant
shall restore (at Tenant's sole cost and expense) the Premises to the same
condition as existed at the commencement of the term, ordinary wear and tear
and
damage by insured casualty only excepted. However, Landlord may elect
to require Tenant to leave alterations performed for it unless at the time
of
such alterations Landlord agreed in writing that Tenant could remove them on
expiration or termination of this Lease, and if Tenant does so remove Tenant
shall repair any damage occasioned by such removal. The foregoing
notwithstanding, Tenant shall not be required to remove the improvements made
to
the Premises as described in the Work Letter attached hereto as Exhibit
D.
8.14 No
Mechanics
Liens. Tenant covenants and agrees not to permit or suffer, and
to cause to be removed and released, any mechanics, materialmen or other lien
on
account of supplies, machinery, tools, equipment, labor or material furnished
or
used in connection with the construction, alteration, improvement, addition
to
or repair of the Premises by, through or under Tenant. Tenant shall
have the right to contest, in good faith and with reasonable diligence, the
validity of any such lien or claimed lien, provided that Tenant shall give
to
Landlord such security as may be reasonably requested by Landlord to insure
the
payment of any amounts claimed, including interests and costs, and to prevent
any sale, foreclosure or forfeiture of any interest in the Property on account
of any such lien and provided that, on final determination of the lien or claim
for lien, Tenant shall immediately pay any judgment rendered, with interests
and
costs, and will cause the lien to be released and any judgment
satisfied.
TENANT
SHALL NOTIFY ANY CONTRACTOR PERFORMING ANY CONSTRUCTION WORK IN THE PREMISES
ON
BEHALF OF TENANT THAT THIS LEASE SPECIFICALLY PROVIDES THAT THE INTEREST OF
LANDLORD IN THE PREMISES SHALL NOT BE SUBJECT TO LIENS FOR IMPROVEMENTS MADE
BY
TENANT, AND NO MECHANIC’S LIEN OR OTHER LIEN FOR ANY SUCH LABOR, SERVICES,
MATERIALS, SUPPLIES, MACHINERY, FIXTURES OR EQUIPMENT SHALL ATTACH TO OR AFFECT
THE STATE OR INTEREST OF LANDLORD IN AND TO THE PREMISES, THE BUILDING, OR
ANY
PORTION THEREOF. IN ADDITION, LANDLORD SHALL HAVE THE RIGHT TO POST
AND KEEP POSTED AT ALL REASONABLE TIMES ON THE PREMISES AND NOTICES WHICH
LANDLORD SHALL BE REQUIRED SO TO POST FOR THE PROTECTION OF LANDLORD AND THE
PREMISES FROM ANY SUCH LIEN. TENANT AGREES TO PROMPTLY EXECUTE SUCH
INSTRUMENTS IN RECORDABLE FORM IN ACCORDANCE WITH THE TERMS AND PROVISIONS
OF
FLORIDA STATUTE SECTION 713.10.
-8-
8.15 No
Other
Encumbrances. Tenant covenants and agrees not to obtain any
financing secured by Tenant's interest in the Premises and not to encumber
the
Premises, or Landlord or Tenant's interest therein, without the prior written
consent of Landlord, and to keep the Premises free from all liens and
encumbrances except those created by Landlord.
8.16 Subordination
to Landlord Mortgages. The Lease, as the same may hereafter be modified,
amended or extended, is, shall be, and shall at all times remain, subject and
subordinate to the terms, conditions and provisions of any mortgage now existing
or later placed upon the premises by Landlord, the lien imposed by such
mortgage; and all advanced made under such mortgage. Such
subordination is and shall be effective and self-operative without any need
for
any successor to landlord’s interest in the premises by foreclosure or deed in
lieu thereof (a “Successor Landlord”) or Tenant to execute any further
document. Tenant shall, however, confirm such subordination in
writing upon request by Landlord and any Successor Landlord within ten (10)
days
of such request. In the event of foreclosure of such mortgage, Tenant
shall not be disturbed in its possession of the Premises so long as Tenant
is
not in default under this Lease and, subsequent to such foreclosure, Tenant
attorns to the party acquiring title by virtue of the foreclosure, and this
Lease shall continue in full force and effect as a direct lease, in accordance
with its terms, between the Successor Landlord and Tenant. Tenant
agrees to give any mortgagee of Landlord which has provided a non-disturbance
agreement to Tenant, notice of, and a reasonable opportunity (which shall in
no
event be less than thirty (30) days after written notice thereof is delivered
to
mortgagee as herein provided) to cure, any Landlord default hereunder; and
Tenant agrees to accept such cure if effected by such mortgagee. No
termination of this Lease by Tenant shall be effective until such notice has
been given and the cure period has expired without the default having been
cured.
8.17 No
Assignment or
Subletting. Tenant may not assign or encumber this Lease or its
interest in the Premises arising under this Lease, and may not sublet any part
or all of the Premises without the written consent of Landlord first had and
obtained. Tenant shall pay all reasonable out-of-pocket costs and
expenses incurred by Landlord in connection with assignments or sublease
transactions, including Landlord'’ attorney fees. Any assignment or
sublease to which Landlord may consent (one consent not being any basis that
Landlord should grant any further consent) shall not relieve Tenant of any
or
all of its obligations hereunder. For the purpose of the
Section 8.17, the work "assignment" shall be defined and deemed
to include the following: (i) if Tenant is a partnership, the
withdrawal or change, whether voluntary, involuntary or by operation of law
of
partners owning thirty percent (30%) or more of the partnership, or the
dissolution of the partnership; (ii) if Tenant consists of more than one person,
an assignment, whether voluntary, involuntary, or by operation of law, by one
person to one of the other persons that is a Tenant; (iii) if Tenant is a
corporation, any dissolution or reorganization of Tenant, or the sale or other
transfer of a controlling percentage (hereafter defined) of capital stock of
Tenant other than to an affiliate or subsidiary or the sale of fifty-one percent
(51%) in value of the assets of Tenant; (iv) if Tenant is a Limited Liability
Company, the change of members whose interest in the Company is 50% or
more. The phrase "controlling percentage" means the ownership of, and
the right to vote, stock possessing at least fifty-one percent (51%) of the
total combined voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for the election of directors, or such lesser
percentage as is required to provide actual control over the affairs of the
corporation. Acceptance of Rent by Landlord after any non-permitted
assignment shall not constitute approval thereof by
Landlord. Notwithstanding the foregoing provisions of this
Section 8.17, Tenant may assign or sublease part or all of the
Premises without Landlord's consent to: (i) any corporation or partnership
that
controls, is controlled by, or is under common control with, Tenant; or (ii)
any
corporation resulting from the merger or consolidation with Tenant or to any
entity that acquires all of Tenant's assets as a going concern of the business
that is being conducted on the Premises, as long as the assignee or sublessee
is
a bona fide entity and assumes the obligations of Tenant, and continues the
same
use as permitted under Section 8.1. However,
Landlord must be given prior written notice of any such assignment or
subletting, and failure to do so shall be a default
hereunder. Landlord will never consent to an assignment or sublease
that might result in a use that conflicts with the rights of an existing
tenant. In no event shall this Lease be assignable by operation of
any law, and Tenant's rights hereunder may not become, and shall not be listed
by Tenant as an asset under any bankruptcy, insolvency or reorganization
proceedings. Tenant is not, may not become, and shall never represent
itself to be an agent of Landlord, and Tenant acknowledges that Landlord's
title
is paramount, and that it can do nothing to affect or impair Landlord's
title. If this Lease shall be assigned or the Premises or any portion
thereof sublet by Tenant at a rental that exceeds the rentals to be paid to
Landlord hereunder, attributable to the Premises or portion thereof so assigned
or sublet, then any such excess shall be paid over to Landlord by
Tenant.
8.18 Annual
Financial
Statements. Tenant covenants and agrees to furnish to Landlord
annually, within ninety (90) days after the end of each fiscal year of Tenant,
copies of financial statements of Tenant, certified by an officer of Tenant
to
be true and correct, and agrees that Landlord may deliver any such financial
statements to any existing or prospective mortgagee or purchaser of the
Property. The financial statements shall include a balance sheet as
of the end of, and a statement of profit and loss for, the preceding fiscal
year
of Tenant.
-9-
8.19 Payment
of Income
and Other Taxes. Tenant covenants and agrees to pay promptly
when due all property taxes on personal property of Tenant on the Premises
and
all federal, state and local income taxes, sales taxes, use taxes, Social
Security taxes, unemployment taxes and taxes withheld from wages or salaries
paid to Tenant's employees, the nonpayment of which might give rise to a lien
on
the Premises or Tenant's interest therein, and to furnish, if requested by
Landlord, written evidence of such payments.
8.20 Estoppel
Certificates. Tenant covenants and agrees to execute,
acknowledge and deliver to Landlord, within ten (10) days of Landlord's written
request, a written statement certifying that this Lease is unmodified (or,
if
modified, stating the modifications) and in full force and effect; stating
the
dates to which Base Rent has been paid; stating the amount of the Security
Deposit held by Landlord; stating the amount of Monthly Deposits held by
Landlord for the then tax and insurance year; and stating whether or not
Landlord is in default under this Lease (and, if so, specifying the nature
of
the default). Tenant agrees that such statement may be delivered to
and relied upon by any existing or prospective mortgagee or purchaser of the
Property. Tenant agrees that a failure to deliver such a statement
within ten (10) days after written request from Landlord shall be conclusive
upon Tenant that this Lease is in full force and effect without modification
except as may be represented by Landlord; that there are no uncured defaults
by
Landlord under this Lease; and that any representation by Landlord with respect
to Base Rent, the Security Deposit and Monthly Deposits are true.
8.21
Landlord
Right to Inspect and
Show Premises and to Install For Sale Signs. Tenant covenants
and agrees that Landlord and authorized representatives of Landlord shall have
the right to enter the Premises at any reasonable time during ordinary business
hours for the purposes of inspecting or maintaining the same, and making such
repairs, alterations or changes as Landlord deems necessary, or performing
any
obligations of Tenant which Tenant has failed to perform and that any amounts
so
expended by Landlord shall be paid by Tenant to Landlord within thirty (30)
days
as Additional Rent, or for the purposes of showing the Premises to any existing
or prospective mortgagee, purchaser or lessee of the Property or the
Premises. The foregoing notwithstanding, the parties recognize that
Tenant maintains financial documents that require privacy, and all visitors
to
the Premises must sign in on the Tenant visitor sheet, and Landlord shall give
reasonable notice to Tenant prior to entry, provided that Tenant agrees to
make
a Tenant representative available during ordinary business hours to accompany
any such visitors, and provided further, that in the event of an emergency,
Landlord may enter the Premises without prior notice and without being
accompanied by a Tenant representative. Tenant covenants and agrees
that Landlord may at any time and from time to time place on the Property but
not on the Premises a sign advertising the Property for sale. During
the last ninety (90) days of the Term of this Lease, Landlord may place a sign
on the Premises advertising the Premises for lease.
8.22 Landlord
Title to
Fixtures, Improvements and Equipment. Tenant covenants and
agrees that all fixtures and improvements on the Premises and all equipment
and
personal property relating to the use and operation of the Premises (as
distinguished from operations incident to the business of Tenant), including
all
plumbing, heating, lighting, electrical and air conditioning fixtures and
equipment, whether or not attached to or affixed to the Premises, and whether
now or hereafter located upon the Premises, shall be and remain the property
of
the Landlord upon expiration of the Term of this Lease.
8.23 Removal
of Tenant's
Equipment. Tenant covenants and agrees to remove, not later than
the expiration date of the Term of this Lease, all of Tenant's Equipment, as
hereinafter defined. "Tenant's Equipment" shall mean all equipment,
apparatus, machinery, signs, furniture, furnishings and personal property used
in the operation of the business of Tenant (as distinguished from the use and
operation of the Premises). If such removal shall injure or damage
the Premises, Tenant covenants and agrees, at its sole cost and expense, at
or
prior to the expiration of the Term of this Lease, to repair such injury and
damage in good and workmanlike fashion and to place the Premises in the same
condition as the Premises would have been in if such Tenant's Equipment had
not
been installed. If Tenant fails to remove any Tenant's Equipment by
the expiration of the Term of this Lease, Landlord may, at its option, keep
and
retain any such Tenant's Equipment or dispose of the same and retain any
proceeds thereof and Landlord shall be entitled to recover from Tenant any
costs
or expenses of Landlord in removing the same and in restoring the Premises
in
excess of the actual proceeds, if any, received by Landlord from disposition
thereof.
-10-
8.24 Tenant
Indemnification of Landlord. Tenant covenants and agrees to
protect, indemnify and save Landlord harmless from and against all liability,
obligations, claims, damages, penalties, causes of action, costs and expenses,
including attorneys' fees at all tribunal levels, imposed upon, incurred by
or
asserted against Landlord by reason of (a) any accident, injury to or death
of
any person or loss of or damage to any property occurring on or about the
Premises; (b) any act or omission of Tenant or Tenant's officers, employees,
agents, guests or invitees or of anyone claiming by, through or under Tenant;
(c) any use which may be made of, or condition existing upon, the Premises;
(d)
any improvements, fixtures or equipment upon the Premises; (e) any failure
on
the part of Tenant to perform or comply with any of the provisions, covenants
or
agreements of Tenant contained in this Lease; (f) any violation of any law,
ordinance, order, rule or regulation of governmental authorities having
jurisdiction by Tenant or Tenant's officers, employees, agents, guests or
invitees or by anyone claiming by, through or under Tenant; and (g) any repairs,
maintenance or changes to the Premises by, through or under
Tenant. Tenant further covenants and agrees that, in case any action,
suit or proceeding, is brought against Landlord by reason of any of the
foregoing, Tenant will, at Tenant's sole cost and expense, defend Landlord
in
any such action, suit or proceeding, with counsel acceptable to
Landlord. However, Tenant’s indemnification of Landlord pursuant to
this Section does not apply to loss or injury to the extent caused by Landlord’s
gross negligence or intentional tortious conduct.
8.25
Waiver
by
Tenant. Tenant waives and releases any claims Tenant may have
against Landlord or Landlord's officers, agents or employees for loss, damage
or
injury to person or property sustained by Tenant or Tenant's officers, agents,
employees, guests, invitees or anyone claiming by, through or under Tenant
resulting from any cause whatsoever other than Landlord's gross negligence
or
willful misconduct.
8.26 Release
upon
Transfer by Landlord. In the event of a transfer by Landlord of
the Property or of Landlord's interest as Landlord under this Lease, Landlord's
successor or assign shall take subject to and be bound by this Lease and, in
such event, Tenant covenants and agrees that: Landlord shall be released from
all obligations of Landlord under this Lease; that Tenant shall thereafter
look
solely to Landlord's successor or assign for satisfaction of the obligations
of
Landlord under this Lease; and that Tenant shall attorn to such successor or
assign.
8.27 Compliance
with
ADA. Tenant covenants and agrees that nothing shall be done or
kept by Tenant on the Premises or in the Common Facilities in violation of
ADA,
and that Tenant shall maintain, repair, replace, keep and use the Premises
and
all improvements, fixtures and personal property therein and thereon, and
conduct its business within the Premises, in accordance with the requirements
of
ADA. If any improvements, alterations or repairs to the Premises are
required by governmental authority under ADA or its implementing regulations
or
guidelines, Tenant shall be solely responsible for all non-structural items
and
any structural items due to Tenant's specific use of the
Premises. Tenant covenants and agrees to pay all costs and expenses
in connection with the performance of its obligations under this Section
8.27. Nothing contained in this Section
8.27 shall be construed to limit the generality of the provisions of
Section8.2 respecting Tenant's obligation
to
comply with applicable laws and of the provisions of Section
8.13 respecting Tenant's obligation to comply with ADA and other
applicable laws in connection with any Change.
9. DAMAGE
OR DESTRUCTION.
9.1 Tenant's
Notice of
Damage. If any portion of the Premises shall be damaged or
destroyed by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord ('Tenant's Notice of Damage").
9.2 Options
to Terminate
if Damage Substantial. Upon receipt of Tenant's Notice of
Damage, Landlord shall promptly proceed to determine the nature and extent
of
the damage or destruction and to estimate the time necessary to repair or
restore the Premises. As soon as reasonably possible, Landlord shall
give written notice to Tenant stating Landlord's estimate of the time necessary
to repair or restore the Premises ("Landlord's Notice of Repair
Time"). If Landlord reasonably estimates that repair or restoration
of the Premises cannot be completed within 180 days from the time of Tenant's
Notice of Damage, Landlord and Tenant shall each have the option to terminate
this Lease. In the event, however, that the damage or destruction was
caused by the act or omission of Tenant or Tenant's officers, employees, agents,
guests or invitees or of anyone claiming by, through or under Tenant, Landlord
shall have the option to terminate this Lease if Landlord reasonably estimates
that the repair or restoration cannot reasonably be completed within 180 days
from the time of Tenant's Notice of Damage, but Tenant shall not have the option
to terminate this Lease. Any option granted hereunder shall be
exercised by written notice to the other party given within ten (10) days after
Landlord's Notice of Repair Time. In the event either Landlord or
Tenant exercises its option to terminate this Lease, the Term of this Lease
shall expire 10 days after the notice by either Landlord or Tenant exercising
such party's option to terminate this Lease. In the event of
termination of this Lease under the provisions hereof, Landlord shall refund
to
Tenant such amounts of Base Rent and Additional Rent theretofore paid by Tenant
as may be applicable to the period subsequent to the time of Tenant's Notice
of
Damage less the reasonable value of any use or occupation of the Premises by
Tenant subsequent to the time of Tenant's Notice of Damage.
-11-
9.3 Obligations
to
Repair and Restore. In the event there are sufficient funds, and
such funds are available to Landlord to repair and restore and repair of the
Premises, and restoration can be completed within the period specified in
Section 9.2, in Landlord's reasonable estimation, this Lease
shall continue in full force and effect and Landlord shall proceed forthwith
to
cause the Premises to be repaired and restored with reasonable diligence and
there shall be abatement of Base Rent and Additional Rent proportionate to
the
extent of the space and period of time that Tenant is unable to use and enjoy
the Premises. Landlord may, at its option, require Tenant to arrange
for and handle the repair and restoration of the Premises, in which case
Landlord shall furnish Tenant with sufficient funds for such repair and
restoration, at the time or times such funds are needed, utilizing any proceeds
from insurance and any additional funds necessary to cover the costs of repair
or restoration.
9.4 Application
of
Insurance Proceeds. The proceeds of any Casualty Insurance
maintained on the Premises, other than casualty insurance maintained by Tenant
on fixtures and personal property of Tenant, shall be paid to and become the
property of Landlord, subject to any obligation of Landlord to cause the
Premises to be repaired and restored, which obligation is contingent on casualty
insurance proceeds adequate to complete the repair or restoration being
available to Landlord.
10. CONDEMNATION.
10.1 Taking
-
Substantial Taking - Insubstantial Taking. A "Taking" shall mean
the taking of all or any portion of the Premises as a result of the exercise
of
the power of eminent domain or condemnation for public or quasi-public use
or
the sale of all or part of the Premises under the threat of
condemnation. A "Substantial Taking" shall mean a Taking of so much
of the Premises that Tenant cannot thereafter reasonably use the Premises for
carrying on, at substantially the same level or scope, the business theretofore
conducted by Tenant on the Premises. An "Insubstantial Taking" shall
mean a Taking such that the Premises can thereafter continue to be used by
Tenant for carrying on, at substantially the same level or scope, the business
theretofore conducted by Tenant on the Premises.
10.2 Termination
on
Substantial Taking. If there is a Substantial Taking with
respect to the Premises, the Term of this Lease shall expire on the date of
vesting of title pursuant to such Taking. In the event of termination
of this Lease under the provisions hereof, Landlord shall refund to Tenant
such
amounts of Base Rent and Additional Rent theretofore paid by Tenant as may
be
applicable to the period subsequent to the time of termination of this
Lease.
10.3 Restoration
on
Insubstantial Taking. In the event of an Insubstantial Taking,
this Lease shall continue in full force and effect, Landlord shall proceed
forthwith to cause the Premises to be restored as near as may be to the original
condition thereof and there shall be abatement of Base Rent and Additional
Rent
proportionate to the extent of the space so taken. Landlord may, at
its option, require Tenant to arrange for and handle the restoration of the
Premises, in which case Landlord shall furnish Tenant with sufficient funds
for
such restoration, at the time or times such funds are needed, utilizing the
proceeds of any awards or consideration received as a result of the Taking
and
any additional funds necessary to cover the costs of restoration.
10.4 Right
to
Award. The total award, compensation, damages or consideration
received or receivable as a result of a Taking ("Award") shall be paid to and
be
the property of Landlord, whether the Award shall be made as compensation for
diminution of the value of the leasehold or the fee of the Premises or otherwise
and Tenant hereby assigns to Landlord, all of Tenant's right, title and interest
in and to any such Award. Tenant covenants and agrees to execute,
immediately upon demand by Landlord, such documents as may be necessary to
facilitate collection by Landlord of any such Award. Tenant, however,
shall be entitled to apply for compensation, if available, for its relocation
and for any of its personal property taken.
-12-
11. DEFAULTS
BY TENANT.
11.1 Default. If
Tenant: (i) fails to pay when due any Rent, or any other sum of money which
Tenant is obligated to pay, as provided in this Lease; or (ii) breaches any
other agreement, covenant or obligation herein set forth and such breach shall
continue and not be remedied within ten (10) days after Landlord shall have
given Tenant written notice specifying the breach, or if such breach cannot,
with due diligence, be cured within said period of ten (10) days and
Tenant does not within said ten (10) day period commence and thereafter with
reasonable diligence completely cure the breach within thirty (30) days after
notice; or (iii) files (or has filed against it and not stayed or vacated within
sixty (60) days after filing) any petition or action for relief under any
creditor's law (including bankruptcy, reorganization, or similar action), either
in state or federal court; or (iv) makes any transfer in fraud of creditors
as
defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (11 U.S.C. 548,
as
amended or replaced), has a receiver appointed for its assets (and appointment
shall not have been stayed or vacated within thirty (30) days), or makes an
assignment for benefit of creditors; then Tenant shall be in default hereunder,
and, in addition to any other lawful right or remedy which Landlord may have,
Landlord at its option, in addition to such other remedies as may be available
under Florida law, may do the following: (1) terminate this Lease and Tenant’s
right of possession; or (2) terminate Tenant’s right to possession but not this
Lease and/or proceed in accordance with any and all of the following
remedies:
(a) Landlord
may,
without further notice, re-enter the Premises in accordance with applicable
law
and dispossess Tenant by summary proceedings or otherwise, as well as the legal
representative(s) of Tenant and/or other occupant(s) of the Premises, and remove
their effects and hold the Premises as if this Lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end; and/or at Landlord’s
option,
(b) All
Base Rent
and all Additional Rent for the balance of the Term will, at the election of
Landlord, be accelerated and the present worth of same (as reasonably determined
by Landlord) for the balance of the Term, net of amounts actually collected
by
Landlord, shall become immediately due thereupon and be paid, together with
all
expenses of any nature which Landlord may incur such as (by way of illustration
and not limitation) those for attorneys’ fees, brokerage, advertising, and
refurbishing the Premises in good order or preparing them for re-rental; and/or
at Landlord’s option,
(c) Landlord
may
re-let the Premises, or any part thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord’s option be less than or
exceed the period which would otherwise have constituted the balance of the
Term, and may grant concessions or free rent or charge a higher rental than
that
reserved in this Lease; provided, however, Landlord shall have no obligation
to
re-let the Premises, or any part thereof, and shall in no event be liable for
failure to re-let the Premises, or any part thereof, or, in the event of any
such re-letting, for refusal or failure to collect any rent due upon such
re-letting, and no such refusal or failure shall operate to release Tenant
of
any liability under this Lease or otherwise to effect or reduce any such
liability; and/or at Landlord’s option,
(d) Tenant
or its
legal representative(s) will also pay to Landlord as agreed upon damages, in
addition to such other damages that Landlord may be legally entitled to, any
deficiency between the Base Rent and all Additional Rent hereby charged and/or
agreed to be paid and the net amount, if any, of the rents collected on account
of this Lease or Leases of the Premises for each month of the period which
would
otherwise have constituted the balance of the Term.
All
rights and remedies of Landlord are cumulative, and the exercise of any one
shall not be an election excluding Landlord at any other time from exercise
of a
different or inconsistent remedy. No exercise by Landlord of any
right or remedy granted herein shall constitute or effect a termination of
this
Lease unless Landlord shall so elect by written notice delivered to
Tenant.
The
failure of Landlord to exercise its rights in connection with this Lease or
any
breach or violation of any term, or any subsequent breach of the same or any
other term, covenant or condition herein contained shall not be a waiver of
such
term, covenant or condition or any subsequent breach of the same or any other
covenant or condition herein contained.
No
acceptance by Landlord of a lesser sum than the Base Rent, administrative
charges, Additional Rent and other sums then due shall be deemed to be other
than on account of the earliest installment of such payments due, nor shall
any
endorsement or statement on any check or any letter accompanying any check
or
payment be deemed as accord and satisfaction, and Landlord may accept such
check
or payment without prejudice to Landlord’s right to recover the balance of such
installment or pursue any other remedy provided in this Lease.
In
addition, no payments of money by Tenant to Landlord after the expiration or
termination of this Lease after the giving of any notice by Landlord to Tenant
shall reinstate or extend the Term, or make ineffective any notice given to
Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment granting Landlord
possession of the Premises, Landlord may receive and collect any sums due under
this Lease, and the payment thereof shall not make ineffective any notice or
in
any manner affect any pending suit or any judgment previously
obtained.
-13-
Tenant
hereby absolutely,
unconditionally and irrevocably waives the following:
(i) Any
right Tenant may have to interpose or assert any claim or counterclaim in any
action or proceeding brought by Landlord under this Lease. If Tenant
violates this Subsection, Landlord and Tenant stipulate that any such claim
or
counterclaim shall be severed and tried separately from the action or proceeding
brought by Landlord pursuant to Florida Rules of Civil Procedure 1.270(b) or
other applicable law. This Subsection shall in no way impair the
right of Tenant to commence a separate action against Landlord for any violation
by Landlord of the provisions of this Lease or to which Tenant has not waived
any claim pursuant to the provisions of this Lease so long as notice is first
given to Landlord and any holder of a mortgage and/or lessor under a superior
lease (provided that notice of such mortgagee and/or lessor has been provided
to
Tenant), and a reasonable opportunity is granted to Landlord and such holder
and/or lessor to correct such violation. In no event shall Landlord,
any holder of a mortgage and/or lessor under a superior lease be responsible
for
any consequential damages incurred by Tenant, including lost profits or
interruption of business, as a result of any default by
Landlord. Tenant shall in all events comply with the provisions of
Section 83.232, Florida Statutes with respect to any action or proceeding
brought by Landlord under this Lease;
(ii) Any
and all rights of redemption of the Premises or any goods therein granted by
or
under any present or future laws in the event Tenant is evicted or dispossessed
of the same in accordance with this Lease or Landlord obtains possession of
the
same in accordance with this Lease;
(iii) The
benefit of all laws now existing or hereafter in effect, exempting any goods
on
the Premises owned by Tenant from distraint, levy or sale in any legal
proceedings taken by Landlord in accordance with applicable laws to enforce
any
rights or remedies under this Lease;
(iv) The
benefit of all laws existing now or hereafter in effect regarding any limitation
as to the goods upon which, or the time within which, distress is to be made
after removal of goods of Tenant from the Premises, and Tenant further relieves
Landlord of the obligation of proving or identifying the goods distrained,
it
being the purpose and intent of this provision that all goods of Tenant upon
the
Premises shall be liable to distress for rent at any time after Tenant’s default
beyond the applicable cure period under this Lease;
(v) All
rights relating to the landlord/tenant relationship under any law, ordinance
or
statute, to the extent that such law, ordinance or statute might limit the
time
period respecting Landlord’s right to cause the distrained goods to be
sold. Tenant hereby specifically and knowingly authorizes Landlord to
sell any goods distrained for rent at a public auction sale to be held at any
time at least fifteen (15) days after the distraint without appraisement and
condemnation of the goods, but upon ten (10) days’ notice to Tenant of the date,
place and terms of sale, including Landlord’s right to purchase all or any of
the property; and
(vi) The
requirement under Section 83.12, Florida Statutes that Landlord in the distress
for rent action file a bond payable to Tenant in at least double the sum
demanded by Landlord. In the case of the distress for rent action
under this Lease, no bond whatsoever will be required of Landlord.
Landlord
and Tenant further
acknowledge that, to induce Tenant to enter into this Lease, and in
consideration of Tenant’s agreement to perform all of the provisions to be
performed by Tenant under this Lease, Landlord has agreed to waive (i)
reimbursement from Tenant of the amount of any tenant improvement expenses
incurred by Landlord in connection with the build-out of the Premises for
Tenant’s initial occupancy, except any amount Tenant paid Landlord for overages
on tenant improvements requested by Tenant, and (ii) payment by Tenant of Base
Rent or portions thereof during the period(s) specified herein. Upon
the occurrence of a default under this Lease, the foregoing waiver of payment
of
Base Rent or portions thereof shall be of no further force and effect as to
any
subsequent payments of Base Rent otherwise due under this Lease, each of the
foregoing waivers shall be deemed revoked retroactively and Tenant shall
immediately pay to Landlord as Additional Rent the following: (a) all payments
of Base Rent which have previously been waived, and (b) the unamortized cost
of
any tenant improvement expenses incurred by Landlord, which shall be equal
to
the product of (1) the tenant improvement expenses incurred by Landlord, and
(2)
a fraction, the numerator of which shall be the number of months (or portions
thereof) from the date of the occurrence of the default to the Expiration Date,
not to exceed the number of months in which Tenant is obligated to pay Rent
hereunder without any abatement or concession, and the denominator of which
shall be the number of months (or portion thereof) in the Term less the number
of months in the Term in which Landlord has waived payment of Base Rent or
portions thereof. Landlord shall, after the occurrence of a default,
forward a statement to Tenant setting forth the unamortized cost of the tenant
improvement expenses incurred by Landlord and of all Base Rent payments which
have previously been waived by Landlord and are now payable in accordance with
this Subsection, but the failure to deliver such statement shall not be deemed
to be a waiver of the right to collect such amounts.
-14-
If
Landlord exercises the remedies provided in Subsection a, b, c or d above,
Landlord may declare the entire balance of all forms of Rent due under this
Lease for the remainder of the Term to be forthwith due and payable and may
collect the then present value of such Rents (calculated using a discount equal
to the yield then obtainable from the United States Treasury Xxxx or Note with
a
maturity date closest to the Expiration Date) by distress or
otherwise. The accelerated Additional Rent shall be calculated by
multiplying the highest Additional Rent amount payable by Tenant in any calendar
year prior to Default times the number of calendar years (including any
fractional calendar year) remaining in the Term following the date of
default. If Landlord exercises the remedy provided in Subsection b
above and collects from Tenant all forms of Rent owed for the remainder of
the
Term, Landlord shall account to Tenant, at the Expiration Date, for amounts
actually collected by Landlord as a result of a reletting, net of Tenant’s
obligations pursuant to Subsection b.
Tenant
further agrees that Landlord may obtain an order for summary ejectment from
any
court of competent jurisdiction without prejudice to Landlord's rights to
otherwise collect rents from Tenant.
11.2. Multiple
Defaults.
(a) Tenant
acknowledges that any rights or options of first refusal, or to extend the
Term,
to expand the size of the Premises, to purchase the Premises or the Building,
or
other such or similar rights or options which have been granted to Tenant under
this Lease are conditioned upon the prompt and diligent performance of the
terms
of this Lease by Tenant. Accordingly, should Tenant default under
this Lease on two (2) or more occasions during any twelve (12) month period,
in
addition to all other remedies available to Landlord, all such rights and
options shall automatically, and without further action on the part of any
party, expire and be deemed canceled and of no further force and
effect.
(b) Should
Tenant default in the payment of Base Rent, Additional Rent, or any other sums
payable by Tenant under this Lease on two (2) or more occasions during any
twelve (12) month period, regardless of whether any such default is cured,
then,
in addition to all other remedies otherwise available to Landlord, Tenant shall,
within ten (10) days after demand by Landlord, post a security deposit in,
or
increase the existing Security Deposit by, a sum equal to three (3) months’
installments of Base Rent. Any security deposit posted pursuant to
the foregoing sentence shall be governed by Section 22
below.
(c) Should
Tenant default under this Lease on two (2) or more occasions during any twelve
(12) month period, in addition to all other remedies available to Landlord,
any
notice requirements or cure periods otherwise set forth in this Lease with
respect to a default by Tenant shall not apply.
12. SURRENDER
AND HOLDING OVER.
12.1 Surrender
Upon
Lease Expiration. Upon the expiration or earlier termination of
this Lease, or on the date specified in any demand for possession by Landlord
after any Default by Tenant, Tenant covenants and agrees to surrender possession
of the Premises to Landlord in the same condition as when Tenant first occupied
the Premises, ordinary wear and tear and damage by fully insured casualty
excepted.
12.2 Holding
Over. If Tenant shall hold over after the expiration of the Term
of this Lease or other termination of this Lease, such holding over shall not
be
deemed to be a renewal of this Lease but shall be deemed to create a
tenancy-at-sufferance and by such holding over Tenant shall continue to be
bound
by all of the terms and conditions of this Lease except that during such
tenancy-at-sufferance, Tenant shall pay to Landlord (a) Rent at the rate equal
to one hundred fifty percent (150%) of the then current Rent provided for in
the
foregoing Section 4, and (b) any and all operating expenses and other forms
of
Additional Rent payable under the terms of this Lease. The increased
Rent during such holding over is intended to partially compensate Landlord
for
losses, damages and expenses, including frustrating and delaying Landlord's
ability to secure a replacement tenant. If Landlord loses a
prospective tenant because Tenant fails to vacate the Premises on expiration
of
this Lease after notice to do so, Tenant will be liable for Landlord’s damages
(including, but not limited to, consequential damages) because of Tenant's
wrongful failure to vacate.
-15-
12.3 Property
of
Tenant. Tenant shall pay, timely, any and all taxes levied or
assessed against or upon Tenant's equipment, fixtures, furniture, leasehold
improvements and personal property located in the Premises. Provided
Tenant is not in default hereunder, Tenant may, prior to the Expiration Date,
remove all fixtures and equipment which it has placed in the Premises; provided,
however, Tenant repairs all damages caused by such removal; and provided
further, however, any statutory lien for Rent is not waived. If
Tenant does not remove its property from the Premises upon termination (for
whatever cause) of this Lease, such property shall be deemed abandoned by
Tenant, and Landlord may dispose of the same in whatever manner Landlord may
elect without any liability to Tenant.
12.4 INTENTIONALLY
OMITTED
13. MISCELLANEOUS.
13.1 No
Implied
Waiver. No failure by Landlord to insist upon the strict
performance of any term, covenant or agreement contained in this Lease, no
failure by Landlord to exercise any right or remedy under this Lease, and no
acceptance of full or partial payment during the continuance of any Default
by
Tenant, shall constitute a waiver of any such term, covenant or agreement or
a
waiver of any such right or remedy or a waiver of any such Default by
Tenant.
13.2 Survival
of
Provisions. Notwithstanding any termination of this Lease, the
same shall continue in force and effect as to any provisions hereof which
require observance or performance by Landlord or Tenant subsequent to
termination.
13.3 INTENTIONALLY
OMITTED
13.4 Covenants
Independent. This Lease shall be construed as if the covenants
herein between Landlord and Tenant are independent, and not
dependent.
13.5 Covenants
as
Conditions. Each provision of this Lease performable by Tenant
shall be deemed both a covenant and a condition.
13.6 Interruption
of
Business. In no event will Landlord be responsible to Tenant for
any damages for loss of profits or interruption of business as a result of
any
default by Landlord hereunder.
13.7 Binding
Effect. This Lease shall extend to and be binding upon the
heirs, executors, legal representative, successors and assigns of the respective
parties hereto. The terms, covenants, agreements and conditions in
this Lease shall be construed as covenants running with the land on which the
Premises is located.
13.8 Notices
and Demands. All notices, demands and requests which may be given or which
are required to be given by either party to the other must be in
writing. All notices, demands and requests by Landlord or Tenant
shall be addressed as follows (or to such other address as a party may specify
by duly given notice):
RENT
PAYMENT
ADDRESS: FLA
OWNER LLC
X.X.
Xxx 000000
Xxxxx,
Xxxxxxx
00000-0000
TAX
I.D. 00-0000000
LEGAL
NOTICE
ADDRESS
FOR
LANDLORD: FLA
OWNER LLC
c/o
EOLA CAPITAL LLC
Attn:
Managing Director
0000
X. Xxxxxxx Xxxxxx, Xxxxx
X
Xxxxx,
Xxxxxxx 00000
WITH
A
COPY
TO: FLA
OWNER LLC
x/x
XXXX XXXXXXX LLC
Attn:
Lease
Administration
Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx
0000Xxxxxxxxxxxx, Xxxxxxx 00000-0000
TENANT: NFINANSE,
INC.
0000
Xxxxxxx Xxxx Xxxxx, Xxxxx
000
Xxxxx
Xxxxxxx 00000
-16-
Notices,
demands or requests which Landlord or Tenant are required or desire to give
the
other hereunder shall be deemed to have been properly given for all purposes
if
(i) delivered against a written receipt of delivery, (ii) mailed by express,
registered or certified mail of the United States Postal Service, return receipt
requested, postage prepaid, or (iii) delivered to a nationally recognized
overnight courier service for next business day delivery, to its addressee
at
such party's address as set forth above or (iv) delivered via telecopier or
facsimile transmission to the facsimile number listed above, provided, however,
that if such communication is given via telecopier or facsimile transmission,
an
original counterpart of such communication shall be sent concurrently in either
the manner specified in section (ii) or (iii) above and written confirmation
of
receipt of transmission shall be provided. Each such notice, demand
or request shall be deemed to have been received upon the earlier of the actual
receipt or refusal by the addressee or three (3) business days after deposit
thereof at any main or branch United States post office if sent in accordance
with section (ii) above, and the next business day after deposit thereof with
the courier if sent pursuant to section (iii) above. The parties
shall notify the other of any change in address, which notification must be
at
least fifteen (15) days in advance of it being effective.
Notices
may be given on behalf of any party by such party's legal counsel.
13.9 Time
of the
Essence. Time is of the essence under this Lease, and all
provisions herein relating thereto shall be strictly construed.
13.10 Captions
for
Convenience. The headings and captions hereof are for
convenience only and shall not be considered in interpreting the provisions
hereof.
13.11 Severability. If
any provision of this Lease shall be held invalid or unenforceable, the
remainder of this Lease shall not be affected thereby, and there shall be deemed
substituted for the affected provisions a valid and enforceable provision as
similar as possible to the affected provision.
13.12 Governing
Law. This Lease shall be interpreted and enforced according to
the laws of the State of Florida.
13.13 Entire
Agreement. This Lease and any Exhibits and Addenda referred to
herein, constitute the final and complete expression of the parties' agreements
with respect to the Premises and Tenant's occupancy thereof. Each
party agrees that it has not relied upon or regarded as binding any prior
agreements, negotiations, representations, or understandings, whether oral
or
written, except as expressly set forth herein. Both parties have
participated in the preparation of this Lease and in resolving any ambiguities
there shall be no presumption that they are construed against the drafting
party.
13.14 No
Oral Amendment
or Modifications. No amendment or modification of this Lease,
and no approvals, consents or waivers by Landlord under this Lease, shall be
valid or binding unless in writing and executed by the party to be
bound.
13.15
Real
Estate
Brokers. Each party represents and warrants to the other that it
has not dealt with any real estate broker, agent, or salesperson in connection
with the Property causing a commission to be due or payable with regard to
the
transaction contemplated hereby other than Eola Capital LLC representing
Landlord and CB Xxxxxxx Xxxxx representing Tenant. In the event any
claims arise for real estate brokerage commissions, fees, or other compensation
in connection with this transaction in favor of any broker, agent, salesperson,
or finder other than those named above, the party causing such claims, or
through whom such claims are made, shall indemnify the other party against
any
loss, damage, or liability which the other party hereto suffers as a result
of
such claim.
13.16 Relationship
of
Landlord and Tenant. Nothing contained herein shall be deemed or
construed as creating the relationship of principal and agent or of partnership,
or of joint venture by the parties hereof, it being understood and agreed that
no provision contained in this Lease nor any acts of the parties hereto shall
be
deemed to create any relationship other than the relationship of Landlord and
Tenant.
-17-
13.17 Authority
of
Tenant. Each individual executing this Lease on behalf of Tenant
represents and warrants that such individual is duly authorized to deliver
this
Lease on behalf of Tenant and that this Lease is binding upon Tenant in
accordance with its terms, and agrees to document such authorization to
Landlord's satisfaction if requested to do so.
13.18
Exculpation. Any provision of this Lease to the contrary
notwithstanding Landlord shall have no personal liability for payment of any
damages or performance of any term, provision or condition under this Lease
or
under any other instrument in connection with this Lease, and Tenant shall
look
for such payment or performance to the property, the rents, issues and profits
thereof, in satisfaction of any claim, order or judgment Tenant may at any
time
obtain against Landlord in connection with this Lease.
13.19 Bankruptcy. Landlord
and Tenant understand that, notwithstanding certain provisions to the contrary
contained herein, a trustee or debtor in possession under the United States
Bankruptcy Code, as amended, (the "Code") may have certain rights to assume
or
assign this Lease. Landlord and Tenant further understand that, in
any event, pursuant to the Code, Landlord is entitled to adequate assurances
of
future performance of the provisions of this Lease. The parties agree
that, with respect to any such assumption or assignment, the term “adequate
assurance” shall include at least the following:
(a) In
order to assure Landlord that the proposed assignee will have the resources
with
which to pay all Rent payable pursuant to the provisions of this Lease, any
proposed assignee must have, as demonstrated to Landlord’s satisfaction, a net
worth (as defined in accordance with generally accepted accounting principles
consistently applied) of not less than the net worth of Tenant on the Effective
Date (as hereinafter defined), increased by seven percent (7%), compounded
annually, for each year from the Effective Date through the date of the proposed
assignment. It is understood and agreed that the financial condition
and resources of Tenant were a material inducement to Landlord in entering
into
this Lease.
(b) Any
proposed assignee must have been engaged in the conduct of business for the
five
(5) years prior to any such proposed assignment, which business does not violate
the Permitted Use allowed under Section 8 above and such
proposed assignee shall continue to engage in the Permitted Use. It
is understood that Landlord’s asset will be substantially impaired if the
trustee in bankruptcy or any assignee of this Lease makes any use of the
Premises other than the Permitted Use.
(c) Any
proposed assignee of this Lease must assume and agree to be personally bound
by
the provisions of this Lease.
13.20 Radon
Gas. The
following notification is provided pursuant to Section 404.056(5), Florida
Statutes (2005): “Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guideline have
been found in buildings in Florida. Additional information regarding
radon gas and radon testing may be obtained from your county health
department.”
13.21 Environmental
Compliance.
(a) Tenant's
Responsibility. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
active or other hazardous substances, or materials. Tenant shall not
allow the storage or use of such substances or materials in any manner not
sanctioned by law or in compliance with the highest standards prevailing in
the
industry for the storage and use of such substances or materials, nor allow
to
be brought into the Building any such materials or substances except to use
in
the ordinary course of Tenant's business, and then only after written notice
is
given to Landlord of the identity of such substances or
materials. Tenant covenants and agrees that the Premises will at all
times during its use or occupancy thereof be kept and maintained so as to comply
with all now existing or hereafter enacted or issued statutes, laws, rules,
ordinances, orders, permits and regulations of all state, federal, local and
other governmental and regulatory authorities, agencies and bodies applicable
to
the Premises, pertaining to environmental matters or regulating, prohibiting
or
otherwise having to do with asbestos and all other toxic, radioactive, or
hazardous wastes or material including, but not limited to, the Federal Clean
Air Act, the Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as from time
to
time amended (all hereafter collectively called "Laws"). Tenant shall
execute affidavits, representations and the like, from time to time, at
Landlord's request, concerning Tenant's best knowledge and belief regarding
the
presence of hazardous substances or materials on the Premises.
-18-
(b) Tenant's
Liability. Tenant shall hold Landlord free, harmless, and
indemnified from any penalty, fine, claim, demand, liability, cost, or charge
whatsoever which Landlord shall incur, or which Landlord would otherwise incur,
by reason of Tenant's failure to comply with this Section 13.21
including, but not limited to: (i) the cost of bringing the Premises into
compliance with all Laws and in a non-contaminated state, the same condition
as
prior to occupancy; (ii) the reasonable cost of all appropriate tests and
examinations of the Premises to confirm that the Premises have been brought
into
compliance with all Laws; and (iii) the reasonable fees and expenses of
Landlord's attorneys, engineers, and consultants incurred by Landlord in
enforcing and confirming compliance with this Section
13.21.
(c) Property. For
the purposes of this Section 13.21, the Premises shall include
the real estate covered by this Lease; all improvements thereon; all personal
property used in connection with the Premises (including that owned by Tenant);
and the soil, ground water, and surface water of the Premises, if the Premises
includes any ground area.
(d) Inspections
by Landlord. Landlord and its engineers, technicians, and
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate, conduct periodic tests and examinations ("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section
13.21. Such Audits shall be conducted in such a manner as to
minimize the interference with Tenant's Permitted Use; however in all cases,
the
Audits shall be of such nature and scope as shall be reasonably required by
then
existing technology to confirm Tenant's compliance with this Section
13.21. Tenant shall fully cooperate with Landlord and its
Auditors in the conduct of such Audits. The cost of such Audits shall
be paid by Landlord unless an Audit shall disclose a material failure of Tenant
to comply with this Section 13.21, in which case, the cost of
such Audit, and the cost of all subsequent Audits made during the Term and
within thirty (30) days thereafter (not to exceed two (2) such Audits per
calendar year), shall be paid for on demand by Tenant.
(e) Landlord's
Liability. Provided, however, the foregoing covenants and
undertakings of Tenant contained in this
Section13.21 shall not apply to any condition
or matter constituting a violation of any Law: (i) which existed
prior to the commencement of Tenant's use or occupancy of the Premises; (ii)
which was not caused, in whole or in part, by Tenant or Tenant's agents,
employees, officers, partners, contractors or invitees; or (iii) to the extent
such violation is caused by, or results from the acts or neglects of Landlord
or
Landlord's agents, employees, officers, partners, contractors, guests, or
invitees.
(f) Tenant's
Liability After Termination of Lease. The covenants contained in
this Section 13.21 shall survive the expiration or termination
of this Lease, and shall continue for so long as Landlord and its successors
and
assigns may be subject to any expense, liability, charge, penalty, or obligation
against which Tenant has agreed to indemnify Landlord under this Section
13.21.
13.22. Jury
Trial Waver. Landlord and Tenant each hereby irrevocably,
knowingly and voluntarily waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other or their
successors in respect to any matter arising out of or in connection with this
Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the
Premises, and/or any claim for injury or damage, or any emergency or statutory
remedy.
13.23 No
Recording of Lease. This Lease may not be recorded without
Landlord’s prior written consent, but Tenant agrees on request of Landlord to
execute a memorandum hereof for recording purposes.
13.24 Attorneys’
Fees. In the event of any action or proceeding brought by Landlord against
Tenant under this Lease, Landlord shall be entitled to recover court costs
and
the fees and disbursements of its attorneys in such action or proceeding
(whether at the administrative, trial or appellate levels) in such amount as
the
court or administrative body may judge reasonable. Landlord shall
also be entitled to recover attorneys’ fees and disbursements incurred in
connection with a Tenant default hereunder which does not result in the
commencement of any action or proceeding.
[SIGNATURES
APPEAR ON FOLLOWING PAGE]
-19-
IN
WITNESS WHEREOF, Landlord and Tenant have executed this lease in three (3)
originals, all as of the day and year first above written.
|
WITNESSES
/s/
Xxxx Xxxxxxxxxx
Printed
Name: Xxxx Xxxxxxxxxx
/s/
Xxx Xxxxxxx
Printed
Name: Xxx Xxxxxxx
|
NFINANSE,
a Nevada corporation
By: /s/
X.X. Xxxxxxxx
Name: X.X.
Xxxxxxxx
Title: Executive
Vice President
“TENANT”
|
|
WITNESSES
/s/
Xxxxx X. Xxxxxx
Printed
Name: Xxxxx X. Xxxxxx
/s/
Xxxx Xxxxxx
Printed
Name: Xxxx Xxxxxx
|
FLA
OWNER LLC, a Delaware limited liability company
By: EOLA
CAPITAL LLC, as agent
By: /s/
Xxxxx X. Xxxxx, III
Name: Xxxxx
X. Xxxxx III
Title: Authorized
Signatory
“LANDLORD”
|
-20-
EXHIBIT
A
PREMISES
-21-
EXHIBIT
B
MONTHLY
RENT SCHEDULE
During
the Term of this Lease, Tenant shall pay Base Rent to Landlord in monthly
installments as Monthly Rent in accordance with the following
schedule:
|
FROM
MONTH
|
THROUGH
MONTH
|
RENTABLE
SQUARE FEET
|
BASE
RENT PER RENTABLE SQUARE FOOT*
|
ANNUAL
BASE RENT*
|
MONTHLY
BASE RENT*
|
|
Commencement
Date
|
12
|
11,580
|
$12.00
|
$138,960.00
|
$11,580.00
|
|
13
|
24
|
11,580
|
$12.36
|
$143,128.80
|
$11,927.40
|
|
25
|
36
|
11,580
|
$12.73
|
$147,413.40
|
$12,284.45
|
|
37
|
48
|
11,580
|
$13.11
|
$151,813.80
|
$12,651.15
|
|
49
|
60
|
11,580
|
$13.50
|
$156,330.00
|
$13,027.50
|
*
Plus applicable State of Florida Sales Tax
The
above
Base Rent schedule does not include operating expenses as provided for in the
Lease.
-22-
EXHIBIT
C
RULES
AND REGULATIONS
1. The
sidewalks and public portions of the Building Project, such as entrances,
passages, courts, parking areas, vestibules, stairways, corridors, or halls
shall not be obstructed or encumbered by Tenant or its employees, agents,
invitees, or guests nor shall they be used for any purpose other than ingress
and egress to and from the Premises.
2. No
awnings or other projections shall be attached to the outside walls of the
Building Project. No curtains, blinds, shades, louvered openings, or
screens shall be attached to or hung in, or used in connection with, any window
or door of the Premises, without the prior written consent of Landlord, unless
installed by Landlord. No aerial or antenna shall be erected on the
roof or exterior walls of the Premises or on the Building Project without the
prior written consent of Landlord in each instance.
3. No
sign, advertisement, notice, or other lettering shall be exhibited, inscribed,
painted, or affixed by Tenant on any part of the outside of the Premises or
Building Project or on corridor walls or doors or mounted on the inside of
any
windows without the prior written consent of Landlord. Signs on any
entrance door or doors shall conform to Building Project standards and shall,
at
Tenant's expense, be inscribed, painted, or affixed for Tenant by sign makers
approved by Landlord. In the event of the violation of the foregoing
by Tenant, Landlord may install and/or remove same without any liability and
may
charge the expense incurred to Tenant.
4. The
sashes, sash doors, skylights, windows, heating, ventilating, and air
conditioning vents and doors that reflect or admit light and air into the halls,
passageways, or other public places in the Building Project shall not be covered
or obstructed by Tenant, or its employees, agents, invitees, or guests, nor
shall any bottles, parcels, or other articles be placed outside of the
Premises.
5. No
show cases or other articles shall be put in front of or affixed to any part
of
the exterior of the Building Project, nor placed in the public halls, corridors,
or vestibules without the prior written consent of Landlord.
No
items
of any description, including but not limited to pallets, boxes, inventory,
and
waste, shall be left outside of the Premises at any time.
6. Whenever
Tenant shall submit to Landlord any plan, agreement, assignment, sublease,
or
other document for Landlord's consent or approval, Tenant agrees to pay
Landlord, on demand, a processing fee in a sum equal to the reasonable fee
for
review of same, including the services of any architect, engineer, or attorney
employed by Landlord to review or prepare any such plan, agreement, assignment,
sublease, consent, or other document.
7. The
water and wash closets and other plumbing fixtures shall not be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of fixtures shall be borne by the Tenant
who,
or whose employees, agents, invitees, or guests, shall have caused the
same.
8. Tenant
shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of the
Building Project, and, if linoleum or other similar floor covering is desired
to
be used, an interlining of builder's deadening felt shall be first affixed
to
the floor, by a paste or other material, soluble in water, the use of cement
or
other similar adhesive material being expressly prohibited.
9. No
animals or any kind (except seeing eye dogs) and other animals used to assist
physically challenged individuals shall be brought upon the Premises or Building
Project.
10. No
cooking shall be done or permitted by Tenant on the Premises except in
conformity to law and then only in the utility kitchen (if a utility kitchen
was
provided for in approved plans for the Premises or if Landlord has consented
in
writing thereto), which is to be primarily used by Tenant's employees for
heating beverages and light snacks. No refrigeration or heating
equipment may be placed inside the Premises without the prior written consent
of
Landlord in each instance. Tenant shall not cause or permit any
unusual or objectionable odors to be produced upon or permeate from the
Premises.
-23-
11. No
office space in the Building Project shall be used for the distribution or
for
the storage of merchandise or for the sale at auction or otherwise of
merchandise, goods, or property of any kind.
12. Tenant
shall not make or permit to be made any unseemly or disturbing noises or disturb
or interfere with occupants of the Building Project or neighboring premises
or
those having business with them, whether by the use of any musical instrument,
radio, talking machine, unmusical noise, whistling, singing, or in any other
way. Tenant shall not throw anything out of the doors or windows or
down the corridors of the Building Project.
13. Neither
Tenant nor any of Tenant's employees, agents, invitees, or guests shall at
any
time bring or keep upon the Premises any inflammable, combustible, or explosive
substance or any chemical substance, other than reasonable amounts of cleaning
fluids and solvents required in the normal operation of Tenant's business,
all
of which shall only be used in strict compliance with all applicable
Environmental Laws.
14. Landlord
shall have a valid pass key to all spaces within the Premises at all times
during the Term of this Lease. No additional locks or bolts of any
kind shall be placed upon any of the doors or windows by Tenant, nor shall
any
changes be made in existing locks or the mechanism thereof, without the prior
written consent of the Landlord and unless and until a duplicate key is
delivered to Landlord. Tenant must, upon the termination of its
tenancy, restore to the Landlord all keys to stores, offices, and toilet rooms,
either furnished to or otherwise procured by Tenant, and in the event of the
loss of any keys so furnished, Tenant shall pay Landlord for the cost
thereof.
15. All
deliveries, removals, and/or the carrying in or out of any items of property
of
any description may be accomplished only through the approved loading/service
area doors. Tenant shall assume all liability and risk with respect
to such movements. Landlord may restrict the location where such
heavy or bulky matters may be placed inside the Premises. Landlord
reserves the right to inspect all freight to be brought into the Building
Project and to exclude from the Building Project all freight which can or may
violate any of these Rules and Regulations or the Lease of which these Rules
and
Regulations are a part.
16. Tenant
shall not, unless otherwise approved by Landlord, occupy or permit any portion
of the Premises demised to it to be occupied as, by, or for a public
stenographer or typist, xxxxxx shop, bootblacking, beauty shop or manicuring,
beauty parlor, telephone or telegraph agency, telephone or secretarial service,
messenger service, travel or tourist agency, employment agency, public
restaurant or bar, commercial document reproduction or offset printing service,
ATM or similar machines, retail, wholesale, or discount shop for sale of
merchandise, retail service shop, labor union, school or classroom, governmental
or quasi-governmental bureau, department, or agency, including an autonomous
governmental corporation, a firm the principal business of which is real estate
brokerage, or a company engaged in the business of Renting office or desk space;
or for a public finance (personal loan) business or for manufacturing, unless
Tenant's Lease expressly grants permission to do so. Tenant shall not
operate or permit to be operated on the Premises any coin or token operated
vending machine or similar device (including, without limitation, telephones,
lockers, toilets, scales, amusement devices, and machines for sale of beverages,
foods, candy, cigarettes, or other goods), except for those vending machines
or
similar devices which are for the sole and exclusive use of Tenant's employees,
and then only if such operation does not violate the lease of any other tenant
of the Building Project. Tenant shall not engage or pay any employees
on the Premises, except those actually working for Tenant on the Premises,
nor
advertise for labor giving an address at the Premises.
17. Tenant
shall not create or use any advertising mentioning or exhibiting any likeness
of
the Building Project without the prior written consent of
Landlord. Landlord shall have the right to prohibit any such
advertising which, in Landlord's reasonable opinion, tends to impair the
reputation of the Building Project or its desirability as a building for
offices, and upon written notice from Landlord, Tenant shall discontinue such
advertising.
18. Landlord
reserves the right to exclude from the Building Project at all times other
the
Normal Business Hours all persons who do not present a pass to the Building
Project on a form or card approved by Landlord. Tenant shall be
responsible for all its employees, agents, invitees, or guests who have been
issued such a pass at the request of Tenant and shall be liable to Landlord
for
all acts of such persons.
19. The
Premises shall not be used for lodging or sleeping, or for any immoral,
disreputable, or illegal purposes, or for any purpose which may be dangerous
to
life, limb, or property.
-24-
20. Canvassing,
soliciting, and peddling within the Building Project or in the Common Areas
is
prohibited and Tenant shall cooperate to prevent the same.
21. In
order to obtain maximum effectiveness of the cooling system, Tenant shall lower
and/or close venetian or vertical blinds or drapes when the sun's rays fall
directly on the exterior windows of the Premises.
22. In
the event that, in Landlord's reasonable opinion, the replacement of ceiling
tiles becomes necessary after they have been removed on behalf of Tenant by
telephone company installers or others (in both the Premises and the public
corridors), the cost of such replacements shall be charged to Tenant on a per
tile basis.
23. All
paneling or other wood products not considered furniture which Tenant shall
install in the Premises shall be of fire-retardant materials. Prior
to the installation of any such materials, Tenant shall submit to Landlord
a
satisfactory (in the reasonable opinion of Landlord) certification of such
materials' fire-retardant characteristics.
24. Tenant,
and its employees, agents, invitees, and guests shall not be permitted to occupy
at any one time more than the number of parking spaces allocated to Tenant
pursuant to Section 2.8 of the Lease (including any parking spaces reserved
exclusively for Tenant), with any fractional parking space resulting from such
calculation rounded down to the nearest whole number. Usage of
parking spaces shall be in common with all other tenants of the Building Project
and their employees, agents, invitees, and guests. All parking space
usage shall be subject to such reasonable rules and regulations for the sale
and
proper use thereof as Landlord may prescribe. Tenant's employees,
agents, invitees, and guests shall abide by all posted roadway signs in and
about the parking facilities.
25. All
trucks and delivery vans actively associated with Tenant’s use of the Premises
shall be parked in designated areas only, and unless otherwise agreed, such
designated areas shall be in the rear of the Premises, and not parked in spaces
reserved for cars. All delivery service doors are to remain closed
except during the time that deliveries, garbage removal, or other approved
uses
are taking place therein. All loading and unloading of goods shall be
done only at such time, in the areas, and through the entrances designated
for
such purposes by Landlord. No vehicles other than trucks and delivery vans
actively associated with Tenant’s use of the Premises shall be permitted to park
overnight.
26. Tenant
shall be responsible for the removal and proper disposition of all crates,
oversized trash, boxes, or other refuse and items termed garbage from the
Premises. The parking and delivery areas are to be kept clean from
such items. Tenant shall provide convenient and adequate receptacles
for the collection of standard items of trash, and shall facilitate the removal
of such trash. Tenant shall ensure that liquids are not disposed of
in such receptacles.
27. Tenant
shall not conduct any business, loading or unloading, assembling, or any other
work connected with Tenant's business in any public areas.
28. Landlord
shall not be responsible for lost or stolen personal property, equipment, or
money occurring within the Premises or Building Project, regardless of how
or
when the loss occurs.
29. Neither
Tenant, nor its employees, agents, invitees, or guests, shall paint or decorate
the Premises, or xxxx, paint, or cut into, drive nails or screw into nor in
any
way deface any part of the Premises or Building Project without the prior
written consent of Landlord. Notwithstanding the foregoing, standard
picture hanging shall be permitted without Landlord's prior
consent. If Tenant desires a signal, communications, alarm, or other
utility or service connection installed or changed, such work shall be done
at
the expense of Tenant, with the approval and under the direction of
Landlord.
30. Tenant
shall give Landlord prompt notice of all accidents to or defects in air
conditioning equipment, plumbing, electric facilities, or any part or
appurtenance of the Premises.
31. Tenant
agrees and fully understands that the overall aesthetic appearance of the
Building Project is of paramount importance; thus Landlord shall maintain
complete aesthetic control over any and every portion of the Premises visible
from outside the Premises including but not limited to all fixtures, equipment,
signs, exterior lighting, plumbing fixtures, shades, awnings, merchandise,
displays, art work, wall coverings, or any other object used in Tenant's
business. Landlord's control over the visual aesthetics shall be
complete and arbitrary. Landlord will notify Tenant in writing of any
aesthetic deficiencies and Tenant will have seven (7) days to correct the
deficiencies to Landlord's satisfaction or Tenant shall be in default of this
Lease and the Default section shall apply.
-25-
32. Tenant
shall not install, operate, or maintain in the Premises or in any other area
of
the Building Project, any electrical equipment which does not bear the U/L
(Underwriters Laboratories) seal of approval, or which would overload the
electrical system or any part of the system beyond its capacity for proper,
efficient, and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building Project. Tenant shall not
furnish any cooling or heating to the Premises, including, without limitation,
the use of any electronic or gas heating devices, without Landlord's prior
written consent.
33. Pursuant
to applicable law, the Building Project is deemed to be a "no-smoking" building
and smoking is permitted only in areas designated by Landlord, if any are so
designated. In addition, Landlord may, from time to time, designate
non-smoking areas in all or any portion of the exterior Common Areas and within
Tenant's Premises.
34. Tenant
shall comply with any recycling programs for the Building Project implemented
by
Landlord from time to time.
35. Whenever
and to the extent that the above Rules and Regulations conflict with any of
the
rights or obligations of Tenant pursuant to the provisions of the Lease, the
provisions of the Lease shall govern.
36. Landlord
may, upon request by any tenant, waive compliance by such tenant with any of
the
Rules and Regulations provided that (i) no waiver shall be effective unless
in
writing and signed by Landlord or Landlord's authorized agent, (ii) any such
waiver shall not relieve such tenant from the obligation to comply with such
Rule or Regulation in the future unless expressly consented to by Landlord,
and
(iii) no waiver granted to any tenant shall relieve any other tenant from the
obligation of complying with the Rules and Regulations unless such other tenant
has received a similar waiver in writing from Landlord.
-26-
EXHIBIT
D
WORK
LETTER
This
Exhibit “D” (this “Work Letter”)
sets forth the rights and obligations of Landlord and Tenant with respect
to
space planning, engineering, final workshop drawings, and the construction
and
installation of any improvements to the Premises to be completed before the
Commencement Date ("Tenant Improvements"). This Work Letter
contemplates that the performance of this work will proceed in four (4) stages
in accordance with the following schedule: (i) preparation of a space
plan; (ii) final design and engineering and preparation of final plans and
working drawings; (iii) preparation by the Contractor (as hereinafter defined)
of an estimate of the additional cost of the initial Tenant Improvements;
(iv)
submission and approval of plans by appropriate governmental authorities
and
construction and installation of the Tenant Improvements by the Commencement
Date.
In
consideration of the mutual
covenants hereinafter contained, Landlord and Tenant do mutually agree to
the
following:
|
1.
|
Space
Planning, Design and Working Drawings. On Tenant’s
behalf, Landlord shall provide and designate architects and engineers,
who, at Tenant’s expense, which expense shall be deducted from the
Allowance (as hereinafter defined), will do the
following:
|
|
|
a.
|
Attend
a reasonable number of meetings with Tenant and Landlord's agent
to define
Tenant’s requirements. Landlord shall provide one complete
space plan prepared by Landlord's architect in order to obtain Tenant’s
approval. Tenant shall approve such space plan, in writing,
within five (5) days after receipt of the space
plan.
|
|
b.
|
Complete
construction drawings for Tenant's partition layout, reflected ceiling
grid, telephone and electrical outlets, keying, and finish schedule
(subject to the limitation expressed in Section 2
below).
|
|
c.
|
Complete
building standard mechanical plans where necessary (for installation
of
air conditioning system and ductwork, and heating and electrical
facilities) for the work to be done in the
Premises.
|
|
d.
|
All
plans and working drawings for the construction and completion of
the
Premises (the “Plans”) shall be subject to Landlord's prior written
approval. Any changes or modifications Tenant desires to make
to the Plans shall also be subject to Landlord's prior
approval. Landlord agrees that it will not unreasonably
withhold its approval of the Plans, or of any changes or modifications
thereof; provided, however, Landlord shall have sole and absolute
discretion to approve or disapprove any improvements that will be
visible
to the exterior of the Premises, or which may affect the structural
integrity of the Building. Any approval of the Plans by
Landlord shall not constitute approval of any Delays caused by Tenant
and
shall not be deemed a waiver of any rights or remedies that may arise
as a
result of such Delays. Landlord may condition its approval of
the Plans if: (i) the Plans require design elements or
materials that would cause Landlord to deliver the Premises to Tenant
after the scheduled Commencement Date, or (ii) the estimated cost
for any
improvements under the Plan is more than the
Allowance.
|
|
2.
|
Allowance. Landlord
agrees, at its sole cost and expense to provide an allowance of up
to Two
Hundred Sixty Thousand, Five Hundred Fifty and No/100 Dollars
($260,550.00) to design, engineer, install, supply and otherwise
to
construct the Tenant Improvements in the Premises that will become
a part
of the Building (the "Allowance"); otherwise, Tenant is fully responsible
for the payment of all costs above the amount of the Allowance and
in
connection with the Tenant Improvements. Tenant acknowledges
and agrees that the Allowance shall not be used for Tenant’s telephone and
computer cabling and wiring. At the completion of the Tenant
Improvements, Landlord shall provide to Tenant an accounting as to
the
monies spent in completion of Tenant Improvements. Provided
that Tenant is not in default under the Lease, in the event that
the
entire amount of the Allowance is not used for construction of the
initial
Tenant Improvements, then upon the completion of the construction
of the
initial Tenant Improvements, the difference shall be provided to
Tenant in
the form of a check within forty-five (45) days after Landlord’s receipt
of Tenant’s written request for same. Notwithstanding anything
contained in the Lease to the contrary, Landlord has agreed to allow
Tenant, at its sole cost and expense, to install, operate, and maintain
an
external electric backup generator located outside the Premises at
a
location on the property mutually agreeable to the parties, provided,
however, that if Tenant installs said generator, (i) then from the
time of
installation through the remaining Term of the Lease, Tenant shall
maintain a service contract with a vendor approved by Landlord to
maintain
the generator in compliance with its manufacturer’s specifications, and
(ii) upon the expiration or earlier termination of the Lease, ownership
of
the generator shall transfer to Landlord free and clear of any and
all
liens and encumbrances, provided further, that notwithstanding the
foregoing provisions of this sentence, upon the expiration or earlier
termination of the Lease, and at Landlord’s sole and absolute discretion,
Landlord may provide Tenant with written disclaimer of ownership
of the
generator and require that Tenant remove the generator, in which
event
Tenant shall promptly remove the generator and in a good and workmanlike
manner, restore the Premises, Building, and/or property to the condition
existing immediately prior to installation of the generator, ordinary
wear
and tear excepted.
|
-27-
|
3.
|
Signage
and
Keying. Door
and/or
directory signage and monument signage and suite keying in accordance
with
Building standards shall be provided and installed by Landlord at
Tenant’s
expense, which expense may be deducted from the Allowance.
|
|
4.
|
Work
and Materials at Tenant's Expense
|
|
|
a.
|
Prior
to commencing and providing any such work or materials to the Premises,
Landlord shall select from a competitive bidding process of at least
three
(3) of its approved contractors, a licensed general contractor or
contractors (the "Contractor") to construct and install the Tenant
Improvements and Landlord shall submit to Tenant written estimates
of the
cost of such work and materials and Tenant shall approve said estimates
in
writing within five (5) business days after the receipt
thereof. Landlord shall not be authorized to proceed thereon
until such estimate is mutually agreed upon and approved in writing
and
delivered to Landlord. Landlord's written estimate shall
include a Construction Supervision Fee of three percent (3%) of the
entire
cost of the work to be performed to manage and oversee the work to
be done
on Tenant's behalf.
|
|
|
b.
|
Tenant
agrees to pay to Landlord, promptly upon being billed therefor, all
costs
and expenses in excess of the Allowance incurred in connection with
the
Tenant Improvements. Such costs and expenses shall include all
amounts charged by the Contractor for performing such work and providing
such materials (including the Contractor's general conditions, overhead
and profit). If unpaid within ten (10) days after receipt of
invoice, then the outstanding balance shall accrue at the rate of
one
percent (1%) per month until paid in
full.
|
|
5.
|
Tenant
Plan Delivery Date
|
|
|
a.
|
Tenant
covenants and agrees that although certain plans and drawings may
be
prepared by Landlord's architect or engineer, Tenant shall be solely
responsible for the timely completion of the Plans and it is hereby
understood time is of the essence.
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b.
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Tenant
covenants and agrees to deliver to Landlord the final Plans for the
Tenant
Improvements on or before April 6, 2007 (the "Tenant Plan Delivery
Date"). It is vital that the final Plans be delivered to
Landlord by the Tenant Plan Delivery Date in order to allow Landlord
sufficient time to review such Plans, to discuss with Tenant any
changes
therein which Landlord believes to be necessary or desirable, to
enable
the Contractor to prepare an estimate of the cost of the initial
Tenant
Improvements, and to substantially complete the Premises within the
time
frame provided in the Lease.
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6.
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Substantial
Completion
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a.
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The
Premises shall be deemed to be substantially complete when the work
to be
performed by Landlord pursuant to the Plans approved by Landlord
and
Tenant has been completed and approved by the appropriate governmental
authorities, as certified by Landlord and architect, except for items
of
work and adjustment of equipment and fixtures that can be completed
after
the Premises are occupied without causing material interference with
Tenant's use of the Premises (i.e., "punch list
items").
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b.
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Notwithstanding
the foregoing, if Landlord shall be delayed in substantially completing
the Premises as a result of:
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(i)
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Tenant's
failure to furnish to Landlord the final Plans on or before the Tenant
Plan Delivery Date; or
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(ii)
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Tenant's
failure to furnish the Plans and/or Tenant's failure to approve Landlord's
cost estimates within the time specified in Section 4
herein and/or Tenant’s failure to approve the space plan within the time
specified in Section 1 herein;
or
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(iii)
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Tenant's
changes in the Tenant Improvements or the Plans (notwithstanding
Landlord's approval of any such changes);
or
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(iv)
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Tenant's
request for changes in or modifications to the Plans subsequent to
the
Tenant Plan Delivery Date; or
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(v)
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Inability
to obtain non-building standard materials, finishes or installations
requested by Tenant; or
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(vi)
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The
performance of any work by any person, firm or corporation employed
or
retained by Tenant; or
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(vii)
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Any
other act or omission by Tenant or its agents, representatives, and/or
employees;
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then,
in
any such event, for purposes of determining the Commencement Date, the Premises
shall be deemed to have been substantially completed on the date that Landlord
and architect determine that the Premises would have been substantially
completed if such Delay or Delays had not occurred.
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7.
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Materials
and Workmanship. Landlord covenants and agrees
that all work performed in connection with the construction of the
Premises shall be performed in a good and workmanlike manner and
in
accordance with all applicable laws and regulations and with the
final
approved Plans. Landlord agrees to exercise due diligence in
completing the construction of the
Premises.
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8.
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Repairs
and Corrections. Landlord agrees to repair and
correct any work or materials installed by Landlord or its Contractor
in
the Premises that prove defective as a result of faulty materials,
equipment, or workmanship and that first appear within ninety (90)
days
after the date of occupancy of the Premises. Notwithstanding
the foregoing, Landlord shall not be responsible to repair or correct
any
defective work or materials installed by Tenant or any contractor
other
than Landlord's Contractor, or any work or materials that prove defective
as a result of any act or omission of Tenant or any of its employees,
agents, invitees, licensees, subtenants, customers, clients, or
guests.
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9.
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Possession
by Tenant. The taking of possession of the
Premises by Tenant shall constitute an acknowledgment by Tenant that
the
Premises are in good condition and that all work and materials provided
by
Landlord are satisfactory as of such date of occupancy, except as
to any
defects or incomplete work that are described in a written notice
given by
Tenant to Landlord no later than thirty (30) days after Tenant commences
occupancy of the Premises, and except for any equipment that is used
seasonally if Tenant takes possession of the Premises during a season
when
such equipment is not in use.
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10.
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Access
During Construction. Notwithstanding anything
contained in the Lease to the contrary, during construction of the
Tenant
Improvements in the Premises, Tenant, with the prior written approval
of
Landlord, shall be permitted reasonable access to the Premises for
the
purposes of taking measurements, making plans, installing trade fixtures,
furniture, cabling and wiring, and doing such other work as may be
appropriate or desirable to enable Tenant eventually to assume possession
of and operate in the Premises, provided that such access is coordinated
with Landlord and does not interfere with or delay construction work
on
the Premises. Tenant agrees to indemnify, defend, and hold
Landlord harmless from and against any suits, claims, damages, costs,
expenses and liabilities asserted against or incurred by Landlord
or the
property as a result of Tenant accessing the Premises during construction
of the Tenant Improvements.
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11.
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Communication
and Satellite Dishes. Tenant
shall be permitted, at its sole cost and expense, to install, operate
and
maintain, on the roof of the Building immediately above the Premises
a
satellite dish antenna or similar equipment (not to exceed one (1)
meter
in diameter and/or two (2) meters in height (the “Rooftop
Equipment”). The location of the Rooftop Equipment and all
plans and specifications for installation of the same shall be subject
to
the prior written approval of Landlord, which approval shall not
be
unreasonably withheld, conditioned or delayed. Tenant shall
obtain any and all permits, consents and/or governmental approvals
as may
be reasonable and/or necessary for the installation or operation
of the
Rooftop Equipment. Landlord makes no warranty or representation that
the
Rooftop Equipment will not be affected by or suffer interference
from
existing rooftop equipment or otherwise, and Tenant accepts the rooftop
space “as is” and agrees that Landlord is under no obligation to perform
any work or provide any materials in preparation for the installation,
maintenance or operation of the Rooftop Equipment. Tenant shall
use a Landlord approved contractor (approval not unreasonably withheld,
conditioned or delayed) for the installation and maintenance of the
Rooftop Equipment and no penetrations of the roof of the Building
shall be
made without the prior written approval of Landlord. In the
event that the Rooftop Equipment affects or causes interference with
existing rooftop equipment, Landlord may require Tenant to relocate
or
remove the Rooftop Equipment, Tenant agrees that upon the
expiration or earlier termination of this Lease, Tenant shall, at
its sole
cost and expense, remove the Rooftop Equipment and in a good and
workmanlike manner, restore the roof of the Building to the condition
existing immediately prior to installation of the Rooftop Equipment
(less
reasonable wear and tear) and indemnify Landlord for any damage resulting
from roof penetrations, if any. In the event all or a portion
of the roof membrane must be repaired or replaced, or any other Building
maintenance need arises that requires the temporary removal of the
Rooftop
Equipment, Tenant shall be fully responsible, at its sole cost and
expense, for the removal and re-installation of all Rooftop
Equipment. Except in the case of emergencies, Landlord shall
provide Tenant with forty-eight (48) hours notice of any planned
repairs
or replacements that will require the removal of Tenant’s Rooftop
Equipment, unless Landlord is unable to provide forty-eight (48)
hours
notice due to the nature of the repair or replacement, in which event
Landlord shall provide as much notice as reasonably
possible. Landlord shall promptly notify Tenant when the repair
or replacement is complete and the re-installation of the Rooftop
Equipment may commence. All Rooftop Equipment shall be re-installed
in
strict accordance with the specifications previously approved by
Landlord
and in effect at the time of the Rooftop Equipment’s
removal. Landlord shall have no liability to Tenant or any
third-party for any losses incurred as a result of the relocation
and
re-installation. The rooftop access right granted herein is not
exclusive and Landlord reserves the right to (i) renew or extend
rooftop
communications rights to existing tenants, and (ii) grant new rooftop
communication rights to others provided such rights do not render
Tenant’s
utilization of the site
impractical.
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EXHIBIT
E
OPTION
TO RENEW LEASE TERM
1. Option
to Extend. Tenant shall have the right and option to renew the
Lease (the "Renewal Option") for one (1) additional period of sixty (60) months
(the “Renewal Lease Term”) provided, however, such Renewal Option is contingent
upon the following (i) Tenant is not in default at the time Tenant
gives Landlord notice of Tenant’s intention to exercise the Renewal Option; (ii)
upon the Expiration Date, Tenant has no outstanding default; (iii) no event
has
occurred that upon notice or the passage of time would constitute a default;
(iv) Tenant is not disqualified by multiple defaults as provided in the Lease;
and (v) Tenant is occupying the Premises. Following the expiration of
the Renewal Lease Term, Tenant shall have no further right to renew the Lease
pursuant to this Addendum Number Three.
2. Exercise
of Option. Tenant shall exercise each Renewal Option by giving
Landlord notice at least one hundred eighty (180) days prior to the Expiration
Date. If Tenant fails to give such notice to Landlord prior to said
one hundred eighty (180) day period, then Tenant shall forfeit the Renewal
Option. If Tenant exercises the Renewal Option, then during any such
Renewal Lease Term, Landlord and Tenant’s respective rights, duties and
obligations shall be governed by the terms and conditions of the Lease. Time
is
of the essence in exercising the Renewal Option.
3. Term. If
Tenant exercises the Renewal Option, then during the Renewal Lease Term, all
references to the term “Term”, as used in the Lease, shall mean the “Renewal
Lease Term”.
4. Termination
of Renewal Option on Transfer by Tenant. In the event Landlord
consents to an assignment or sublease by Tenant, then the Renewal Option shall
automatically terminate unless otherwise agreed in writing by
Landlord.
5. Base
Rent for Renewal Lease Term. The Minimum Base Rent for the Renewal Lease
Term shall be market value as determined by Landlord.
6. Expense
Stop for Renewal Lease Term. The Expense Stop for the Renewal Lease Term
shall adjusted to reflect the then current Expense Stop being offered to
prospective Tenants of the Building.
-30-
EXHIBIT
F
RIGHT
OF FIRST OFFER
Provided
(i) this Lease is in full
force and effect and Tenant is not in default hereunder at the time Landlord
gives the First Offer Notice (as hereinafter defined), (ii) no event has
occurred that upon notice or the passage of time would constitute a default,
(iii) Tenant is occupying the Premises, and (iv) Tenant is not disqualified
by
multiple defaults as provided in the Lease, then in the event any space
contiguous to the Premises becomes available in the Building during the Term,
Landlord shall, subject to offers to any existing tenants as of the date of
execution of this Lease agreement, first offer said available space to Tenant
by
providing written notice to Tenant (the “First Offer Notice”) of its opportunity
to lease the available space on the terms and conditions contained in the First
Offer Notice. Notwithstanding anything contained herein, no space
shall be deemed to come available if such space is assigned or subleased by
the
current tenant of the space, leased again by the current tenant of the space
by
way of (a) renegotiation of its lease terms, (b) a right to renew or extend
its
lease, which right exists as of the Effective Date of this Lease, or (c) subject
to a specific expansion right of another tenant in the Building, which right
exists as of the Effective Date of this Lease. Landlord shall make
only one (1), if any, First Offer Notice to Tenant during the
Term. In the event such First Offer Notice is made, Tenant shall have
five (5) business days from receipt of the First Offer Notice to exercise this
right of first offer and lease the entire amount of space identified in the
First Offer Notice. In the event Tenant shall timely notify Landlord
of its decision to exercise this right of first offer, Landlord and Tenant
shall
execute an agreement or amendment to the Lease embodying substantially the
same
terms as those in the First Offer Notice. In the event Tenant shall
timely notify Landlord of its decision not to exercise this right of first
offer, or shall fail to timely make its election, this right of first offer
shall be deemed waived, and Landlord may market and/or lease the space on terms
and conditions acceptable to Landlord in its sole discretion.
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