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 3923 Coconut
Palm Drive, Suite 107, Tampa, Florida 33619.
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.
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.
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%).
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.
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.
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.
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.
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.
8.15 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.
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 the
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