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”).
1.1 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