OFFICE
LEASE
THIS LEASE (the "Lease"), is made
this the 23rd day of March, 2007, by and between SUBURBAN
OWNER LLC , a Delaware limited liability company,
hereinafter “Landlord” and GLOBAL AXCESS
CORP , a Nevada corporation hereinafter
“Tenant”:
WITNESSETH:
Upon the terms and conditions hereinafter set
forth, Landlord leases to Tenant and Tenant leases from Landlord
property referred to as the Premises, all as follows:
1. PREMISES . The property
hereby leased to Tenant is that area shown on Exhibit
A hereto attached, which consists of approximately
--------------------------- (--------) rentable square
feet , which is located in what is presently called the
7800 Belfort Building (the "Building"), located at 7800 Belfort
Parkway, Suite 165 , Jacksonville, FL, 32256 (the
"Premises").
The usable area
of the Premises, -------------------------------------
(---------) square feet , shall be multiplied by the core
area factor of 1.1325 to determine the rentable
square footage as referred to above.
If Landlord and Tenant desire for improvements
to be made to the Premises prior to the Commencement Date such
improvements shall be made pursuant to the work letter attached
hereto as Lease Addendum Two (the “Work
Letter”).
2. TERM . This Lease Term (the
"Term") is for sixty- two (62) months , and shall
commence on May 1, 2007 ("Commencement Date"), and
shall expire (unless sooner terminated or extended as herein
provided) at noon on June 30, 2012 ("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.
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 2 (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
and Additional Rent as set forth in Section 4
.
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 2 )
and Expiration Date may be set forth in a commencement letter (the
"Commencement Letter") prepared by Landlord and executed by
Tenant.
3. USE . The Premises may be
used only for general office purposes in connection with
Tenant’s present business, which is currently
financial transaction processing , and be occupied
by no more than one (1) person per 200 rentable square foot (the
“Permitted Use”), but for no other use without
Landlord's prior written consent. Tenant shall never make any use
of the Premises which is in violation of any governmental laws,
rules or regulations, whether now existing or hereafter enacted or
which is in violation of the general rules and regulations for
tenants (a copy of the present rules are attached as
Exhibit B ) as may be developed or modified from
time to time by Landlord effective as of the date delivered to
Tenant or posted on the Premises providing such rules are uniformly
applicable to all tenants in the Building (the "Rules and
Regulations"), nor may Tenant make any use of the Premises not
permitted, or otherwise prohibited, by any restrictive covenants
which apply to the Premises. Tenant may not make any use that is or
may be a nuisance or trespass, which increases any insurance
premiums, or makes such insurance unavailable to Landlord on the
Building. In the event of any increase in any of Landlord's
insurance premiums which directly results from the Tenant's use or
occupancy of the Premises, Tenant agrees to pay Landlord such
additional increase within ten (10) days.
4. RENT. As used herein, the
term "Rent" shall mean Base Rent (as hereinafter defined) plus
Additional Rent (as hereinafter defined). Tenant shall pay Rent to
the Landlord on or before the first day of each calendar month, in
advance, during the Term, without previous demand or notice
therefor by Landlord and without set off or deduction; provided,
however, if the Term commences on a day other than the first day of
a calendar month, then Rent for such month shall be (i) prorated
for the period between the Commencement Date and the last day of
the month in which the Commencement Date falls, and (ii) due and
payable on the Commencement Date. Notwithstanding anything
contained herein to the contrary, Tenant's obligation to pay Rent
under this Lease is completely separate and independent from any of
Landlord's obligations under this Lease. For each monthly Rent
payment Landlord receives after the fifth (5th) day of the month,
Landlord shall be entitled to all remedies provided under
Sections 13 and 14 below, and a
late charge in the amount of five percent (5%) of all Rent due for
such month. If Landlord presents Tenant's check to any bank and
Tenant has insufficient funds to pay for such check, then Landlord
shall be entitled to all remedies provided under Sections
13 and 14 below and a lawful bad check
fee or five percent (5%) of the amount of such check, whichever
amount is less.
4.1. BASE RENT. The minimum
base rent for the Term shall be the sum of
$497,760.50 (the "Base Rent"). For months one
through twelve of the Term, Base Rent shall be payable, in advance,
in equal monthly installments of $7,544.63 and
thereafter shall be increased pursuant to the Rent Schedule
below.
4.1.1. Rent Schedule. During
the initial term of the Lease, the monthly base rent shall be paid
in accordance with Section 4 and in accordance
with the following payment schedule:
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Months
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Annual Base Rent
per
Rentable Square
Foot
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Monthly Base
Rent
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Base Rent for
Period
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1 - 12
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13 - 24
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25 - 36
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37 - 48
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49 - 62
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TOTAL
BASE RENT:
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The above rent schedule does not include
operating expense pass through adjustments to be computed annually
in accordance with Lease Addendum One attached
hereto.
4.2. ADDITIONAL RENT. As used
in this Lease, the term "Additional Rent" shall mean all sums and
charges, excluding Base Rent, due and payable by Tenant under this
Lease, including, but not limited to, the following:
(a) 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 attempt to require
Landlord to pay the same; provided, however, if any such sales or
use tax shall be imposed on 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,
legally, Tenant can and does reimburse Landlord for such
tax.
(b) Tenant's Proportionate Share (as hereinafter
defined) of the increase in Landlord's Operating Expenses (as
hereinafter defined) as set forth in Lease Addendum
One .
5. SERVICES BY LANDLORD .
Provided that Tenant is not then in default, Landlord shall cause
to be furnished to the Building, or as applicable, the Premises, in
common with other tenants, during business hours of 7:00
A.M. to 6:00 P.M. Monday through Friday and 8:00 A.M. to 1:00 P.M.
on Saturdays (excluding National and State holidays), the
following services; janitorial services (five (5) days a week after
normal working hours), water (if available from city mains) for
drinking, lavatory and toilet purposes, operatorless elevator
service and heating and air conditioning for the reasonably
comfortable use and occupancy of the Premises, provided heating and
cooling conforming to any governmental regulation prescribing
limitations thereon shall be deemed to comply with this service.
Landlord shall furnish the Premises with electricity for the
maintenance of building standard fluorescent lighting composed of
2' x 4' fixtures. Incandescent fixtures, table lamps, all lighting
other than the aforesaid building standard fluorescent light,
dimmers and all lighting controls other than controls for the
aforesaid building standard fluorescent lighting shall be serviced,
replaced and maintained at Tenant's expense. Landlord shall also
furnish the Premises with electricity for lighting for the
aforesaid building standard fluorescent lighting and for the
operation of general office machines, such as electric typewriters,
desk top computers, word processing equipment, dictating equipment,
adding machines and calculators, and general service non-production
type office copy machines. Landlord shall have the right to enter
and inspect the Premises and all electrical devices therein from
time to time. After hours heating and air conditioning is available
at a charge of $35.00 per hour , which charge
shall be subject to change during the Lease Term at
Landlord’s discretion based upon operational costs and
expenses, including wear and tear on the system and its components.
All additional costs resulting from Tenant's extraordinary usage of
heating, air conditioning or electricity shall be paid by Tenant
upon demand as Additional Rent for each month or portion thereof,
and Tenant shall not install equipment with unusual demands for any
of the foregoing without Landlord's prior written consent, which
Landlord may withhold if it determines that in its opinion such
equipment may not be safely used in the Premises or that electrical
service is not adequate therefor. If heat generating machines or
equipment or other intensive activities shall be used or carried on
in the Premises by Tenant which affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord
shall have the right to install supplemental air conditioning units
in the Premises and the cost thereof, including the cost of
engineering and installation, and the cost of operation and
maintenance thereof, shall be paid by Tenant upon demand by
Landlord. There shall be no abatement or reduction of Rent by
reason of any of the foregoing services not being continuously
provided to Tenant.
Tenant shall report to Landlord immediately any
defective condition in or about the Premises known to Tenant and if
such defect is not so reported and such failure to promptly report
results in other damage, Tenant shall be liable for same. Landlord
shall not be liable to Tenant for any damage caused to Tenant and
its property due to the Building or any part or appurtenance
thereof being improperly constructed or being or becoming out of
repair, or arising from the leaking of gas, water, sewer or steam
pipes, or from problems with electrical service.
6. TENANT'S ACCEPTANCE AND MAINTENANCE
OF PREMISES; LANDLORD'S DUTIES AND RIGHTS . Subject to the
terms of the attached Work Letter, if any, Tenant’s occupancy
of the Premises is Tenant’s representation to Landlord that
Tenant has examined and inspected the same, finds the Premises to
be as represented by Landlord and satisfactory for Tenant's
intended use, and constitutes Tenant's acceptance "as is". Landlord
makes no representation or warranty as to the condition of said
Premises. During Tenant’s move-in, a representative of Tenant
must be on-site with Tenant’s moving company to insure proper
treatment of the Building and the Premises. Elevators in
multi-story office buildings must remain in use for the general
public during business hours as defined herein in Section
5 . Any specialized use of elevators must be coordinated
with Landlord’s property manager. Tenant must properly
dispose of all packing material and refuse in accordance with the
Rules and Regulations. Any damage or destruction to the Building or
the Premises due to moving will be the sole responsibility of
Tenant. Tenant shall deliver at the end of this Lease each and
every part of the Premises in good repair and condition, ordinary
wear and tear and damage by insured casualty excepted. The delivery
of a key or other such tender of possession of the Premises to
Landlord or to an employee of Landlord shall not operate as a
termination of this Lease or a surrender of the Premises except
upon written notice by Landlord. Tenant shall: (i) keep the
Premises and fixtures in good order; (ii) make repairs and
replacements to the Premises or Building needed because of Tenant's
misuse or primary negligence; (iii) repair and replace special
equipment or decorative treatments installed by or at Tenant's
request and that serve the Premises only, except if this Lease is
ended because of casualty loss or condemnation; and (iv) not commit
waste. Tenant, however, 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 supervision fee of
five percent (5%) 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 to perform
the alterations. On termination of this Lease or vacation of the
Premises by Tenant, Tenant shall restore the Premises, at Tenant's
sole expense, to the same condition as existed at the Commencement
Date, ordinary wear and tear and damage by insured casualty only
excepted. Landlord, however, may elect to require Tenant to leave
alterations performed for Tenant unless at the time of such
alterations Landlord agreed in writing such alterations could be
removed on the Expiration Date, upon the termination of this Lease
or upon Tenant’s vacation of the Premises.
Tenant shall keep the Premises and the Building
free from any liens arising out of any work performed, materials
furnished, or obligations incurred by or on behalf of Tenant.
Should any claim of lien or other lien be filed against the
Premises or the Building by reason of any act or omission of Tenant
or any of Tenant’s agents, employees, contractors or
representatives, then Tenant shall cause the same to be canceled
and discharged of record by bond or otherwise within ten (10) days
after the filing thereof. Should Tenant fail to discharge such lien
within such ten (10) day period, then Landlord may discharge the
same, in which event Tenant shall reimburse Landlord, on demand, as
Additional Rent, for the amount of the lien or the amount of the
bond, if greater, plus all administrative costs incurred by
Landlord in connection therewith. The remedies provided herein
shall be in addition to all other remedies available to Landlord
under this Lease or otherwise. Tenant shall have no power to do any
act or make any contract that may create or be the foundation of
any lien, mortgage or other encumbrance upon the reversionary or
other estate of Landlord, or any interest of Landlord in the
Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR
AFFECT THE INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE
BUILDING.
Notwithstanding anything to the contrary set
forth above in this Section 6 , if Tenant does not
perform its maintenance obligations in a timely manner as set forth
in this Lease, commencing the same within five (5) days after
receipt of notice from Landlord specifying the work needed and
thereafter diligently and continuously pursuing completion of
unfulfilled maintenance obligations, then Landlord shall have the
right, but not the obligation, to perform such maintenance, and any
amounts so expended by Landlord shall be paid by Tenant to Landlord
within thirty (30) days after demand, with interest at the maximum
rate allowed by law (or the rate of fifteen percent (15%) per
annum, whichever is less) accruing from the date of expenditure
through the date paid.
Except for repairs and replacements that Tenant
must make under this Section 6 , Landlord shall
pay for and make all other repairs and replacements to the
Premises, common areas and Building (including Building fixtures
and equipment). This maintenance shall include the roof,
foundation, exterior walls, interior structural walls, all
structural components, and all exterior (outside of walls) systems,
such as mechanical, electrical, HVAC, and plumbing. Repairs or
replacements required under Section 6 shall be
made within a reasonable time (depending on the nature of the
repair or replacement needed) after receiving notice from Tenant or
Landlord having actual knowledge of the need for a repair or
replacement.
7. DAMAGES TO PREMISES. If the
Premises shall be partially damaged by fire or other casualty
insured under Landlord's insurance policies, and if Landlord's
lender(s) shall permit insurance proceeds paid as a result thereof
to be so used, then upon receipt of the insurance proceeds,
Landlord shall, except as otherwise provided herein, promptly
repair and restore the Premises (exclusive of improvements made by
Tenant, Tenant's trade fixtures, decorations, signs, and contents)
substantially to the condition thereof immediately prior to such
damage or destruction; limited, however, to the extent of the
insurance proceeds received by Landlord. If by reason of such
occurrence: (i) the Premises is rendered wholly untenantable; (ii)
the Premises is damaged in whole or in part as a result of a risk
which is not covered by Landlord's insurance policies; (iii)
Landlord's lender does not permit a sufficient amount of the
insurance proceeds to be used for restoration purposes; (iv) the
Premises is damaged in whole or in part during the last two years
of the Term; or (v) the Building containing the Premises is damaged
(whether or not the Premises is damaged) to an extent of fifty
percent (50%) or more of the fair market value thereof, then
Landlord may elect either to repair the damage as aforesaid, or to
cancel this Lease by written notice of cancellation given to Tenant
within sixty (60) days after the date of such occurrence, and
thereupon this Lease shall terminate. Tenant shall vacate and
surrender the Premises to Landlord within fifteen (15) days after
receipt of such notice of termination. In addition, Tenant may also
terminate this Lease by written notice given to Landlord at any
time between the one hundred eighty-first (181st) and one hundred
ninety-sixth (196th) days after the occurrence of any such
casualty, if Landlord has failed to restore the damaged portions of
the Building (including the Premises) within one hundred eighty
(180) days of such casualty. However, if Landlord is prevented by
Delays as defined in Section 2 , from completing
the restoration within said one hundred eighty (180) day period,
and if Landlord provides Tenant with written notice of the cause
for the Delays within fifteen (15) days after the occurrence
thereof, such notice to contain the reason for the Delays and a
good faith estimate of the period of the Delays caused thereby,
then Landlord shall have an additional period beyond said one
hundred eighty (180) days, equal to the Delays in which to restore
the damaged areas of the Building; and Tenant may not elect to
terminate this Lease until said additional period required for
completion has expired with the Building not having been
substantially restored. In such case, Tenant's fifteen (15) day
notice of termination period shall begin to run upon the expiration
of Landlord's additional period for restoration set forth in the
preceding sentence. Upon the termination of this Lease as
aforesaid, Tenant's liability for the Rent and other charges
reserved hereunder shall cease as of the effective date of the
termination of this Lease, subject, however, to the provisions for
abatement of Rent hereinafter set forth.
Unless this Lease is terminated as aforesaid,
this Lease shall remain in full force and effect, and Tenant shall
promptly repair, restore, or replace Tenant's improvements, trade
fixtures, decorations, signs, and contents in the Premises in a
manner and to at least a condition equal to that existing prior to
their damage or destruction, and the proceeds of all insurance
carried by Tenant on said property shall be held in trust by Tenant
for the purposes of such repair, restoration, or
replacement.
If, by reason of such fire or other casualty,
the Premises is rendered wholly untenantable, then the Rent payable
by Tenant shall be fully abated, or if only partially damaged, such
Rent and other charges shall be abated proportionately as to that
portion of the Premises rendered untenantable, in either event
(unless the Lease is terminated, as aforesaid) from the date of
such casualty until the Premises have been substantially repaired
and restored, or until Tenant's business operations are restored in
the entire Premises, whichever shall first occur. Tenant shall
continue the operation of Tenant's business in the Premises or any
part thereof not so damaged during any such period to the extent
reasonably practicable from the standpoint of prudent business
management. However, if such damages or other casualty shall be
caused by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants, licensees, contractors, or invitees, or their
respective agents or employees, there shall be no abatement of
Rent. Except for the abatement of the Rent hereinabove set forth,
Tenant shall not be entitled to, and hereby waives, all claims
against Landlord for any compensation or damage for loss of use of
the whole or any part of the Premises and/or for any inconvenience
or annoyance occasioned by any such damage, destruction, repair, or
restoration.
8. ASSIGNMENT-SUBLEASE. 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 first obtaining the written consent of
Landlord, which consent may not be unreasonably withheld,
conditioned or delayed by Landlord. 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 this
Section 8 , the word "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 fifty percent (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 , 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 Permitted Use as
provided under Section 3 . 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 under its
lease.
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 Landlord consents to any assignment or
subletting, Tenant shall pay all reasonable out-of-pocket costs and
expenses incurred by Landlord in connection with the assignment or
sublease transaction, including Landlord’s reasonable
attorneys’ fees.
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. If Landlord
assists Tenant in finding a permissible subtenant, Landlord shall
be paid a fee for such assistance in addition to a fee in an amount
necessary to cover the subtenant’s improvements to the
Premises or any portion thereof so assigned or sublet.
9. TENANT'S COMPLIANCE; INSURANCE
REQUIREMENTS . Tenant shall comply with all applicable
laws, ordinances and regulations affecting the Premises, now
existing or hereafter adopted, including the Rules and
Regulations.
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 its affiliates) and Tenant, Commercial General Liability
Insurance (1986 ISO Form or its equivalent) with a combined single
limit, ONE MILLION DOLLARS ($1,000,000) 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. Not more frequently than once every three (3) years,
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) any loss shall be payable
notwithstanding any act or negligence of Landlord or Tenant that
might otherwise result in forfeiture of the insurance, (ii) that
the policies are primary and non-contributing with any insurance
that Landlord may carry, and (iii) 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.
Landlord shall keep the Building, including the
improvements, insured against damage and destruction by perils
insured by the equivalent of ISO Special Form Property Insurance in
the amount of the full replacement value of the
Building.
Each party shall keep its personal property and
trade fixtures in the Premises and Building insured with the
equivalent of ISO Special Form Property Insurance in the amount of
the full replacement cost of the property and fixtures. Tenant
shall also keep any non-standard improvements made to the Premises
at Tenant’s request insured to the same degree as
Tenant’s personal property.
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) provide that any loss shall be payable
notwithstanding any gross negligence of Landlord or Tenant which
might result in a forfeiture thereunder of such insurance or the
amount of proceeds payable; (vi) have no deductible exceeding TEN
THOUSAND DOLLARS ($10,000), unless accepted in writing by Landlord;
and (vii) be maintained during the entire Term and any extension
terms.
10. SUBORDINATION-ATTORNMENT-LANDLORD
FINANCING. Tenant agrees that this Lease will be either
subordinate or superior to any mortgage heretofore or hereafter
executed by Landlord covering the Premises, depending on the
requirements of such mortgagee. Tenant, within ten (10) days after
request to do so from Landlord or its mortgagee, will execute such
agreement making this Lease superior or subordinate and containing
such other agreements and covenants on Tenant's part as Landlord's
mortgagee may request, and will agree to attorn to said mortgagee
provided the mortgagee agrees not to disturb Tenant's possession
hereunder so long as Tenant is in compliance with this Lease.
Further, Tenant agrees to execute within five (5) days after
request therefor, and as often as requested, estoppel certificates
confirming any factual matter requested therein which is true and
is within Tenant's knowledge regarding this Lease, the Premises, or
Tenant's use thereof, including, but not limited to date of
occupancy, Expiration Date, the amount of Rent due and date to
which Rent is paid, whether or not Tenant has any defense or
offsets to the enforcement of this Lease or the Rent payable
hereunder or knowledge of any default or breach by Landlord, and
that this Lease together with any modifications or amendments is in
full force and effect. Tenant shall attach to such estoppel
certificate copies of all modifications or amendments.
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. Further, Tenant
agrees to permit such mortgagee (or other purchaser at any
foreclosure sale), and its successors and assigns, on acquiring
Landlord's interest in the Premises and the Lease, to become
substitute Landlord hereunder, with liability only for such
Landlord obligations as accrue after Landlord's interest is so
acquired. Tenant agrees to attorn to any successor
Landlord.
11. SIGNS. 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, without the prior written consent of Landlord. Landlord,
at Landlord’s expense, shall install Landlord’s
standard signage at Tenant’s entrance and in the Building
Directory incorporating Tenant’s name and suite
number.
12. ACCESS TO PREMISES .
Landlord shall have the right, at all reasonable times, either
itself or through its authorized agents, to enter the Premises (i)
to make repairs, alterations or changes as Landlord deems
necessary, (ii) to inspect the Premises, and (iii) to show the
Premises to prospective mortgagees and purchasers. Landlord shall
have the right, either itself or through its authorized agents, to
enter the Premises at all reasonable times for inspection to show
prospective tenants if within one hundred eighty (180) days prior
to the Expiration Date as extended by any exercised option. Tenant,
its agents, employees, invitees, and guests, shall have the right
of ingress and egress to common and public areas of the Building,
provided Landlord by reasonable regulation may control such access
for the comfort, convenience, safety and protection of all tenants
in the Building, or as needed for making repairs and alterations.
Tenant shall be responsible for providing access to the Premises to
its agents, employees, invitees and guests after hours, but in no
event shall Tenant’s use of and access to the Premises after
hours compromise the security of the Building. Landlord shall have
the right to enter the Premises at any time in the event of an
emergency.
13.
DEFAULT. If Tenant: (i) fails to pay when due any
Rent, or any other sum of money which Tenant is obligated to pay,
as provided in this Lease; or (ii) breaches any other agreement,
covenant or obligation herein set forth and such breach shall
continue and not be remedied within ten (10) days after Landlord
shall have given Tenant written notice specifying the breach, or if
such breach cannot, with due diligence, be cured within said period
of ten (10) days and Tenant does not within said ten (10) day
period commence and thereafter with reasonable diligence completely
cure the breach within thirty (30) days after notice; or (iii)
files (or has filed against it and not stayed or vacated within
sixty (60) days after filing) any petition or action for relief
under any creditor's law (including bankruptcy, reorganization, or
similar action), either in state or federal court; or (iv) makes
any transfer in fraud of creditors as defined in Section 548 of the
United States Bankruptcy Code (11 U.S.C. 548, as amended or
replaced), has a receiver appointed for its assets (and appointment
shall not have been stayed or vacated within thirty (30) days), or
makes an assignment for benefit of creditors; then Tenant shall be
in default hereunder, and, in addition to any other lawful right or
remedy which Landlord may have, Landlord at its option, in addition
to such other remedies as may be available under Florida law, may
do the following: (1) terminate this Lease and Tenant’s right
of possession; or (2) terminate Tenant’s right to possession
but not this Lease and/or proceed in accordance with any and all of
the following remedies:
(a) Landlord
may, without further notice, re-enter the Premises in accordance
with applicable law and dispossess Tenant by summary proceedings or
otherwise, as well as the legal representative(s) of Tenant and/or
other occupant(s) of the Premises, and remove their effects and
hold the Premises as if this Lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end; and/or at Landlord’s
option,
(b) All Base
Rent and all Additional Rent for the balance of the Term will, at
the election of Landlord, be accelerated and the present worth of
same (as reasonably determined by Landlord) for the balance of the
Term, net of amounts actually collected by Landlord, shall become
immediately due thereupon and be paid, together with all expenses
of any nature which Landlord may incur such as (by way of
illustration and not limitation) those for attorneys’ fees,
brokerage, advertising, and refurbishing the Premises in good order
or preparing them for re-rental; and/or at Landlord’s
option,
(c) Landlord
may re-let the Premises, or any part thereof, either in the name of
Landlord or otherwise, for a term or terms which may at
Landlord’s option be less than or exceed the period which
would otherwise have constituted the balance of the Term, and may
grant concessions or free rent or charge a higher rental than that
reserved in this Lease; provided, however, Landlord shall have no
obligation to re-let the Premises, or any part thereof, and shall
in no event be liable for failure to re-let the Premises, or any
part thereof, or, in the event of any such re-letting, for refusal
or failure to collect any rent due upon such re-letting, and no
such refusal or failure shall operate to release Tenant of any
liability under this Lease or otherwise to effect or reduce any
such liability; and/or at Landlord’s option,
(d) Tenant or
its legal representative(s) will also pay to Landlord as agreed
upon damages, in addition to such other damages that Landlord may
be legally entitled to, any deficiency between the Base Rent and
all Additional Rent hereby charged and/or agreed to be paid and the
net amount, if any, of the rents collected on account of this Lease
or Leases of the Premises for each month of the period which would
otherwise have constituted the balance of the Term.
All rights and remedies of Landlord are
cumulative, and the exercise of any one shall not be an election
excluding Landlord at any other time from exercise of a different
or inconsistent remedy. No exercise by Landlord of any right or
remedy granted herein shall constitute or effect a termination of
this Lease unless Landlord shall so elect by written notice
delivered to Tenant.
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