Exhibit 10.58
BUSINESS LEASE
THIS LEASE is executed this 1 day of April 1 , 2000 between Xxxxx Xxxx Realty
Corporation the Lessor, and XxxxXxxxxx.xxx, Inc. , the Lessee.
WITNESSETH:
1. PREMISES. The Lessor, for and in consideration of the rent herein
reserved to be paid by the Lessee, and in consideration of the covenants herein
to be kept and performed by the Lessee, does hereby lease and demise unto the
said Lessee the following described premises, (hereinafter "Premises") situated,
lying and being in the City of Boca Raton, County of Palm Beach, State of
Florida, which Premises are a part of the Boca Bay Executive Building
(hereinafter "Offices"): Boca Bay Executive Building, Suite(s) 200 - 207
consisting of 5,000 square feet. All more particularly described on Exhibits "A"
attached hereto and made a part hereof.
2. TERM AND COMMENCEMENT OF RENT. The term of this Lease shall be for five
(5) years following the commencement of the term as provided hereinafter. Lessee
shall have the option to extend this agreement for an additional term of five
(5) years beyond the original term by giving written notice to the Lessor of its
intention to exercise such option at least six (6) months prior to the
expiration of said original term. The annual basic rent to be paid by Lessee in
each year during the extended term shall be increased by five (5%) percent per
year.
The term of this Lease shall begin on or upon occupancy and Lessee's
obligation to pay rent shall commence on April 1, 2000 or upon the premises
being vacated by the present tenant. Should the term of this lease and the
Lessee's obligations to pay rent commence on the day other than the first day of
a month, then the term of this Lease, for purposes of the preceding section
only, shall commence on the first day of the following month.
The Lessee shall pay rent for the additional month preceding the
commencement of this Lease, if the term of this Lease commences on a day other
than the first day of a month, on a per diem basis (calculated on the basis of a
30 day month) payable on commencement of the term of this lease. Any rental
payment hereunder for any other fractional month shall likewise be calculated
and paid on such per diem basis.
3. RENT. The basic rent during the term of this Lease (Basic Rent) shall be
payable in equal monthly installments on or before the first day of each month,
in advance, at the office of the Lessor or at such other place as shall be
designated by Lessor,
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without any prior notice or demand thereof and without any deduction, abatement
or set-off for any reason whatsoever. The payment of Basic Rent shall begin on
the commencement date. In the event that the term shall commence on a day other
than the first day of each month then Lessee shall pay Lessor a proportionate
amount for said period.
The Basic Rent payment schedule shall include annual increases of the
Basic Rent commencing at the beginning of each year as follows:
-------------------- ---------------------- ------------------- ---------------
% Increase Per Year Total Year Rent Monthly Rent
-------------------- ---------------------- ------------------- ---------------
1/st/. Year Rent N/A $ 92,500.00 $7,708.33
-------------------- ---------------------- ------------------- ---------------
2/nd/. Year Rent 5% $ 97,125.00 $8,093.75
-------------------- ---------------------- ------------------- ---------------
3/rd/. Year Rent 5% $101,981.25 $8,498.44
-------------------- ---------------------- ------------------- ---------------
4/th/. Year Rent 5% $107,080.31 $8,923.36
-------------------- ---------------------- ------------------- ---------------
5/th/. Year Rent 5% $112,434.33 $9,369.53
-------------------- ---------------------- ------------------- ---------------
The premises are being taken in "as is", "where is" condition, except
as set forth on Exhibit "A". The rent schedule does not include Florida State
sales tax.
4. PROPORTIONATE SHARE. For the purpose of this lease, Lessor and Lessee
agree that the Premises constitute 50 % of the offices. Unless the Lessee takes
any additional space or the Lessor expands the offices, the Lessee's
proportionate share of all costs and expenses of the offices operation shall be
deemed to be included.
5. ADDITIONAL RENT. (Intentionally Deleted)
6. OPERATING COSTS. (Intentionally Deleted)
7. STATEMENT. (Intentionally Deleted)
8. NET LEASE. This Lease is a net lease and the rent shall be absolutely
net to Lessor during the term.
9. PURPOSE. The Lessee covenants and agrees to use the Premises for
conducting company business and further agrees not to use or permit the Premises
to be used for any other purposes without the prior written consent of the
Lessor. The Lessee further covenants that the said Premises will not be used for
any purpose that will invalidate any policies of insurance now or hereafter
written on the offices in which said Premises are located or will increase the
rate of premium therefore.
10. PAYMENT OF FIRST MONTH'S RENT AND SECURITY DEPOSIT. To secure the
covenants and promises of the Lessee contained herein, the Lessee shall deposit
with the Lessor the sum of $ 7,708.33 as Security Deposit. This sum shall be
returned to Lessee, without
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interest, at the expiration of the term provided
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that the Lessee has performed in accordance with the conditions hereof. The
Lessor may apply any part of said sum to cure any default with the Lessor an
amount equal to that applied so that the Lessor shall have the full deposit on
hand at all times during the term of this Lease. If, at the end of the term,
repairs are necessary to correct any condition beyond ordinary wear and tear or
any payment to be made by the Lessee to the Lessor remains unpaid, then the
Security, or a portion thereof, may be used by the Lessor to make such repair(s)
or payment(s) and the balance of the remaining deposit shall be returned to the
Lessee. The security deposit under this Lease shall not be mortgaged, assigned
or encumbered by the Lessee without the written consent of the Lessor. Lessee
hereby waives any further law or laws which may require the Lessor to segregate
the aforementioned security deposit or to pay any interest on said security
deposit.
Simultaneously with the execution of this Lease, the Lessee shall pay
the Lessor the first month's rent of $7,916.67.
11. UTILITIES. Lessee shall pay all charges of any nature for any and all
utilities consumed on the Premises including, but not limited to, gas,
electricity and other connection with said Premises which payment shall be made
within ten (10) days after the same shall become due and payable.
12. ASSIGNMENT/CHANGE OF USE. The Lessee shall not assign Lessee's interest
in this Lease, nor sublet the whole or any part of said Premises, nor shall the
same be used for any other purpose than operating a health facility without
first having obtained the written consent to such assignment or subletting, or
to such change of purpose for the use of the Premises, from the Lessor. If the
Lessor shall consent to the assignment of this Lease or to a subletting of all
or a part of the Premises, or to a change of use, no further assignment or
subletting or change or use shall be made without the written consent of the
Lessor being first obtained.
13. PRESERVATION OF PROPERTY. The Lessee shall use the Premises in
compliance with all laws and ordinances now or hereinafter applicable; and shall
also exercise all reasonable care in the use of halls, stairs, corridors,
toilets and other fixtures and parts of said offices used in common with other
tenants to avoid damage to same.
14. NUISANCES. The Lessee shall not permit or suffer any noise,
disturbance or nuisance whatsoever on said Premises detrimental to same or
annoying to other tenants at the offices, and the Lessee acknowledges that the
Premises have been received in thoroughly good order, tenantable condition and
repair, of which execution of this Lease, and taking possession thereunder shall
be conclusive evidence; and that no representation as to the condition of said
premises have been made by the Lessor, or Lessor's agents,
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and that no obligation as to the repairing, adding to, or improving said
premises has been assumed by the Lessor, and that no oral arrangements have been
entered into in consideration of making this Lease and that said Lease contains
a full statement of the obligation of both parties hereto.
15. MAINTENANCE OF PREMISES. The Lessee shall keep in good condition during
the continuation of the term herein described, the interior of said Premises,
and every part thereof, including, but not limited to, the plumbing, doors and
windows, and will keep the same in good, sound, clean condition and repair,
ordinary wear and tear, fire, hurricane or other act of God alone excepted, and
will not suffer or permit any strip or waste of said Premises. Lessee shall be
responsible for any breakage that may occur from any cause whatsoever, to the
plate glass windows, and agrees to replace the same at Lessee's cost.
16. ALTERATIONS. Lessee shall not make any alterations or changes in the
Premises without the written consent of the Lessor, and all additions, fixtures,
or improvements, except only office furniture and fixtures which shall be
readily removable without injury to the Premises, shall be and remain a part of
the Premises at the expiration of the Lease.
17. ACCESS. The Lessor, or Lessor's agent, may at any reasonable time,
enter and view said Premises and make repairs, if Lessor should elect to do so.
However, nothing herein contained shall be construed as imposing any obligation
upon the Lessor to make any such repairs.
18. DEFAULT. Should the Lessee not pay the rents herein reserved at the
time and in the manner stated, or shall fail to keep and perform any other
conditions, stipulations, covenants or agreements herein contained, on the part
of the Lessee to be kept and performed, of if the Lessee shall suffer to be
filed against Lessee an involuntary petition in bankruptcy or shall be adjudged
voluntary or involuntary bankruptcy, or make an assignment for the benefit of
creditors, or should there be appointed a receiver to take charge of the
Premises, either in the State courts, or in the federal courts, then, in any of
such events, the Lessor may, at Lessor's option, terminate and end this lease
and reenter upon the Premises, whereupon the term hereby granted and, at the
Lessor's option, all right, title and interest under it shall end and the Lessee
became a Tenant at sufferance; or else said Lessor may, at Lessor's option,
elect to declare the entire rent for the balance of the term, or any part
thereof, due and payable forthwith, and may proceed to collect the same by
distress or otherwise, and thereupon said term shall terminate, at the option of
the Lessor, or else the said Lessor may take possession of the Premises and rent
the same for the options herein contained shall not be deemed the exclusive
Lessor's remedy; the expression "entire rent for the
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balance of the term" as used herein, shall mean all of the rent prescribed to be
paid by the Lessee unto the Lessor for the full term of the Lease, whether Basic
Rent or additional rent, less, however, any payments that shall have been made
on account of same pursuant to the terms of said Lease.
19. FURNISHINGS. The Lessee hereby pledges with and assigns unto the Lessor
all the furniture and fixtures, goods and chattels of the said Lessee, which may
be brought or put on said Premises, as security for the payment of the rent
herein reserved, and agrees that the Lessor's lien for the payment of said rent
may be enforced by distress, foreclosure or otherwise, at the option of said
Lessor, and Lessee agrees that such lien is granted to the Lessor, and vested in
said Lessor, and the Lessee further agrees that, in case of the failure of the
said Lessee to pay the rent herein reserved when the same shall become due, and
it becomes necessary for the Lessor to collect said rent by suit or through an
attorney, the Lessee will pay the Lessor a reasonable attorney's fee, together
with all costs and charges thereof. This provision of this Lease shall be deemed
as creating a security interest in the personal property and fixtures of the
Lessee located on the Premises and shall be further deemed as creating a
security agreement between the Lessor and Lessee pursuant to the Uniform
Commercial Code. The Lessee shall execute, file and refile any and all financing
statements and other security agreements as Lessor shall from time to time
require and hereby authorize the Lessor in its name to file such financing
statement(s) as Lessor deems necessary, from time to time, to perfect all
interest or right granted hereunder which authority shall not be revoked during
the term of this Lease. Any such revocation shall constitute an element of
default for which the Lessor shall have the right to terminate this Lease or as
otherwise provided for herein.
20. LOSS AND DAMAGE. In the event that the Premises, or any part thereof,
shall at any time be destroyed or so damaged by fire or other elements as to be
unfit for occupancy of use by the Lessee, then and in that event, the Lessor
shall have the option (1) to terminate this Lease, or (2) to repair and rebuild
the said Premises, whereas Lessee shall maintain Income Rental/Business
Interruption Insurance sufficient to satisfy Lessee's obligation for payment of
rent to Lessor until the said premises are reinstated and made fit for occupancy
and use; and in the event the lessor elects to exercise the option to repair and
rebuild, the same shall be done and completed within a reasonable time.
21. RESPONSIBILITY. The Lessee hereby agrees to assume all risk of any
damage to Lessee's property that may occur by reason of water or the bursting or
leaking of any pipes or waste about said Premises, or from any act of negligence
of any co-tenant or occupants of the offices, or any other person, or fire, or
hurricane, or other act of God, or from any cause whatsoever.
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22. SIGNS. Lessee shall be allowed a sign at the entrance of the Premises
with such lettering to be of a kind, type, character, and description to be
approved by the Lessor in the interests of having a uniform system of lettering
and display signs on all of the offices at the Boca Bay Executive Buildings at
Tenant's expense.
23. HOLDING OVER. If the Lessee shall hold over, with or without the
Lessor's consent, after the term, then such holding over shall be constituted as
a tenancy from month to month, subject to all of the provisions, conditions and
obligations of this Lease, except that the Basic Rent shall be one and one-half
times the Basic Rent for the last month of the term.
24. INSURANCE AND INDEMNITY.
(a) Liability Insurance. Tenant shall, during the entire term hereof, keep
in full force and effect bodily injury and public liability insurance in an
amount not less than Five Hundred Thousand ($500,000.00) Dollars per accident
and injury; property damage insurance in an amount not less than Fifty Thousand
($50,000.00) Dollars. The policy shall name Lessor and Lessee as insured.
(b) Fire and Extended Coverage. Lessee shall at all times during the term
hereof, and at its costs and expenses, maintain in effect policies of insurance
covering its fixtures and equipment located on the lease Premises, in an amount
not less than eighty (80%) percent of their actual cash value, providing
protection against any peril included within the standard classification of
"Fire and Extended Coverage", together with insurance against vandalism and
malicious mischief. The proceeds of such insurance, so long as this Lease
remains in effect, shall be used to repair or replace fixtures and equipment so
insured. Lessor and Lessee to be named as insured.
(c) Indemnity. That Lessee shall indemnify and save harmless the said
Lessor from and against any and all claims, suits, actions, damages, and/or
causes of action arising during the term of this Lease for any personal injury,
loss of life and/or damage to property sustained in or about the leased
Premises, by reason or as a result of the Lessee's occupancy thereof, and from
and against any orders, judgements, and/or decrees which may be entered
thereupon, and from and against all costs, counsel fees, expenses and
liabilities incurred in and about the defense of any such claim and the
investigation thereof.
(d) Waiver of Subrogation. Lessor and Lessee waive, unless said waiver
should invalidate any such insurance, their right to recover damages against
each other for any reason whatsoever to the
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extent the damaged party recovers indemnity from its insurance carrier. Any
insurance policy procured by either Lessee or Lessor which does not name the
other as a named insured shall, if obtainable, contain an express waiver of any
right of subrogation by the insurance company, including but not limited to,
Lessee's workmen's compensation carrier, against Lessor or Lessee, whichever the
case may be. All public liability and property damage policies shall contain an
endorsement that Lessor, although named as an insured, shall nevertheless be
entitled to recover for damage caused by the negligence of Lessee.
25. SUBORDINATION. The Lessee agrees that this Lease shall be subject and
subordinate to any mortgage or deed of trust now encumbering the Premises or the
offices, or which may hereinafter be made on account of any proposed loan to be
made against said Premises by the Lessor to the full extent of all debts and
charges secured thereby; and to any renewals and extension of all or any part
thereof, which said Lessor may hereafter at any time elect to place on said
Premises or the offices, and said Lessee agrees upon request to hereafter
execute any document(s) which the counsel for the Lessor may deem necessary to
accomplish that end, and in default of the Lessee's so doing, that the Lessor is
hereby empowered to execute such document(s) in the name of the Lessee and as
the act and deed of said Lessee and this authority is declared to be coupled
with an interest and not revokable. No estate for years is created by this
Lease.
26. EXPIRATION. At the expiration of the term, the Lessee shall quietly and
peaceably deliver the Premises to the Lessor in the same repair and condition in
which they were received, ordinary wear and tear excepted.
27. PERFORMANCE/RE-ENTRY. The Lessor hereby covenants with the Lessee that,
upon the performance of the Lessee of all conditions hereinabove set forth on
the part of the Lessee to be kept and performed, Lessee may quietly have, hold,
occupy and use the above described Premises without interruption by the Lessor;
provided that, upon the breach of any of the covenants, conditions, and
stipulations herein contained to be kept and performed by the Lessee, the Lessor
may immediately without notice and without the necessity of legal process
reenter said Premises, and thereupon, at the Lessor's option, said Lease shall
forthwith be terminated and/or the Lessor may exercise any of the options
hereinabove provided for the Lessor's benefit in case of default on the part of
the Lease.
28. EXTERIOR MAINTENANCE. The Lessor covenants that lessor will keep the
exterior of the offices in good repair. The Lessee shall give to the Lessor
thirty (30) days written notice of any repairs to the offices, claimed by
Lessee, and the Lessor shall have a reasonable time thereafter to make them.
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29. CONTEXT. The term Lessor and Lessee as herein contained shall include
singular and/or plural, masculine, feminine, and/or neuter, heirs, successors,
personal representatives and/or assigns wherever the context so requires or
admits.
30. WAIVER. The failure of the Lessor in one or more instances to insist
upon strict performance or observance of one or more of the covenants or
conditions or to exercise any remedy, privilege or option herein conferred upon
or reserved to the Lessor, shall not operate or be construed as a relinquishment
or waiver of the further exercise of such covenant or condition or of the right
to enforce the same or to exercise such privileges, option, or remedy, but the
same shall continue in full force and effect. The receipt by the Lessor of Basic
Rent, or additional rent or any other payment required to be made by the Lessee,
or any part thereof, shall not be a waiver of any other additional rent or
payment then due, nor shall such receipt, though with knowledge of the breach of
any covenant or condition hereof, operate as or be deemed to have been made
unless made by the Lessor in writing.
31. RULES AND REGULATIONS. Reasonable rules and regulations regarding the
Premises, including the walkways and parking areas, and the use thereof, which
may hereafter be promulgated by the Lessor, shall be observed by the Lessee and
the Lessee's employees, agents and business invitees. The Lessor reserves the
right to rescind any rules promulgated hereafter, and to make such other and
further rules and regulations as in its reasonable judgement may from time to
time be described for the safety, care and cleanliness of the Premises and for
the preservation of good order therein, which rules when so made and reasonable
notice given to the Lessee, shall have the same force and effect as if
originally made a part of this Lease. Such other and further reasonable rules
shall not, however, be consistent with proper and rightful enjoyment by the
Lessee of the Premises in the conduct of its business. All said rules and
regulations shall be uniformly applied to all Lessees at the offices of the
Lessor.
32. CONDEMNATION. If the offices or any substantial part thereof, including
but not limited to, the Premises or any part thereof, shall be taken by a public
or quasi-public authority under any power or eminent domain, condemnation or the
like, this Lease shall terminate upon the taking of possession by the condemning
authority and the Lessee shall have no claim or interest in or to any award or
damages for such taking. If the proceedings for such taking are instituted or
threatened to be instituted by such authority, a deed given by Lessor in lieu of
condemnation shall have the same effect as if a final judgement of taking had
been entered in any such proceedings. The Lessee shall have no claim, or right
to claim, or be entitled to any portion of any awards or monies paid to Lessor
as a result of such condemnation proceedings,
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and all rights of the Lessee thereto, if any shall be deemed a waiver of any
independent right the Lessee may possess to institute an action for relocation
of its business and trade fixtures in connection with any such taking.
Notwithstanding the foregoing, the Lessee hereby irrevocably assigns to the
Lessor any award which may be made for its unexpired leasehold interest.
33. NOTICES. All notices and demands, legal or otherwise, incidental to
this Lease, or the occupancy of the Premises, shall be in writing. If the
Lessor, its agents or nominees, desires to give or serve upon the Lessee any
notice or demands, it shall be sufficient to send a copy thereof by certified
mail, return receipt requested, addressed to the Lessee at:
The date of the mailing of any notices sent by the Lessor or the Lessee
shall be the date such notice is postmarked and deposited in a United States
Post Office Box with postage thereon prepaid.
IN WITNESS WHEREOF, the respective parties hereto have caused these
presents to be signed, sealed and delivered on the day and year written:
WITNESSES: LESSEE:
XxxxXxxxxx.xxx, Inc.
By:
Name:Xxxxx Xxxxxx
-------------------------------
Title: Chief Financial Officer
Date:
WITNESSES:
LESSOR:
Xxxxx Xxxx Realty Corporation
By:
Name:Xxxxxxx Xxxxxx
-------------------------------
Title: Owner
Date:
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EXHIBIT "A"
1.
2.
3. Current floor plans are attached hereto.
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