LEASE
This lease agreement is made as of May 4, 1998 (the
"Effective Date"), by and between MAC PAPERS, INC., a Florida
corporation ("Landlord"), and FRENCH FRAGRANCES, INC., a Florida
corporation ("Tenant").
In consideration of the mutual covenants contained herein,
Landlord hereby leases and Tenant hereby accepts the portion of
the warehouse building located at 0000 X.X. 000xx Xxxxxx, Xxxxx,
Xxxxxxx 00000, consisting of approximately 47,700 square feet of
net usable ground floor area (the "Premises") as outlined in red
on the sketch attached hereto as EXHIBIT A (the "Sketch"),
together with the right to use that certain common area depicted
on the Sketch (the "Common Area") (the Premises and Common Area
are sometimes hereinafter referred to as the "Property"), on the
following terms and conditions:
1. TERM. The term of this lease will be for two and
one-half years beginning on May 4, 1998 (the "Commencement
Date"), and ending two and one-half years thereafter.
2. RENT.
(a) Tenant will pay Landlord on or before the fifth day
of each month rent in the amount of $21,465.00 ("base rent"). In
addition to base rent, Tenant will simultaneously pay Landlord
all applicable state and municipal sales and use tax imposed on
the rent. Payment will be made to Landlord at 0000 Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, or by mail to Xxxx Xxxxxx
Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000. The time of each payment
of rent is of the essence of this lease. Tenant will also pay
Landlord a late charge equal to five percent of any payment of
rent or other sums payable hereunder that is not received within
ten (10) days after Tenant receives notice that such payment is
delinquent; provided, however, that Landlord shall only be
obligated to give two such notices in any 12-month period, and if
in any 12-month period Tenant again fails to pay rent or other
sums payable hereunder on or before the due date after two such
notices have been given by Landlord in that 12-month period,
Tenant will be obligated to pay the late charge without
Landlord's being obligated to give further notice. The base rent
shall be prorated for the first and last month of the lease term.
(b) Base rent will be increased on each anniversary of
the Commencement Date, for both the original term and any
renewal, by increases in the Index, which, for purposes of this
lease, means the Consumer Price Index - United States City
Average for all Urban Consumers (computed on the basis of 1982 =
100) issued and published by the Bureau of Labor Statistics of
the United States Department of Labor. If the Index ceases to
use a 1982-84 base rate of 100 as the basis of calculation, or if
a substantial change is made in the terms of or number of items
contained in the Index, then the Index will be adjusted to the
figure that would have been arrived at had the manner of
computing the Index in effect on the date of this lease not been
altered. If the Index is not available, the term "Index" will
mean a successor or substitute index to the Index, appropriately
adjusted, or if such a successor or substitute index is not
available or may not lawfully be used for the purposes herein
stated, a reliable government or other nonpartisan publication,
selected by Landlord and approved by Tenant (which will not
unreasonable withhold or delay its approval) evaluating the
information previously used in determining the Index. Base
rent will be increased on each anniversary of the Commencement
Date to an amount equal to the lesser of (1) 105 percent of the
base rent in effect for the immediately preceding 12-month period
or (2) the greater of (aa) 103 percent of the base rent in effect
for the immediately preceding 12-month period or (bb) the product
obtained by multiplying the base rent for the immediately
preceding 12-month period by a fraction, the numerator of which
is the Index in effect for the month in which the increase is to
occur and the denominator of which is the Index in effect 12
months before the month in which the increase is to occur. For
example, on the first anniversary of the Commencement Date, since
the base rent in effect for the 12-month period immediately
preceding the increase is $21,465.00 per month, if the Index on
the Commencement Date is 150 and if the Index on the first
anniversary of the Commencement Date is 155, then the increased
base rent would be $22,180.50, which is the lesser of (1) 105
percent of $21,465.00 (or $22,538.25) or (2) the greater of (aa)
103 percent of $21,465.00 (or $22,108.95) or (bb) $21,465.00 x
155/150 (or $22,180.50).
3. TENANT'S ACCESS BEFORE COMMENCEMENT DATE. Tenant may
come on the Premises prior to the Commencement Date, upon the
full execution of this lease, Tenant's furnishing to Landlord
evidence acceptable to Landlord that the insurance required of
Tenant under paragraph 15 is in full force and effect, and
Tenant's payment to Landlord of the security deposit (as
hereinafter defined), solely to construct Tenant's improvements
described in EXHIBIT B attached hereto.
4. USE; NO REPRESENTATIONS; PARKING; UTILITIES.
(a) The Premises will be used solely for general
warehousing, distribution and office use and for no other purpose
without the prior written consent of Landlord, which consent
will not be withheld unreasonably. The Premises will not be used
for any unlawful purpose or any purpose related to obscene,
pornographic, or sexually explicit materials, nor will the
Premises be used for the benefit of any competitor of Landlord.
Tenant may have no more than thirty-five (35) employees at the
Premises at any one time. Tenant shall have access to and use of
the Premises, twenty-four (24) hours per day, seven (7) days a
week, every day of the year. Tenant will not create any nuisance,
allow any nuisance to remain on the Premises, or use or permit
the use of the Premises for any illegal purpose. Tenant will at
its own cost and expense obtain any licenses and permits
necessary for its use of the Premises.
(b) Tenant acknowledges that no representations as to
the repair or condition of the Premises or agreements to remodel,
alter, or improve the Premises have been made by Landlord, except
such representations and agreements as are expressly set forth in
this lease. Sprinklers comply with applicable building code
requirements. The Premises have fans, but no heating or air
conditioning system. Notwithstanding anything to the contrary
contained in this lease, the Landlord at its sole cost and
expense shall bear the responsibility for the Property complying
with applicable zoning, and land use requirements and the
Americans with Disability Act, 42 U.S.C. xx.xx. 12101 et. seq.
(including laws, guidelines and regulations relating thereto),
all as amended (the "Governmental Requirements"), except that if
Tenant sublets the Premises or any part thereof or changes its
utilization of the Premises and the result of the subletting or
change is to require a change in the Premises to comply with the
Governmental Requirements, Tenant at its sole cost and expense
shall bear the responsibility for the Property complying with the
Governmental Requirements and shall obtain all governmental
permits and any certificates of occupancy required thereby.
(c) Landlord shall provide to Tenant thirty-two (32)
exclusive parking spaces as more particularly depicted on the
Sketch. Tenant will park its vehicles and will permit parking
of its employees' and visitors' vehicles only in the area shown
for Tenant's parking on the Sketch.
5. ASSIGNMENT BY TENANT. Tenant will not assign this
lease or sublet the Premises or any part thereof, or make any
alterations thereto exceeding $10,000.00 without the prior
written consent of Landlord, which consent will not be withheld
unreasonably; provided, however, that Landlord will not in any
event be obligated to consent to any such proposed assignment or
subletting unless: (a) the proposed assignee or subtenant is of a
financial standing reasonably satisfactory to Landlord; (b) the
Premises will be used in a manner consistent with the terms of
this lease; and (c) Tenant is not in default under any of the
terms and conditions of this lease at the time of any notice for
request for consent to assignment or subletting. Landlord's
consent to assignment or subletting on one occasion does not
imply that Landlord will consent to any further assignment or
subletting. In any event, Tenant will remain liable under the
terms of this lease regardless of any assignment or subletting.
If Landlord consents to a particular assignment or subletting and
the rent for such assignment or sublease is greater than the rent
paid under this lease, then any excess rent will be split 50
percent to Tenant and 50 percent to Landlord.
6. DAMAGE OR DESTRUCTION. If the Premises are rendered
uninhabitable or are not secure (as reasonably determined by the
Tenant) because of fire or other casualty (a "Casualty") and such
Premises cannot be restored to be habitable and secure within one
hundred twenty (120) days from the date of the Casualty (as
reasonably determined by Landlord and the Tenant) then Tenant may
elect to terminate this lease by giving Landlord written notice
within fifteen (15) days after the date of Casualty. If the
Premises can be restored to be habitable and secure within one
hundred thirty-five (135) days (as reasonably determined by the
Tenant) from the date of the Casualty, then Landlord will
diligently proceed to repair and restore the Premises to
substantially the same condition that existed immediately prior
to the Casualty (the "Restoration"), excluding Tenant's personal
property and leasehold improvements performed by Tenant. If
Landlord fails to complete the Restoration within sixty (60) days
from the date of the Casualty, Tenant may terminate this lease.
If such Casualty occurs during the last eighty-nine (89) days of
the original term or during the last two hundred seventy (270)
days of the renewal term, then Landlord may elect to terminate
this lease by giving Tenant written notice within fifteen (15)
days after the date of Casualty. During any period that there is
substantial interference with Tenant's use of the Premises by
reason of a Casualty, all rent due hereunder shall be temporarily
abated in proportion to the degree of such interference.
7. CONDEMNATION.
(a) If all or any part of the Premises is permanently
taken or condemned by any competent authority for any public use
or purpose (including a deed given in lieu of condemnation) and
as a result the Premises are substantially untenantable, this
lease will terminate as of the date title vests in such authority
and rent will be apportioned as of such date.
(b) If any part of the Premises is taken or condemned
for any public use or purpose (including a deed given in lieu of
condemnation) and this lease is not terminated pursuant to
subparagraph (a) above, rent will be reduced for the period of
such taking by an amount that bears the same ratio to the rent
then in effect as the number of square feet of the Premises, as
determined by the Landlord, remaining after such taking or
condemnation bears to the number of square feet of the Premises
before such taking or condemnation. Provided this lease is not
terminated pursuant to subparagraph (a) above, Landlord will
promptly use so much of the condemnation proceeds received by it
as is necessary to restore and repair the Premises to
substantially their condition immediately prior to the taking,
except for the part so taken and leasehold improvements and
personal property installed by Tenant prior to such taking.
(c) Landlord will be entitled to receive the entire
price or award from any such sale, taking, or condemnation of the
Property without any payment to Tenant and Tenant hereby
assigns to Landlord Tenant's interest, if any, in such award.
Tenant will have no claim or right to any price or award as a
result of any such sale, taking, or condemnation, except that
Tenant may claim or recover from the condemning authority a
separate award for any damages permitted by law, so long as the
award to Landlord will not be diminished thereby.
8. EVENTS OF DEFAULT. The following will constitute
"Events of Default" under this lease:
(a) failure by Tenant to pay rent or other sums payable
hereunder on or before the date due, if such failure continues
for more than ten (10) days after Tenant receives written notice
of such failure from Landlord; provided, however, that Landlord
shall only be obligated to give two such notices in any 12-month
period and if in any 12-month period Tenant again fails to pay
rent or other sums payable hereunder on or before the due date
after two such notices have been given in that 12-month period,
Tenant's failure shall constitute an Event of Default hereunder
without Landlord's being obligated to give further notice.
(b) failure by Tenant to observe or perform any of the
other material terms, covenants, agreements, or conditions
contained herein, but only if such failure continues for
thirty (30) days after Tenant receives written notice of such
failure from Landlord, or if such failure cannot be corrected
within thirty (30) days, only if Tenant fails to commence to
correct such default promptly or, having promptly commenced such
correction, fails to proceed with the correction of the same to
completion within a reasonable time;
(c) the filing by Tenant of a voluntary petition in
bankruptcy or a voluntary petition or answer seeking
reorganization under the Bankruptcy Code, as amended, or under
any other insolvency act or law, state or federal, now or
hereafter existing; or any action by Tenant seeking the
appointment by consent or acquiescence of a receiver or trustee
for Tenant for all or a substantial part of its property; the
making by Tenant of any assignment for the benefit of its
creditors; or the inability of Tenant, or the admission by Tenant
of its inability, to pay its debts as they mature; or
(d) the filing of any involuntary petition against
Tenant in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts, or any other relief under the
Bankruptcy Code, as amended, or under any other insolvency act or
law, state or federal, now or hereafter existing; or the
involuntary appointment of a receiver or trustee of Tenant for
all or a substantial part of its property; or the issuance of an
attachment, execution, or other similar process against any
substantial part of the property of Tenant; and the continuation
of any of the foregoing for a period of sixty (60) days
undismissed, unbonded, or undischarged.
9. LANDLORD'S REMEDIES. Upon the occurrence of any Event
of Default, Landlord may pursue any one or more of the following
remedies, in addition to any other remedies provided under this
lease, at law or in equity, separately or concurrently or in any
combination, without any notice (except as specifically provided
herein) or demand whatsoever and without prejudice to any other
remedy that it may have for possession of the Premises or for
arrearages in rent or other amounts payable to Landlord:
(a) Landlord may terminate this lease by giving Tenant
written notice of termination, in which event Tenant will
immediately quit and vacate the Premises and deliver and
surrender possession of the Premises to Landlord, and this lease
will be terminated at the time designated by Landlord in the
notice of termination to Tenant; provided, however, that no
termination of this lease before the normal expiration hereof
will affect Landlord's right to collect rent for the period
before termination.
(b) With or without terminating this lease, Landlord
may enter upon and peaceably take possession of the Premises, and
expel or remove Tenant and any other person who may be occupying
the Premises.
(c) Landlord may re-let the Premises or any part
thereof, on such terms and conditions as Landlord may deem
satisfactory, and receive the rent for any such re-letting, in
which event Tenant will pay to Landlord on demand any deficiency
that may arise by reason of such re-letting; provided, further
that Tenant will pay over to Landlord on demand any and all
costs and expenses incurred in re-letting the Premises (including
brokerage and attorneys' fees) and in renovating or altering the
Premises to make them suitable for re-letting.
(d) Landlord may declare all rent and other sums due
on or to become due under this lease to be immediately due and
payable; provided, however, that such payments will not
constitute a penalty or forfeiture or liquidated damages, but
will merely constitute payment in advance of the rent for the
remainder of the term of this lease. Landlord will make
reasonable attempts to re-let the Premises. If Landlord re-lets
the Premises, any rent received applicable to periods for which
Landlord has previously collected rent from Tenant will be
credited and repaid to Tenant after deducting all of Landlord's
reasonable expenses relating to such re-letting.
(e) Amounts due to Landlord and arising out of
Tenant's default will bear interest at the highest rate allowed
by law.
10. HAZARDOUS SUBSTANCES. Tenant covenants not to
introduce any hazardous or toxic materials onto the Premises
without first obtaining Landlord's written consent and complying
with all applicable federal, state, and local laws or ordinances
pertaining to the transportation, storage, use, or disposal of
such materials, including but not limited to obtaining proper
permits. Landlord acknowledges that Tenant's use of the Premises
shall include the storage of perfume and cologne products,
however, Tenant agrees that its use shall not include the pouring
or mixing of such perfume and cologne products or the opening of
the watertight containers in which such products arrive at the
Premises. If Landlord permits Tenant to introduce any such
hazardous or toxic materials onto the Premises, Tenant shall
promptly upon request of Landlord reimburse Landlord for any
increase in Landlord's property insurance premiums caused by
Tenant's introducing such materials onto the Premises. If
Tenant's transportation, storage, use, or disposal of hazardous
or toxic materials on the Premises, or that of its employees,
agents, or contractors, or invitees results in contamination of
the soil or surface or ground water or loss or damage to persons
or property, then Tenant agrees: (a) to notify Landlord
immediately of any contamination, claim of contamination, loss,
or damage; (b) after consultation and approval by Landlord, to
clean up the contamination in full compliance with all applicable
statutes, regulations, and standards; and (c) to indemnify,
defend, and hold Landlord, its successors and assigns, harmless
from and against any claims, suits, causes of action, costs, and
fees, including reasonable attorneys' fees, arising from or
connected with any such contamination, claim of contamination,
loss, or damage. This provision will survive termination of this
lease.
11. LITIGATION COSTS. Any other provision of this lease to
the contrary notwithstanding, in any litigation arising out of or
relating to this lease, the prevailing party will be entitled to
recover from the other party its costs and expenses of such
litigation, including without limitation reasonable attorneys'
fees.
12. TRASH REMOVAL, JANITORIAL SERVICE, UTILITIES. Tenant
agrees to pay all charges for trash removal and janitorial
service used on the Premises. Landlord shall establish separate
meters or submeters, as necessary, and Tenant shall pay all
utility charges, including, without limitation to water, sewer,
gas, electricity, fuel, light, and heat bills for the Premises.
If Tenant does not pay any of the same, Landlord may pay the same
and such payment shall be added to the rental of the Premises as
additional rent which shall become due and payable at the time
the next monthly installment of base rent is due and payable.
13. LANDLORD'S AND TENANT'S MAINTENANCE OBLIGATIONS.
Landlord will maintain the building structure, roof, exterior
walls, and fire prevention sprinkler system of the Premises, and
the paving and landscaping around the building in which the
Premises are located, in good condition and repair. Tenant will
maintain the fans, dock levelers, exterior doors and windows, and
the interior of the Premises in good condition and repair,
including without limitation the concrete floor, inside walls,
ceiling, any floor coverings, and the mechanical, electrical, and
plumbing systems, including without limitation all portions of
such systems in or under the floor, except for those repairs
required to be made by Landlord hereunder. In maintaining the
fans, dock levelers, and exterior roll-up doors, Tenant shall, at
Tenant's option, either handle such maintenance with its
in-house maintenance staff, contract for such maintenance with a
maintenance company acceptable to Landlord under a contract
acceptable to Landlord, or permit the performance of such
maintenance by the maintenance company that maintains for
Landlord the other fans, dock levelers, and exterior roll-up
doors in the building in which the Premises are located and
promptly reimburse Landlord as additional rent for Landlord's pro
rata cost of such maintenance upon receipt of a xxxx therefor
from Landlord. Tenant will also (a) maintain and replace lights
and expendable items such as fire extinguishers; (b) maintain any
telephone systems, alarm systems, security features, signs,
storage systems, or other systems, equipment, or improvements
installed by Tenant; and (c) remove all trash from the portion
designated for use by Tenant of the parking lot around the
building in which the Premises are located. Tenant will also
reimburse Landlord for any costs incurred by Landlord and arising
out of or related to damage to the Premises, the building in
which the Premises are located, or landscaping or other
improvements on Landlord's land on which that building is
situated, arising at any time after Tenant or its agents or
employees first come on the Premises as permitted in paragraph 3
and caused by the failure of Tenant to comply with its
obligations under this lease or by the willful act or negligence
of anyone other than Landlord or its employees. Upon any
termination of this lease, Tenant will surrender possession of
the Premises in good condition and repair, reasonable wear and
tear excepted, and remove any systems, security features, signs,
equipment, or improvements installed by Tenant except for any
of the same that Landlord permits Tenant to leave on the
Premises. Tenant will repair any damage to the Premises caused
by such removal. If Tenant attaches any improvements to the
floor or walls with bolts, when Tenant removes such improvements
it shall also remove the bolts and repair the floor or wall to
its condition before such attachment. If Tenant fails to
maintain the Premises as herein required, Landlord may, but is
not obligated to, perform such maintenance on behalf of Tenant,
after giving Tenant written notice of its intent to do so, and
xxxx Tenant for the cost thereof as additional rent.
14. TAXES. This lease constitutes a "gross lease" and
accordingly Landlord shall be responsible for the payment of all
real estate taxes and assessments, building insurance, building
operating expenses and common area expenses. Tenant shall pay
all taxes assessed against Tenant's inventory and other personal
property, and leasehold improvements and personal property
installed by Tenant.
15. INSURANCE. Tenant at its own cost and expense will
obtain and maintain in force throughout the term of this lease
comprehensive general liability insurance in an amount not less
than $2,000,000 for any one occurrence of bodily injury or
property damage, naming Landlord an additional insured. Tenant
will, at its own cost and expense, obtain and keep in force
during the term of this lease insurance coverage on its
improvements, fixtures, furnishings, equipment, and inventory
that are in and upon the Premises for the full replacement value
thereof. In no event shall Landlord have any liability to Tenant
because of any loss of or damage to any of Tenant's improvements,
fixtures, furnishings, equipment, or inventory on or about the
Premises unless such loss or damage is caused by the failure of
Landlord to comply with its obligations under this lease or by
the willful act or negligence of Landlord or its agents,
employees, or invitees. All such policies will be procured by
Tenant from responsible insurance companies reasonably
satisfactory to Landlord. An insurance certificate evidencing
such policies, together with receipt evidencing payments of
premiums therefor, will be delivered to Landlord prior to the
Commencement Date. Not less than fifteen (15) days before the
expiration date of any such policies, an insurance certificate
evidencing the renewals thereof (bearing notations evidencing the
payment of renewal premiums) will be delivered to Landlord. Such
policies will further provide that not less than thirty (30)
days' prior written notice shall be given to Landlord before such
policy may be canceled or changed to reduce insurance provided
thereby. Landlord will at its cost and expense maintain hazard
insurance covering the Premises for the full replacement value
thereof. All such policies will be procured by Landlord from
responsible insurance companies reasonably satisfactory to
Tenant. Tenant hereby approves Royal Insurance Company. If
Tenant fails to obtain any insurance required under the terms of
this lease, Landlord may, but is not obligated to, obtain such
insurance on behalf of Tenant and xxxx Tenant for the cost
thereof as additional rent. Tenant will hold Landlord harmless
from any liability for loss or damage to persons or property
occurring from the use of the Premises unless such loss or damage
arises out of the Landlord's negligence or breach of Landlord's
obligations under this lease.
16. LANDLORD'S RIGHT TO ENTER. So long as such entry does
not unnecessarily disturb Tenant in the conducting of its
business and occurs after Landlord gives Tenant reasonable prior
notice, Landlord, or any of Landlord's agents, will have the
right to enter the Premises accompanied by an authorized Tenant
representative during all reasonable hours, to examine the same
to make such repairs, additions, or alterations as may be deemed
necessary for the safety, comfort, or preservation thereof or of
any building or other structure, or to exhibit the Premises and
to put or keep upon the doors or windows or other part thereof a
notice "FOR RENT" at any time within ninety (90) days before the
expiration of this lease or a notice "FOR SALE" at any time
during the term of this lease; such notices will be in good taste
and not a distraction to any Tenant's signage permitted by
Landlord. In the event of an emergency, Landlord shall be
entitled to enter the Premises and take all steps reasonably
necessary to handle such emergency.
17. ACCEPTANCE OF PREMISES; TENANT IMPROVEMENTS; TENANT
SIGNAGE. Landlord represents, warrants and certifies to Tenant
that the Property complies with all applicable building codes,
laws and regulations, and will comply with Tenant's contemplated
use as described in EXHIBIT C after Landlord completes the
improvements referred to in EXHIBIT C. Tenant hereby accepts the
Premises in their current condition, except for the improvements
to be made by Landlord described in EXHIBIT C. Tenant may at its
own cost and expense construct tenant improvements as described
in EXHIBIT B attached hereto. Tenant shall not place any sign on
the outside of the building in which the Premises are located
without the prior written consent of Landlord, which consent
shall not be withheld unreasonably. Any and all signs placed on
the Premises or the outside of the building on which the Premises
are located by Tenant shall be maintained in compliance with all
governmental rules and regulations applicable to such signs and
the Tenant shall be responsible to Landlord for any damage caused
by installation, use, or maintenance of said signs. Tenant
agrees upon removal of said signs to repair all damage incidental
to such removal.
18. LANDLORD IMPROVEMENTS. Landlord shall at its own cost
and expense construct improvements as described in EXHIBIT C
attached hereto. Until such improvements have been completed,
Tenant's employees shall have access to and the use of the
restrooms in Landlord's adjacent facility twenty-four (24) hours
per day from 12:01 a.m Monday through 11:59 p.m. Friday of each
week. If such improvements are not completed within seventy-five
(75) days after the Effective Date, base rent will be reduced by
$50.00 per day from the seventy-fifty (75th) day after the
Effective Date until the improvements are completed. If the
improvements are not completed within one hundred twenty (120)
days after the Effective Date, Tenant may at its option terminate
this lease by giving notice of such termination to Landlord and
rent will be apportioned as of the day Tenant relinquishes the
Premises.
19. POSSESSION QUIET ENJOYMENT. Landlord covenants that
Tenant will have quiet, peaceful, and uninterrupted possession of
the Premises so long as Tenant keeps and performs all of the
material covenants and obligations of this lease on the part of
Tenant to be performed, subject to the other conditions and
provisions set forth herein. Landlord represents and warrants to
Tenant that the owner of the Property is XxXxxxx Realty of Miami,
Ltd., a Florida limited partnership ("Owner"), and that the
Landlord occupies the Premises pursuant to that certain Lease
between Owner and Landlord dated September 5, 1997 (the "Prime
Lease"). Landlord represents and warrants to Tenant that neither
the Premises nor the Common Area is encumbered by any mortgage
nor any other instrument that would preclude Tenant from using
the Premises for the purposes contemplated by this lease.
20. TIME OF THE ESSENCE. Time is of the essence of this
lease and this applies to all terms and conditions contained
herein.
21. NOTICE. All notices under this lease will be in
writing and will be hand delivered or sent by certified mail,
return receipt requested, or by Federal Express or other
overnight delivery service requiring a receipt, and will be sent
to the following respective addresses:
To Landlord:
Mac Papers, Inc.
Attention: X. Xxxxxx XxXxxxx, Jr.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
or
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
With a copy to:
Martin, Ade, Xxxxxxxxxx & Xxxxxxx, P.A.
Attention: Xxxxxxx X. Xxxxxxxx
One Independent Drive, Suite 3000
Xxxxxxxxxxxx, Xxxxxxx 00000
To Tenant:
French Fragrances, Inc.
Attention: Oscar Marina, Jr.
00000 X. X. 00xx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Adams, Gallinar, Iglesias & Xxxxx
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Notice will be complete upon receipt. Either party may change
its address for notices by giving the other party notice as
provided herein.
22. REMEDIES CUMULATIVE. The rights of the parties
hereunder will be cumulative and will be in addition to any and
all other rights and remedies available to them at law or in
equity and failure on the part of either to exercise promptly any
rights given hereunder will not operate to forfeit any of the
said rights.
23. LEASE NOT TO BE RECORDED. Neither party will record
this lease in the public records of the county in which the
Premises are located.
24. BROKER'S COMMISSIONS. Tenant warrants and represents
to Landlord that it has had no dealings with any real estate
broker or agent in connection with this lease other than
Xxxxxx X. Xxxxxxxxxx of Xxxxxxx & Xxxxxxxxx of Florida, Inc., and
Tenant covenants to pay, hold harmless, and indemnify Landlord
from and against any and all costs, expenses, liabilities
(including reasonable attorneys' fees), causes of action, claims,
or suits in connection with any compensation, commission, fee, or
charges claimed by any other real estate broker or agent with
respect to this lease or the negotiation thereof, arising out of
any act of Tenant. Landlord warrants and represents to Tenant
that it has had no dealings with any real estate broker or agent
in connection with this lease other than Xxxxx X. Xxxxxxxxx of
The Prudential Florida Realty, and Landlord covenants to pay,
hold harmless, and indemnify Tenant from and against any and all
costs, expenses, liabilities (including reasonable attorneys'
fees), causes of action, claims, or suits in connection with any
compensation, commission, fee, or charges claimed by any other
real estate broker or agent with respect to this lease or the
negotiation thereof, arising out of any act or Landlord.
25. OPTION TO RENEW. Tenant may, at Tenant's option, and
provided that Tenant is not in default of any of the material
terms of this lease, extend the term of this lease for one
renewal period of two and one-half years, this option to be
exercised by Tenant by giving written notice to Landlord at least
ninety (90) days before the expiration of the original term of
this lease. During the renewal period, the provisions of this
lease will remain the same, including the provisions of paragraph
2 for increases of base rent.
26. HOLDING OVER. Tenant will, at the termination of this
lease by lapse of time or otherwise, yield up immediate
possession to Landlord. If Landlord agrees in writing that
Tenant may hold over after the expiration or termination of this
lease, unless the parties hereto otherwise agree in writing on
the terms of such holding over, the hold over tenancy will be
subject to termination by Landlord or Tenant at any time upon not
less than thirty (30) days' advance written notice, and all of
the other terms and provisions of this lease will be applicable
during that period, except that Tenant will pay Landlord from
time to time upon demand, as rental for the period of any hold
over, an amount equal to one and one-half times the rent in
effect on the termination date, computed on a daily basis for
each day of the hold over period. No holding over by Tenant,
whether with or without consent of Landlord, will operate to
extend this lease except as otherwise expressly provided. The
preceding provisions of this paragraph will not be construed as
Landlord's consent for Tenant to hold over.
27. LANDLORD'S LIABILITY. Landlord will not be liable to
Tenant or Tenant's employees, agents, patrons, visitors, or any
other person whomsoever, for any injury to person or damage to
property on or about the Premises, unless such injury or damage
results from or is caused by the failure of Landlord to comply
with its obligations under this lease or the willful act or
negligence of Landlord or its employees. Tenant hereby covenants
and agrees that it will at all times indemnify, defend (with
counsel approved by Landlord), and hold safe and harmless
Landlord (including without limitation its partners if Landlord
is a partnership), and Landlord's officers, agents, employees,
contractors, and invitees from any loss, liability, claims,
suits, costs, expenses, including without limitation attorneys'
fees and damages, both real and alleged, arising out of any
injury to person or damage to property on or about the Premises
other than that for which Landlord is liable hereunder.
Notwithstanding anything to contrary contained in this lease,
Tenant agrees and understands that Tenant will look solely to the
estate and property of Landlord in the building on the Premises
for the enforcement of a judgment (or other judicial decree)
requiring the payment of money by Landlord to Tenant by reason of
default or breach of Landlord in performance of its obligations
under this lease, it being intended that there will be absolutely
no personal liability on the part of Landlord, or its successors
or assigns, with respect to any of the terms, covenants, and
conditions of this lease, and no other assets of Landlord will be
subject to levy, execution, attachment, or any other legal
process for the enforcement or satisfaction of the remedies
pursued by Tenant in the event of such default or breach, this
exculpation of liability to be absolute and without exception
whatsoever.
28. SECURITY DEPOSIT. Tenant will pay to Landlord on or
before the execution date hereof the sum of $21,465.00 to be held
by Landlord as security for the performance by Tenant of all
obligations imposed on Tenant pursuant to this lease (the
$21,465.00 plus all interest thereon shall be referred to
collectively as the "security deposit"). Landlord may commingle
the security deposit with its other funds. Landlord will not be
required to apply all or any portion of the security deposit with
respect to any particular violation or default by Tenant. Tenant
will reimburse Landlord for such portions of the security deposit
as Landlord from time to time applies with respect to any
violation by Tenant hereunder promptly upon written notice of
such application by Landlord. Any portion of the security
deposit which has not been appropriated by Landlord in accordance
with the provisions hereof will be returned to Tenant only after
the expiration of the full stated term of this lease, including
any renewal term, if Tenant exercises its option therefor, or
earlier if this lease is terminated by Landlord prior thereto in
accordance with its provisions; it being the intention of the
parties that in the event of such termination by Landlord, such
sum of money shall secure Landlord not only as to default by
Tenant prior to such termination but also as to any deficiency of
rent or other charges for which Tenant is liable hereunder
arising or made known to Landlord after such termination. If
Landlord conveys Landlord's interest under this lease, the
security deposit, or any part thereof not previously applied, may
be released by Landlord to Landlord's grantee, and if so
released, Tenant agrees to look solely to such grantee for the
proper application and return thereof in accordance with the
terms of this paragraph. Tenant agrees that Tenant will not
assign, and that neither Landlord, nor its successors and
assigns, will be bound by any such assignment, encumbrance,
pledge, attempted assignment, attempted pledge, or attempted
encumbrance of the security deposit. Any mortgagee will not be
responsible to Tenant for the return or application of the
security deposit, whether or not it succeeds to the position of
Landlord hereunder, unless the security deposit is received in
hand by such mortgagee.
29. RADON GAS. Radon gas is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be
obtained from your county public health unit.
30. MISCELLANEOUS.
(a) Words of any gender used in this lease will be
held and construed to include any other gender, and words in the
singular number will be held to include the plural, unless the
context otherwise requires.
(b) The terms, provisions, covenants, and conditions
contained in this lease shall apply to, inure to the benefit of,
and be binding upon the parties hereto and upon their respective
heirs, legal representatives, successors, and permitted assigns,
except as otherwise herein expressly provided. Landlord may
assign any of its rights and obligations under this lease. Each
party agrees to furnish to the other, promptly upon demand, a
resolution, or other appropriate documentation evidencing the due
authorization of such party to enter into this lease.
(c) The captions inserted in this lease are for
convenience only and in no way define, limit, or otherwise
describe the scope or intent of this lease, or any provision
hereof, or in any way affect the interpretation of this lease.
(d) Tenant agrees from time to time, within ten (10)
days after request of Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate stating, if such
be the case, that this lease is in full force and effect, the
date to which rent has been paid, the unexpired term of this
lease, and such other matters pertaining to this lease as may be
requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely
fashion is a material inducement for Landlord's execution of this
lease.
(e) This lease may not be altered, changed, or amended
except by an instrument in writing signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully
performed as of the expiration or earlier termination of the term
of this lease will survive the expiration or earlier termination
of the term hereof, including, without limitation, all payment
obligations concerning the condition of the Premises. Upon the
expiration or earlier termination of the term hereof, and before
Tenant vacates the Premises, Tenant will pay to Landlord any
amount reasonably estimated by Landlord as necessary to put all
portions of the Premises required to be maintained by Tenant
hereunder in good condition and repair, to remove any
improvements that Tenant is obligated to remove but fails to
remove, and to repair any damage caused to the Premises by the
removal of any improvements that Tenant is obligated to remove.
Tenant will also, before vacating the Premises, pay to Landlord
the amount, as estimated by Landlord, of Tenant's obligation
hereunder for real estate taxes and insurance premiums for the
year in which the lease expires or terminates. All such amounts
will be used and held by Landlord for payment of such obligations
of Tenant hereunder, with Tenant being liable for any additional
costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been
determined and satisfied, as the case may be. Any security
deposit held by Landlord will be credited against the amount
payable by Tenant under this paragraph.
(g) If Landlord transfers its interest in the
Premises, Landlord will be released from all obligations and
liabilities under the terms of this lease accruing subsequent to
the date of such transfer. If a transferee agrees to assume the
obligations and liabilities of Landlord under the lease accruing
before the date of the transfer, Landlord will be released from
all obligations and liabilities under this lease.
(h) If any clause or provision of this lease is
illegal, invalid, or unenforceable under present or future laws
effective during the term of this lease, it is the intention of
the parties that the remainder of this lease will not be affected
thereby, and it is also the intention of the parties that in lieu
of each clause or provision of this lease that is illegal,
invalid, or unenforceable, there be added as a part of this lease
a clause or provision as similar in terms of such illegal,
invalid, or unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
(i) Landlord will not be in default in the performance
of any of Landlord's obligations hereunder unless and until
Landlord fails to perform such duties or obligations within
twenty (20) days after Landlord receives written notice of such
failure, or if such failure cannot be cured within twenty (20)
days, if Landlord fails to commence such cure within twenty (20)
days after receiving such notice, or having timely commenced such
cure fails to prosecute the same to completion diligently.
Neither party shall have any liability for any incidental or
consequential damages of the other party, or anyone claiming by
through or under the other party, for any reason whatsoever.
Each party, for itself and for any party claiming by, through,
or under that party, waives any claim that it might otherwise
have against the other party, its partners, officers, and
directors, for punitive damages.
(j) If Landlord defaults in the performance of
Landlord's obligations hereunder, the holder of a mortgage that
encumbers the Premises will have the right, but not the
obligation, to perform or comply with any covenants, agreements,
and provisions violated in connection with such default.
(k) The undersigned officer of Tenant does hereby
warrant and certify to Landlord that Tenant is a corporation,
validly existing under the laws of the State of Florida. The
undersigned officer of Tenant hereby further warrants and
certifies to Landlord that such officer is authorized and
empowered to bind Tenant to the terms of this lease by such
officer's signature hereto.
(l) Although the printed provisions of this lease were
drafted by Landlord, such fact shall not cause this lease to be
construed either for or against Landlord or Tenant.
(m) The parties acknowledge that this lease contains a
complete expression of the agreement between the parties hereto
on the subjects herein set forth and that there are no promises,
representations, or inducements except such as are provided in
this lease. Neither party, nor any party claiming by, through,
or under either party, will be entitled to rely upon any prior or
contemporaneous agreement, understanding, or statement that is
not evidenced by this lease. All prior agreements, arrangements,
understandings, and negotiations between the parties with respect
to the subject matters hereof are merged into this lease.
(n) Any Landlord approval or consent required under
this lease shall not be unreasonably withheld or delayed by the
Landlord.
IN WITNESS WHEREOF, the parties hereto have hereunto
executed this instrument for the purposes herein expressed, the
day and year first above written.
LANDLORD:
MAC PAPERS, INC.
/s/Xxxx X. Xxxxx By:/s/ X. XXXXXX XXXXXXX, JR.
------------------------------ --------------------------
Printed Name: Xxxx X. Xxxxx Name: X. Xxxxxx XxXxxxx, Jr.
Title: President
/s/Xxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxx X. Xxxxxxx
As to Landlord [CORPORATE SEAL]
TENANT:
FRENCH FRAGRANCES, INC.
/s/ Xxxxxxx X. Xxxxxxx By:/s/ Xxxxx X. Xxxxxx
-------------------------------- --------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ Xxx X. Xxxxxx
--------------------------------
Printed Name: Xxx X. Xxxxxx
As to Tenant [CORPORATE SEAL]
JOINDER
The Owner, after reviewing and approving the terms and conditions
of this lease, has joined in the execution of this lease in order
to acknowledge and confirm the following:
(i) a true and correct copy of the Prime Lease has been
delivered to Tenant and there are no defaults existing
under said Prime Lease;
(ii) Notwithstanding anything contained in the Prime Lease,
the Owner consents to the transaction contemplated by
this lease, and;
(iii) Notwithstanding any default under, modification to or
termination of the Prime Lease, Owner agrees that
Tenant may continue its occupancy and use of the
Premises in accordance with the terms of this lease,
so long as Tenant continues to pay rent and otherwise
perform its obligations under this lease.
OWNER:
XXXXXXX REALTY OF MIAMI, LTD.
/s/ By: Xxxxxx Realty Company, its
------------------------- general partner
Printed Name:
/s/ By: /s/ X. Xxxxxx XxXxxxx, Jr.
------------------------- --------------------------
Printed Name: X. Xxxxxx XxXxxxx, Jr.
As to Owner
EXHIBIT A
Sketch of the Premises
and Tenant's Parking Area
EXHIBIT B
Tenant Improvements
Tenant, at its own cost and expense, may make certain
improvements to the Premises, but only after the plans and
specifications therefor (including without limitation the method
used to attach improvements to the floor or walls with bolts)
have been approved in writing by Landlord. The improvements
shall consist of installation of racking, construction of minimal
office space, and installation of shutters on the glass entry
features, including the door. In addition, Tenant may, at its
sole cost and expenses, install alarm and telephone systems and
secure the perimeter of the inside of the Premises. All such
improvements will be performed in a good and workmanlike manner
and will comply fully with all applicable mechanics' lien laws,
building codes and laws, and other governmental requirements,
including the requirements for licensing of contractors and
obtaining building permits. Before commencing any work, Tenant
will submit to Landlord copies of all required permits. Tenant
will indemnify Landlord and hold Landlord harmless from any and
all claims for mechanics', materialmen's, or other liens in
connection with improvements made by Tenant, and any such liens
will exist only against Tenant's leasehold interest, and not
against Landlord's interest. Landlord reserves the right to
approve all contractors hired by Tenant; such approval will not
be withheld unreasonably.
EXHIBIT C
Landlord Improvements
Landlord, at its own cost and expense, will make the
following improvements to the Premises:
Installation of sufficient improvements to meet the
Governmental Requirements for seven to 20 employees of Tenant
(including without limitation two restrooms), not to include any
improvements for office space.
Such improvements will be substantially completed not later
than sixty (60) days after Landlord acquires all of the permits
and other governmental authorizations necessary for the
construction of such improvements, it being understood that
Landlord will use its reasonable best efforts to obtain such
permits and authorizations as soon as practicable.
