1
EXHIBIT 10.17
NET LEASE AGREEMENT
FOR
FREE-STANDING BUILDING
(BUILD TO SUIT)
THIS LEASE, made this 1 day of May 1994 by and between C & C General
Partnership, a Florida general partnership ("Lessor"), having its principal
office at _____________________, and LANCETTI COSMETICS CORPORATION, a Florida
corporation ("Lessee"), whose address is ______________________________________.
WITNESSETH:
The Demised Premises are leased subject to (1) the existing state of
the title thereof as of the commencement of the term of this Lease, (2) any
state of facts which an accurate survey or physical inspection thereof night
show, and (3) all zoning regulations and other laws and regulations now in
effect or hereafter adopted by any governmental authority having jurisdiction.
ARTICLE I
Demised Premises
1.1 In consideration of the payments of rents and other
charges provided for herein and the performance of the covenants hereinafter set
forth, Lessor hereby leases to Lessee and Lessee hereby rents from Lessor that
certain building (the "Building") to be constructed as provided herein,
containing approximately 47,000 gross square feet of Floor Area, and appurtenant
parking area, as shown on the preliminary site plan attached hereto as Exhibit
"All (the "Demised Premises"), in Newport Center, an existing industrial park
(the "Industrial Park") in Deerfield Beach, Broward County, Florida.
ARTICLE II
Term of Lease
2.1 The term of this Lease shall commence on the earlier of
the following dates: a) the completion of Lessor's Work as provided herein; or
b) upon the day when Lessee opens for business, whichever event shall first
occur, said date being defined herein as the "Commencement Date". The term of
this Lease shall end (unless sooner terminated as hereinafter provided) at
midnight on the date of the expiration of one hundred eighty (180) calendar
months from the first day of the calendar month next succeeding the Commencement
Date. Within thirty (30) days after the Commencement Date, the parties hereto
agree to execute a rider to this Lease in the form attached hereto as Exhibit
"B", stipulating as to the Commencement Date and expiration date of the term of
this Lease, and the "Lease Year" for purposes hereof.
2.2 Lessor shall have no liability whatsoever to Lessee in
the event of Lessor's failure to timely deliver possession of the Demised
Premises as set forth herein, except that the Commencement Date shall be
extended accordingly.
2
2.3 In the event Lessee is not in default hereunder, Lessee
shall have the right to renew the term hereof for two (2) consecutive terms of
five (5) years each on the terns and conditions set forth herein. The Minimum
Rent for such renewal term(s) is set forth on Schedule "All hereto. This right
must be exercised, if at all, by notice received by Lessor at least one hundred
eighty (180) days prior to the termination of the then expiring tern, of this
Lease.
ARTICLE III
Minimum Rent, Rent Provisions, Security Deposit and Additional Rent
3.1 Lessee hereby covenants and agrees to pay to Lessor as
the Minimum Rent for the Demised Premises the sums shown on Schedule "All
hereto, payable in equal monthly installments as shown in said Schedule, all in
advance, on the lst day of every calendar month during the tern hereof, without
set-off, abatement, counterclaim or reduction of any nature whatsoever, except
as expressly set forth herein. If Lessee's possession shall commence on a day
other than the first day of the month, Lessee shall pay Minimum Rent for any
fractional month equal to one-thirtieth (1/30) of the monthly Minimum Rent
multiplied by the number of days of such fractional month. In the event any
installment of Minimum Rent or other additional charges and/or additional rent
accruing under the Lease shall become overdue, and in addition to all other
remedies of Lessor hereunder, a "Late Charge" of five cents ($.05) per dollar so
overdue per month nay be charged by the Lessor for the purpose of defraying the
expenses incident to handling such delinquent payment. Upon the occurrence of an
Event of Default hereunder, any unpaid rent hereunder shall bear interest at the
highest rate allowed by law until paid.
3.2 SECURITY DEPOSIT: Simultaneously with the execution
hereof, Lessee shall deposit with Lessor a promissory note in the amount of
TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) delivered to Lessor as security for
the performance by Lessee of each and every term, covenant and condition of this
Lease on the part of Lessee to he observed and performed.
If any of the rents and additional rents herein reserved shall be
overdue and unpaid, then Lessor may, at its option and without prejudice to any
other remedy which Lessor may have on account thereof, make demand upon such
security deposit in the amount necessary to compensate Lessor for the payment of
the rents or other sums due from Lessee, or towards any loss, damage or expense
sustained by Lessor resulting from such default on the part of Lessee; and in
such event Lessor shall forthwith upon demand restore said security deposit to
the original amount required hereunder. In the event Lessee shall fully and
faithfully comply with all the terms, covenants and conditions of the Lease,
said security deposit shall be returned to Lessee following the termination
hereof in accordance with all provisions hereof. In the event any bankruptcy,
insolvency, reorganization or other creditor-debtor proceedings shall be
instituted by or against Lessee, or any guarantor hereunder, such security
deposit shall be drawn upon as proceeds applied first to the payment of any rent
and/or other charges due Lessor for all periods prior to the institution of such
proceedings, and the balance, if any, may be retained by Lessor in partial
liquidation of Lessor's damages. Lessor may deliver the security deposited by
Lessee hereunder to the purchaser of Lessor's interest in the Demised Premises
in the event that such interest is
-2-
3
sold or transferred and thereupon Lessor shall be discharged and released from
all further liability with respect to such deposit or the return thereof to
Lessee.
3.3 ADDITIONAL CHARGES. In addition to the minimum Rent, all
other payments to be made by Lessee hereunder shall be deemed, solely for
purposes of securing the collection thereof, to be additional rent hereunder,
whether or not same be designated as such, and shall be due and payable on
demand or together with the next succeeding installment of Minimum Rent,
whichever shall first occur; and Lessor shall have the same rights and remedies
upon Lessee's failure to pay same as for the non-payment of the Minimum Rent.
Lessor, at its election, shall have the right (but not the obligation) to pay
for or perform any act which requires the expenditure of any sums of money by
reason of the failure or neglect of Lessee to perform any of the provisions of
this Lease within the grace period, if any, applicable thereto, and in the event
Lessor shall at its election pay such sums or perform such acts requiring the
expenditures of monies, Lessee agrees to reimburse and pay Lessor, upon demand,
all such sums together with interest thereon at the maximum legal rate until
paid, which shall be deemed to be additional rent hereunder and be payable to
Lessee as such.
3.4 SALES TAX. Lessee agrees to pay to Lessor on the first
day of each calendar month during the term hereof all sales, use, or excise
taxes imposed or levied against any rent or other charge or payment required
hereunder to be made by Lessee.
ARTICLE IV
INTENTIONALLY DELETED
ARTICLE V
Real Estate Taxes and Other Charges
5.1 Lessee agrees to pay all real estate taxes and
governmental assessments levied or imposed in connection with the Demised
Premises (or, in the event that such real estate taxes and/or governmental
assessments are levied or imposed in connection with the Industrial Park as a
whole, then Lessee shall pay its proportionate share of the same) during the
term of this Lease and any renewal or extension thereof. For the purposes of
this Article, the term "real estate taxes" shall include all real estate taxes,
assessments, water and sewer charges, sales and/or rent taxes, special
assessments, other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary, foreseen and unforeseen, and each
and every installment thereof which shall or may, during the Lease term, be
levied, assessed, imposed, become due and payable, or lions upon, or arising in
connection with, the use, occupancy or possession of or grow due or payable out
of, or for the Demised Premises or any part thereof, and all costs incurred by
Lessor in contesting, litigating or negotiating the same with the governmental
authority. Lessee shall not protest real estate taxes to any public taxing
authority without (i) at least ten (10) days prior written notice to Lessor and
(ii) providing adequate security of payment to Lessor.
5.1.1 Lessor agrees to pay all such real estate taxes
as quickly as practicable after receipt of final tax bills in order to obtain
the maximum discount then available.
-3-
4
5.1.2 In the event Lessee determines the real estate
tax xxxx for the Demised Premises to be too high, Lessee shall notify Lessor
(prior to Lessor having paid such xxxx) and shall deposit with Lessor an amount
equal to Lessee's reasonable estimate of the amount of such taxes, which shall
be deposited in accordance with Florida law. The tax appeal shall be filed by
Lessor, with all reasonable costs and expenses (including expert witness and
attorneys' fees) paid promptly by Lessee.
5.1.3 In the event Lessor determines a tax appeal is
appropriate, the appeal shall be filed by Lessor, Lessee shall make the
appropriate deposit as set forth above and Lessor shall pay all expenses in
connection therewith.
5.2 Lessee shall pay to Lessor as additional rent hereunder
all assessments imposed by the Industrial Park Association pursuant to the
"Declaration of Covenants" for the Industrial Park, a copy of which has been
delivered to Lessee.
5.3 Lessee agrees to pay to Lessor on the first day of each
calendar month for the initial Lease Year the amount equal to one-twelfth
(1/12th) of Lessor's estimate of Lessee's aggregate annual liability for real
estate taxes, Newport Center assessments and insurance obtained by Lessor
hereunder. For each year thereafter Lessee shall pay Lessor monthly one-twelfth
(1/12th) of the amount of the Lessee's estimated tax, assessments and insurance
liability based on the actual charges for the preceding calendar year. Lessor
shall notify Lessee in writing of the actual amount due by Lessee for the
preceding calendar year when determined. Any amount paid by Lessee which exceeds
the true amount due shall be credited on the next succeeding payment due
pursuant to this; Section. if Lessee has paid less than the true amount due,
Lessee shall pay the difference within ten (10) days of receipt of notice from
Lessor. If the term of this Lease shall begin or end other than on the first or
last day of a calendar year, these charges shall be billed and adjusted on the
basis of such fraction of' a calendar year.
5.4 Lessee shall pay all of the personal property taxes (or
any successor taxes in the event the current personal property taxing system is
modified) imposed on the Demised Premises.
5.5 As of the date hereof, the estimated charges under this
Article V total no more than $4.50 per square foot per year.
ARTICLE VI
Lessor's Work
6.1 As provided herein, Lessor shall complete "Lessor's Work"
described on Exhibit 'IC" hereto.
ARTICLE VII
Lessee's Alterations
7.1 Prior to the commencement of any alterations or
improvements to the Demised Premises, Lessee must furnish Plans and
specifications incorporating the Lessee's
-4-
5
construction specifications for Lessor's prior approval. The approval by Lessor
of Lessee's plans and specifications shall not constitute the assumption of any
liability on the part of Lessor for their compliance or conformity with
applicable building codes and the requirements of this Lease or for their
security, and Lessee shall be solely responsible for such plans and
specifications. In addition, the approval by Lessor of Lessee's plans and
specifications shall not constitute a waiver by Lessor of the right to
thereafter require Lessee to amend the same to provide for any corrections or
omissions by Lessee of items required by building codes or this Lease which are
later discovered by Lessor.
7.2 It is further understood and agreed that: 1) Lessee
shall furnish to Lessor all certificates and approvals with respect to work done
by Lessee or on Lessee's behalf that may be required by any authority for the
issuance of a certificate of occupancy; and 2) Lessor shall have no
responsibility or liability whatsoever for any loss or damage to any fixtures or
equipment installed or left in the Demised Premises.
7.3 Lessee may provide signs, awnings, advertising matter,
exterior decoration and lettering after such signage has been approved by Lessor
in accordance with the signage criteria for Newport Center.
7.4 Any contractor, architect, engineer or designer to be
used by Lessee to perform Lessee's Work must first be approved in writing by
Lessor. Such approval. shall be in Lessor's sole discretion based on the
candidate's financial condition and his ability to perform in a quality manner
and such other criteria as Lessor may in its sole discretion adopt from time to
time.
7.5 All of Lessee's Work shall be completed in a first-class
manner consistent with the standards prevalent in the industrial Park ,
including the Plans and Specifications approved by Lessor. Lessee shall allow no
liens or claims whatsoever to be filed in connection with such Work and shall
indemnify and hold Lessor harmless from any loss, cost, damage or expense
whatsoever (including court costs and attorneys, fees) arising out of or in
connection with the performance of Lessee's Work. All of Lessee's Work shall be
completed in compliance with all applicable laws, codes and ordinances.
7.6 Upon request of Lessor, Lessee shall provide evidence of
its ability to fund the entire cost of Lessee's Work prior to commencement of
same.
ARTICLE VIII
Use of Premises
8.1 The Demised Premises shall be occupied and used solely
for the operation of a cosmetics manufacturing and warehouse facility with
related uses, and for no other purposes without the Prior written consent of
Lessor, which may be withheld in Lessor's sole discretion.
8.2 Lessee shall operate its business in the Demised Premises
under the trade name of "Prestige Cosmetics".
5
6
8.3 Lessee covenants and agrees not to abandon or leave
vacant the Demised Premises and to keep the same open for business; to keep the
Demised Premises in a careful, safe, clean, odor free, noise free and proper
manner and not permit any rubbish or refuse of any nature emanating from the
Demised Premises to accumulate in the public areas; to prevent the Demised
Premises from being used in any way which will injure the reputation of the same
or of the Newport Center or from being used in any way which may be a nuisance,
annoyance, inconvenience or damage to the Lessor and/or the other tenants or
occupants of the Newport Center I including, without limiting the generality of
the foregoing, noise by the playing of any musical instrument or radio or
television or the use of a microphone, loud speaker, or electrical equipment
which may be heard outside of the Demised Premises, or the emission of odors
and/or vapors or vibrations from the Demised Premises; to comply with all
applicable laws and ordinances; and to abide with the Declaration of Covenants
and all rules and regulations from time to time established with respect to the
operation of the Newport Center.
8.4 Upon the substantial completion of Lessor's Work, Lessee
shall proceed with due dispatch and diligence to open its business in the
Demised Premises and shall thereafter continuously, actively and diligently
operate such business on the whole of the Demised Premises, in a high grade and
reputable manner.
8.5 Lessee covenants and agrees not to use or occupy or
suffer or permit the Demised Premises or any part thereof to be used or occupied
for any purpose contrary to law or the rules or regulations of any public
authority or the requirements of any insurance underwriters or the Declaration
of Covenants.
8.6 Lessee shall obtain, and keep in full force and effect,
all. occupational and similar licenses required with respect to its use of the
Demised Premises.
ARTICLE IX
INTENTIONALLY DELETED
ARTICLE X
Lessee's Improvements
10.1 Lessee covenants and agrees not to make or permit to be
made any alterations, improvements and/or additions of any kind or nature to the
Demised Premises or any part thereof except by and with the prior written
consent of Lessor, in accordance with Article VII hereof. When made or installed
all additions shall be deemed to have attached to the freehold and to have
become the property of Lessor and shall remain for the benefit of Lessor at the
end of the term or other expiration of this Lease in as good order and condition
as they were when installed, reasonable wear and tear excepted; provided,
however, if, within thirty (30) days prior to the termination of this Lease,
Lessor so directs, Lessee shall promptly remove the additions, improvements,
fixtures and installations which were placed in the Demised Premises and which
are designated in said notice and repair any damage occasioned by such removal
and in default thereof Lessor may effect said removals and repairs at Lessee's
expense. In the event of making such alterations, improvements and/or additions
as herein provided, Lessee further agrees to indemnify and save harmless the
Lessor from all expenses, liens, claims or damages to
6
7
either persons or property arising out of or resulting from the undertaking or
making of said alterations, additions and improvements.
ARTICLE XI
Maintenance of Demised Premises, Indemnity and Insurance
MAINTENANCE
11.1.1 After completion of Lessor's Work and the
issuance of the building certificate of occupancy, Lessor shall not be
responsible to make any other improvements or repairs of any kind, in or upon
the Demised Premises. This Lease shall be "triple net" and "care-free" to
Lessor.
11.1.2 Lessee covenants and agrees to keep and
maintain in good order, condition and repair and/or replace, if necessary, the
Demised Premises and every part thereof, foreseen and unforeseen,, including,
but not limited to, structure, foundation and roof and the exterior and interior
portions of all doors, door checks, security gates, windows, glass, utilities,
facilities, plumbing and sewage facilities within the Demised Premises or under
the floor slab, including free flow up to the main sewer line, fixtures,
heating, air-conditioning, including exterior in mechanical equipment, exterior
utility facility and exterior electrical- equipment serving the Demised
Premises, and interior walls, floors and ceilings, including compliance with
applicable building codes relative to fire extinguishers and the Americans with
Disabilities Act of 1990, as amended from time to time. if Lessee refuses or
neglects to commence or complete repairs promptly and adequately, Lessor may,
but shall not be required, to make or complete said repairs and Lessee shall pay
the cost thereof to Lessor upon demand, together with interest at the maximum
legal rate from date advanced until paid.
11.1.3 Lessee shall maintain, at its expense, a
contract with a licensed pest control company for the control of insects and
vermin. Lessee shall maintain, and annually renew, a bond for termite damage.
Any required tenting or subterranean treatment shall be promptly undertaken and
completed at the expense of Lessee.
11.1.4 Lessee shall maintain, at its expense, a
contract with a licensed and bonded landscaping company. Lessee shall maintain
the irrigation system and all landscaping shall be maintained in good appearance
in accordance with all requirements of the Industrial Park.
11.1.5 Lessee shall maintain the parking lot shown on
Exhibit "A", and all exterior lighting, in good and sightly condition and
repair.
11.1.6 Lessee shall be responsible for all painting,
interior and exterior, including all trim. Lessee shall maintain the exterior of
the building in a first-class manner consistent with the standards of the
Industrial Park.
-7-
8
11.1.7 Lessee shall maintain and annually renew a
maintenance contract for the air conditioning system and shall keep same in good
order and repair. Any repairs thereto, or replacements thereof, shall be the
sole responsibility of Lessee.
INDEMNITY
11.2.1 Lessee hereby agrees to defend, pay, indemnify
and save free and harmless Lessor, from and against any and all claims, demands,
fines, suits, actions, proceedings, orders, decrees anti judgments of any kind
or nature by or in favor of anyone whomsoever and from and against any and all
costs and expenses, including attorneys' fees, resulting from or in connection
with loss of life, bodily or personal injury or property damage arising,
directly or indirectly, out of or from or on account of any occurrence in, upon,
at or from the Demised Premises or occasioned wholly or in part through the use
and occupancy of the Demised Premises or any improvements therein or
appurtenances thereto, or by any act or omission of Lessee or any subtenant,
concessionaire or invitee of Lessee, or their respective employees, tenants,
contractors or invitees in, upon, at or from the Demised Premises or its
appurtenances or any common areas of the Industrial Park.
11.2.2 Lessee and all those claiming by, through or
under Lessee shall store their property in and shall occupy and use the Demised
Premises and any improvements therein and appurtenances thereto at their own
risk and expense and all those claiming by, through or under Lessee hereby
release Lessor, to the full extent permitted by law, from all claims of every
kind, including loss of life, personal or bodily injury, damage to merchandise,
equipment, fixtures or other property, or damage to business or for business
interruption, arising, directly or indirectly, out of or from or on account of
such occupancy and use or resulting from any present or future condition or
state of repair thereof.
11.2.3 Lessor shall not be responsible or liable at
any time to Lessee, for any loss of life, bodily or personal injury, or damage
to property or business, or for business interruption, that may be occasioned by
or through the acts, omissions or negligence of any other persons, or any other
tenants or occupants of any portion of the Newport Center.
11.2.4 Lessor shall not be responsible or liable at
any time for any defects, latent or otherwise, in the Demised Premises and/or
any other improvements in the industrial Park or any of the equipment,
machinery, utilities, appliances or apparatus therein, nor shall they be
responsible or liable at any tine for loss of life, or injury or damage to any
person or to any property or business of Lessee, or those claiming by, through,
or under Lessee, caused by or resulting from the bursting, breaking, leaking,
running, seeping, overflowing or backing up of water, steam, gas or sewage, in
any part of the Demised Premises or caused by or resulting from acts of God or
the elements, or resulting from any defect or negligence in the occupancy,
construction, operation or use of any buildings or improvements in the Demised
Premises, or any of the equipment, fixtures, machinery, appliances or apparatus
therein.
11.2.5 Lessee shall give prompt notice to Lessor in
case of fire or other casualty or accidents in the Demised premises, of any
defects therein or in any of its fixtures, machinery or equipment.
-8-
9
11.2.6 In case Lessor, without fault on its part,
shall be made a party to any litigation commenced by a third party or against
Lessee by a third party, then Lessee shall indemnify and hold Lessor harmless
therefrom and shall pay Lessor all costs and expenses including reasonable
attorneys, fees, which Lessor may sustain by reason thereof.
INSURANCE
11.3.1 Lessor, at Lessee's expense, will obtain and
maintain at all times until termination of this Lease and surrender of the
Demised Premises to Lessor, a primary policy of insurance covering the Demised
Premises and providing the insurance protection to Lessor described in this
Section. Lessor will retain in its possession the original policy and all
endorsements, renewal certificates and new policies, if any, issued during the
Term, but will provide Lessee upon request certificates evidencing the existence
of the policy. Lessee agrees to pay the premiums for such insurance as
additional rent within thirty (30) days after Lessor delivers personally or
mails an invoice therefor to Lessee. Lessee acknowledges that the payment of the
premiums is Lessee's responsibility, and Lessor will not be required to have
paid the premiums prior to invoicing the Lessee.
11.3.2 The liability coverage under the primary
policy will name Lessor and Lessor's mortgagee, only, as insured parties, and
will provide comprehensive general public liability insurance coverage against
claims for or arising out of bodily injury, death or property damage, occurring
in, an or about the Demised Premises or property in, on or about the streets,
sidewalks or properties adjacent to the Demised Premises. The limits of coverage
will be, if dual limits are provided, initially, not less than Two Million
Dollars ($2,000,000.00) with respect to injury or death of a single person, not
less than Two Million Dollars ($2,000,00.00) with respect to any one occurrence
and not less than One Million ($1,000,000.00) with respect to any one occurrence
of property damage, or, in the alternative, a single limit policy in the amount
of Two Million Dollars ($2,000,000.00), and thereafter in such reasonably
appropriate increased amounts as may be determined by Lessor or Lessor's
mortgagee; provided, however, that the amount of coverage will not be increased
more frequently than at one (1) year intervals.
11.3.3 The primary policy will insure the
Improvements, as defined above (but not any personal property, fixtures or
equipment of Lessee), for full replacement cost against loss by fire, with
standard extended risk coverage, vandalism, malicious mischief, sprinkler
leakage and all other risk perils. The named insured will be Lessor and Lessor's
mortgagee, only.
11.3.4 The primary policy also will provide loss of
rents coverage sufficient, as reasonably determined by Lessor, to cover the net
rental and all other charges which are the obligation of Lessee under this Lease
for a twelve-month period from the date of any loss or casualty.
11.3.5 In addition to the above, and not by way of
substitution therefor, Lessee shall obtain, at its own expense, a general
public, liability insurance policy, including blanket contractual coverage,
which shall name Lessor and Lessor's mortgagee as additional insureds. The
policy shall contain cross-liability endorsements, and shall have the sane
limits of coverage as set forth in Section 11.3.2 as changed or amended from
time to time Such policy
-9-
10
shall be issued by an insurance company having an A.M. Best Company rating of
not less than "A". The policy procured by Lessee under this Subsection must
provide for at least thirty (30) days written notice to Lessor of any
cancellation. At Lessor's option, either a certificate of insurance or the
original policy will be delivered by Lessee to Lessor prior to the effective
date thereof, together with receipts evidencing payment of the premiums. Lessee
will deliver certificates of renewal for such policies to Lessor at least thirty
(30) days prior to the expiration dates thereof. The insurance provided by
Lessee under this Subsection may be in the form of a blanket insurance policy
covering other properties as well as the Demised Premises; provided, however,
that any such policy or policies of blanket insurance must specify therein, or
Lessee must furnish Lessor with a written statement from the insurers under such
policy or policies specifying, the amount of the total insurance allocated to
the Demised Premises, which amount will not he less than the amounts required by
Subsection 11.3.2 hereof; provided, however, that any such policy or policies of
blanket insurance must, as to the Demised Premises, otherwise comply as to
endorsements and coverage with the other provisions of this Subsection.
11.3.6 Except with respect to the insurance
required hereof, neither Lessor nor Lessee may take out separate insurance
concurrent in form or contributing in the event of loss with that required under
this Section unless Lessor and Lessee are included therein as the insured
payable as provided in this Lease. Each party will notify the other immediately
of the placing of any such separate insurance.
11.3.7 If Lessee fails to provide all or any of the
insurance required hereof or subsequently fails to maintain such insurance in
accordance with the requirements thereof, Lessor may (but will not be required
to) procure or renew such insurance, and any amounts paid by Lessor for such
insurance will be additional rent, due and payable, on or before the next Rent
Day, together with late charges and interest as provided in Section 3.1.
11.3.8 If Lessor's mortgagee under any first mortgage
on the Demised Premises at any time requires, pursuant to the terms of the
mortgage, that payment of insurance premiums be made from an escrowed fund,
Lessor will so notify Lessee. In such event, Lessee will not directly pay the
insurance premiums, hut instead will pay to Lessor, as additional rent, the
amounts which Lessor must pay into the escrowed fund on account of such
premiums, If the actual premiums, when due, exceed the total payments from time
to tire made by Lessee into the escrowed fund, Lessee, upon demand, will pay any
deficiency to Lessor. If the payments made by Lessee under this Subsection over
the Term exceed the amount of premiums paid from such fund, Lessor will refund
the excess to Lessee at the expiration of the Term or at the time such excess is
refunded by the mortgagee to Lessor, whichever occurs first.
11.3.9 Neither Lessor nor Lessee shall be liable (by
way of subrogation or otherwise) to any other party (or any insurance
accompanying insuring another party) for any loss or damage to any : ,property
covered by insurance, even though such loss or damage might have been caused by
the negligence of Lessor or Lessee, or their respective agents, employees,
invitees or guests. This provision shall be in effect only so long as the
applicable insurance policies provide that this waiver shall not effect the
right of the insured to recover under such policies, and each party shall use
its best efforts (including payment of additional premiums, if
-10-
11
necessary) to have its insurance policies contain the standard waiver of
subrogation clause. In the event Lessor's or Lessee's insurance carrier declines
to accept a standard waiver of subrogation clause, Lessor or Lessee as the case
may be, shall promptly notify the other party, in which event the other party,
hall not be required to have its insurance policies contain such waiver of
subrogation clause and this clause shall be null and void.
11.3.10 Lessee shall not carry any stock of goods or
do anything in or about the Demised Premises (other than the purposes set forth
in Section 8.1 hereof) which in any way is likely to increase the insurance
rates on the Demised Premises and the building of which they are a part.
ARTICLE XII
Common Areas
12.1 The Common Areas of Newport Center are required to be
maintained by the Association in accordance with the Declaration of Covenants.
Lessee shall comply with all rules and regulations of the Association and all
provisions of the Declaration with respect to the use thereof.
ARTICLE XIII XIII
Mechanics Liens or Claims
13.1 Lessee shall do all things necessary to prevent the
filing of any mechanic's or other liens against the Demised Premises and/or
Newport Center by reason of any work, labor, services or materials performed or
supplied or claimed to have been performed or supplied to Lessee, or anyone
holding the Demised Premises, or any part thereof, through or under Lessee. If
any such lien shall at any time be filed, Lessee shall either cause the same to
be vacated and cancelled of record within thirty (30) days after the date Lessee
receives notice of the filing thereof, or, if Lessee in good faith determines
that such lien should be contested, Lessee shall furnish such security, as
surety bond or otherwise, as may be necessary or be prescribed by law to release
the same as a lien against the real property and to prevent any foreclosure of
such lien during the pendency of such contest. If Lessee shall fail to vacate or
release such lien in the manner and within the time period aforesaid, then, in
addition to any other right or remedy of Lessor resulting from such default by
Lessee, :Lessor may, but shall not be obligated to, vacate or release the same
either by paying the amount claimed to be due or by procuring the release of
such lien by giving security in such manner as may be permitted or prescribed by
law. Lessee shall repay to Lessor, as additional rent hereunder on demand, all
sums disbursed or deposited by Lessor pursuant to the foregoing provisions of
this Section, including Lessor's cost and expense of attorneys' fees incurred in
connection therewith. Nothing set forth herein shall be construed to authorize
Lessee's materialmen, contractors or suppliers to place a lien encumbering
Lessor's interest in the Demised Premises.
-11-
12
ARTICLE XIV
Destruction
14.1 It is understood and agreed that if the Demised
Premises arc! damaged or destroyed, in whole or in part, by fire or other
casualty during the Term, the Lessor will repair and restore the Demised
Premises to good leasable condition as expeditiously as practicable. The
obligation of Lessor hereunder shall be limited to reconstructing the Demised
Premises in accordance with the initial plans and specifications for the
construction of the Demised Premises. In no event s hall Lessor be required to
repair or replace Lessee's merchandise, trade fixtures, furnishings or equipment
c)r any alterations or additions to the Demised Premises accomplished by or on
behalf of the Lessee . The rent and all other charges which are the obligation
of Lessee under this Lease will xxxxx, if and to the extent covered by loss of
rents insurance proceeds, for the period the Demised Premises are unleasable.
14.2 Except for the abatement of the Minimum Rent
hereinabove set forth, Lessee shall not be entitled to and hereby waives all
claims against Lessor for any compensation or damage for loss of use of the
whole or any part of the Demised Premises and/or for any inconvenience or
annoyance occasioned by any such damage, destruction, repair or restoration.
ARTICLE XV
Access to Demised Premises
15.1 Lessee agrees to permit Lessor or Lessor's agents to
inspect or examine the Demised Premises at any reasonable tine during business
hours after reasonable notice (except in the event of an emergency). Lessor
shall have the right to enter the Devised Premises and to exhibit same to
prospective tenants and/or mortgagees, at reasonable times and with reasonable
frequency.
ARTICLE XVI
Surrender of Demised Premises
16.1 Lessee covenants and agrees to deliver up and surrender
to the Lessor possession of the Demised Premises upon expiration of this Lease,
or its earlier termination as herein provided, broom-clean and in as good
condition and repair as the same shall be at the commencement of the tern of
this Lease, ordinary wear and tear excepted.
16.2 On Lessor's written direction and at Lessor's option,
Lessee shall at Lessee's expense remove all property of Lessee and repair all
damage to the Demised Premises caused by such removal and restore the Demised
Premises to the condition in which they were prior to the installation of the
articles so removed. Ally property not so removed at the expiration of the term
hereof and as to which Lessor shall have not made said election, shall be deemed
to have been abandoned by Lessee and may be retained or disposed of by Lessor,
as Lessor shall desire. Lessee's obligation to observe or perform this covenant
shall survive the expiration or termination of this Lease.
-12-
13
ARTICLE XVII
Utilities
17.1 Lessee covenants and agrees to pay for all utility
services rendered or furnished to the Demised Premises, including air
conditioning, heat, water, gas, electricity, sewage treatment facilities and the
like, together with all taxes levied or other charges for such utilities.
ARTICLE XVIII
Assignment and Subletting
18.1 For purposes hereof, a sale of stock or transfer of
partnership or beneficial interests shall be deemed an "assignment".
18.2 Lessee agrees not to assign or in any manner transfer
this Lease or any interest in this Lease without the previous written consent of
Lessor, and not to sublet the Devised Premises or any part of the Demised
Premises or allow anyone to use or to come in with, through or under it without
like consent, which consent will not be withheld unreasonably. In no event may
Lessee assign or otherwise transfer this Lease or any interest in this Lease at
any time while in default thereunder. One such consent will not be deemed a
consent to any subsequent assignment, subletting, occupation, or use by any
other person. Lessee may, however, assign this Lease to a corporation with which
it may merge or consolidate, to any parent or subsidiary of Lessee or a
corporation with which it may merge or consolidate, to any parent or subsidiary
of Lessee or subsidiary of Lessee's parent, or to a purchaser of substantially
all of Lessee's assets if the assignee has assets and creditworthiness
substantially equal to or greater than Lessee and if assignee has assets and
creditworthiness substantially equal to or greater than Lessee and if the
assignee executes an agreement required by Lessor assuming Lessee's obligations.
The acceptance of rent from an assignee, sub-lessee or occupant will not
constitute a release of Lessee from any further performance of the obligations
of Lessee contained in this Lease. In the event of any assignment or sublease of
all or any portion of the Demised Premises where the rental or other
consideration reserved in the sublease or by the assignment exceeds the rental
or prorata portion of the rental as the case may be, for such space reserved in
this Lease, Lessee agrees to pay Lessor monthly, as additional rent, on the Rent
Day, the excess of the rental or other consideration reserved in the sublease or
assignment over the rental reserved in this Lease applicable to the
subleased/assigned space. Lessee acknowledges that Lessor selected Lessee in
part on the basis of Lessee's proposed use and occupation of the Demised
Premises, and agrees that Lessor nay withhold consent to any proposed sublease
or assignment if the sub-lessee's or assignee's business or proposed use of the
Demised Premises would be physically injurious to the Building.
18.3 Lessor and Lessee agree that any one of the following
factors, or any other reasonable factors, or any other reasonable factor, will
be reasonable grounds for Lessor deciding upon the Lessee's request to assign or
sublet:
-13-
14
(a) Financial strength of the supposed sublessee/assignee
must be at least equal to that of the existing Lessee.
(b) Business reputation of the proposed sublessee/assignee
must be in accordance with generally acceptable
commercial standards.
(c) Use of the Demised Premises by the proposed
sublessee/assignee must ha substantially similar to the
use permitted by this Lease.
(d) Use of the Demised Premises by the proposed
sublessee/assignee will not violate or create any
potential violation of any laws; and
(e) Use of the Demised Premises will not violate any other
agreements affecting the Demised Premises.
18.4 The approval by Lessor of a proposed sublease or
assignment as provided herein shall not release Lessee or Guarantors from the
obligations of "Lessee" under this Lease.
ARTICLE XIX
Condemnation
19.1 If seventy-five percent (75%) of more of the Building's
net rentable area is condemned or taken in any manner (including, without
limitation, any conveyance in lieu thereof) for any public or quasi-public use,
the Term shall cease and terminate as of the date title is vested in the
condemning authority. If twenty-five percent (25%) but less than seventy-five
percent (75%) of the Building's net rentable area is so condemned or taken, with
the result that Lessee's business is significantly and adversely affected
thereby, or if such a portion of the parking area is so condemned or taken that
the number of parking spaces remaining are less than the number required by
applicable :zoning or other code for the Building, then either Lessor or Lessee
may terminate this Lease as of the date title is vested in the condemning
authority by written notice to the other.
19.2 If this Lease is not terminated following such a
condemnation or taking, Lessor, as soon as reasonably practicable after such
condemnation or taking and the determination and payment of Lessor's award on
account thereof, shall expend as much as may be necessary of the net amount
which is awarded to Lessor and released by Lessor's mortgagee, if any, in
restoring, to the extent originally constructed by Lessor (consistent, however,
with zoning :Laws and building codes then in existence), so much of the Building
as was originally constructed by Lessor to an architectural[ unit as nearly like
its condition prior to taking as shall be practicable. Should the net amount so
awarded to Lessor be insufficient to cover the costs of restoring the Building,
in the reasonable estimate of Lessor, Lessor may, but shall have no obligation
to, supply the amount of such insufficiency and restore the Building to such an
architectural unit, with all reasonable diligence, or Lessor may terminate this
Lease by giving notice to Lessee not later than a reasonable time after Lessor
has determined the estimated net amount which may be awarded to Lessor and the
estimated cost of such restoration.
-14-
15
19.3 If this Lease is not terminated pursuant to Section
19.2, the minimum Rent payable by Lessee shall be reduced in proportion to the
reduction in net rentable area of the Building by reason of the condemnation or
taking. If this Lease is terminated pursuant to Section 19.1, the Minimum Rent
and other charges which are the obligation of Lessee hereunder shall be
apportioned and prorated accordingly as of the date of termination.
19.4 The whole of any award or compensation for any portion
of the Demised Premises taken, condemned or conveyed in lieu of taking or
condemnation shall be solely the property of and payable to Lessor. Nothing
herein to the contrary contained shall be deemed to preclude Lessee from
seeking, at its own cost and expense, an award from the condemning authority for
loss of its business, the value of any trade fixtures or other personal property
of Lessee in the Demised Premises or moving expenses, provided that the award
for such claim or claims shall not be in diminution of the award made to Lessor.
ARTICLE XX
Default and Remedies
20.1 The following events shall be deemed to be events of
default by Lessee under this Lease: (a) Lessee shall fail to pay any Rental or
other sums payable by Lessee hereunder, as and when such Rental or other sums
become due and payable, or Lessee shall fail to comply with any other term,
provision, condition or covenant of this Lease; (b) Lessee shall desert or
vacate any substantial portion of the Demised Premises; (c) any petition shall
be filed by or against Lessee or any guarantor of Lessee's obligations under
this Lease under any section or chapter of the present or any future Federal
Bankruptcy Code or under any similar law or statute of the United States or any
state thereof, or Lessee or any guarantor of Lessee's obligations under this
Lease shall be adjudged bankrupt or insolvent in proceedings filed under any
section or chapter of the present or any future Federal Bankruptcy Code or under
any similar law or statute of the United States or any state thereof; (d) Lessee
or any guarantor of Lessee's obligations under this Lease shall become insolvent
or make a transfer in fraud of creditors; (e) Lessee or any guarantor of this
Lease shall make an assignment for the benefit of creditors, or (f) a receiver
or trustee shall be appointed for of Lessee (or any Lessee (or any guarantor) or
any of the assets guarantor).
20.2 Upon occurrence of any event of default, Lessor shall
have the option to do any one or more of the following upon providing Lessee
seven (7) days notice and opportunity to cure any monetary default, or seven (7)
days notice and opportunity to commence cure and diligently pursue said cure of
any nonmonetary default, in addition to and not in limitation of any other
remedy permitted by, law or by this Lease.
(a) Terminate this Lease, in which event Lessee shall
immediately surrender the Demised Premises to Lessor,
but if Lessee shall fail so to do, Xxxxxx xxx without
notice and without prejudice to any other remedy Lessor
may have, enter upon and take possession of the Demised
Premises and expel or remove Lessee and its effects
without being liable to prosecution or any claim for
damages therefor; and Lessee agrees to indemnify Lessor
for all
-15-
16
loss and damage which Lessor may suffer by reason of
such termination, whether through inability
to relet the Demised Premises or otherwise, including
any loss of rental for the remainder of the Term.
(b) Declare the entire amount of the total Minimum Rental
which would have become due and payable during the
remainder of the Term of this Lease to be due and
payable immediately, in which event Lessee agrees to
pay the same to Lessor at once, it being agreed that
such payment shall constitute payment in advance of the
total Minimum Rental stipulated for the remainder of
the Tern. The acceptance by Lessor of the payment of
such rent shall not constitute a waiver of any default
then existing or thereafter occurring hereunder.
(c) Enter upon and take possession of the Demised Premises
as the agent of Lessee without being liable to
prosecution or any claim for damages therefor, and
Lessor may relet the Demised Premises as the agent of
Lessee and receive the rent therefor, in which event
Lessee shall pay to Lessor on demand the cost of
renovating, repairing and altering the Demised Premises
for a new lessee or lessees and any deficiency that nay
arise by reason of such reletting; provided, however,
that Lessor shall have no duty to relet the Demised
Premises and the failure of Lessor to relet the Demised
Premises shall not release or affect Lessee's liability
for rent or for damages.
(d) Lessor may do whatever Lessee is obligated to do by the
provisions of this Lease and may enter the Demised
Premises without being liable to prosecution or any
claim for damages therefor, in order to accomplish this
purpose. Lessee agrees to reimburse Lessor immediately
upon demand for any expenses which Lessor may incur in
thus effecting compliance with this Lease on behalf of
Lessee, and Lessee further agrees that Lessor shall not
be liable for any damages resulting to Lessee from such
action, whether caused by the negligence of Lessor or
otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other :remedies provided by
law, it being understood and agreed that Lessor shall have all rights and
remedies available under Florida law.
20.3 No act or thing done by Lessor or its agents during the
Term hereof shall be deemed an acceptance of an attempted surrender of the
Demised Premises, and no agreement to accept a surrender of the Demised Premises
shall be valid unless made in writing and signed by Lessor. No re-entry or
taking possession of the Demised Premises by Lessor shall be construed as an
election on its part to terminate this Lease, unless a written notice of such
intention be given to Lessee. Notwithstanding any such reletting or re-entry or
taking possession, Lessor may at any time thereafter elect to terminate this
Lease for a previous default. Lessor's acceptance of rent following an event of
default hereunder shall not be construed as
-16-
17
Lessor's waiver of such event of default. No waiver by Lessor of any violation
or breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other violation or breach
of any of the terms, provisions and covenants herein contained. Forbearance by
Lessor to enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of any other
violation or default.
20.4 No provision of this Lease shall be deemed to have been
waived by Lessor unless such waiver be in writing signed by Lessor. The rights
granted to Lessor in this Lease shall be cumulative of every other right or
remedy which Lessor may otherwise have! at law or equity, and the exercise of
one or more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
ARTICLE XXI
Mortgagee Approval
21.1 If any lending institution with which Lessor has
negotiated or may negotiate interim or long-term financing for the Demised
Premises does not approve the financial or credit rating of Lessee for purposes
of such financing, or if any such lending institution shall require a change or
changes (but not any changes in the rent to be paid by Lessee or the term
hereof) in this Lease as a condition of its approval of this Lease for such
financing, and if within thirty (30) days after notice from Lessor (a) Lessee
fails or refuses to supply or execute assurances and/or guarantees which are
stated by Lessor as indicated to be necessary to procure the approval of
Lessee's financial and credit rating by such lending institutions, or (b) Lessee
fails or refuses to execute with Lessor the amendment or amendments to this
Lease accomplishing the change or changes which are stated by Lessor to be
needed in connection with approval of this Lease for purposes of such financing,
Lessor shall have the right to cancel this Lease at any time prior to the
commencement of Lessee's Work. In the event of cancellation by Lessor hereunder,
this Lease shall be and become null and void with no further liability or
obligation on the party of either party hereto.
ARTICLE XXII
Estoppel Certificate, Attornment and subordination
22.1 This Lease is subject and subordinate to each and every
ground or underlying lease heretofore or hereafter made by Lessor (all of the
foregoing collectively being the "Superior Leases") and. to each and every trust
indenture and mortgage (collectively the "Mortgages") which may now or hereafter
affect the Demised Premises, and to all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made! thereunder. This clause shall be
self-operative and no further instrument of subordination shall be required to
make the interest of any lessor under a Superior Lease, or trustee or mortgagee
of a Mortgage. In confirmation of such subordination, however, Lessee shall
execute promptly any certificate with respect thereto that Lessor may request
and Lessee hereby irrevocably constitutes and appoints Lessor as Lessee's
attorney-in-fact to execute any such certificate or certificates for and on
behalf of
-17-
18
Lessee. However, should any lessor under such Superior Lease or any mortgagee
under any such Mortgage request that this Lease be made superior, rather than
subordinate, to any such Superior Lease and/or Mortgage, then Lessee, within ten
(10) days following Lessor's written request therefor, agrees to execute and
deliver, without charge, any and all documents (in form acceptable to Lessor and
such lessors or mortgagees) effectuating such priority. Lessee covenants and
agrees that, except as expressly provided herein, neither Lessor nor Lessee
shall do anything that would constitute a default under any Superior Lease or
Mortgage, or omit to do anything that Lessee is obligated to do under the terms
of this Lease so as to cause Lessor to be in default under any Of the foregoing.
22.2 Without limiting the generality of the foregoing, it is
understood and agreed that in the event of any conflict between the provisions
of this Lease and the provisions of any document (collectively, the "Bond
Documents") evidencing or securing the $1,736,000 Broward County, Florida
Industrial Development Revenue Bonds (Prestige Cosmetics Project), Series 1994
for the benefit of Broward County, Florida and/or First National Bank of Florida
as Trustee and/or First Union National Bank of Florida, the Bond Documents shall
govern and control.
22.3 From time to time, within seven (7) days next following
Lessor's request, Lessee shall deliver to Lessor a written statement executed
and acknowledged by Lessee, in form satisfactory to Lessor, (a) stating that
this Lease is then in full force and effect and has not been modified (or if
modified, setting forth all modifications), (b) setting forth the date to which
the Minimum Rent, additional rent and other charges hereunder have been paid,
(c) stating whether or not, to the best knowledge of Lessee, Lessor is in
default under this Lease, and, if Lessor is in default, setting forth the
specific nature of all such defaults, (d) certifying that construction of the
Demised Premises has been completed, (e) certifying that Lessee has accepted
possession of the Demised Premises, and (f) as to any other matter reasonably
requested by Lessor. Lessee acknowledges that any statement delivered pursuant
to this Section 22.2 may be relied upon by any purchaser or owner of the Demised
Premises, or by any mortgages of a Mortgage, or by any lessor under any superior
Lease.
22.4 Neither this Lease nor any notice thereof may recorded
in any public records without the prior written consent of Lessor. Upon the
request of Lessor, Lessee agrees to execute a short form of this Lease which nay
be recorded in Lessor's sole discretion.
ARTICLE XXIII
Holding Over
23.1 If Lessee shall remain in possession of all or any part
of the Demised Premises after the expiration of the term of this Lease or any
renewal thereof, with the consent of Lessor, then Lessee shall be deemed a
Lessee of the Demised Premises from month-to-month at the same rental and
subject to all of the terms and provisions hereof, except only as to the terms
of this Lease; provided, however, that the rent payable during such period as
Lessee shall continue to hold the Demised Premises or any part thereof shall be
at twice the highest annual
-18-
19
rate of Minimum Rent and additional rent heretofore paid during the term or any
renewal of this Lease.
ARTICLE XXIV
Quiet Enjoyment
24.1 Lessor covenants and agrees that if Lessee pays the
Minimum Rent and all charges herein provided and performs all of the covenants
and agreements herein stipulated to be provided on the Lessee's part, Lessee
shall, at all times during said term, have the peaceable and quiet enjoyment and
possession of the Demised Premises without any manner of hindrance from Lessor
or any persons lawfully claiming through Lessor, except as to such portion of
the Demised Premises as shall be taken under the power of eminent domain.
ARTICLE XXV
LANDLORD'S LIEN
25.1 Lessor shall have the benefit of all "landlord's liens"
and similar rights afforded to landlords under the provisions of Florida
statutes and case law.
ARTICLE XXVI
Reimbursement
26.1 All terms, covenants and conditions herein contained,
to be performed by Lessee, shall be performed at its sole expense and if Lessor
shall pay any sum of money or do any act which requires the payment of money, by
reason of the failure, neglect or refusal of Lessee to perform such term,
covenant, or condition, the sum of money so paid by Lessor shall be payable by
Lessee to Lessor along with and on the due date of the next succeeding
installment of rent without any prior demand therefor and without any deduction
or setoff whatsoever. All such documents so advanced by Lessor shall bear
interest at the maximum legal rate from the date advanced until date paid.
ARTICLE XXVII
Titles of Articles
27.1 The titles of the Articles throughout this Lease are
for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this instrument.
ARTICLE XXVIII
Notices
28.1 Any notice, request, demand, approval, consent or other
communication which Lessor or Lessee may be required to give to the other Party
shall be in writing and shall be either hand-delivered or mailed by certified
mail, return receipt requested, to the other Party at the address specified on
Page One hereof, or to the Demised Premises if such communication is to the
Lessee, or to such other address as either Party shall have designated to the
other pursuant
-19-
20
to this provision, and the time of the rendition of such communication shall be
deemed conclusively to be the date of hand-delivery of the date of mailing, as
the case may be.
ARTICLE XXIX
Definition of Terms
29.1 "Lease Year", as used herein, means in the first
instance the twelve (12) month period commencing with the first day of the
fourth calendar month next succeeding the Commencement Date. Thereafter "Lease
Year" shall mean each succeeding twelve (12) month period beginning on the
anniversary date of the commencement of first Lease Year. "Partial Lease Year"
shall mean any period prior to the first Lease Year or any period subsequent to
the last complete Lease Year thereof.
29.2 As used in this Lease and when required by the context,
each number (singular or plural) shall include all numbers, and each gender
shall include all genders; and unless the context otherwise requires, the word
"person" shall include corporation, firm or association".
29.3 "Term" shall mean the period of time specified under
Article II of this Lease.
ARTICLE XXX
Invalidity of Particular Provisions
30.1 If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall no be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE XXXI
Provisions Binding
31.1 Except as herein otherwise expressly provided, the
terns and provisions hereof shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators, successors and permitted assigns,
respectively, of the Lessor and Lessee. Each term and each provision of this
Lease to he performed by the Lessee shall be construed to be both an independent
covenant and a condition. The reference contained herein to successors and
assigns of Lessee is not intended to constitute a consent to assignment by
Lessee, but as reference only to those instances in which Lessor., may have
given written consent to a particular assignment pursuant to the terms of this
Lease.
-20-
21
ARTICLE XXXII
Relationship of Parties
32.1 Nothing contained in this Lease shall be deemed or
construed b@, the Parties hereto or by any third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association whatsoever between lessor and Lessee, it being expressly
understood and agreed that neither the computation of rent nor any other
provisions contained in this Lease nor any act or acts of the Parties hereto
shall be deemed to create any relationship between Lessor and Lessee other than
the relationship of landlord and tenant.
ARTICLE XXXIII
Brokerage
33.1 Lessee covenants, warrants and represents to Lessor
that no broker was instrumental in consummating this Lease and that no
conversation or prior negotiations were had by Lessee with any broker concerning
the renting of the Demised Premises. Lessee agrees to protect, indemnify, save
and keep harmless the Lessor against and from all claims, loss, cost, damage or
expense, including attorneys, fees, arising out of or from any claims for
brokerage commissions or finder's fees resulting from any conversation or
negotiations had by Lessee with any broker or other person other than the
Lessor's sale and leasing personnel.
ARTICLE XXXIV
Hazardous Materials
34.1 Lessee shall not cause or permit any "Hazardous
Material,, to be brought upon, kept, or used in or about the Demised Premises by
Lessee, its agents, employees, contractors or invitees. If Lessee breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Demised Premises caused or permitted by Lessee results in
contamination of the Demised Premises, then Lessee shall indemnify, defend and
hold Lessor harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, diminution
in value of usable space or of any amenity of the Demised Premises, damages
arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the lease term as a result of such contamination. This
indemnification of Lessor by Lessee includes, without limitation, costs incurred
in connection with any investigation or site conditions or any cleanup,
remedial, removal, or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Demised Premises. Without
limiting the foregoing, if the presence of any Hazardous Material on the Demised
Premises caused or permitted by Lessee results in any contamination of the
Demised Premises, Lessee shall promptly take all actions at its sole expense as
are necessary to return the Demised Premises to the condition existing prior to
the introduction of any such Hazardous Material to the Demised Premises;
provided that Lessor's approval of such actions shall first be obtained, which
approval shall not be unreasonably
-21-
22
withheld so long as such actions would not potentially have any material adverse
long-term or short-tern effect on the Demised Premises.
34.2 As used herein, the term "Hazardous Material"
means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, the State of
Florida or the United states Government. The term "Hazardous Material,
includes, without limitation, any material or substance that is (i)
defined as a "hazardous substance" under appropriate state law
provisions], (ii) petroleum, (iii) asbestos, (iv) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 51321), (v) defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. S6901 et seq. (42 U.S.C. ss.6903), (vi)
defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. ss.9601 et seq. (42 U.S.C. ss.9601) , or (vii) defined as a
"regulated substance" pursuant to Subchapter IX, Solid Waste Disposal
Act (Regulation of Underground Storage Tanks), 42 U.S.C. ss.6991 et
seq.
34.3 This indemnity shall survive the expiration or
termination of this Lease.
ARTICLE XXXV
Force majeure
35.1 Lessor shall be excused in the performance of any of
Lessor's obligations hereunder or in the delivery of the Demised Premises as
provided herein when delayed, hindered or prevented from so doing by any cause
or causes beyond Lessor's control, which shall include, without limitation, all
delays caused by Lessee, labor disputes, riots, civil commotion or insurrection,
war or war-like operations, invasion, rebellion, military or- usurped power,
sabotage, governmental restrictions, regulations or controls, inability to
obtain any materials, services or financing, fire or other casualties, or acts
of God. If as a result of any such events, Lessor shall be unable to exercise
any right or option within any time limit provided therefor in this Lease, such
time limit shall be deemed extended for a period equal to the duration of such
event.
ARTICLE XXXVI
No Waiver
36.1 The failure of Lessor to enforce any provision of this
Lease, or the failure of Lessor to exercise any right, option, or remedy hereby
reserved shall not be construed as a waiver for the future of any such
provision, right, option or remedy or a waiver of a subsequent breach thereof.
The consent or approval by Lessor of any act by Lessee requiring Lessor's
consent or approval shall not be construed to waive or render unnecessary the
requirement for Lessor's consent or approval of any subsequent similar act by
Lessee. The receipt by Lessor of rent with knowledge of a breach of any
provision of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived unless such waiver
shall be in writing signed by Lessor. No payment by Lessee or receipt by Lessor
of a lesser amount than the rents and/or charges then unpaid, nor shall any
endorsement or statement on any
-22-
23
check or any letter accompanying any check or payment by Lessee be deemed an
accord and satisfaction and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such rents and/or other
charges due, or Lessor may pursue any other remedy provided herein, and no
waiver by Lessor in favor of any other lessee or occupant of the Industrial Park
shall constitute a waiver in favor of the Lessee herein.
ARTICLE XXXVII
Entire Agreement, Etc.
37.1 This Lease, including any exhibits, riders and/or
addenda attached thereto, sets forth the entire agreement between the Parties.
All prior conversations or writings between the Parties hereto or their
representatives are merged herein and extinguished. This Lease shall not be
modified except by a writing subscribed to by all Parties, nor may this Lease be
cancelled by Lessee or the Demised Premises surrendered except with the written
consent of Lessor, unless otherwise specifically provided herein. The submission
by Lessor to Lessee of this Lease in draft from shall be deemed submitted solely
for Lessee's consideration and not for acceptance and execution. Such submission
shall have no binding force or effect, shall not constitute an option for the
leasing of the premises herein described, or confer any rights or constitute an
option for the leasing of the premises herein described, or confer any rights or
impose any obligations upon either Party. The submission by Lessor of this Lease
for execution by Lessee and the actual execution and delivery thereof by Lessee
to Lessor shall similarly have no binding force and effect unless and until
Lessor shall have executed this Lease and a duplicate original thereof shall
have been delivered to Lessee. If any provision contained in any rider or
addenda hereto is inconsistent with any printed provisions of this Lease, the
provision contained in such rider or addenda shall supersede such printed
provision.
ARTICLE XXXVIII
Waiver of Liability
38.1 Anything contained in this Lease to the contrary
notwithstanding, Lessee agrees that Lessee (and all parties claiming through
Lessee) shall look solely to the estate and property of the Lessor in the
Demised Premises for the collection of any judgment (or other judicial process)
requiring the payment of money by Lessor in the event of any default or breach
by Lessor with respect to any of the terms and provisions of this Lease to be
observed and/or performed by Lessor, subject, however, to the prior rights of
any ground or underlying lessors or the holder of any mortgage covering the
Demised Premises, and no other assets of the Lessor shall be subject to levy,
execution or other judicial process for the satisfaction of Lessee's claim. In
the event Lessor conveys or transfers its interest in the Demised Premises or in
this Lease, except as collateral security for a loan, upon such conveyance or
transfer Lessor (and in the case of any subsequent conveyances or transfers, the
then grantor or transferor) shall be entirely released and relieved from all
liability with respect to the performance of any covenants and obligations on
the part of the Lessor to be performed hereunder from and after the date of such
conveyance or transfer, provided that any amounts then due and payable to lessee
by Lessor (or by the then grantor or transferor) for Lessee under any provision
of this Lease, shall either be paid or assured by the grantee or transferee, it
being intended hereby that the covenants and
-23-
24
obligations on the part of the Lessor to be performed hereunder shall, subject
as aforesaid, be binding on Lessor, its successors and assigns only during and
in respect of their respective periods of ownership of an interest in this
Lease. This provision shall not be deemed, construed or interpreted to be or
constitute an agreement, express or implied, between Lessor and Lessee that the
Lessor's interest hereunder and in the Demised Premises shall be subject to the
imposition of an equitable lien or otherwise.
ARTICLE XXXIX
Corporate Lessee
39.1 If Lessee is or will be a corporation, the persons exec
ting this Lease on behalf of Lessee shall supply Lessor with evidence acceptable
to Lessor that Lessee is duly incorporated and authorized to do business in the
State of Florida; and that the persons executing this Lease on behalf of Lessee
are officers of such Lessee, and that they as such officers are duly authorized
to sign and execute this Lease. If not already filed, Lessee shall also execute
and file a certificate of registered agent and office with the Secretary of
State of Florida within thirty (30) days after the execution and delivery of
this Lease; and a copy of such certificate shall be delivered to Lessor.
ARTICLE XL
[INTENTIONALLY DELETED]
ARTICLE XLI
Radon
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT
HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES,. MAY PRESENT HEALTH RISK
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.
ARTICLE XLII
Miscellaneous Matters
42.1 Lessee shall promptly pay to Lessor all costs and
expenses of collection, including a reasonable attorneys' fee, with respect to
any part of the rent and other charges and sums of money herein reserved or
required by Lessee to be paid and met, which may be sustained or incurred by
Lessor, after the date the same, or any portion thereof, becomes due; and Lessee
further agrees to pay all reasonable costs and expenses, including a reasonable!
attorneys, fee, which may be sustained or incurred by Lessor in or about the
enforcement or declaration of any of the rights or- remedies of Lessor or
obligations of Lessee, whether arising under this Lease or granted, permitted or
imposed by law or otherwise. In any litigation between Lessor and Lessee, the
prevailing party shall be entitled to reasonable court costs and attorneys"
fees.
-24-
25
42.2 Lessor shall not be liable to Lessee for failure to
enforce or for violation of any of the rules and regulations or the breach of
any covenant or condition by any other occupant of the Industrial Park.
42.3 Anything in this Lease to the contrary notwithstanding,
the term "Lessor" shall be limited to mean and include only the then owner of
the Demised Premises. At the tine of execution hereof, Lessor is the fee simple
owner of the Demised Premises.
42.4 Anything in this Lease to the contrary notwithstanding,
any judgment obtained against Lessor in connection. with this Lease or the
subject matter hereof shall be limited solely to Lessor's interest in the
Demised Premises and shall be absolutely non-recourse with respect to Lessor
personally (including, if applicable any general partners of Lessor) and all
other assets of Lessor.
42.5 Any floor plan or other plan, drawing or sketch which
is attached to or made a part of this Lease, is used solely for the purpose of a
reasonably approximate identification and location of the Demised Premises, and
any markings, measurements, dimensions or notes of any kind contained therein
(other than the outline of the Demised Premises as an approximate identification
and location thereof) have no bearing with respect to the terms and conditions
of this Lease and are not to be considered a part of this Lease.
42.6 This Lease, or a memorandum thereof, may be recorded
only at the direction of Lessor. In the event Lessor desires any such
recordation, Lessee shall cooperate with Lessor and execute all documents with
respect thereto that Lessor deems appropriate.
IN WITNESS WHEREOF, the Lessor and Lessee have cause this Lease to be
signed on the date first above written.
WITNESSES: LESSOR:
C & C GENERAL PARTNERSHIP, a Florida
general partnership
------------------------------
Name: By:
-----------------------------------
Name:
Title
------------------------------
Name: LESSEE: [CORP SEAL]
LANCETTI COSMETICS CORPORATION, a
Florida corporation
------------------------------
Name: By:
-----------------------------------
Name:
Title
------------------------------
Name:
-25-
