\n 22 – DAMAGE OR DESTRUCTION……………………………………. 22<\/p>\n 23 – EMINENT DOMAIN………………………………………….. 23<\/p>\n
24 – SURRENDER………………………………………………. 24<\/p>\n
25 – CONDITIONS OF LIMITATION…………………………………. 25<\/p>\n
26 – RE-ENTRY BY LANDLORD…………………………………….. 26<\/p>\n
27 – DAMAGES………………………………………………… 27<\/p>\n
28 – AFFIRMATIVE WAIVERS……………………………………… 29<\/p>\n
29 – NO WAIVERS……………………………………………… 29<\/p>\n
30 – CURING TENANT’S DEFAULTS…………………………………. 30<\/p>\n
31 – BROKER…………………………………………………. 30<\/p>\n
32 – NOTICES………………………………………………… 30<\/p>\n
33 – ESTOPPEL CERTIFICATES……………………………………. 31<\/p>\n
34 – ARBITRATION…………………………………………….. 31<\/p>\n
35 – MEMORANDUM OF LEASE……………………………………… 31<\/p>\n
36 – MISCELLANEOUS…………………………………………… 31
\n<\/c><\/s><\/table>\n
EXHIBITS<\/p>\n
Exhibit A – Omitted <\/p>\n
Exhibit B – Site Plan <\/p>\n
Exhibit C – Work and Installation to be Performed and Furnished in
\n Demised Premises <\/p>\n
Exhibit D – Rules and Regulations <\/p>\n
Exhibit E – Letter of Credit <\/p>\n
052997<\/p>\n
LEASE, dated June 10, 1997, between HARTZ MOUNTAIN INDUSTRIES, INC. a New
\nYork corporation, having an office at 400 Plaza Drive, Secaucus, New Jersey
\n07094-3688 (“Landlord”), and PEPE JEANS USA, INC., a California corporation,
\nhaving an office at 10 Mulholland Drive, Hasbrouck Heights, NJ 07604 (“Tenant”).<\/p>\n
ARTICLE 1 – DEFINITIONS<\/p>\n
1.01. As used in this Lease (including in all Exhibits and any Riders
\nattached hereto, all of which shall be deemed to be part of this Lease) the
\nfollowing words and phrases shall have the meanings indicated:<\/p>\n
A. Advance Rent: $111,915.17<\/p>\n
B. Additional Charges: All amounts that become payable by Tenant to
\nLandlord hereunder other than the Fixed Rent and Percentage Rent.<\/p>\n
C. Architect: Kenneth Carl Bonte, or as Landlord may designate.<\/p>\n
D. Broker: Chaus Realty<\/p>\n
E. Building: The building or buildings located on the Land and known as
\n35 Henry Street, Secaucus, NJ.<\/p>\n
F. Business Days: All days except Saturdays, Sundays, days observed by the
\nfederal or state government as legal holidays.<\/p>\n
G. Business Hours: Generally customary daytime business hours, but not
\nbefore 9:00 A.M. or after 6:00 P.M.<\/p>\n
H. Calendar Year: Any twelve-month period commencing on a January 1.<\/p>\n
I. Commencement Date: September 1, 1997, subject to Unavoidable Delays.<\/p>\n
J. Demised Premises: The Building and the Land known as 35 Henry Street,
\nSecaucus, New Jersey depicted on the site plan(s) attached hereto as Exhibit B,
\noutlined in red. The Building on the Demised Premises contains approximately
\n323,610 square feet of Floor Space.<\/p>\n
K. Expiration Date: The date that is the day before the fifth (5th)
\nanniversary of the Commencement Date if the Commencement Date is the first day
\nof a month, or the fifth (5th) anniversary <\/p>\n
3<\/p>\n
of the last day of the month in which the Commencement Date occurs if the
\nCommencement Date is not the first day of a month. However, if the Term is
\nextended by Tenant’s effective exercise of Tenant’s right, if any, to extend the
\nTerm, the “Expiration Date” shall be changed to the last day of the latest
\nextended period as to which Tenant shall have effectively exercised its right to
\nextend the Term. For the purposes of this definition, the earlier termination of
\nthis Lease shall not affect the “Expiration Date.”<\/p>\n
L. Fixed Rent: An amount at the annual rate of Four and 15\/100 ($4.15)
\nDollars multiplied by the Floor Space of the Demised Premises.<\/p>\n
M. Floor Space: As to the Demised Premises, the sum of the floor area
\nstated in square feet bounded by the exterior faces of the exterior walls. Any
\nreference to Floor Space of a building shall mean the floor area of all levels
\nor stories of such building, excluding any roof, except such portion thereof
\n(other than cooling towers, elevator penthouses, mechanical rooms, chimneys and
\nstaircases, entrances and exits) as is permanently enclosed, and including any
\ninterior basement level or mezzanine area not occupied or used by a tenant on a
\ncontinuing or repetitive basis, and any mechanical room, enclosed or interior
\ntruck dock, and areas used for housing meters and\/or other equipment or for
\nother purposes. Any reference to the Floor Space is intended to refer to the
\nFloor Space of the entire area in question irrespective of the Person(s) who may
\nbe the owner(s) of all or any part thereof.<\/p>\n
N. Guarantor: None<\/p>\n
O. Insurance Requirements: Rules, regulations, orders and other
\nrequirements of the applicable board of underwriters disclosed to Tenant and\/or
\nthe applicable fire insurance rating organization and\/or any other similar body
\nperforming the same or similar functions and having jurisdiction or cognizance
\nover the Land and Building, whether now or hereafter in force.<\/p>\n
P. Land: The land upon which the Demised Premises are located.<\/p>\n
Q. Landlord’s Work: The materials and work to be furnished, installed and
\nperformed by Landlord at its expense in accordance with the provisions of
\nExhibit C.<\/p>\n
R. Legal Requirements: Laws and ordinances of all federal, state, county,
\nand municipal governments, and rules, regulations, orders and directives of all
\ndepartments, subdivisions, bureaus, agencies or offices thereof, and of any
\nother governmental, public or quasi-public authorities having jurisdiction over
\nthe Land and Building, whether now or hereafter in force, including, but not
\nlimited to, those pertaining to environmental matters.<\/p>\n
S. Mortgage: A mortgage and\/or a deed of trust.<\/p>\n
T. Mortgagee: A holder of a mortgage or a beneficiary of a deed of trust.<\/p>\n
U. Permitted Uses: Warehousing and distribution of non-hazardous
\nmaterials and ancillary offices and warehouse outlet store incidental to the
\noperation of the warehouse portion of the Demised Premises <\/p>\n
4<\/p>\n
in an area not to exceed the lesser of (i) 2,500 square feet or (ii) the size
\npermitted by applicable zoning requirements.<\/p>\n
V. Person: A natural person or persons, a partnership, a corporation, or
\nany other form of business or legal association or entity.<\/p>\n
W. Ready for Occupancy: The condition of the Demised Premises when for
\nthe first time the Landlord’s Work shall have been substantially completed and a
\ntemporary or permanent Certificate of Occupancy shall have been issued
\npermitting use of the Demised Premises for the warehousing and distribution of
\nnon-hazardous materials and ancillary offices. The Landlord’s Work shall be
\ndeemed substantially completed notwithstanding the fact that minor or
\ninsubstantial details of construction, mechanical adjustment or decoration
\nremain to be performed, the noncompletion of which does not in Tenant’s
\nreasonable judgement materially interfere with Tenant’s use of the Demised
\nPremises.<\/p>\n
X. Real Estate Taxes: The real estate taxes, assessments, special
\nassessments, sewer rents, water charges, and all other similar charges and
\nimpositions imposed upon the Building and Land by any federal, state, municipal
\nor other governments or governmental bodies or authorities, and any expenses
\nincurred by Landlord in contesting such taxes or assessments and\/or the assessed
\nvalue of the Building and Land, which expenses shall be allocated to the period
\nof time to which such expenses relate. If at any time during the Term the
\nmethods of taxation prevailing on the date hereof shall be altered so that in
\nlieu of, or as an addition to or as a substitute for, the whole or any part of
\nsuch real estate taxes, assessments and special assessments now imposed on real
\nestate there shall be levied, assessed or imposed (a) a tax, assessment, levy,
\nimposition, license fee or charge wholly or partially as a capital levy or
\notherwise on the rents received therefrom, or (b) any other such additional or
\nsubstitute tax, assessment, levy, imposition or charge, then all such taxes,
\nassessments, levies, impositions, fees or charges or the part thereof so
\nmeasured or based shall be deemed to be included within the term “Real Estate
\nTaxes” for the purposes hereof.<\/p>\n
Y. Rent: The Fixed Rent, the Percentage Rent and the Additional Charges.<\/p>\n
Z. Rules and Regulations: The reasonable rules and regulations that may
\nbe promulgated by Landlord from time to time, which may be reasonably changed by
\nLandlord from time to time. The Rules and Regulations now in effect are
\nattached hereto as Exhibit D.<\/p>\n
AA. Security Deposit: Such amount as Tenant has deposited or hereinafter
\ndeposits with Landlord as security under this Lease. Tenant is required to
\ndeposit the sum of $111,915.17 with Landlord as security hereunder as of the
\ndate hereof.<\/p>\n
BB. Successor Landlord: As defined in Section 9.03.<\/p>\n
CC. Superior Lease: Any lease to which this Lease is, at the time
\nreferred to, subject and subordinate and which has been disclosed in writing to
\nTenant.<\/p>\n
DD. Superior Lessor: The lessor of a Superior Lease or its successor in
\ninterest, at the time <\/p>\n
5<\/p>\n
referred to.<\/p>\n
EE. Superior Mortgage: Any Mortgage to which this Lease is, at the time
\nreferred to, subject and subordinate.<\/p>\n
FF. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the time
\nreferred to.<\/p>\n
GG. Tenant’s Property: As defined in Section 16.02.<\/p>\n
HH. Tenant’s Work: The facilities, materials and work which may be
\nundertaken by or for the account of Tenant (other than the Landlord’s Work) to
\nequip, decorate and furnish the Demised Premises for Tenant’s occupancy in
\naccordance with the provisions of Exhibit C.<\/p>\n
II. Term: The period commencing on the Commencement Date and ending at
\n11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
\ndate when this Lease is earlier terminated.<\/p>\n
JJ. Unavoidable Delays: A delay arising from or as a result of a strike,
\nlockout, or labor difficulty, explosion, sabotage, accident, riot or civil
\ncommotion, act of war, fire or other catastrophe, Legal Requirement or an act of
\nthe other party and any cause beyond the reasonable control of that party,
\nprovided that the party asserting such Unavoidable Delay has exercised its best
\nefforts to minimize such delay.<\/p>\n
ARTICLE 2 – DEMISE AND TERM<\/p>\n
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
\nLandlord, the Demised Premises, for the Term. This Lease is subject to (a) any
\nand all existing encumbrances, conditions, rights, covenants, easements,
\nrestrictions and rights of way, of record, and other matters of record,
\napplicable zoning and building laws, regulations and codes, and such matters as
\nmay be disclosed by an inspection or survey, and (b) easements now or hereafter
\ncreated by Landlord in, under, over, across and upon the Land for access, sewer,
\nwater, electric, gas and other utility lines and services now or hereafter
\ninstalled; provided, however, Landlord represents covenants and warrants to
\nTenant that the Demises Premises may be used and occupied for the purposes set
\nforth herein; and that the foregoing shall in no manner interfere with Tenant’s
\nuse and quiet enjoyment of the Demised Premises. Promptly following the
\nCommencement Date, the parties hereto shall enter into an agreement in form and
\nsubstance satisfactory to Landlord setting forth the Commencement Date.<\/p>\n
ARTICLE 3 – RENT<\/p>\n
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
\nadvance on the first day of each and every calendar month during the Term
\n(except that Tenant shall pay, upon the execution and delivery of this Lease by
\nTenant, the Advance Rent, to be applied against the first installment or
\ninstallments of Fixed Rent becoming due under this Lease). If the Commencement
\nDate occurs on a day other than the first day of a calendar month, the Fixed
\nRent for the partial calendar month at the<\/p>\n
6<\/p>\n
commencement of the Term shall be prorated.<\/p>\n
3.02. The Rent shall be paid in lawful money of the United States to
\nLandlord at its office, or such other place, or Landlord’s agent, as Landlord
\nshall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
\nwithout notice or demand therefor and without any abatement, deduction or setoff
\nfor any reason whatsoever, except as may be expressly provided in this Lease. If
\nTenant makes any payment to Landlord by check, same shall be by check of Tenant
\nand Landlord shall not be required to accept the check of any other Person, and
\nany check received by Landlord shall be deemed received subject to collection.
\nIf any check is mailed by Tenant, Tenant shall post such check in sufficient
\ntime prior to the date when payment is due so that such check will be received
\nby Landlord on or before the date when payment is due. Tenant shall assume the
\nrisk of lateness or failure of delivery of the mails, and no lateness or failure
\nof the mails will excuse Tenant from its obligation to have made the payment in
\nquestion when required under this Lease.<\/p>\n
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
\nlesser amount than the correct Rent shall be deemed to be other than a payment
\non account, nor shall any endorsement or statement on any check or any letter
\naccompanying any check or payment be deemed an accord and satisfaction, and
\nLandlord may accept such check or payment without prejudice to Landlord’s right
\nto recover the balance or pursue any other remedy in this Lease or at law
\nprovided.<\/p>\n
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant’s
\nright, if any, to designate the items to which any payments made by Tenant are
\nto be credited, and Landlord may apply any payments made by Tenant to such items
\nas Landlord sees fit, irrespective of and notwithstanding any designation or
\nrequest by Tenant as to the items to which any such payments shall be credited.<\/p>\n
3.05. In the event that any installment of Rent due hereunder shall be
\noverdue, a “Late Charge” equal to four percent (4%) or the maximum rate
\npermitted by law, whichever is less (“Late Payment Rate”) for Rent so overdue
\nmay be charged by Landlord for each month or part thereof that the same remains
\noverdue. In the event that any check tendered by Tenant to Landlord is returned
\nfor insufficient funds, Tenant shall pay to Landlord, in addition to the charge
\nimposed by the preceding sentence, a fee of $25.00. Any such Late Charges if not
\npreviously paid shall, at the option of the Landlord, be added to and become
\npart of the next succeeding Rent payment to be made hereunder.<\/p>\n
3.06 It is intended that the Fixed Rent shall be an absolutely net return
\nto Landlord throughout the Term, free of any expense, charge or other deduction
\nwhatsoever, with respect to the Demised Premises, the Building, the Land and\/or
\nthe ownership, leasing, operation, management, maintenance, repair, rebuilding,
\nuse or occupation thereof, or any portion thereof, with respect to any interest
\nof Landlord therein.<\/p>\n
ARTICLE 4 – USE OF DEMISED PREMISES<\/p>\n
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
\nUses, and Tenant shall not use or permit or suffer the use of the Demised
\nPremises or any part thereof for any other purpose.<\/p>\n
7<\/p>\n
4.02. If any governmental license or permit, including a certificate of
\noccupancy or certificate of continued occupancy (a “Certificate of Occupancy”)
\nfor the Demised Premises, shall be required for the proper and lawful conduct of
\nTenant’s business in the Demised Premises or any part thereof, Tenant shall duly
\nprocure and thereafter maintain such license or permit and submit the same to
\nLandlord for inspection. Tenant shall at all times comply with the terms and
\nconditions of each such license or permit. Tenant shall not at any time use or
\noccupy, or suffer or permit anyone to use or occupy the Demised Premises, or do
\nor permit anything to be done in the Demised Premises, in any manner which (a)
\nviolates the Certificate of Occupancy for the Demised Premises or for the
\nBuilding; (b) causes or is liable to cause injury to the Building or any
\nequipment, facilities or systems therein; (c) constitutes a violation of the
\nLegal Requirements or Insurance Requirements; (d) impairs or tends to impair the
\ncharacter, reputation or appearance of the Building; (e) impairs or tends to
\nimpair the proper and economic maintenance, operation and repair of the Building
\nand\/or its equipment, facilities or systems. Notwithstanding the foregoing,
\nLandlord shall be responsible for obtaining the initial temporary or permanent
\ncertificate of occupancy or continued occupancy upon the completion of the
\nLandlord’s Work.<\/p>\n
ARTICLE 5 – PREPARATION OF DEMISED PREMISES<\/p>\n
5.01. The Demised Premises shall be completed and prepared for Tenant’s
\noccupancy in the manner described in, and subject to the provisions of, Exhibit
\nC. Tenant shall occupy the Demised Premises promptly after the same are Ready
\nfor Occupancy and possession thereof is delivered to Tenant by Landlord giving
\nto Tenant a notice of such effect. Except as expressly provided to the contrary
\nin this Lease, the taking of possession by Tenant of the Demised Premises shall
\nbe conclusive evidence as against Tenant that the Demised Premises and the
\nBuilding were in good and satisfactory condition at the time such possession was
\ntaken. Except as expressly provided to the contrary in this Lease, Tenant is
\nleasing the Demised Premises “as is” on the date hereof, subject to reasonable
\nwear and tear and the rights of the present occupant(s) of the Demised Premises
\nto remove its or their trade fixtures and other property from the Demised
\nPremises.<\/p>\n
5.02. If the substantial completion of the Landlord’s Work shall be
\ndelayed due to (a) any act or omission of Tenant or any of its employees, agents
\nor contractors (including, without limitation, [i] any delays due to changes in
\nor additions to the Landlord’s Work, or [ii] any delays by Tenant in the
\nsubmission of plans, drawings, specifications or other information or in
\napproving any working drawings or estimates or in giving any authorizations or
\napprovals), or (b) any additional time needed for the completion of the
\nLandlord’s Work by the inclusion in the Landlord’s Work of any items specified
\nby Tenant that require long lead time for delivery or installation, then the
\nDemised Premises shall be deemed Ready for Occupancy on the date when they would
\nhave been ready but for such delay(s). The Demised Premises shall be
\nconclusively presumed to be in satisfactory condition on the Commencement Date
\nexcept for the minor or insubstantial details of which Tenant gives Landlord
\nnotice within thirty (30) days after the Commencement Date specifying such
\ndetails with reasonable particularity.<\/p>\n
5.03. If Landlord is unable to give possession of the Demised Premises on
\nthe Commencement Date because of the holding-over or retention of possession by
\nany tenant, undertenant or occupant, Landlord shall not be subject to any
\nliability for failure to give possession, the validity of this Lease shall<\/p>\n
8<\/p>\n
not be impaired under such circumstances, and the Term shall not be extended,
\nbut the Rent shall be abated if Tenant is not responsible for the inability to
\nobtain possession.<\/p>\n
5.04. Landlord reserves the right, at any time and from time to time, to
\nincrease, reduce or change the number, type, size, location, elevation, nature
\nand use of the Building and any other buildings and other improvements on the
\nLand, including, without limitation, the right to move and\/or remove same,
\nprovided same shall not unreasonably block or interfere with Tenant’s means of
\ningress or egress to and from the Demised Premises or its right to uninterrupted
\nuse and enjoyment of the entire Floor Space under this Lease.<\/p>\n
ARTICLE 6 – TAX AND OPERATING EXPENSE PAYMENTS<\/p>\n
6.01. Promptly following the Commencement Date, Landlord shall provide
\nwritten notice to the Town of Secaucus advising that tax invoices should be
\nremitted directly to the Tenant. Tenant shall pay all Real Estate Taxes not
\nlater than thirty (30) days prior to the date when such Real Estate Taxes shall
\nfirst become due. Not later than fifteen days prior to such due date, Tenant
\nshall deliver to Landlord evidence of such payment. Any Real Estate Taxes for a
\nreal estate fiscal tax year, a part of which is included within the Term and a
\npart of which is not so included, shall be apportioned on the basis of the
\nnumber of days in the real estate fiscal tax year included in the Term, and the
\nreal estate fiscal tax year for any improvement assessment will be deemed to be
\nthe one-year period commencing on the date when such assessment is due, except
\nthat if any improvement assessment is payable in installments, the real estate
\nfiscal tax year for each installment will be deemed to be the one-year period
\ncommencing on the date when such installment is due. In addition to the
\nforegoing, Tenant shall be responsible for any increase in Real Estate Taxes
\nattributable to assessments for improvements installed by or for the account of
\nTenant at the Demised Premises. If the Demised Premises are not separately
\nassessed, the amount of any such increase shall be determined by reference to
\nthe records of the tax assessor.<\/p>\n
6.02. Subject to the provisions of Article 17, Tenant shall be solely
\nresponsible for the full and prompt payment of all expenses of or relating to
\nthe Demised Premises and all utilities servicing same provided, however, that in
\nno event shall Tenant be responsible for the payment of any of Landlord’s ground
\nrent, mortgage debt service, or Landlord’s income taxes, or capital gains, or
\nmortgage or transfer taxes imposed upon Landlord.<\/p>\n
ARTICLE 7 – OMITTED<\/p>\n
ARTICLE 8 – SECURITY<\/p>\n
8.01. (a) In the event Tenant deposits with Landlord any Security
\nDeposit, the same shall be held as security for the full and faithful payment
\nand performance by Tenant of Tenant’s obligations under this Lease. If Tenant
\ndefaults in the full and prompt payment and performance of any of its
\nobligations under this Lease, including, without limitation, the payment of
\nRent, Landlord may use, apply or retain the whole or any part of the security so
\ndeposited to the extent required for the payment of any Rent or any other sums
\nas to which Tenant is in default or for any sum which Landlord may expend or may
\nbe required to<\/p>\n
9<\/p>\n
expend by reason of Tenant’s default in respect of any of Tenant’s obligations
\nunder this Lease, including, without limitation, any damages or deficiency in
\nthe reletting of the Demised Premises, whether such damages or deficiency accrue
\nbefore or after summary proceedings or other re-entry by Landlord. If Landlord
\nshall so use, apply or retain the whole or any part of the security, Tenant
\nshall upon demand immediately deposit with Landlord a sum equal to the amount so
\nused, applied and retained, as security as aforesaid. If Tenant shall fully and
\nfaithfully pay and perform all of Tenant’s obligations under this Lease, the
\nsecurity or any balance thereof to which Tenant is entitled shall be returned or
\npaid over to Tenant no later than thirty (30) days after the date on which this
\nLease shall expire or sooner end or terminate, and after delivery to Landlord of
\nentire possession of the Demised Premises. In the event of any sale or leasing
\nof the Land, Landlord shall have the right to transfer the security to which
\nTenant is entitled to the vendee or lessee and Landlord shall thereupon be
\nreleased by Tenant from all liability for the return or payment thereof; and
\nTenant shall look solely to the new landlord for the return or payment of the
\nsame; and the provisions hereof shall apply to every transfer or assignment made
\nof the same to a new landlord. Tenant shall not assign or encumber or attempt to
\nassign or encumber the monies deposited herein as security, and neither Landlord
\nnor its successors or assigns shall be bound by any such assignment,
\nencumbrance, attempted assignment or attempted encumbrance.<\/p>\n
8.01. (b) In lieu of the cash security required by this Lease, Tenant
\nshall provide to Landlord an irrevocable transferrable Letter of Credit in the
\namount of the Security Deposit in form and substance attached hereto as Exhibit
\nE and issued by a financial institution approved by Landlord. Landlord shall
\nhave the right, upon written notice to Tenant (except that for Tenant’s non-
\npayment of Rent or for Tenant’s failure to comply with Article 8.03, no such
\nnotice shall be required) and regardless of the exercise of any other remedy the
\nLandlord may have by reason of a default, to draw upon said Letter of Credit to
\ncure any default of Tenant or for any purpose authorized by section 8.01(a) of
\nthis Lease and if Landlord does so, Tenant shall, upon demand, additionally fund
\nthe Letter of Credit with the amount so drawn so that Landlord shall have the
\nfull deposit on hand at all times during the Term of the Lease and for a period
\nof thirty (30) days’ thereafter. In the event of a sale of the Building or a
\nlease of the Building subject to this Lease, Landlord shall have the right to
\ntransfer the security to the vendee or lessee.<\/p>\n
8.02. The Letter of Credit shall expire not earlier than thirty (30) days
\nafter the Expiration Date of this Lease. Upon Landlord’s prior consent, the
\nLetter of Credit may be of the type which is automatically renewed on an annual
\nbasis (Annual Renewal Date), provided however, in such event Tenant shall
\nmaintain the Letter of Credit and its renewals in full force and effect during
\nthe entire Term of this Lease (including any renewals or extensions) and for a
\nperiod of thirty (30) days thereafter. The Letter of Credit will contain a
\nprovision requiring the issuer thereof to give the beneficiary (Landlord) sixty
\n(60) days’ advance written notice of its intention not to renew the Letter of
\nCredit on the next Annual Renewal Date.<\/p>\n
8.03. In the event Tenant shall fail to deliver to Landlord a substitute
\nirrevocable Letter of Credit, in the amount stated above, on or before thirty
\n(30) days prior to the next Annual Renewal Date, said failure shall be deemed a
\ndefault under this Lease. Landlord may, in its discretion treat this the same as
\na default in the payment of Rent or any other default and pursue the appropriate
\nremedy. In addition, and not in limitation, Landlord shall be permitted to draw
\nupon the Letter of Credit as in the case of any other<\/p>\n
10<\/p>\n
default by Tenant under the Lease.<\/p>\n
ARTICLE 9 – SUBORDINATION<\/p>\n
9.01. To the extent they have been disclosed in writing to Tenant, this
\nLease, and all rights of Tenant hereunder, are and shall be subject and
\nsubordinate to all ground leases and underlying leases of the Land and\/or the
\nBuilding now or hereafter existing and to all Mortgages which may now or
\nhereafter affect the Land and\/or building and\/or any of such leases, whether or
\nnot such Mortgages or leases shall also cover other lands and\/or buildings, to
\neach and every advance made or hereafter to be made under such Mortgages, and to
\nall renewals, modifications, replacements and extensions of such leases and such
\nMortgages and spreaders and consolidations of such Mortgages. The provisions of
\nthis Section 9.01 shall be self-operative and no further instrument of
\nsubordination shall be required. In confirmation of such subordination, Tenant
\nshall promptly execute, acknowledge and deliver any instrument that Landlord,
\nthe lessor under any such lease or the Mortgagee of any such Mortgage or any of
\ntheir respective successors in interest may reasonably request to evidence such
\nsubordination; and if Tenant fails to execute, acknowledge or deliver any such
\ninstruments within 10 days after request therefor, Tenant hereby irrevocably
\nconstitutes and appoints Landlord as Tenant’s attorney-in-fact, coupled with an
\ninterest, to execute and deliver any such instruments for and on behalf of
\nTenant.<\/p>\n
9.02. If any act or omission of Landlord would give Tenant the right,
\nimmediately or after lapse of a period of time, to cancel or terminate this
\nLease, or to claim a partial or total eviction, Tenant shall not exercise such
\nright (a) until it has given written notice of such act or omission to Landlord
\nand each Superior Mortgagee and each Superior Lessor whose name and address
\nshall previously have been furnished to Tenant, and (b) until a reasonable
\nperiod for remedying such act or omission shall have elapsed following the
\ngiving of such notice and following the time when such Superior Mortgagee or
\nSuperior Lessor shall have become entitled under such Superior Mortgage or
\nSuperior Lease, as the case may be, to remedy the same (which reasonable period
\nshall in no event be less than the period to which Landlord would be entitled
\nunder this Lease or otherwise, after similar notice, to effect such remedy),
\nprovided such Superior Mortgagee or Superior Lessor shall with due diligence
\ngive Tenant notice of intention to, and commence and continue to, remedy such
\nact or omission.<\/p>\n
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
\nrights of Landlord under this Lease, whether through possession or foreclosure
\naction or delivery of a new lease or deed, then at the request of such party so
\nsucceeding to Landlord’s rights (“Successor Landlord”) and upon such Successor
\nLandlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn
\nto and recognize such Successor Landlord as Tenant’s landlord under this Lease
\nand shall promptly execute and deliver any instrument that such Successor
\nLandlord may reasonably request to evidence such attornment. Upon such
\nattornment this Lease shall continue in full force and effect as a direct lease
\nbetween the Successor Landlord and Tenant upon all of the terms, conditions and
\ncovenants as are set forth in this Lease except that the Successor Landlord
\nshall not (a) be liable for any previous act or omission of Landlord under this
\nLease; (b) be subject to any offset, not expressly provided for in this Lease,
\nwhich theretofore shall have accrued to Tenant against Landlord; (c) be liable
\nfor the return of any Security Deposit, in whole or in part, to the extent that
\nsame is not paid over to the Successor Landlord; or (d) be bound by any previous<\/p>\n
11<\/p>\n
modification of this Lease or by any previous prepayment of more than one
\nmonth’s Fixed Rent or Additional Charges, unless such modification or prepayment
\nshall have been expressly approved in writing by the Superior Lessor of the
\nSuperior Lease or the Mortgagee of the Superior Mortgage through or by reason of
\nwhich the Successor Landlord shall have succeeded to the rights of Landlord
\nunder this Lease.<\/p>\n
9.04. If any then present or prospective Superior Mortgagee shall require
\nany modification(s) of this Lease, Tenant shall promptly execute and deliver to
\nLandlord such instruments effecting such modification(s) as Landlord shall
\nrequest, provided that such modification(s) do not adversely affect in any
\nmaterial respect any of Tenant’s rights under this Lease and do not affect
\nTenant’s financial obligations hereunder in any respect.<\/p>\n
ARTICLE 10 – QUIET ENJOYMENT<\/p>\n
10.01. So long as Tenant pays all of the Rent and performs all of Tenant’s
\nother obligations hereunder, Tenant shall peaceably and quietly have, hold and
\nenjoy the Demised Premises without hindrance, ejection or molestation by
\nLandlord or any person lawfully claiming through or under Landlord, subject,
\nnevertheless, to the provisions of this Lease and to Superior Leases and
\nSuperior Mortgages.<\/p>\n
ARTICLE 11 – ASSIGNMENT, SUBLETTING AND MORTGAGING<\/p>\n
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
\noperation of law or otherwise, (a) assign or otherwise transfer this Lease, or
\noffer or advertise to do so, (b) sublet the Demised Premises or any part
\nthereof, or offer or advertise to do so, or allow the same to be used, occupied
\nor utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
\notherwise hypothecate this Lease in any manner whatsoever, without in each
\ninstance obtaining the prior written consent of Landlord. Notwithstanding the
\nforegoing, Landlord acknowledges it is the intention of the parties that Tenant
\nwill sublet approximately 100,000 square feet of the warehouse space for the
\nperiod not to exceed the first two years of the Lease Term and Landlord’s
\nconsent to same shall not be unreasonably withheld.<\/p>\n
11.02. If at any time (a) the original Tenant named herein, (b) the then
\nTenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
\nstock of, or directly or indirectly controlling, the then Tenant shall be a
\ncorporation or partnership, any transfer of voting stock or partnership interest
\nresulting in the person(s) who shall have owned a majority of such corporation’s
\nshares of voting stock or the general partners’ interest in such partnership, as
\nthe case may be, immediately before such transfer, ceasing to own a majority of
\nsuch shares of voting stock or general partner’s interest, as the case may be,
\nexcept as the result of transfers by inheritance, shall be deemed to be an
\nassignment of this Lease as to which Landlord’s consent shall have been
\nrequired, and in any such event Tenant shall notify Landlord. The provisions of
\nthis Section 11.02 shall not be applicable to any corporation all the
\noutstanding voting stock of which is listed on a national securities exchange
\n(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
\nthe over-the-counter market with quotations reported by the National Association
\nof Securities Dealers through its automated system for reporting quotations and
\nshall not apply to transactions with a corporation into or with which the then
\nTenant is merged or consolidated or to which substantially all of the then
\nTenant’s assets are transferred or to any corporation which controls or is
\ncontrolled by the<\/p>\n
12<\/p>\n
then Tenant or is under common control with the then Tenant, provided that in
\nany of such events (i) the successor to Tenant has a net worth computed in
\naccordance with generally accepted accounting principles at least equal to the
\ngreater of (1) the net worth of Tenant immediately prior to such merger,
\nconsolidation or transfer, or (2) the net worth of the original Tenant on the
\ndate of this Lease, and (ii) proof satisfactory to Landlord of such net worth
\nshall have been delivered to Landlord at least 10 days prior to the effective
\ndate of any such transaction. For the purposes of this Section, the words
\n“voting stock” shall refer to shares of stock regularly entitled to vote for the
\nelection of directors of the corporation. Landlord shall have the right at any
\ntime and from time to time during the Term to inspect the stock record books of
\nthe corporation to which the provisions of this Section 10.02 apply, and Tenant
\nwill produce the same on request of Landlord.<\/p>\n
11.03. If this Lease is assigned, whether or not in violation of this
\nLease, Landlord may collect rent from the assignee. If the Demised Premises or
\nany part thereof are sublet or used or occupied by anybody other then Tenant,
\nwhether or not in violation of this Lease, Landlord may, after default by
\nTenant, and expiration of Tenant’s time to cure such default, collect rent from
\nthe subtenant or occupant. In either event, Landlord may apply the net amount
\ncollected to the Rent, but no such assignment, subletting, occupancy or
\ncollection shall be deemed a waiver of any of any of the provisions of Section
\n11.01 or Section 11.02, or the acceptance of the assignee, subtenant or occupant
\nas tenant, or a release of Tenant from the performance by Tenant of Tenant’s
\nobligations under this Lease. The consent by Landlord to any assignment,
\nmortgaging, subletting or use or occupancy by others shall not in any way be
\nconsidered to relieve Tenant from obtaining the express written consent of
\nLandlord to any other or further assignment, mortgaging or subletting or use or
\noccupancy by others not expressly permitted by this Article 10. References in
\nthis Lease to use or occupancy by others (that is, anyone other than Tenant)
\nshall not be construed as limited to subtenants and those claiming under or
\nthrough subtenants but shall be construed as including also licensees and others
\nclaiming under or through Tenant, immediately or remotely.<\/p>\n
11.04. Any permitted assignment or transfer, whether made with Landlord’s
\nconsent pursuant to Section 10.01 or without Landlord’s consent if permitted by
\nSection 11.02, shall be made only if, and shall not be effective until, the
\nassignee shall execute, acknowledge and deliver to Landlord an agreement in form
\nand substance satisfactory to Landlord whereby the assignee shall assume
\nTenant’s obligations under this Lease and whereby the assignee shall agree that
\nall of the provisions in this Article 10 shall, notwithstanding such assignment
\nor transfer, continue to be binding upon it in respect to all future assignments
\nand transfers. Notwithstanding any assignment or transfer, whether or not in
\nviolation of the provisions of this Lease, and notwithstanding the acceptance of
\nRent by Landlord from an assignee, transferee, or any other party during the
\nTerm, the original Tenant and any other person(s) who at any time was or were
\nTenant shall remain fully liable for the payment of the Rent and for Tenant’s
\nother obligations under this Lease.<\/p>\n
11.05. The liability of the original named Tenant and any other Person(s)
\n(including but not limited to any Guarantor) who at any time are or become
\nresponsible for Tenant’s obligations under this Lease shall not be discharged,
\nreleased or impaired by any agreement extending the time of, or modifying any of
\nthe terms or obligations under this Lease, or by any waiver or failure of
\nLandlord to enforce, any of this Lease.<\/p>\n
13<\/p>\n
11.06. The listing of any name other than that of Tenant, whether on the
\ndoors of the Demised Premises or the Building directory, or otherwise, shall not
\noperate to vest any right or interest in this Lease or in the Demised Premises,
\nnor shall it be deemed to be the consent of Landlord to any assignment or
\ntransfer of this Lease or to any sublease of the Demised Premises or to the use
\nor occupancy thereof by others. Notwithstanding anything contained in this
\nLease to the contrary, Landlord shall have the absolute right to withhold its
\nconsent to an assignment or subletting to a Person who is otherwise a tenant or
\noccupant of the Building, or of a building owned or managed by Landlord or its
\naffiliated entities.<\/p>\n
11.07. Without limiting any of the provisions of Article 24, if pursuant
\nto the Federal Bankruptcy Code (or any similar law hereafter enacted having the
\nsame general purpose), Tenant is permitted to assign this Lease notwithstanding
\nthe restrictions contained in this Lease, adequate assurance of future
\nperformance by an assignee expressly permitted under such Code shall be deemed
\nto mean the deposit of cash security in an amount equal to the sum of one (1)
\nyear’s Fixed Rent plus an amount equal to the Percentage Rent and the Additional
\nCharges for the Calendar Year preceding the year in which such assignment is
\nintended to become effective, which deposit shall be held by Landlord for the
\nbalance of the Term, without interest, as security for the full performance of
\nTenant’s obligations under this Lease, to be held and applied in the manner
\nspecified for security in Article 8.<\/p>\n
11.08. If Tenant shall propose to assign or in any manner transfer this
\nLease or any interest therein, or sublet the Demised Premises or any part or
\nparts thereof, or grant any concession or license or otherwise permit occupancy
\nof all or any part of the Demised Premises by any person, Tenant shall give
\nnotice thereof to Landlord, together with a copy of the proposed instrument that
\nis to accomplish same and such financial and other information pertaining to the
\nproposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
\nshall require, and Landlord may, in addition to Landlord’s right to give or
\nwithhold consent, terminate this Lease by notice given to Tenant within thirty
\n(30) days after receipt of said proposed instrument and financial and other
\ninformation, and upon the date specified in such notice, which date shall be not
\nless than thirty (30) days and not more than sixty (60) days after the giving of
\nsaid notice, this Lease shall terminate. If Landlord does not so terminate this
\nLease, and (if Landlord consents to the subject transaction or if Landlord’s
\nconsent is not required to same) if Tenant does not consummate the subject
\ntransaction within sixty (60) days after the last day on which Landlord might
\nhave so terminated this Lease as a result of such transaction, Tenant shall
\nagain be required to comply with the provisions of this Section 11.07. in
\nconnection with any such transaction as if the notice by Tenant referred to
\nabove in this Section 11.07. had not been given. Notwithstanding anything
\ncontained in this Lease to the contrary and except as provided in Section 11.01,
\nLandlord shall not be obligated to entertain or consider any request by Tenant
\nto consent to any proposed assignment of this Lease or sublet of all or any part
\nof the Demised Premises unless each request by Tenant is accompanied by a non-
\nrefundable fee payable to Landlord in the amount of One Thousand Dollars
\n($1,000.00) to cover Landlord’s administrative, legal, and other costs and
\nexpenses incurred in processing each of Tenant’s requests. Neither Tenant’s
\npayment nor Landlord’s acceptance of the foregoing fee shall be construed to
\nimpose any obligation whatsoever upon Landlord to consent to Tenant’s request.<\/p>\n
ARTICLE 12 – COMPLIANCE WITH LAWS<\/p>\n
14<\/p>\n
12.01. Subject to the provisions of Article 36.13(iv), Tenant shall comply
\nwith all Legal Requirements which shall, in respect of the Demised Premises or
\nthe use and occupation thereof, or the abatement of any nuisance in, on or about
\nthe Demised Premises, impose any violation, order or duty on Landlord or Tenant;
\nand Tenant shall pay all the cost, expenses, fines, penalties and damages which
\nmay be imposed upon Landlord or any Superior Lessor by reason of or arising out
\nof Tenant’s failure to fully and promptly comply with and observe the provisions
\nof this Section. However, Tenant need not comply with any such law or
\nrequirement of any public authority so long as Tenant shall be contesting the
\nvalidity or the applicability thereof to the Demised Premises, in accordance
\nwith Section 12.02.<\/p>\n
12.02. Tenant may contest, by appropriate proceedings prosecuted
\ndiligently and in good faith, the validity, or applicability to the Demised
\nPremises, of any Legal Requirement, provided that (a) Landlord shall not be
\nsubject to criminal penalty or to prosecution for a crime, and neither the
\nDemised Premises nor any part thereof shall be subject to being condemned or
\nvacated, by reason of non-compliance or otherwise by reason of such contest; (b)
\nbefore the commencement of such contest, Tenant shall furnish to Landlord either
\n(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
\nas to its provisions and form, satisfactory to Landlord, and shall be in an
\namount at least equal to 125% of the cost of such compliance (as estimated by a
\nreputable contractor designated by Landlord) and shall indemnify Landlord
\nagainst the cost thereof and against all liability for damages, interest,
\npenalties and expenses (including reasonable attorneys’ fees and expenses),
\nresulting from or incurred in connection with such contest or non-compliance, or
\n(ii) other security in place of such bond satisfactory to Landlord; (c) such
\nnon-compliance or contest shall not constitute or result in any violation of any
\nSuperior Lease or Superior Mortgage, or if any such Superior Lease and\/or
\nSuperior Mortgage shall permit such non-compliance or contest on condition of
\nthe taking of action or furnishing of security by Landlord, such action shall be
\ntaken and such security shall be furnished at the expense of Tenant; and (d)
\nTenant shall keep Landlord advised as to the status of such proceedings. Without
\nlimiting the application of the above, Landlord shall be deemed subject to
\nprosecution for a crime if Landlord, or its managing agent, or any officer,
\ndirector, partner, shareholder or employee of Landlord or its managing agent, as
\nan individual, is charged with a crime of any kind or degree whatsoever, whether
\nby service of a summons or otherwise, unless such charge is withdrawn before
\nLandlord or its managing agent, or such officer, director, partner, shareholder
\nor employee of Landlord or its managing agent (as the case may be) is required
\nto plead or answer thereto. Notwithstanding anything contained in this Lease to
\nthe contrary, Tenant shall not file any Real Estate Tax appeal without the prior
\nwritten consent of Landlord, which consent may be given or withheld in
\nLandlord’s absolute discretion. Notwithstanding anything contained in this Lease
\nto the contrary, Tenant shall not file any Real Estate Tax Appeal with respect
\nto the Land, Building or the Demised Premises.<\/p>\n
ARTICLE 13 – INSURANCE AND INDEMNITY<\/p>\n
13.01. During the Term Tenant shall maintain at its own cost and expense
\nthe following insurance: (a) comprehensive general public liability insurance in
\nrespect of the Demised Premises and the conduct and operation of business
\ntherein, having limits of not less than $5,000,000.00 combined single limit per
\noccurrence for bodily injury or death to any one person and for bodily injury or
\ndeath to any number of persons in any one occurrence, and for property damage,
\nincluding water damage and sprinkler leakage <\/p>\n
15<\/p>\n
legal liability (coverage to include but not be limited to (i) premises
\noperation, completed operations, broad form contractual liability and product
\nliability, (ii) comprehensive automobile, truck and vehicle liability insurance
\ncovering all owned, hired and non-owned vehicles used by the contractor(s) in
\nconnection with their work and any loading of such vehicles, with limits as
\nstated above and (iii) workmen’s compensation, employers liability and
\noccupational disease insurance as required by statutes, but in any event not
\nless than $500,000.00 for Coverage B covering all damages and injuries arising
\nfrom each accident or occupational disease), (b) All-Risk insurance (including
\nflood and earthquake) covering the Demised Premises against loss or damage in an
\namount equal to the full replacement value thereof as same might increase from
\ntime to time or such higher amount as either may be required by the holder of
\nany fee mortgage covering the Demises Premises or is necessary to prevent
\nLandlord and\/or Tenant from becoming a co-insurer, including boiler and
\nmachinery insurance, if applicable (c) rent insurance with broad form extended
\ncoverage endorsement in an amount equal to the Rent, and all other charges
\npayable by Tenant pursuant to this Lease for a period of one (1) year and (d)
\nany other insurance required for compliance with the Insurance Requirements.
\nLandlord may at any time and from time to time require that the limits for the
\ncomprehensive general public liability insurance to be maintained by Tenant be
\nincreased to the limits that new Tenants in similar buildings are required by
\nLandlord to maintain. The insurance carried pursuant to Section 13.01 (b) shall
\nbe carried in favor of Landlord and the holder of any fee mortgage on the
\nPremises and the standard mortgagee clause shall be attached to the appropriate
\npolicies. Insurance carried pursuant to Section 13.01 (b) shall provide that the
\nloss, if any, shall be adjusted with and payable to the party who will perform
\nthe work of restoration pursuant to Article 22 and such mortgagee as their
\ninterests may appear. Tenant shall deliver to Landlord and any additional named
\ninsured(s) certificates for such fully paid-for policies upon execution hereof.
\nUpon request of Landlord, Tenant shall furnish Landlord with copies of all such
\ninsurance policies. Tenant shall procure and pay for renewals of such insurance
\nfrom time to time before the expiration thereof, and Tenant shall deliver to
\nLandlord and any additional insured(s) certificates therefor at least thirty
\n(30) days before the expiration of any existing policy. All such policies shall
\nbe issued by companies of recognized responsibility, having a Bests Key Rating
\nGuide of not less than A, Class VII, licensed to do business in New Jersey, and
\nall such policies shall contain a provision whereby the same cannot be canceled
\nunless Landlord and any additional insured(s) are given at least thirty (30)
\ndays’ prior written notice of such cancellation. The certificates of insurance
\nto be delivered to Landlord by Tenant shall name Landlord as an additional
\ninsured and, at Landlord’s request, shall also name any Superior Lessors or
\nSuperior Mortgagees as additional insureds, and the following phrase must be
\ntyped on the certificate of insurance: “Hartz Mountain Industries, Inc., and its
\nrespective subsidiaries, affiliates, associates, joint ventures, and
\npartnerships, are hereby named as additional insureds as their interests may
\nappear (and if Landlord has so requested, Tenant shall include any Superior
\nLessors and Superior Mortgagees as additional insured(s)). It is intended for
\nthis insurance to be primary and non-contributing.” Tenant shall give Landlord
\nat least thirty (30) days’ prior written notice that any such policy is being
\ncanceled or replaced.<\/p>\n
13.02. Tenant shall not do, permit or suffer to be done any act, matter,
\nthing or failure to act in respect of the Demised Premises or use or occupy the
\nDemised Premises or conduct or operate Tenant’s business in any manner
\nobjectionable to any insurance company or companies whereby the fire insurance
\nor any other insurance then in effect in respect to the Land and Building or any
\npart thereof shall become void or suspended or whereby any premiums in respect
\nof insurance maintained by Landlord shall be<\/p>\n
16<\/p>\n
higher than those which would normally have been in effect for the occupancy
\ncontemplated under the Permitted Uses. In case of a breach of the provisions of
\nthis Section 13.02, in addition to all other rights and remedies of Landlord
\nhereunder, Tenant shall (a) indemnify Landlord and the Superior Lessors and hold
\nLandlord and the Superior Lessors harmless from and against any loss which would
\nhave been covered by insurance which shall have become void or suspended because
\nof such breach by Tenant and (b) pay to Landlord any and all increases of
\npremiums on any insurance, including, without limitation, rent insurance,
\nresulting from any such breach.<\/p>\n
13.03. Tenant shall indemnify and hold harmless Landlord and all Superior
\nLessors and its and their respective partners, joint venturers, directors,
\nofficers, agents, servants and employees from and against any and all claims
\narising from or in connection with (a) the conduct or management of the Demised
\nPremises or of any business therein, or any work or thing whatsoever done, or
\nany condition created (other than by Landlord) in the Demised Premises during
\nthe Term or during the period of time, if any, prior to the Commencement Date
\nthat Tenant may have been given access to the Demised Premises; (b) any act,
\nomission or negligence of Tenant or any of its subtenants or licensees or its or
\ntheir partners, joint venturers, directors, officers, agents, employees or
\ncontractors; (c) any accident, injury or damage whatever (unless caused solely
\nby Landlord’s negligence) occurring in the Demised Premises; and (d) any breach
\nor default by Tenant in the full and prompt payment and performance of Tenant’s
\nobligations under this Lease; together with all costs, expenses and liabilities
\nincurred in or in connection with each such claim or action or proceeding
\nbrought thereon, including, without limitation, all attorneys’ fees and
\nexpenses. In case any action or proceeding is brought against Landlord and\/or
\nany Superior Lessor and\/or its or their partners, joint venturers, directors,
\nofficers, agents and\/or employees in connection with conduct or management of
\nthe Demised Premises or by reason of any claim referred to above, Tenant, upon
\nnotice from Landlord or such Superior Lessor, shall, at Tenant’s cost and
\nexpense, resist and defend such action or proceeding by counsel reasonably
\nsatisfactory to Landlord.<\/p>\n
13.04. Neither Landlord nor any Superior Lessor shall be liable or
\nresponsible for, and Tenant hereby releases Landlord and each Superior Lessor
\nfrom, all liability and responsibility to Tenant and any person claiming by,
\nthrough or under Tenant, by way of subrogation or otherwise, for any injury,
\nloss or damage to any person or property in or around the Demised Premises or to
\nTenant’s business irrespective of the cause of such injury, loss or damage, and
\nTenant shall require its insurers to include in all of Tenant’s insurance
\npolicies which could give rise to a right of subrogation against Landlord or any
\nSuperior Lessor a clause or endorsement whereby the insurer waives any rights of
\nsubrogation against Landlord and such Superior Lessors or permits the insured,
\nprior to any loss, to agree with a third party to waive any claim it may have
\nagainst said third party without invalidating the coverage under the insurance
\npolicy.<\/p>\n
13.05. Tenant shall not be liable or responsible for, and Landlord hereby
\nreleases Tenant from, all liability and responsibility to Landlord and any
\nperson claiming by, through or under Landlord, by way of subrogation for any
\ninjury, loss or damage to any property in or around the Common Areas, the
\nBuilding (exclusive of the Demised Premises) or to Landlord’s business
\nirrespective of the cause of such injury, loss or damage, and Landlord shall
\nrequire its insurers to include in all of Landlord’s insurance policies which
\ncould give rise to a right of subrogation against Tenant a clause or endorsement
\nwhereby the insurer waives <\/p>\n
17<\/p>\n
any rights of subrogation against Tenant or permits the insured, prior to any
\nloss, to agree with a third party to waive any claim it may have against said
\nthird party without invalidating the coverage under the insurance policy.<\/p>\n
ARTICLE 14 – RULES AND REGULATIONS<\/p>\n
14.01. Tenant and its employees and agents shall faithfully observe and
\ncomply with the Rules and Regulations and such reasonable changes therein
\n(whether by modification, elimination or addition) as Landlord at any time or
\ntimes hereafter may make and communicate to Tenant, which in Landlord’s
\njudgment, shall be necessary for the reputation, safety, care or appearance of
\nthe Land and Building, or the preservation of good order therein, or the
\noperation or maintenance of the Building or its equipment and fixtures, and
\nwhich do not unreasonably affect the conduct of Tenant’s business in the Demised
\nPremises; provided, however, that in case of any conflict or inconsistency
\nbetween the provisions of this Lease and any of the Rules and Regulations, the
\nprovisions of this Lease shall control.<\/p>\n
ARTICLE 15 – ALTERATIONS AND SIGNS<\/p>\n
15.01. Tenant shall not make any alterations or additions to the Demised
\nPremises, or make any holes or cuts in the walls, ceilings, roofs, or floors
\nthereof, or change the exterior color or architectural treatment of the Demised
\nPremises, without on each occasion first obtaining the consent of Landlord.
\nTenant shall submit to Landlord plans and specifications for such work at the
\ntime Landlord’s consent is sought. Tenant shall pay to Landlord upon demand the
\nreasonable cost and expense of Landlord in (a) reviewing said plans and
\nspecifications and (b) inspecting the alterations to determine whether the same
\nare being performed in accordance with the approved plans and specifications and
\nall Legal Requirements and Insurance Requirements, including, without
\nlimitation, the fees of any architect or engineer employed by Landlord for such
\npurpose. Before proceeding with any permitted alteration which will cost more
\nthan $50,000 (exclusive of the costs of decorating work and items constituting
\nTenant’s Property), as estimated by a reputable contractor designated by
\nLandlord, Tenant shall obtain and deliver to Landlord either (i) a performance
\nbond and a labor and materials payment bond (issued by a corporate surety
\nlicensed to do business in New Jersey), each in an amount equal to 125% of such
\nestimated cost and in form satisfactory to Landlord, or (ii) such other security
\nas shall be satisfactory to Landlord. Tenant shall fully and promptly comply
\nwith and observe the Rules and Regulations then in force in respect of the
\nmaking of alterations. Any review or approval by Landlord of any plans and\/or
\nspecifications with respect to any alterations is solely for Landlord’s benefit,
\nand without any representation or warranty whatsoever to Tenant in respect to
\nthe adequacy, correctness or efficiency thereof or otherwise.<\/p>\n
15.02. Tenant shall obtain all necessary governmental permits and
\ncertificates for the commencement and prosecution of permitted alterations and
\nfor final approval thereof upon completion, and shall cause alterations to be
\nperformed in compliance with all applicable Legal Requirements and Insurance
\nRequirements. Alterations shall be diligently performed in a good and
\nworkmanlike manner, using new materials and equipment at least equal in quality
\nand class to the better of (a) the original installations of the Building, or
\n(b) the then standards for the Building established by Landlord. <\/p>\n
18<\/p>\n
Alterations shall be performed by contractors first approved by Landlord;
\nprovided, however, that any alterations in or to the mechanical, electrical,
\nsanitary, heating, ventilating, air conditioning or other systems of the
\nBuilding shall be performed only by the contractor(s) designated by Landlord.
\nAlterations shall be made in such manner as not to unreasonably interfere with
\nor delay and as not to impose any additional expense upon Landlord in the
\nconstruction, maintenance, repair or operation of the Building; and if any such
\nadditional expense shall be incurred by Landlord as a result of Tenant’s making
\nof any alterations, Tenant shall pay any such additional expense upon demand.
\nThroughout the making of alterations (not including the Landlord’s Work), Tenant
\nshall carry, or cause to be carried, workmen’s compensation insurance in
\nstatutory limits and general liability insurance, with completed operation
\nendorsement, for any occurrence in or about the Building, under which Landlord
\nand its managing agent and any Superior Lessor whose name and address shall
\npreviously have been furnished to Tenant shall be named as parties insured, in
\nsuch limits as Landlord may reasonably require, with insurers reasonably
\nsatisfactory to Landlord. Tenant shall furnish Landlord with reasonably
\nsatisfactory evidence that such insurance is in effect at or before the
\ncommencement of alterations and, on request, at reasonable intervals thereafter
\nduring the making of alterations.<\/p>\n
15.03. Tenant shall not place any signs on the roof, exterior walls or
\ngrounds of the Demised Premises without first obtaining Landlord’s written
\nconsent thereto. In placing any signs on or about the Demised Premises, Tenant
\nshall, at its expense, comply with all applicable legal requirements and obtain
\nall required permits and\/or licenses.<\/p>\n
ARTICLE 16 – LANDLORD’S AND TENANT’S PROPERTY<\/p>\n
16.01. All fixtures, equipment, improvements and appurtenances attached to
\nor built into the Demised Premises at the commencement of or during the Term,
\nwhether or not by or at the expense of Tenant, shall be and remain a part of the
\nDemised Premises, shall be deemed to be the property of Landlord and shall not
\nbe removed by Tenant, except as provided in Section 16.02. Further, any
\ncarpeting or other personal property in the Demised Premises on the Commencement
\nDate, unless installed and paid for by Tenant, shall be and shall remain
\nLandlord’s property and shall not be removed by Tenant.<\/p>\n
16.02. All movable partitions, business and trade fixtures, machinery and
\nequipment, communications equipment and office equipment, whether or not
\nattached to or built into the Demised Premises, which are installed in the
\nDemised Premises by or for the account of Tenant without expense to Landlord and
\ncan be removed without structural damage to the Building and all furniture,
\nfurnishings, and other movable personal property owned by Tenant and located in
\nthe Demised Premises (collectively, “Tenant’s Property”) shall be and shall
\nremain the property of Tenant and may be removed by Tenant at any time during
\nthe Term; provided that if any of the Tenant’s Property is removed, Tenant shall
\nrepair or pay the cost of repairing any damage to the Demised Premises,
\nresulting from the installation and\/or removal thereof. Any equipment or other
\nproperty for which Landlord shall have granted any allowance or credit to Tenant
\nshall not be deemed to have been installed by or for the account of Tenant
\nwithout expense to Landlord, shall not be considered as the Tenant’s Property
\nand shall be deemed the property of Landlord.<\/p>\n
19<\/p>\n
16.03. At or before the Expiration Date or the date of any earlier
\ntermination of this Lease, or within fifteen (15) days after such an earlier
\ntermination date, Tenant shall remove from the Demised Premises all of the
\nTenant’s Property (except such items thereof as Landlord shall have expressly
\npermitted to remain, which property shall become the property of Landlord if not
\nremoved), and Tenant shall repair any damage to the Demised Premises resulting
\nfrom any installation and\/or removal of the Tenant’s Property. Any items of the
\nTenant’s Property which shall remain in the Demised Premises after the
\nExpiration Date or after a period of fifteen (15) days following an earlier
\ntermination date, may, at the option of Landlord, be deemed to have been
\nabandoned, and in such case such items may be retained by Landlord as its
\nproperty or disposed of by Landlord, without accountability, in such manner as
\nLandlord shall determine at Tenant’s expense.<\/p>\n
ARTICLE 17 – REPAIRS AND MAINTENANCE<\/p>\n
17.01. Tenant shall, throughout the Term, take good care of the Demised
\nPremises, the fixtures and appurtenances therein, and shall not do, suffer, or
\npermit any waste with respect thereto. Tenant shall keep and maintain all
\ninterior and exterior portions of the Demised Premises including, without
\nlimitation, all Building equipment, windows, doors, loading bay doors and
\nshelters, plumbing and electrical systems, heating, ventilating and air
\nconditioning (“HVAC”) systems in a clean and orderly condition and in good order
\nand repair. Tenant shall keep and maintain all floors, sidewalks, landscaping
\n(including lawn areas), curbing, exterior fencing, paving whether in driveways,
\nparking areas or access easements. The phrase “keep and maintain” as used
\nherein includes repairs, replacement and\/or restoration as appropriate; however,
\nnothing in this Lease requires Tenant to repair or restore the Building and\/or
\nLand to any condition better than the condition they were delivered to Tenant on
\nthe Commencement Date. Tenant shall maintain the exterior areas of the Demised
\nPremises free of accumulation of snow, ice, dirt and rubbish. Tenant shall not
\npermit or suffer any over-loading of the floors of the Building. Tenant shall be
\nresponsible for all other repairs, interior and exterior, structural and
\nnonstructural, ordinary and extraordinary, in and to the Demised Premises,
\nincluding the Building and Land and the facilities and systems thereof, the need
\nfor which arises out of (a) the performance or existence of the Tenant’s Work or
\nalterations, (b) the installation, use or operation of the Tenant’s Property in
\nthe Demised Premises, (c) the moving of the Tenant’s Property in or out of the
\nBuilding, or (d) the act, omission, misuse or neglect of Tenant or any of its
\nsubtenants or its or their employees, agents, contractors or invitees. Upon
\nrequest by Landlord, Tenant shall furnish Landlord with true and complete copies
\nof maintenance contracts and with copies of all invoices for work performed,
\nconfirming Tenant’s compliance with its obligations under this Article. In the
\nevent Tenant fails to furnish such copies, Landlord shall have the right, at
\nTenant’s cost and expense, to conduct such inspections or surveys as may be
\nrequired to determine whether or not Tenant is in compliance with this Article
\nand to have any work required of Tenant performed at Tenant’s cost and expense.
\nTenant shall promptly replace all scratched, damaged or broken doors and glass
\nin and about the Demised Premises and shall be responsible for all repairs,
\nmaintenance and replacement of wall and floor coverings in the Demised Premises
\nand for the repair and maintenance of all sanitary and electrical fixtures and
\nequipment therein. Tenant shall promptly make all repairs in or to the Demised
\nPremises and any repairs required to be made by Tenant to the mechanical,
\nelectrical, sanitary, heating, ventilating, air-conditioning or other systems of
\nthe Building shall be performed only by contractor(s) designated by Landlord.
\nAny other repairs in or to the Building and the facilities and systems thereof
\nfor which Tenant<\/p>\n
20<\/p>\n
is responsible may, at Landlord’s option, be performed by Landlord at Tenant’s
\nexpense; but Landlord may, at its option, before commencing any such work or at
\nany time thereafter, require Tenant to furnish to Landlord such security, in
\nform (including, without limitation, a bond issued by a corporate surety
\nlicensed to do business in New Jersey) and amount, as Landlord shall deem
\nnecessary to assure the payment for such work by Tenant.<\/p>\n
17.02. Except as provided in Article 17.01:(i) Landlord shall be
\nresponsible for structural repairs to the foundation, steel supports, and
\nstructural support to the roof of the Building and shall, at its cost and
\nexpense, make all repairs and replacements thereto; however, Tenant shall be
\nresponsible for maintenance, repairs or replacement of the roof and roof deck)
\nand (ii) Landlord shall be responsible for the repair of future depressions in
\nthe floors, provided further that Tenant does not permit the overloading of the
\nfloors.<\/p>\n
17.03. Except as otherwise expressly provided in this Lease, Landlord
\nshall have no liability to Tenant, nor shall Tenant’s covenants and obligations
\nunder this Lease be reduced or abated in any manner whatsoever, by reason of any
\ninconvenience, annoyance, interruption or injury to business arising from
\nLandlord’s doing any repairs, maintenance, or changes which Landlord is required
\nor permitted by this Lease, or required by Law, to make in or to any portion of
\nthe Building.<\/p>\n
17.04. Tenant shall not permit or suffer the overloading of the floors of
\nthe Demised Premises beyond 250 pounds per square foot, or lesser amount as may
\nbe applicable to any mezzanine areas.<\/p>\n
ARTICLE 18 – UTILITY CHARGES<\/p>\n
18.01. Tenant shall pay all charges for gas, water, sewer, electricity,
\nheat or other utility or service supplied to the Demised Premises as measured by
\nmeters relating to Tenant’s use, and the cost of repair, maintenance,
\nreplacement, and reading of any meters measuring Tenant’s consumption thereof.
\nTenant expressly agrees that Landlord shall not be responsible for the failure
\nof supply to Tenant of any of the aforesaid, or any other utility service.
\nLandlord shall not be responsible for any public or private telephone service to
\nbe installed in the space, particularly conduit if required.<\/p>\n
18.02. Tenant’s use of electric energy in the Demised Premises shall not
\nat any time exceed the capacity of any of the electrical conductors and
\nequipment in or otherwise serving the Demised Premises. In order to insure that
\nsuch capacity is not exceeded and to avert possible adverse effect upon the
\nBuilding’s electric service, Tenant shall not, without Landlord’s prior consent
\nin each instance (which shall not be unreasonably withheld), connect any
\nfixtures, appliances or equipment to the Building’s electric distribution system
\nor make any alteration or addition to the electric system of the Demised
\nPremises existing on the Commencement Date. Should Landlord grant such consent,
\nall additional risers or other equipment required therefor shall be provided by
\nLandlord and the cost thereof shall be paid by Tenant to Landlord on demand.<\/p>\n
ARTICLE 19 – ACCESS, CHANGES AND NAME<\/p>\n
21<\/p>\n
19.01. Omitted<\/p>\n
19.02. Landlord and its agents shall have the right to enter and\/or pass
\nthrough the Demised Premises at any time or times (a) to examine the Demised
\nPremises and to show then to actual and prospective Superior Lessors, Superior
\nMortgagees, or prospective purchasers of the Building, and (b) to make such
\nrepairs, alterations, additions and improvements in or to the Demised Premises
\nand\/or in or to the Building or its facilities and equipment as Landlord is
\nrequired or desires to make. Landlord shall be allowed to take all materials
\ninto and upon the Demised Premises that may be required in connection therewith,
\nwithout any liability to Tenant and without any reduction of Tenant’s
\nobligations hereunder. During the period of eighteen (18) months prior to the
\nExpiration Date, Landlord and its agents may exhibit the Demised Premises to
\nprospective tenants. Notwithstanding the foregoing, Landlord covenants that it
\nwill minimize any interference with Tenant’s right to use and enjoyment of the
\nDemised Premises.<\/p>\n
19.03. If at any time any windows of the Demised Premises are temporarily
\ndarkened or obstructed by reason of any repairs, improvements, maintenance
\nand\/or cleaning in or about the Building, or if any part of the Building is
\ntemporarily or permanently closed or inoperable, the same shall not be deemed a
\nconstructive eviction and shall not result in any reduction or diminution of
\nTenant’s obligations under this Lease.<\/p>\n
19.04. If, during the last month of the Term, Tenant has removed all or
\nsubstantially all of the Tenant’s Property from the Demised Premises, Landlord
\nmay, with Tenant’s prior consent, immediately enter the Demised Premises and
\nlater, renovate and decorate the same, without liability to Tenant and without
\nreducing or otherwise affecting Tenant’s obligations hereunder.<\/p>\n
19.05. Landlord reserves the right, at any time and from time to time, to
\nmake such changes, alterations, additions and improvements in or to the Building
\nand the fixtures and equipment thereof as Landlord shall deem necessary or
\ndesirable provided they do not reduce or otherwise affect Tenant’s rights under
\nthis Lease. Landlord may adopt any name for the Building. Landlord reserves
\nthe right to change the name and\/or address of the Building at any time.<\/p>\n
ARTICLE 20 – MECHANICS’ LIENS AND OTHER LIENS<\/p>\n
20.01. Nothing contained in this Lease shall be construed to imply any
\nconsent of Landlord to subject Landlord’s interest or estate to any liability
\nunder any mechanic’s, construction or other lien law. If any lien or any Notice
\nof Intention (to file a lien), Lis Pendens, or Notice of Unpaid Balance and
\nRight to File Lien is filed against the Land, the Building, or any part thereof,
\nor the Demised Premises, or any part thereof, for any work, labor, services or
\nmaterials claimed to have been performed or furnished for or on behalf of
\nTenant, or anyone holding any part of the Demised Premises through or under
\nTenant, Tenant shall cause the same to be canceled and discharged of record by
\npayment, bond or order of a court of competent jurisdiction within thirty (30)
\ndays after notice by Landlord to Tenant.<\/p>\n
ARTICLE 21 – NON-LIABILITY AND INDEMNIFICATION<\/p>\n
22<\/p>\n
21.01. Neither Landlord nor any partner, joint venturer, director,
\nofficer, agent, servant or employee of Landlord shall be liable to Tenant for
\nany loss, injury or damage to Tenant or to any other Person, or to its or their
\nproperty, irrespective of the cause of such injury, damage or loss, unless
\ncaused by or resulting from the negligence of Landlord, its agents, servants or
\nemployees in the operation or maintenance of the Land or Building without
\ncontributory negligence on the part of Tenant or any of its subtenants or
\nlicensees or its or their employees, agents or contractors. Further, neither
\nLandlord nor any partner, joint venturer, director, officer, agent, servant or
\nemployee of Landlord shall be liable (a) for any such damage caused by other
\ntenants or Persons in, upon or about the Land or Building, or caused by
\noperations in construction of any private, public or quasi-public work; or (b)
\neven if negligent, for consequential damages arising out of any loss of use of
\nthe Demised Premises or any equipment or facilities therein by Tenant or any
\nPerson claiming through or under Tenant.<\/p>\n
21.02. Notwithstanding any provision to the contrary, Tenant shall look
\nsolely to the estate and property of Landlord in and to the Land and Building
\n(or the proceeds received by Landlord on a sale of such estate and property but
\nnot the proceeds of any financing or refinancing thereof) in the event of any
\nclaim against Landlord arising out of or in connection with this Lease, the
\nrelationship of Landlord and Tenant or Tenant’s use of the Demised Premises, and
\nTenant agrees that the liability of Landlord arising out of or in connection
\nwith this Lease, the relationship of Landlord and Tenant or Tenant’s use of the
\nDemised Premises shall be limited to such estate and property of Landlord (or
\nsale proceeds). No other properties or assets of Landlord or any partner, joint
\nventurer, director, officer, agent, servant or employee of Landlord shall be
\nsubject to levy, execution or other enforcement procedures for the satisfaction
\nof any judgement (or other judicial process) or for the satisfaction of any
\nother remedy of Tenant arising out of, or in connection with, this Lease, the
\nrelationship of Landlord and Tenant or Tenant’s use of the Demised Premises and
\nif Tenant shall acquire a lien on or interest in any other properties or assets
\nby judgment or otherwise, Tenant shall promptly release such lien on or interest
\nin such other properties and assets by executing, acknowledging and delivering
\nto Landlord an instrument to that effect prepared by Landlord’s attorneys.
\nTenant hereby waives the right of specific performance and any other remedy
\nallowed in equity if specific performance or such other remedy could result in
\nany liability of Landlord for the payment of money to Tenant, or to any court or
\ngovernmental authority (by way of fines or otherwise) for Landlord’s failure or
\nrefusal to observe a judicial decree or determination, or to any third party.<\/p>\n
ARTICLE 22 – DAMAGE OR DESTRUCTION<\/p>\n
22.01. If the Building or the Demised Premises shall be partially or
\ntotally damaged or destroyed by fire or other casualty (and if this Lease shall
\nnot be terminated as in this Article 22 hereinafter provided), Landlord shall
\nrepair the damage and restore and rebuild the Building and\/or the Demised
\nPremises (except for the Tenant’s Property) with reasonable dispatch after
\nnotice to it of the damage or destruction and the collection of the insurance
\nproceeds attributable to such damage.<\/p>\n
22.02. Deleted<\/p>\n
22.03. If (a) the Building or the Demised Premises shall be totally
\ndamaged or destroyed by fire or other casualty, or (b) the Building shall be so
\ndamaged or destroyed by fire or other casualty that its<\/p>\n
23<\/p>\n
repair or restoration requires the expenditure, as estimated by a reputable
\ncontractor or architect designated by Landlord, of more than twenty percent
\n(20%) (or ten percent [10%] if such casualty occurs during the last two [2]
\nyears of the Term) of the full insurable value of the Building immediately prior
\nto the casualty, or (c) the Building shall be damaged or destroyed by fire or
\nother casualty and either the loss shall not be covered by Landlord’s insurance
\nor the net insurance proceeds (after deducting all expenses in connection with
\nobtaining such proceeds) shall, in the estimation of a reputable contractor or
\narchitect designated by Landlord be insufficient to pay for the repair or
\nrestoration work, then in either such case Landlord may terminate this Lease by
\ngiving Tenant notice to such effect within seventy five (75) days after the date
\nof the fire or other casualty. If the Demised Premises shall be so damaged or
\ndestroyed by fire or other casualty that its repair would take more than twelve
\n(12) months to accomplish, as reasonably estimated by the Architect (the
\n“Architect’s Determination”), either party shall have the right to terminate
\nthis Lease upon written notice to the other given within sixty (60) notice of
\nthe Architect’s Determination. Landlord shall give Tenant written notice of the
\nArchitect’s Determination within sixty (60) days of such damage or destruction.<\/p>\n
22.04. Tenant shall not be entitled to terminate this Lease and no
\ndamages, compensation or claim shall be payable by Landlord for inconvenience,
\nloss of business or annoyance arising from any repair or restoration of any
\nportion of the Building pursuant to this Article 22. Landlord shall use its
\nbest efforts to make such repair or restoration promptly and in such manner as
\nto not unreasonably interfere with Tenant’s use and occupancy of the Demised
\nPremises, but Landlord shall not be required to do such repair or restoration
\nwork except during Business Hours on Business Days.<\/p>\n
22.05. Notwithstanding any of the foregoing provisions of this Article 22,
\nif by reason of some act or omission on the part of Tenant or any of its
\nsubtenants or its or their partners, directors, officers, servants, employees,
\nagents or contractors, either (a) Landlord or any Superior Lessor or any
\nSuperior Mortgagee shall be unable to collect all of the insurance proceeds
\n(including, without limitation, rent insurance proceeds) applicable to damage or
\ndestruction of the Building by fire or other casualty, or (b) the Building shall
\nbe damaged or destroyed or rendered completely or partially untenantable on
\naccount of fire or other casualty, then, without prejudice to any other remedies
\nwhich may be available against Tenant, there shall be no abatement or reduction
\nof the Rent. Further, nothing contained in this Article 21 shall relieve Tenant
\nfrom any liability that may otherwise exist as a result of any damage or
\ndestruction by fire or other casualty.<\/p>\n
22.06. Landlord will not carry insurance of any kind on the Tenant’s
\nProperty, and, except as provided by law or by reason of Landlord’s breach of
\nany of its obligations hereunder, shall not be obligated to repair any damage to
\nor replace the Tenant’s Property.<\/p>\n
22.07. The provisions of this Article 22 shall be deemed an express
\nagreement governing any case of damage or destruction of the Building by fire or
\nother casualty, and any law providing for such a contingency in the absence of
\nan express agreement, now or hereafter in force, shall have no application in
\nsuch case.<\/p>\n
ARTICLE 23 – EMINENT DOMAIN<\/p>\n
24<\/p>\n
23.01. If the whole of the Demised Premises shall be taken by any public or
\nquasi-public authority under the power of condemnation, eminent domain or
\nexpropriation, or in the event of conveyance of the whole of the Demised
\nPremises in lieu thereof, this Lease shall terminate as of the day possession
\nshall be taken by such authority. If 25% or less of the Floor Space of the
\nBuilding shall be so taken or conveyed, this Lease shall terminate only in
\nrespect of the part so taken or conveyed as of the day possession shall be taken
\nby such authority. If more than 25% of the Floor Space of the Building shall be
\nso taken or conveyed, this Lease shall terminate only in respect of the part so
\ntaken or conveyed as of the day possession shall be taken by such authority, but
\neither party shall have the right to terminate this Lease upon notice given to
\nthe other party within 30 days after such taking possession. If so much of the
\nparking facilities shall be so taken or conveyed that the number of parking
\nspaces necessary, in Tenant’s reasonable judgment, for the continued operation
\nof the Tenant’s business shall not be available, Tenant may by notice to
\nLandlord, terminate this Lease as of the day possession shall be taken provided
\nthat Landlord shall first be given (upon thirty (30) days notice) the
\nopportunity to replace such parking spaces within reasonable walking distance of
\nthe Demised Premises. If this Lease shall continue in effect as to any portion
\nof the Demised Premises not so taken or conveyed, the Rent shall be computed as
\nof the day possession shall be taken on the basis of the remaining Floor Space
\nof the Building. Except as specifically provided herein, in the event of any
\nsuch taking or conveyance there shall be no reduction in Rent. If this Lease
\nshall continue in effect, Landlord shall, at its expense, but shall be obligated
\nonly to the extent of the net award or other compensation (after deducting all
\nexpenses in connection with obtaining same) available to Landlord for the
\nimprovements taken or conveyed (excluding any award or other compensation for
\nland or for the unexpired portion of the term of any Superior Lease), make all
\nnecessary alterations so as to constitute the remaining Building a complete
\narchitectural and tenantable unit, except for the Tenants’ property, and Tenant
\nshall make all alterations or replacements to the Tenant’s Property and
\ndecorations in the Demised Premises. All awards and compensation for any taking
\nor conveyance, whether for the whole or a part of the Land or Building, shall be
\nproperty of Landlord, and Tenant hereby assigns to Landlord all of Tenant’s
\nright, title and interest in and to any and all such awards and compensation,
\nincluding, without limitation, any award or compensation for the value of the
\nunexpired portion of the Term. Tenant shall be entitled to claim, prove and
\nreceive in the condemnation proceeding such award or compensation as may be
\nallowed for the Tenant’s property and for loss of business, good will, and
\ndepreciation or injury to and cost of removal of the Tenant’s property, but only
\nif such award or compensation shall be made by the condemning authority in
\naddition to, and shall not result in a reduction of, the award or compensation
\nmade by it to Landlord.<\/p>\n
23.02. If the temporary use or occupancy of all or any part of the Demised
\nPremises shall be taken during the Term, Tenant shall be entitled, except as
\nhereinafter set forth, to receive that portion of the award or payment for such
\ntaking which represents compensation for the use and occupancy of the Demised
\nPremises, for the taking of the Tenant’s Property and for moving expenses, and
\nLandlord shall be entitled to receive that portion which represents
\nreimbursement for the cost of restoration of the Demised Premises for purposes
\nof this Article 23, “temporary” means no more than six (6) months. This Lease
\nshall be and remain unaffected by such taking and Tenant shall continue to be
\nresponsible for all of its obligations hereunder insofar as such obligations are
\nnot affected by such taking and shall continue to pay the Rent in full when due.
\nIf the period of temporary use or occupancy shall extend beyond the Expiration
\nDate, that part of the award or payment which represents compensation for the
\nuse and <\/p>\n
25<\/p>\n
occupancy of the Demised Premises (or a part thereof) shall be divided between
\nLandlord and Tenant so that Tenant shall receive (except as otherwise provided
\nbelow) so much thereof as represents compensation for the period up to and
\nincluding the Expiration Date and Landlord shall receive so much thereof as
\nrepresents compensation for the period after the Expiration Date. All monies to
\nbe paid to Tenant as, or as part of, an award or payment for temporary use and
\noccupancy for a period beyond the date to which the Rent has been paid shall be
\nreceived, held and applied by the first Superior Mortgagee (or if there is no
\nSuperior Mortgagee, by Landlord as a trust fund) for payment of the Rent
\nbecoming due hereunder.<\/p>\n
ARTICLE 24 – SURRENDER<\/p>\n
24.01. On the Expiration Date, or upon any earlier termination of this
\nLease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
\nquit and surrender the Demised Premises to Landlord “broom-clean” and in good
\norder, condition and repair, except for ordinary wear and tear and such damage
\nor destruction as Landlord is required to repair or restore under this Lease,
\nand Tenant shall remove all of Tenant’s property therefrom except as otherwise
\nexpressly provided in this Lease.<\/p>\n
24.02. If Tenant remains in possession of the Demised Premises after the
\nexpiration of the Term, Tenant shall be deemed to be occupying the Demised
\nPremises at the sufferance of Landlord subject to all of the provisions of this
\nLease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
\neffect during the last month of the Term, plus 1\/12th of the average annual
\nPercentage Rent for the immediately preceding three full Calendar Years.<\/p>\n
24.03. No act or thing done by Landlord or its agents shall be deemed an
\nacceptance of a surrender of the Demised Premises, and no agreement to accept
\nsuch surrender shall be valid unless in writing and signed by Landlord.<\/p>\n
ARTICLE 25 – CONDITIONS OF LIMITATION<\/p>\n
25.01. This Lease is subject to the limitation that whenever Tenant or any
\nGuarantor (a) shall make an assignment for the benefit of creditors, or (b)
\nshall commence a voluntary case or have entered against it an order for relief
\nunder any chapter of the Federal Bankruptcy Code (Title 11 of the United States
\nCode) or any similar order or decree under any federal or state law, now in
\nexistence, or hereafter enacted having the same general purpose, and such order
\nor decree shall have not been stayed or vacated within 30 days after entry, or
\n(c) shall cause, suffer, permit or consent to the appointment of a receiver,
\ntrustee, administrator, conservator, sequestrator, liquidator or similar
\nofficial in any federal, state or foreign judicial or nonjudicial proceeding, to
\nhold, administer and\/or liquidate all or substantially all of its assets, and
\nsuch appointment shall not have been revoked, terminated, stayed or vacated and
\nsuch official discharged of his duties within 30 days of his appointment then
\nLandlord, at any time after the occurrence of any such event, may give Tenant a
\nnotice of intention to end the Term at the expiration of five (5) days from the
\ndate of service of such notice of intention, and upon the expiration of said
\nfive (5) day period, whether or not the<\/p>\n
26<\/p>\n
Term shall theretofore have commenced, this Lease shall terminate with the same
\neffect as if that day were the expiration date of this Lease, but Tenant shall
\nremain liable for damages as provided in Article 27.<\/p>\n
25.02. This Lease is subject to the further limitations that: (a) if
\nTenant shall default in the payment of any Rent, or (b) if Tenant shall, whether
\nby action or inaction, be in default of any of its obligations under this Lease
\n(other than a default in the payment of Rent) and such default shall continue
\nand not be remedied within twenty five (25) days after Landlord shall have given
\nto Tenant a notice specifying the same, or, in the case of a default which
\ncannot with due diligence be cured within a period of twenty five (25) days and
\nthe continuance of which for the period required for cure will not subject
\nLandlord or any Superior Lessor or prosecution for a crime (as more particularly
\ndescribed in the last sentence of Section 12.02) or termination of any Superior
\nLease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
\nsaid twenty five (25) day period advise Landlord of Tenant’s intention to take
\nall steps necessary to remedy such default, (ii) duly commence within said
\ntwenty five (25) day period, and thereafter diligently prosecute to completion
\nall steps necessary to remedy the default, and (iii) complete such remedy within
\na reasonable time after the date of said notice by Landlord, or (c) if any event
\nshall occur or any contingency shall arise whereby this Lease would, by
\noperation of law or otherwise, devolve upon or pass to any person, firm or
\ncorporation other than Tenant, except as expressly permitted by Article 11, or
\n(d) if Tenant shall vacate or abandon the Demised Premises, or (e) if there
\nshall be any default by Tenant (or any person which, directly or indirectly,
\ncontrols, is controlled by, or is under common control with Tenant) under any
\nother lease with Landlord (or any person which, directly or indirectly, controls
\nis controlled by, or is under common control with Landlord) which shall not be
\nremedied within the applicable twenty five (25) day notice period, if any,
\nprovided therefor under such other lease, then in any of said cases Landlord may
\ngive to Tenant a notice of intention to end the Term at the expiration of five
\n(5) days from the date of the service of such notice of intention, and upon the
\nexpiration of said five (5) days, whether or not the Term shall theretofore have
\ncommenced, this Lease shall terminate with the same effect as if that day were
\nthe expiration date of this Lease, but Tenant shall remain liable for damages as
\nprovided in Article 27.<\/p>\n
ARTICLE 26 – RE-ENTRY BY LANDLORD<\/p>\n
26.01. If Tenant shall default in the payment of any Rent, or if this
\nLease shall terminate as provided in Article 25, Landlord or Landlord’s agents
\nand employees may immediately or at any time thereafter re-enter the Demised
\nPremises, or any part thereof, either by summary dispossess proceedings or by
\nany suitable action or proceeding at law without being liable to indictment,
\nprosecution or damages therefor, and may repossess the same, and may remove any
\nPerson therefrom, to the end that Landlord may have, hold and enjoy the Demised
\nPremises. The word “re-enter,” as used herein, is not restricted to its
\ntechnical legal meaning. If this Lease is terminated under the provisions of
\nArticle 25, or if Landlord shall re-enter the Demised Premises under the
\nprovisions of this Article 26, or in the event of the termination of this Lease,
\nor of re-entry, by or under any summary dispossess or other proceedings or
\naction or any provision of law by reason of default hereunder on the part of
\nTenant, Tenant shall thereupon pay to Landlord the Rent payable up to the time
\nof such termination of this Lease, or of such recovery of possession of the
\nDemised Premises by Landlord, as the case may be, and shall also pay to Landlord
\ndamages as provided in Article 27.<\/p>\n
27<\/p>\n
26.02. In the event of a breach or threatened breach by Tenant of any of
\nits obligations under this Lease, Landlord shall also have the right of
\ninjunction. The special remedies to which Landlord may resort hereunder are
\ncumulative and are not intended to be exclusive of any other remedies to which
\nLandlord may lawfully be entitled at any time and Landlord may invoke any remedy
\nallowed at law or in equity as if specific remedies were not provided for
\nherein.<\/p>\n
26.03. If this Lease shall terminate under the provisions of Article 25,
\nor if Landlord shall re-enter the Demised Premises under the provisions of this
\nArticle 26, or in the event of the termination of this Lease, or of re-entry, by
\nor under any summary dispossess or other proceeding or action or any provision
\nof law by reason of default hereunder on the part of Tenant, Landlord shall be
\nentitled to retain all monies, if any, paid by Tenant to Landlord, whether as
\nAdvance Rent, security or otherwise, but such monies shall be credited by
\nLandlord against any Rent due from Tenant at the time of such termination or re-
\nentry or, at Landlord’s option, against any damages payable by Tenant under
\nArticle 27 or pursuant to law.<\/p>\n
ARTICLE 27 – DAMAGES<\/p>\n
27.01. If this Lease is terminated under the provisions of Article 25, or
\nif Landlord shall re-enter the Demised Premises under the provisions of Article
\n26, or in the event of the termination of this Lease, or of re-entry, by or
\nunder any summary dispossess or other proceeding or action or any provision of
\nlaw by reason of default hereunder on the part of Tenant, Tenant shall pay as
\nAdditional Charges to Landlord, at the election of Landlord, either or any
\ncombination of:<\/p>\n
(a) a sum which at the time of such termination of this Lease or
\n at the time of any such re-entry by Landlord, as the case may be,
\n represents the then value of the excess, if any, of (i) the aggregate
\n amount of the Rent which would have been payable by Tenant (conclusively
\n presuming the average monthly Percentage Rent and Additional Charges to be
\n the same as were the average monthly Percentage Rent and Additional Charges
\n payable for the year, or if less than 365 days have then elapsed since the
\n Commencement Date, the partial year, immediately preceding such termination
\n or re-entry) for the period commencing with such earlier termination of
\n this Lease or the date of any such re-entry, as the case may be, and ending
\n with the Expiration Date, over (ii) the aggregate rental value of the
\n Demised Premises for the same period; or<\/p>\n
(b) sums equal to the Fixed Rent, Percentage Rent (in the same
\n monthly amount as the average monthly Percentage Rent payable for the year,
\n or if less than three hundred sixty five (365) days have then elapsed since
\n the Commencement Date, the partial year, immediately preceding such
\n termination or re-entry) and the Additional Charges which would have been
\n payable by Tenant had this Lease not so terminated, or had Landlord not so
\n re-entered the Demised Premises, payable upon the due dates therefor
\n specified herein following such termination or such re-entry and until the
\n Expiration Date, provided, however, that if Landlord shall relet the
\n Demised Premises during said period, Landlord shall credit Tenant with the
\n net rents received by Landlord from such reletting, such net rents to be
\n determined by first deducting from the gross rents as and when received by
\n Landlord from such reletting the expenses incurred or paid by Landlord in
\n terminating<\/p>\n
28<\/p>\n
this Lease or in re-entering the Demised Premises and in securing
\n possession thereof, as well as the expenses of reletting, including,
\n without limitation, altering and preparing the Demised Premises for new
\n tenants, brokers’ commissions, legal fees, and all other expenses properly
\n chargeable against the Demised Premises and the rental therefrom, it being
\n understood that any such reletting may be for a period shorter or longer
\n than the period ending on the Expiration Date; but in no event shall Tenant
\n be entitled to receive any excess of such net rents over the sums payable
\n by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit
\n for the collection of damages pursuant to this subdivision (b) to a credit
\n in respect of any rents from a reletting, except to the extent that such
\n net rents are actually received by Landlord. If the Demised Premises or any
\n part thereof should be relet in combination with other space, then proper
\n apportionment on a square foot basis shall be made of the rent received
\n from such reletting and of the expenses of reletting; or<\/p>\n
(c) a sum which at the time of such termination of this Lease or at
\n the time of any such re-entry by Landlord, as the case may be, represents
\n the aggregate amount of the Rent which would have been payable by Tenant
\n (conclusively presuming the average monthly Additional Charges to be the
\n same as were the average monthly Additional Charges payable for the year,
\n or if less than 365 days have then elapsed since the Commencement Date, the
\n partial year, immediately preceding such termination or re-entry) for the
\n period commencing with such earlier termination of this Lease or the date
\n of any such re-entry, as the case may be, and ending with the Expiration
\n Date; provided, however, that if Landlord shall relet the Demised Premises
\n during said period, Landlord shall credit Tenant with the net rents
\n received by Landlord from such reletting, such net rents to be determined
\n by first deducting from the gross rents as and when received by Landlord
\n from such reletting the expenses incurred or paid by Landlord in
\n terminating this Lease or in re-entering the Demised Premises and in
\n securing possession thereof, as well as the expenses of reletting,
\n including, without limitation, altering and preparing the Demised Premises
\n for new tenants, brokers’ commissions, legal fees, and all other expenses
\n properly chargeable against the Demised Premises and the rental therefrom,
\n it being understood that any such reletting may be for a period shorter or
\n longer than the period ending on the Expiration Date; but in no event shall
\n Landlord have to account to Tenant for any rents in excess of the total
\n damages recovered by Landlord hereunder, nor shall Tenant be entitled in
\n any suit for the collection of damages pursuant to this subsection (c) to a
\n credit in respect of any rents from a reletting, except to the extent that
\n such net rents are actually received by Landlord. If the Demised Premises
\n or any part thereof should be relet in combination with other space, then
\n proper apportionment on a square foot basis shall be made of the rent
\n received from such reletting and of the expenses of reletting.<\/p>\n
If the Demised Premises or any part thereof be relet by Landlord before
\npresentation of proof of such damages to any court, commission or tribunal, the
\namount of rent reserved upon such reletting shall, prima facie, be the fair and
\nreasonable rental value for the Demised Premises, or part thereof, so relet
\nduring the term of the reletting. Landlord shall not be liable in any way
\nwhatsoever for its failure to relet the Demised Premises or any part thereof, or
\nif the Demised Premises or any part thereof are relet, for its inability to
\ncollect the rent under such reletting, and no such failure to relet or failure
\nto collect rent shall release or affect Tenant’s liability for damages or
\notherwise under this Lease.<\/p>\n
29<\/p>\n
27.02. Suit or suits for the recovery of such damages or, any installments
\nthereof, may be brought by Landlord at any time and from time to time at its
\nelection, and nothing contained herein shall be deemed to require Landlord to
\npostpone suit until the date when the Term would have expired if it had not been
\nso terminated under the provisions of Article 24, or under any provision of law,
\nor had Landlord not re-entered the Demised Premises. Nothing herein contained
\nshall be construed to limit or preclude recovery by Landlord against Tenant of
\nany sums or damages to which, in addition to the damages particularly provided
\nabove, Landlord may lawfully be entitled by reason of any default hereunder on
\nthe part of Tenant. Nothing herein contained shall be construed to limit or
\nprejudice the right of Landlord to prove for and obtain as damages by reason of
\nthe termination of this Lease or re-entry of the Demised Premises for the
\ndefault of Tenant under this Lease, an amount equal to the maximum allowed by
\nany statute or rule of law in effect at the time, whether or not such amount be
\ngreater than, equal to, or less than any of the sums referred to in Section
\n27.01.<\/p>\n
27.03. In addition, if this Lease is terminated under the provisions of
\nArticle 25, or if Landlord shall re-enter the Demised Premises under the
\nprovisions of Article 26, Tenant covenants that: (a) the Demised Premises then
\nshall be in the same condition as that in which Tenant has agreed to surrender
\nthe same to Landlord at the Expiration Date; (b) Tenant shall have performed
\nprior to any such termination any obligation of Tenant contained in this Lease
\nfor the making of any alteration or for restoring or rebuilding the Demised
\nPremises or the Building, or any part thereof; and (c) for the breach of any
\ncovenant of Tenant set forth above in this Section 27.03, Landlord shall be
\nentitled immediately, without notice or other action by Landlord, to recover,
\nand Tenant shall pay, as and for liquidated damages therefor, the cost of
\nperforming such covenant (as estimated by an independent contractor selected by
\nLandlord).<\/p>\n
27.04. In addition to any other remedies Landlord may have under this
\nLease, and without reducing or adversely affecting any of Landlord’s rights and
\nremedies under this Article 27, if any Rent or damages payable hereunder by
\nTenant to Landlord are not paid upon demand therefor, the same shall bear
\ninterest at the Late Payment Rate or the maximum rate permitted by law,
\nwhichever is less, from the due date thereof until paid, and the amounts of such
\ninterest shall be Additional Charges hereunder.<\/p>\n
27.05. In the event of Tenant’s default under this Lease and Landlord’s
\nre-entry and recovery or possession of the Demised Premises, Landlord shall use
\ncommercially reasonable efforts to mitigate Landlord’s damages by reletting of
\nthe Demised Premises. The net proceeds of any such reletting received by
\nLandlord shall be credited against Tenant’s then-outstanding obligations under
\nthis Lease. As used herein, “net proceeds” shall mean the full amount of rent
\nand other similar charges paid to Landlord by all succeeding tenants of all or
\nany portion of the Demised Premises less Landlord’s actual expenses of reletting
\nthe Demised Premises (including, but not limited to expenses or work done to the
\nDemised Premises in connection with such reletting, broker’s fees and attorneys’
\nfees). Nothing contained herein shall require Landlord to relet the Demised
\nPremises prior to or with any preference over the leasing of any other similar
\npremises of Landlord or any affiliate of Landlord, nor shall any rental of such
\nother premises reduce the damages which Landlord would be entitled to recover
\nfrom Tenant.<\/p>\n
ARTICLE 28 – AFFIRMATIVE WAIVERS<\/p>\n
30<\/p>\n
28.01. Tenant, on behalf of itself and any and all persons claiming
\nthrough or under Tenant, does hereby waive and surrender all right and privilege
\nwhich it, they or any of them might have under or by reason of any present or
\nfuture law, to redeem the Demised Premises or to have a continuance of this
\nLease after being dispossessed or ejected from the Demised Premises by process
\nof law or under the terms of this Lease or after the termination of this Lease
\nas provided in this Lease.<\/p>\n
28.02. Landlord and Tenant hereby waive trial by jury in any action,
\nproceeding or counterclaim brought by either against the other on any matter
\nwhatsoever arising out of or in any way connected with this Lease, the
\nrelationship of Landlord and Tenant, and Tenant’s use or occupancy of the
\nDemised Premises including, without limitation, any claim of injury or damage,
\nand any emergency and other statutory remedy with respect thereto. Except for
\nmandatory counterclaims, Tenant shall not interpose any counterclaim of any kind
\nin any action or proceeding commenced by Landlord to recover possession of the
\nDemised Premises.<\/p>\n
ARTICLE 29 – NO WAIVERS<\/p>\n
29.01. The failure of either party to insist in any one or more instances
\nupon the strict performance of any one or more of the obligations of this Lease,
\nor to exercise any election herein contained, shall not be construed as a waiver
\nor relinquishment for the future of the performance of such one or more
\nobligations of this Lease or of the right to exercise such election, but the
\nsame shall continue and remain in full force and effect with respect to any
\nsubsequent breach, act or omission. The receipt by Landlord of Fixed Rent,
\nPercentage Rent or Additional Charges with knowledge of breach by Tenant of any
\nobligation of this Lease shall not be deemed a waiver of such breach.<\/p>\n
ARTICLE 30 – CURING TENANT’S DEFAULTS<\/p>\n
30.01. If Tenant shall default in the performance of any of Tenant’s
\nobligations under this Lease, Landlord, without thereby waiving such default,
\nmay (but shall not be obligated to) perform the same for the account and at the
\nexpense of Tenant, without notice in a case of emergency, and in any other case
\nonly if such default continues after the expiration of twenty five (25) days
\nfrom the date Landlord gives Tenant notice of the default. Bills for any
\nexpenses incurred by Landlord in connection with any such performance by it for
\nthe account of Tenant, and bills for all costs, expenses and disbursements of
\nevery kind and nature whatsoever, including reasonable attorneys’ fees and
\nexpenses, involved in collecting or endeavoring to collect the Rent or any part
\nthereof or enforcing or endeavoring to enforce any rights against Tenant or
\nTenant’s obligations hereunder, under or in connection with this Lease or
\npursuant to law, including any such cost, expense and disbursement involved in
\ninstituting and prosecuting summary proceedings or in recovering possession of
\nthe Demised Premises after default by Tenant or upon the expiration of the Term
\nor sooner termination of this Lease, and interest on all sums advanced by
\nLandlord under this Article at the rate of 4% percent per month or the maximum
\nrate permitted by law, whichever is less, may be sent by Landlord to Tenant
\nmonthly, or immediately, at Landlord’s option, and such amounts shall be due and
\npayable in accordance with the terms of such bills.<\/p>\n
ARTICLE 31 – BROKER<\/p>\n
31<\/p>\n
31.01. Tenant represents that no broker except the Broker was instrumental
\nin bringing about or consummating this Lease and that Tenant had no
\nconversations or negotiations with any broker except the Broker concerning the
\nleasing of the Demised Premises. Tenant agrees to indemnify and hold harmless
\nLandlord against and from any claims for any brokerage commissions and all
\ncosts, expenses and liabilities in connection therewith, including, without
\nlimitation, attorneys’ fees and expenses, arising out of any conversations or
\nnegotiations had by Tenant with any broker other than the Broker. Landlord
\nshall pay any brokerage commissions due the Broker pursuant to a separate
\nagreement between Landlord and the Broker.<\/p>\n
ARTICLE 32 – NOTICES<\/p>\n
32.01. Any notice, statement, demand, consent, approval or other
\ncommunication required or permitted to be given, rendered or made by either
\nparty to the other, pursuant to this Lease or pursuant to any applicable Legal
\nRequirement, shall be in writing and shall be deemed to have been properly
\ngiven, rendered or made only if hand delivered or sent by United States
\nregistered or certified mail, return receipt requested, addressed to the other
\nparty at the address hereinabove set forth (except that after the Commencement
\nDate, Tenant’s address, unless Tenant shall give notice to the contrary, shall
\nbe the Building) as to Landlord, to the attention of General Counsel with a
\nconcurrent Notice to the attention of Controller, and shall be deemed to have
\nbeen given, rendered or made on the second day after the day so mailed, unless
\nmailed outside the State of New Jersey, in which case it shall be deemed to have
\nbeen given, rendered or made on the third business day after the day so mailed.
\nEither party may, by notice as aforesaid, designate a different address or
\naddresses for notices, statements, demands, consents, approvals or other
\ncommunications intended for it. In addition, upon and to the extent requested
\nby Landlord, copies of notices shall be sent to the Superior Mortgagee.<\/p>\n
ARTICLE 33 – ESTOPPEL CERTIFICATES<\/p>\n
33.01. Each party shall, at any time and from time to time, as requested
\nby the other party, upon not less than ten (10) days’ prior notice, execute and
\ndeliver to the requesting party a statement certifying that this Lease is
\nunmodified and in full force and effect (or if there have been modifications,
\nthat the same is in full force and effect as modified and stating the
\nmodifications), certifying the dates to which the Fixed Rent and Additional
\nCharges have been paid, stating whether or not, to the best knowledge of the
\nparty giving the statement, the requesting party is in default in performance of
\nany of its obligations under this Lease, and, if so, specifying each such
\ndefault of which the party giving the statement shall have knowledge, and
\nstating whether or not, to the best knowledge of the party giving the statement,
\nany event has occurred which with the giving of notice or passage of time, or
\nboth, would constitute such a default of the requesting party, and, if so,
\nspecifying each such event; any such statement delivered pursuant hereto shall
\nbe deemed a representation and warranty to be relied upon by the party
\nrequesting the certificate and by others with whom such party may be dealing,
\nregardless of independent investigation. Tenant also shall include in any such
\nstatement such other information concerning this Lease as Landlord may
\nreasonably request.<\/p>\n
ARTICLE 34 – ARBITRATION<\/p>\n
32<\/p>\n
34.01. Landlord may at any time request arbitration, and Tenant may at any
\ntime when not in default in the payment of any Rent request arbitration, of any
\nmatter in dispute but only where arbitration is expressly provided for in this
\nLease. The party requesting arbitration shall do so by giving notice to that
\neffect to the other party, specifying in said notice the nature of the dispute,
\nand said dispute shall be determined in Newark, New Jersey, by a single
\narbitrator, in accordance with the rules then obtaining of the American
\nArbitration Association (or any organization which is the successor thereto).
\nThe award in such arbitration may be enforced on the application of either party
\nby the order or judgment of a court of competent jurisdiction. The fees and
\nexpenses of any arbitration shall be borne by the parties equally, but each
\nparty shall bear the expense of its own attorneys and experts and the additional
\nexpenses of presenting its own proof. If Tenant gives notice requesting
\narbitration as provided in this Article, Tenant shall simultaneously serve a
\nduplicate of the notice on each Superior Mortgagee and Superior Lessor whose
\nname and address shall previously have been furnished to Tenant, and such
\nSuperior Mortgagees and Superior Lessor shall have the right to participate in
\nsuch arbitration.<\/p>\n
ARTICLE 35 – MEMORANDUM OF LEASE<\/p>\n
35.01. Tenant shall not record this Lease. However, at the request of
\nLandlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
\nmemorandum of lease in respect of this Lease sufficient for recording. Such
\nmemorandum shall not be deemed to change or otherwise affect any of the
\nobligations or provisions of this Lease. Whichever party records such
\nmemorandum of Lease shall pay all recording costs and expenses, including any
\ntaxes that are due upon such recording.<\/p>\n
ARTICLE 36 – MISCELLANEOUS<\/p>\n
36.01. Tenant expressly acknowledges and agrees that Landlord has not made
\nand is not making, and Tenant, in executing and delivering this Lease, is not
\nrelying upon, any warranties, representations, promises or statements, except to
\nthe extent that the same are expressly set forth in this Lease or in any other
\nwritten agreement(s) which may be made between the parties concurrently with the
\nexecution and delivery of this Lease. All understandings and agreements
\nheretofore had between the parties are merged in this Lease and any other
\nwritten agreement(s) made concurrently herewith, which alone fully and
\ncompletely express the agreement of the parties and which are entered into after
\nfull investigation. Neither party has relied upon any statement or
\nrepresentation not embodied in this Lease or in any other written agreement(s)
\nmade concurrently herewith. The submission of this Lease to Tenant does not
\nconstitute by Landlord a reservation of, or an option to Tenant for, the Demised
\nPremises, or an offer to lease on the terms set forth herein and this Lease
\nshall become effective as a lease agreement only upon execution and delivery
\nthereof by Landlord and Tenant.<\/p>\n
36.02. No agreement shall be effective to change, modify, waive, release,
\ndischarge, terminate or effect an abandonment of this Lease, in whole or in
\npart, unless such agreement is in writing, refers expressly to this Lease and is
\nsigned by the party against whom enforcement of the change, modification,
\nwaiver, release, discharge, termination or effectuation of abandonment is
\nsought.<\/p>\n
33<\/p>\n
36.03. If Tenant shall at any time request Landlord to sublet or let the
\nDemised Premises for Tenant’s account, Landlord or its agent is authorized to
\nreceive keys for such purposes without releasing Tenant from any of its
\nobligations under this Lease, and Tenant hereby releases Landlord of any
\nliability for loss or damage to any of the Tenant’s Property in connection with
\nsuch subletting or letting.<\/p>\n
36.04. Except as otherwise expressly provided in this Lease, the
\nobligations under this Lease shall bind and benefit the successors and assigns
\nof the parties hereto with the same effect as if mentioned in each instance
\nwhere a party is named or referred to; provided, however, that (a) no violation
\nof the provisions of Article 11 shall operate to vest any rights in any
\nsuccessor or assignee of Tenant and (b) the provisions of this Section 36.04
\nshall not be construed as modifying the conditions of limitation contained in
\nArticle 25.<\/p>\n
36.05. Except for Tenant’s obligations to pay Rent, the time for Landlord
\nor Tenant, as the case may be, to perform any of its respective obligations
\nhereunder shall be extended if and to the extent that the performance thereof
\nshall be prevented due to any strikes, lockouts, civil commotions, warlike
\noperations, invasions, rebellions, hostilities, military or usurped power,
\ngovernmental regulations or controls, inability to obtain labor or materials
\ndespite due diligence, acts of God, or other causes beyond the control of the
\nparty whose performance is required. Except as expressly provided to the
\ncontrary, the obligations of Tenant hereunder shall not be affected, impaired or
\nexcused, nor shall Landlord have any liability whatsoever to Tenant, (a) because
\nLandlord is unable to fulfill, or is delayed in fulfilling, any of its
\nobligations under this Lease due to any of the matters set forth in the first
\nsentence of this Section 36.05, or (b) because of any failure or defect in the
\nsupply, quality or character of electricity, water or any other utility or
\nservice furnished to the Demised Premises for any reason beyond Landlord’s
\nreasonable control.<\/p>\n
36.06. Any liability for payments hereunder (including, without
\nlimitation, Additional Charges) shall survive the expiration of the Term or
\nearlier termination of this Lease.<\/p>\n
36.07. If Tenant shall request Landlord’s consent and Landlord shall fail
\nto refuse to give such consent, Tenant shall not be entitled to any damages for
\nany withholding by Landlord of its consent; Tenant’s sole remedy shall be an
\naction for specific performance or injunction, and such remedy shall be
\navailable only in those cases where Landlord has expressly agreed in writing not
\nto unreasonably withhold or delay its consent or where as a matter of law
\nLandlord may not unreasonably withhold its consent.<\/p>\n
36.08. If an excavation shall be made upon land adjacent to or under the
\nBuilding, or shall be authorized to be made, Tenant shall afford to the Person
\ncausing or authorized to cause such excavation, license to enter the Demised
\nPremises for the purpose of performing such work as said Person shall reasonably
\ndeem necessary or desirable to preserve and protect the Building from injury or
\ndamage and to support the same by proper foundations, without any claim for
\ndamages or liability against Landlord or Tenant and without reducing or
\notherwise affecting either party’s obligations under this Lease.<\/p>\n
36.09. Tenant shall not exercise its rights under Article 14 or any other
\nprovision of this Lease in a manner which would violate Landlord’s union
\ncontracts or create any work stoppage, picketing labor disruption or dispute or
\nany interference with the business of Landlord. Landlord shall not exercise its<\/p>\n
34<\/p>\n
rights under Article 14 or any other provision of this Lease in a manner which
\nwould violate Tenant’s union contracts or create any work stoppage, picketing or
\nlabor disruption.<\/p>\n
36.10. The parties shall give prompt notice to the other party of (a) any
\noccurrence in or about the Demised Premises for which the other party might be
\nliable, (b) any fire or other casualty in the Demised Premises, (c) any damage
\nto or defect in the Demised Premises, including the fixtures and equipment
\nthereof, for the repair of which the other party might be responsible, and (d)
\nany damage to or defect in any part of the Building’s sanitary, electrical,
\nheating, ventilating, air-conditioning, elevator or other systems located in
\npassing through the Demised Premises or any part thereof.<\/p>\n
36.11. This Lease shall be governed by and construed in accordance with
\nthe laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
\nlegal action or proceeding arising out of or relating to this Lease may be
\nbrought in the Courts of the State of New Jersey, or the Federal District Court
\nfor the District of New Jersey, as the initiating party may elect. By execution
\nand delivery of this Lease, the parties hereby irrevocably accepts and submits
\ngenerally and unconditionally for themselves and with respect to their
\nproperties, to the jurisdiction of any such court in any such action or
\nproceeding, and hereby waives in the case of any such action or proceeding
\nbrought in the courts of the State of New Jersey, or Federal District Court for
\nthe District of New Jersey, any defenses based on jurisdiction, venue or forum
\nnon coveniens. If any provision of this Lease shall, be invalid or
\nunenforceable, the remainder of this Lease shall not be affected and shall be
\nenforced to the extent permitted by law. The table of contents, captions,
\nheadings and titles in this Lease are solely for convenience of reference and
\nshall not affect its interpretation. This Lease shall be construed without
\nregard to any presumption or other rule requiring construction against the party
\ncausing this Lease to be drafted. If any words or phrases in this Lease shall
\nhave been stricken out or otherwise eliminated, whether or not any other words
\nor phrases have been added, this Lease shall be construed as if the words or
\nphrases so stricken out or otherwise eliminated were never included in this
\nLease and no implication or inference shall be drawn from the fact that said
\nwords or phrases were so stricken out or otherwise eliminated. Each covenant,
\nagreement, obligation or other provision of this Lease on Tenant’s part to be
\nperformed, shall be deemed and construed as a separate and independent covenant
\nof Tenant, not dependent on any other provision of this Lease. All terms and
\nwords used in this Lease, regardless of the number or gender in which they are
\nused, shall be deemed to include any other number and any other gender as the
\ncontext may require. Tenant specifically agrees to pay all of Landlord’s costs,
\ncharges and expenses, including attorneys’ fees, incurred in connection with any
\ndocument review requested by Tenant and upon submission of bills therefor. In
\nthe event Landlord permits Tenant to examine Landlord’s books and records with
\nrespect to any Additional Charge imposed under this Lease, such examination
\nshall be conducted at Tenant’s sole cost and expense and shall be conditioned
\nupon Tenant retaining an independent accounting firm for such purposes which
\nshall not be compensated on any type of contingent fee basis with respect to
\nsuch examination. Wherever in this Lease or by law a party is authorized to
\ncharge or recover costs and expenses for legal services or attorneys’ fees, same
\nshall include, without limitation, the costs and expenses for in-house or staff
\nlegal counsel or outside counsel at rates not to exceed the reasonable and
\ncustomary charges for any such services as would be imposed in an arms length
\nthird party agreement for such services.<\/p>\n
36.12. Within thirty (30) days of each anniversary date of this Lease,
\nTenant shall annually furnish to Landlord a copy of its then current audited
\nfinancial statement which shall be employed by Landlord for purposes of
\nfinancing the Demised Premises and not distributed otherwise without prior
\nauthorization of Tenant. Any material adverse change of Tenant’s financial
\ncondition shall be furnished to Landlord in writing forthwith and without
\nrequest by Landlord for same.<\/p>\n
35<\/p>\n
36.13. (i) At least ninety (90) days prior to Tenant’s termination of its
\nlease, and any extensions thereof, Tenant agrees to seek a determination from
\nthe New Jersey Department of Environmental Protection and Energy (“NJDEPE”) in
\nthe form of a Letter of Non-applicability (“LNA”), that the New Jersey
\nIndustrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. (“ISRA”), is inapplicable
\nto the Tenant’s cessation of operations and termination of its lease. Tenant
\nrepresents, warrants, and covenants that any information contained in any
\napplication for an LNA submitted pursuant to this subsection will be true and
\ncomplete. Tenant represents that the Standard Industrial Classification (SIC)
\nnumber applicable to Tenant’s operations would not subject this transaction to
\nthe requirements of ISRA.<\/p>\n
(ii) In the event that an LNA is denied by NJDEPE, notice of such denial
\nwill be given to Landlord within two (2) business days of Tenant’s receipt of
\nNJDEPE’s denial of the LNA. Tenant shall satisfy its obligations under ISRA
\nprior to its lease termination date: (1) by securing an approval of the Tenant’s
\nNegative Declaration; or (2) by securing an approval of the Tenant’s Remedial
\nAction Workplan, and completing the implementation of such Plan, and obtaining
\nfrom NJDEPE a “No Further Action” letter. Tenant shall bear sole responsibility
\nfor any investigation and cleanup costs, fees, penalties, or damages associated
\nwith ISRA compliance. In the event that Tenant is unable to complete the its
\nISRA compliance obligations by the date of its lease termination, Landlord shall
\ncontinue to provide Tenant with reasonable access to the Demised Premises,
\nprovided that any work undertaken by Tenant shall be performed in such a manner
\nas to minimize interference with Landlord’s or any other tenant’s use of the
\nDemised Premises. However, Landlord reserves its rights to deem Tenant a
\nholdover tenant in the event that Tenant’s ISRA compliance unreasonably
\nrestricts the Landlord’s use of the Demised Premises.<\/p>\n
(iii) Tenant shall provide Landlord with copies of all correspondence,
\ndocuments and reports, including sampling results submitted to or received from
\nany governmental agency or third party in connection with Tenant’s compliance
\nwith ISRA.<\/p>\n
(iv) Landlord represents to Tenant that, to the best of its knowledge, the
\nDemised Premises are in compliance with all applicable present Environmental
\nLaws, as hereinafter defined, affecting the Demised Premises. Landlord further
\nagrees that it shall defend, indemnify and save Tenant harmless from and against
\nall claims, loss, damage, liability and expense (including reasonable attorney’s
\nfees and expenses) which the Tenant may sustain as a result of or on account of
\nnon-compliance of the Demised Premises with the Environmental Laws as the result
\nof conditions existing on the Demised Premises prior to the Commencement Date.
\nEnvironmental Laws are defined as any state or federal laws, statutes,
\nordinances or regulations relating to the discharge of “Hazardous Substances”,
\nas defined under New Jersey law [N.J.A.C. 7:1E-1.7], into the air, water, lands
\nor groundwaters of the State of New Jersey, or the United States of America.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
\nthe day and year first above written.<\/p>\n
HARTZ MOUNTAIN INDUSTRIES, INC.<\/p>\n
By: \/s\/ Irwin A. Horowitz
\n ——————————-
\n Irwin A. Horowitz
\n Executive Vice President<\/p>\n
36<\/p>\n
PEPE JEANS USA, INC.<\/p>\n
By: \/s\/ Arthur A. Bargonetti
\n ————————–
\n Name: Arthur A. Bargonetti
\n Title: Executive Vice President<\/p>\n
37<\/p>\n
RIDER TO LEASE DATED JUNE 10, 1997, BETWEEN HARTZ MOUNTAIN INDUSTRIES, INC., AS
\nLANDLORD AND PEPE JEANS USA, INC., AS TENANT.<\/p>\n
________________________________________________________________________________<\/p>\n
R1. If any of the provisions of this Rider shall conflict with any of the
\nprovisions, printed or typewritten, of this Lease, such conflict shall resolve
\nin every instance in favor of the provisions of this Rider.<\/p>\n
R2. Provided Tenant is in compliance with all of the terms and conditions
\ncontained herein, and provided Tenant has not assigned this Lease or sublet all
\nor any portion of the Demised Premises and is itself in occupation and
\nconducting business in the whole of the Demised Premises in accordance with the
\nterms of this Lease, Tenant expressly acknowledging and agreeing that the option
\nrights contained herein are personal to the original named Tenant, Tenant shall
\nhave one option to extend the Term of its lease of the Demised Premises, from
\nthe date upon which this Lease would otherwise expire for one extended period of
\nfive years (herein referred to as the “Extended Period”), upon the following
\nterms and conditions:<\/p>\n
a. If Tenant elects to exercise said option, it shall do so by giving
\nnotice of such election to Landlord on or before the date which is twelve (12)
\nmonths before the beginning of the Extended Period for which the Term is to be
\nextended by the exercise of such option. Tenant agrees that it shall have
\nforever waived its right to exercise any such option if it shall fail for any
\nreason whatsoever to give such notice to Landlord by the time provided herein
\nfor the giving of such notice, whether such failure is inadvertent or
\nintentional, time being of the essence as to the exercise of each such option.<\/p>\n
b. If Tenant elects to exercise said option, the Term shall be
\nautomatically extended for the Extended Period covered by the option so
\nexercised without execution of an extension or renewal lease. Within ten (10)
\ndays after request of either party following the effective exercise of any such
\noption, however, Landlord and Tenant shall execute, acknowledge and deliver to
\neach other duplicate originals of an instrument in recordable form confirming
\nthat such option was effectively exercised.<\/p>\n
c. The Extended Period shall be upon the same terms and conditions as are
\nin effect immediately preceding the commencement of such Extended Period;
\nprovided, however, that Tenant shall have no right or option to extend the Term
\nfor any period of time beyond the expiration of the Extended Period and,
\nprovided further, that in the Extended Period the Fixed Rent shall be at Fair
\nMarket Value. (“FMV”). FMV shall be determined by mutual agreement of the
\nparties. If the parties are unable to agree on the FMV within thirty (30) days
\nof Tenant’s exercise of its option, the parties shall choose a licensed Real
\nEstate Appraiser who shall determine the FMV. The cost of said Real Estate
\nAppraiser shall be borne equally by the parties. If the parties are unable to
\nagree on a licensed Real Estate Appraiser within forty-five (45) days of
\nTenant’s exercise of its option, each party shall select one Appraiser to
\nappraise the FMV. All appraisals shall be rendered within thirty (30) days of
\nappointment of the respective Appraiser appointed under this paragraph. If the
\ndifference between the two appraisals is 20% or less of the lower appraisal,
\nthen the FMV shall be the average of the two appraisals. If the difference
\nbetween the two appraisals is greater than 20% of the lower appraisal, the two
\nAppraisers shall select a third licensed Real Estate Appraiser to appraise the
\nFMV. The FMV shall in such case be the average of the three appraisals. The
\ncost of the third appraisal shall be borne equally by the parties.<\/p>\n
Anything to the contrary contained herein notwithstanding, the Fixed Rent for
\nsuch Extended Period shall not be less than the Fixed Rent for the period
\nimmediately preceding the Extended Period for which the Fixed Rent is being
\ncalculated.<\/p>\n
38<\/p>\n
d. Any termination, expiration, cancellation or surrender of this Lease
\nshall terminate any right or option for the Extended Period(s) not yet
\nexercised.<\/p>\n
e. Landlord shall have the right, for thirty (30) days after receipt of
\nnotice of Tenant’s election to exercise any option to extend the Term, to reject
\nTenant’s election if Tenant gave such notice while Tenant was in default in the
\nperformance of any of its obligations under the Lease, and such rejection shall
\nautomatically render Tenant’s election to exercise such option null and void and
\nof no effect.<\/p>\n
f. The options provided herein to extend the Term of the Lease may not be
\nsevered from the Lease or separately sold, assigned or otherwise transferred.<\/p>\n
R3. Tenant shall have the right, subject to compliance by Tenant with all
\nLegal Requirements, to operate a warehouse outlet store in a portion of the
\nDemised Premises containing not more than 2,500 square feet of Floor Space. In
\nthe event Tenant operates such outlet store, Tenant shall pay to Landlord, in
\naddition to the Fixed Rent, a “Percentage Rent” (as hereinafter provided):<\/p>\n
a. Percentage Rent: The amount for any period computed in accordance with the
\n provisions of Paragraph e hereof.<\/p>\n
b. Percentage Rent Rate: 4%<\/p>\n
c. Gross Sales: The dollar aggregate of: (a) the actual sales price of all
\n goods and merchandise sold, leased or licensed and the charges for all
\n services performed by Tenant or otherwise in connection with all business
\n conducted at or from the Demised Premises, whether made for cash, by check,
\n credit or otherwise, without reserve or deduction for inability or failure
\n to collect the same, including, without limitation, sales and services (i)
\n where the orders therefor originate at or are accepted at or from the
\n Demised Premises, whether delivery or performance thereof is made at or
\n from the Demised Premises or any other place, it being understood that all
\n sales made and orders received at or from the Demised Premises shall be
\n deemed to have been made and completed therein even though the orders are
\n fulfilled elsewhere or the payments of account are transferred to some
\n other office for collection, (ii) where the orders therefor result from
\n solicitation off the Demised Premises but which are conducted by personnel
\n operating from or reporting to or under the control or supervision of any
\n person at the Demised Premises, (iii) pursuant to mail, telegraph,
\n telephone or other similar orders received or billed at or from the Demised
\n Premises, and (iv) by means of mechanical or other vending devices, and (b)
\n all monies or other things of value received by Tenant from its operations
\n at the Demised Premises (which are not excluded from Gross Sales by the
\n next succeeding sentence) including all finance charges, cost of gift or
\n merchandise certificates and all deposits not refunded to customers. Gross
\n Sales shall not include (x) the exchange of merchandise between stores of
\n Tenant where such exchange is made solely for the convenient operation of
\n Tenant’s business and neither for the purpose of depriving Landlord of the
\n benefits of a sale which would otherwise be made at or from the Demised
\n Premises nor for the purpose of consummating a sale which has been
\n theretofore made at or from the Demised Premises, (y) sales of trade
\n fixtures which are not part of Tenant’s stock in trade and not sold in the
\n regular course of Tenant’s business, or (z) the amount of any city, county,
\n state or federal sales tax, luxury tax or excise tax on sales if the tax is
\n added to the selling price and separately stated and actually paid to the
\n taxing authority by Tenant; provided, however, no franchise or capital
\n stock tax and no income or similar tax based upon income, profits or Gross
\n Sales shall be deducted from Gross Sales in any event whatsoever. Cash or
\n credit refunds made upon transactions included<\/p>\n
39<\/p>\n
within the Gross Sales, but not exceeding the selling price of merchandise
\n returned by the purchaser and accepted by Tenant, shall be deducted from
\n the Gross Sales for the period when such refunds are made. Each charge or
\n sale upon installment or credit or layaway, so called, shall be treated as
\n a sale for the full price in the month during which such charge or sale
\n shall be made, irrespective of the time when Tenant shall receive payment
\n from its customer. Each lease or rental or license of merchandise to
\n customers shall be treated as a sale in the month in which the lease,
\n rental or license is made for a price equal to the total rent of license
\n fee payable. For purposes of this paragraph the word “Tenant” shall include
\n any of Tenant’s subtenants, concessionaires and licensees.<\/p>\n
d. Breakpoint: An amount at an annual rate of $300.00 per square foot of
\n retail Floor Space; and, in the event the Tenant exercises its right to
\n extend the Term, the Breakpoint shall be increased in the same proportion
\n as Fixed Rent applicable to such Extended Period is increased. If the
\n Fixed Rent is not changed for such Extended Period, the Breakpoint shall
\n remain the same as the Breakpoint in effect immediately preceding such
\n Extended Period. If for any reason the Fixed Rent is reduced or abated,
\n the Breakpoint shall be reduced in the same proportion as the Fixed Rent is
\n reduced or abated.<\/p>\n
e. Within thirty (30) days after the end of each calendar month during the
\n Term, Tenant shall submit to Landlord a statement certified by Tenant (by
\n an authorized officer if Tenant is a corporation or by a partner if Tenant
\n is a partnership) stating the Gross Sales (including an itemization of all
\n claimed deductions therefrom) for such month. Within thirty (30) days
\n after the end of each Calendar Quarter, Tenant shall pay to Landlord as
\n Percentage Rent the amount, if any, by which the aggregate Gross Sales for
\n the Calendar Year in which such Calendar Quarter occurs up to the end of
\n such Calendar Quarter exceeds the Breakpoint for such period, or a pro-rata
\n portion thereof for a partial Calendar Quarter, if applicable, multiplied
\n by the Percentage Rent Rate. Within ninety (90) days after the end of each
\n Calendar Year, including any partial Calendar Year at the beginning of the
\n Term, and after the end of the Term, Tenant shall submit to Landlord a
\n statement certified by an independent certified public accountant stating
\n the Gross Sales (including an itemization of all claimed deductions
\n therefrom) and the Percentage Rent for such Calendar Year, or partial
\n Calendar Year if the Term shall begin on a date other than a January 1st
\n and\/or end on a date other than a December 31st, as the case may be, and if
\n the Percentage Rent so stated for such period is more or less than the
\n Percentage Rent paid for such period, Tenant shall pay to Landlord the
\n deficiency, or Landlord shall refund to Tenant the excess, within twenty
\n (20) days after submission of such statement of Gross Sales. For at least
\n thirty-six (36) months after the expiration of each Calendar Year,
\n including any partial Calendar Year at the beginning of the Term, and after
\n the end of the Term, Tenant shall keep and maintain (and shall cause all
\n subtenants, concessionaires and licensees to keep and maintain) in the
\n Demised Premises or the main office of Tenant full and accurate books of
\n account and records from which the Gross Sales can be determined. The
\n books and records maintained shall include, but shall not be limited to (i)
\n cash register tapes showing continuous grand total (from a sealed cash
\n register), (ii) original source documents, (iii) sequentially numbered
\n receipts, (iv) federal, state & local tax returns, (v) receipts from daily
\n bank deposits, (vi) computer printouts and (vii) bank statements. Landlord
\n shall have the right from time to time during such thirty-six (36) month
\n period to inspect and audit all such books and records relating to Gross
\n Sales, and Tenant, each subtenant, concessionaire and licensee will produce
\n the same on request of Landlord. If any such inspection and audit
\n discloses that the Gross Sales were understated, Tenant shall forthwith pay
\n to Landlord any additional Percentage Rent shown to be payable, and if the
\n Gross sales for any Calendar Year or partial Calendar Year were understated<\/p>\n
40<\/p>\n
by more than One Thousand Dollars ($1,000.00), Tenant shall also pay the
\n cost of Landlord’s inspection and audit. Landlord does not in any way, or
\n for any purpose, become a partner or joint venturer with Tenant hereunder.
\n The provisions of this Lease relating to Percentage Rent are included
\n solely for the purpose of providing a method whereby rentals are to be
\n measured and ascertained.<\/p>\n
g. Calendar Quarter: Any three-month period commencing on either a January 1,
\n an April 1, a July 1 or an October 1.<\/p>\n
R4. Section R3 (a through g) shall not prevail if the 2,500 square feet of
\nRetail Space is used as an Employee Purchase Center that is available only to
\nemployees of Tommy Hilfiger and its licensees. Upon request, Tenant shall
\ndeliver to Landlord a representation stating same.<\/p>\n
R5. Landlord further covenants and covenants and represents that, as of
\nthe Commencement Date, the Building is structurally sound. Landlord represents
\nto Tenant that, to the best of its knowledge, the Building is in compliance
\nwith all presently applicable laws affecting the Building, which compliance
\nshall be deemed to be satisfied upon issuance of the permanent or continuing
\ncertificate of occupancy. Landlord shall defend, indemnify and save Tenant
\nharmless from and against all claims, loss, damage, liability and expense
\n(including reasonable attorney’s fees and expenses) which the Tenant may sustain
\nas a result of or on account of non-compliance of the Building with applicable
\nlaws as a result of conditions existing on the Building prior to the
\nCommencement Date.<\/p>\n
HARTZ MOUNTAIN INDUSTRIES, INC.<\/p>\n
By: \/s\/ Irwin A. Horowitz
\n ————————————–
\n Irwin A. Horowitz
\n Executive Vice President<\/p>\n
PEPE JEANS USA, INC.<\/p>\n
By: \/s\/ Arthur A. Bargonetti
\n ————————————–
\n Name: Arthur A. Bargonetti
\n Title: Executive Vice President<\/p>\n
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