AGREEMENT OF
LEASE , made as of this
13 th
day of April, 2005, by and between
FIFTH AVENUE PARTNERS, L.P., 13 East 16
th Street, Suite #400, New York, NY 10003, party of
the first part, hereinafter referred to as OWNER, and
INTERACTIVE THERAPY GROUP, INC. , 4615 North Street,
Jamesville, NY 13078, party of the second part, hereinafter
referred to as TENANT, WITNESSETH: Owner hereby leases to
Tenant and Tenant hereby hires from Owner Suite #701 (the
“Demised Premises”), as per the attached
“Exhibit A”in the building known as 19 West
21 st Street (“Building” or
“building”) in the Borough of Manhattan, City of New
York, for the term of five (5) years and two (2) months (or
until such term shall sooner cease and expire as hereinafter
provided), to commence on the
1 st day of May, two thousand and five
(“Commencement Date”)
and to end on the
31 st
day of July, two thousand and ten
(“Expiration Date”),
both dates
inclusive, at an annual rental rate set forth in Article 41
(“Rent”, “rent”, or “Fixed
Rent”), together with all other sums of money as shall become
due and payable by Tenant under this Lease (collectively,
“Additional Rent” or “additional rent”),
which Tenant agrees to pay in lawful money of the United States
which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said
term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(s) on the execution
hereof (unless this Lease be a renewal).
In the event that,
at the commencement of the term of this Lease, or thereafter,
Tenant shall be in default in the payment of Rent to Owner pursuant
to the terms of another lease with Owner or with Owner’s
predecessor in interest, Owner may at Owner’s option and
without notice to Tenant add the amount of such arrears to any
monthly installment of Rent payable hereunder and the same shall be
payable to Owner as Additional Rent.
The parties
hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
hereby covenant as follows:
Rent:
1 . Tenant shall pay the
Rent as above and hereinafter provided.
Occupancy,
Use: 2 . Tenant shall use
and occupy the Demised Premises for executive offices, provided
such use is in accordance with t he Certificate of Occupancy for
the Building, if any, and for no other purpose.
Alterations:
3 . Tenant shall make no
changes in or to the Demised Premises of any nature without
Owner’s prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this Article, Tenant at
Tenant’s expense, may make alterations, installations,
additions or improvements which are nonstructural and which do not
affect utility services or plumbing and electrical lines, in or to
the interior of the Demised Premises using contractors or mechanics
first approved by Owner. Tenant shall, at its expense, before
making any alterations, additions, installations or improvements
obtain all permits, approval and certificates required by any
governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to
Owner. Tenant agrees to carry and will cause Tenant’s
contractors and sub-contractors to carry such worker’s
compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanic’s lien is
filed against the Demised Premises, or the building of which the
same forms a part, for work claimed to have been done for, or
materials furnished to, Tenant, whether or not done pursuant to
this Article, the same shall be discharged by Tenant within thirty
(30) days thereafter, at Tenant’s expense, by filing the
bond required by law or otherwise. All fixtures and all paneling,
partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on
Tenant’s behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the
Demised Premises unless Owner, by notice to Tenant no later than
twenty (20) days prior to the date fixed as the termination of
this Lease, elects to relinquish Owner’s right thereto and to
have them removed by Tenant, in which event the same shall be
removed from the Demised Premises by Tenant prior to the expiration
of the Lease, at Tenant’s expense. Nothing in this Article
shall be construed to give Owner title to or to prevent
Tenant’s removal of trade fixtures, moveable office furniture
and equipment, but upon removal of any such from the premises or
upon removal of other installations as may be required by Owner,
Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair
any damage to the Demised Premises or
the building
due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises
after Tenant’s removal shall be deemed abandoned and may, at
the election of Owner, either be retained as Owner’s property
or removed from the premises by Owner, at Tenant’s
expense.
Repairs:
4 . Owner shall maintain
and repair the exterior of and the public portions of the Building.
Tenant shall, throughout the term of this Lease, take good care of
the Demised Premises including the bathrooms and lavatory
facilities (if the Demised Premises encompass the entire floor of
the Building) and the windows and window frames and, the fixtures
and appurtenances therein and at Tenant’s sole cost and
expense promptly make all repairs thereto and to the Building,
whether structural or non-structural in nature, caused by or
resulting from the carelessness, omission, neglect or improper
conduct of Tenant, Tenant’s servants, employees, invitees or
licensees, and whether or not arising from such Tenant conduct or
omission, when required by other provisions of this Lease,
including Article 6, Tenant shall also repair all damage to
the Building and the Demised Premises caused by the moving of
Tenant’s fixtures, furniture or equipment. All the aforesaid
repairs shall be of quality or class equal to the original work or
construction. If Tenant fails, after ten (10) days notice, to
proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant,
and the expenses thereof incurred by Owner shall be collectible, as
Additional Rent, after rendition of a bill or statement therefor.
If the Demised Premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. Tenant
shall give Owner prompt notice of any defective condition in any
plumbing, heating system or electrical lines located in the Demised
Premises and following such notice, Owner shall remedy the
condition with due diligence, but at the expense of Tenant, if
repairs are necessitated by damage or injury attributable to
Tenant, Tenant’s servants, agents, employees, invitees or
licensees as aforesaid. Except as specifically provided in
Article 9 or elsewhere in this Lease, there shall be no
allowance to the Tenant for a diminution of rental value and no
liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations,
additions or improvements in or to any portion of the Building or
the Demised Premises or in and to the fixtures, appurtenances or
equipment thereof. The provisions of this Article 4 with
respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 hereof
shall apply.
Window
Cleaning: 5 . Tenant will
not clean nor require, permit, suffer or allow any window in the
Demised Premises to be cleaned from the outside in violation of
Section 202 of the New York State Labor Law or any other
applicable law or of the Rules of the Board of Standards and
Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements
of Law, Fire Insurance, Floor Loads: 6 . Prior to the commencement of the Lease term,
if Tenant is then in possession, and at all times thereafter,
Tenant shall, at Tenant’s sole cost and expense, promptly
comply with all present and future laws, orders and regulations of
all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer
pursuant to law, and all orders, rules and regulations of the New
York Board of Fire Underwriters, or the Insurance Services Office,
or any similar body which shall impose any violation, order or duty
upon Owner or Tenant with respect to the Demised Premises, whether
or not arising out of Tenant’s use or manner of use thereof,
or, with respect to the Building, if arising out of Tenant’s
use or manner of use of the Demised Premises or the Building
(including the use permitted under the Lease). Except as provided
in Article 30 hereof, nothing herein shall require Tenant to
make structural repairs or alterations unless Tenant has, by its
manner of use of the Demised Premises or method of operation
therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant shall not
do or permit any act or thing to be done in or to the Demised
Premises which is contrary to law, or which will invalidate or be
in conflict with public liability, fire or other policies of
insurance at any time carried by or for the benefit of Owner.
Tenant shall not keep anything in the Demised Premises except as
now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other
authority having jurisdiction, and then only in such manner and
such quantity so as not to increase the rate for fire insurance
applicable to the Building, nor use the premises in a manner which
will increase the insurance rate for the Building or any property
located therein over that in effect prior to the commencement of
Tenant’s occupancy. If by reason of failure to comply with
the foregoing the fire insurance rate shall, at the beginning of
this Lease or at any time thereafter, be higher than it otherwise
would be, then Tenant shall reimburse Owner, as Additional Rent
hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of
such failure by Tenant. In any action or proceeding
wherein
2
Owner and
Tenant are parties, a schedule or “make-up” or rate for
the Building or Demised Premises issued by a body making fire
insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said
premises. Tenant shall not place a load upon any floor of the
Demised Premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at
Tenant’s expense, in settings sufficient, in Owner’s
judgment, to absorb and prevent vibration, noise and
annoyance.
Subordination: 7 . This Lease is subject and subordinate to all
ground or underlying leases and to all mortgages which may now or
hereafter affect such leases or the real property of which the
Demised Premises are a part and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying
leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground
or underlying lessor or by any mortgagee, affecting any lease or
the real property of which the Demised Premises are a part. In
confirmation of such subordination, Tenant shall execute promptly
any certificate that Owner may request.
Property
– Loss, Damage, Reimbursement, Indemnity: 8
. Owner or its agents shall not be
liable for any damage to property of Tenant or of others entrusted
to employees of the Building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the negligence of
Owner, its agents, servants or employees; Owner or its agents shall
not be liable for any damage caused by other tenants or persons in,
upon or about said building or caused by operations in connection
of any private, public or quasi public work. If at any time any
windows of the Demised Premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if
required by law) for any reason whatsoever including, but not
limited to Owner’s own acts, Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution
of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable
attorney’s fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant’s contractors, employees,
invitees, or licensees, of any covenant or condition of this Lease,
or the carelessness, negligence or improper conduct of the Tenant,
Tenant’s agents, contractors, employees, invitees, or
licensees. Tenant’s liability under this Lease extends to the
acts and omissions of any subtenant, and any contractor, employee,
invitee or licensee of any subtenant. In case any action or
proceeding is brought against Owner by reason of any such claim,
Tenant, upon written notice from Owner, will, at Tenant’s
expense, resist or defend such action or proceeding by counsel
approved by Owner in writing, such approval not to be unreasonably
withheld.
Destruction,
Fire and Other Casualty: 9 . (a) If the Demised Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall
give immediate notice thereof to Owner and this Lease shall
continue in full force and effect except as hereinafter set forth.
(b) If the Demised Premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto
shall be repaired by and at the expense of Owner and the Rent,
until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the
part of the premises which is usable. (c) If the Demised
Premises are totally damaged or rendered wholly unusable by fire or
other casualty, then the Rent shall be proportionately paid up to
the time of the casualty and thenceforth shall cease until the date
when the premises shall have been repaired and restored by Owner,
subject to Owner’s right to elect not to restore the same as
hereinafter provided. (d) If the Demised Premises are rendered
wholly unusable or (whether or not the Demised Premises are damaged
in whole or in part) if the Building shall be so damaged that Owner
shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this Lease by written notice
to Tenant, given within 90 days after such fire or casualty,
specifying a date for the expiration of the Lease, which date shall
not be more than 60 days after the giving of such notice, and
upon the date specified in such notice the term of this Lease shall
expire as fully and completely as if such date were the date set
forth above for the termination of this Lease and Tenant shall
forthwith quit, surrender and vacate the
3
premises
without prejudice however, to Owner’s rights and remedies
against Tenant under the lease provisions in effect prior to such
termination, and any rent owing shall be paid up to such date and
any payments of rent made by Tenant which were on account of any
period subsequent to such date shall be returned to Tenant. Unless
Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner’s control. After any such
casualty, Tenant shall cooperate with Owner’s restoration by
removing from the premises as promptly as reasonably possible, all
of Tenant’s salvageable inventory and movable equipment,
furniture, and other property. Tenant’s liability for rent
shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant’s
occupancy. (e) Nothing contained hereinabove shall relieve
Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, each party
shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted
by law, Owner and Tenant each hereby releases and waives all right
of recovery against the other or any one claiming through or under
each of them by way of subrogation or otherwise. The foregoing
release and waiver shall be in force only if both releasors’
insurance policies contain a clause providing that such a release
or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of
additional premiums, then the party benefiting from the waiver
shall pay such premium within ten (10) days after written
demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant’s
furniture and or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section
227 of the Real Property Law and agrees that the provisions of this
Article shall govern and control in lieu thereof.
Eminent
Domain: 10 . If the whole
or any part of the Demised Premises shall be acquired or condemned
by Eminent Domain for any public or quasi public use or purpose,
then and in that event, the term of this Lease shall cease and
terminate from the date of title vesting in such proceeding and
Tenant shall have no claim for the value of any unexpired term of
said Lease.
Assignment,
Mortgage, Etc. 11 .
Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber
this agreement, nor underlet, or suffer or permit the Demised
Premises or any part thereof to be used by others, without the
prior written consent of Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant shall be deemed an
assignment. If this Lease be assigned, or if the Demised Premises
or any part thereof be underlet or occupied by anybody other than
Tenant, Owner may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount
collected to the Rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or
occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting
shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment
or underletting.
Electric
Current: 12 . Rates and
conditions in respect to submetering or rent inclusion, as the case
may be, to be added in RIDER attached hereto. Tenant covenants and
agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the Building or the
risers or wiring installation and Tenant may not use any electrical
equipment which, in Owner’s opinion, reasonably exercised,
will overload such installations or interfere with the use thereof
by other tenants of the Building. The change at any time of the
character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damage or expenses which
Tenant may sustain.
Access to
Premises: 13 . Owner or
Owner’s agents shall have the right (but shall not be
obligated) to enter the Demised Premises in any emergency at any
time, and, at other reasonable times, to examine the same and to
make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to any
4
portion of the
Building or which Owner may elect to perform in the premises after
Tenant’s failure to make repairs or perform any work which
Tenant is obligated to perform under this Lease, or for the purpose
of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the Demised
Premises and to erect new pipes and conduits therein provided,
wherever possible, they are within walls or otherwise concealed.
Owner may, during the progress of any work in the Demised Premises,
take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress
nor to any damages by reason of loss or interruption of business or
otherwise. Throughout the term hereof Owner shall have the right to
enter the Demised Premises at reasonable hours for the purpose of
showing the same to prospective purchasers or mortgagees of the
Building, and during the last six months of the term for the
purpose of showing the same to prospective tenants and may, during
said six months period, place upon the premises the usual notices
“To Let” and “For Sale”, which notices
Tenant shall permit to remain thereon without molestation. If
Tenant is not present to open and permit an entry into the
premises, Owner or Owner’s agents may enter the same whenever
such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard
Tenant’s property, such entry shall not render Owner or its
agents liable therefor, nor in any event shall the obligations of
Tenant hereunder be affected. If during the last month of the term
Tenant shall have removed all or substantially all of
Tenant’s property therefrom, Owner may immediately enter,
alter, renovate or redecorate the Demised Premises without
limitation or abatement of rent, or incurring liability to Tenant
for any compensation and such act shall have no effect on this
Lease or Tenant’s obligations hereunder.
Vault, Vault
Space, Area: 14 . No
vaults, vault space or area, whether or not enclosed or covered,
not within the property line of the Building is leased hereunder,
anything contained in or indicated on any sketch, blueprint or
plan, or anything contained elsewhere in this Lease to the contrary
notwithstanding. Owner makes no representation as to the location
of the property line of the Building. All vaults and vault space
and all such areas not within the property line of the Building,
which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license
be revoked, or if the amount of such space or area be diminished or
required by any federal, state or municipal authority or public
utility, Owner shall not be subject to any liability nor shall
Tenant be entitled to any compensation or diminution or abatement
of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by
Tenant, if used by Tenant, whether or not specifically leased
hereunder.
Occupancy:
15 . Tenant will not at
any time use or occupy the Demised Premises in violation of the
certificate of occupancy issued for the building of which the
Demised Premises are a part. Tenant has inspected the premises and
accepts them as is, subject to the riders annexed hereto with
respect to Owner’s work, if any. In any event, Owner makes no
representation as to the condition of the premises and Tenant
agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for
the proper and lawful conduct of Tenant’s business, Tenant
shall be responsible for and shall procure and maintain such
license or permit.
Bankruptcy:
16 . (a) Anything
elsewhere in this Lease to the contrary notwithstanding, this Lease
may be cancelled by Owner by sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of
the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as the
debtor; or (2) the making by Tenant of an assignment or any
other arrangements for the benefit of creditors under any state
statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall
thereafter be entitled to possession of the premises demised but
shall forthwith quit and surrender the premises. If this Lease
shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then
owning Tenant’s interest in this Lease.
(b) It
is stipulated and agreed that in the event of the termination of
this Lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this Lease to the contrary,
be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rental reserved
hereunder for the unexpired portion of the term demised and the
fair and reasonable rental value of the Demised Premises for the
same period. In the computation of such damages the difference
between any installment of Rent becoming due hereunder after the
date of termination and the fair and reasonable rental value of
the
5
Demised
Premises for the period for which such installment was payable
shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be
relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall be deemed to be the fair and
reasonable rental value for the part or the whole of the premises
so relet during the term of the reletting. Nothing herein contained
shall limit or prejudice the right of the Owner to prove for and
obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law
in effect at the time when, and governing the proceedings in which,
such damages are to be proved, whether or not such amount be
greater, equal to, or less than the amount of the difference
referred to above.
Default:
17 . (1) If Tenant
defaults in fulfilling any of the covenants of this Lease other
than the covenants for the payment of Rent or Additional Rent; or
if the Demised Premises becomes vacant or deserted, “or if
this Lease be rejected under §235 of Title 11 of the U.S. Code
(bankruptcy code)”, or if any execution or attachment shall
be issued against Tenant or any of Tenant’s property
whereupon the Demised Premises shall be taken or occupied by
someone other than Tenant; or if Tenant shall make default with
respect to any other lease between Owner and Tenant; or if Tenant
shall have failed, after five (5) days written notice, to
redeposit with Owner any portion of the security deposited
hereunder which Owner has applied to the payment of any Rent and
Additional Rent due and payable hereunder or failed to move into or
take possession of the premises within fifteen (15) days after
the commencement of the term of this Lease, of which fact Owner
shall be the sole judge; then in any one or more of such events,
upon Owner serving a written five (5) days notice upon Tenant
specifying the nature of said default and upon the expiration of
said five (5) days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be
completely cured or remedied within said five (5) day period,
and if Tenant shall not have diligently commenced curing such
default within such five (5) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three
(3) days’ notice of cancellation of this Lease upon
Tenant, and upon the expiration of said three (3) days this
Lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such three (3) day period
were the day definitely fixed for the end and expiration of this
Lease and the term thereof and Tenant shall then quit and surrender
the Demised Premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If
the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make
default in the payment of the Rent reserved herein or any item of
Additional Rent herein mentioned or any part of either or in making
any other payment herein required; then and in any of such events
Owner may without notice, reenter the Demised Premises either by
force or otherwise and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant
of the Demised Premises and remove their effects and hold the
premises as if this Lease had not been made, and Tenant hereby
waives the service of notice of intention to reenter or to
institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of
any renewal or extension of this Lease, Owner may cancel and
terminate such renewal or extension agreement by written
notice.
Remedies of
Owner and Waiver Of Redemption: 18 . In case of any such default, reentry,
expiration and/or dispossess by summary proceedings or otherwise,
(a) the Rent, and Additional Rent, shall become due thereupon
and be paid up to the time of such reentry, dispossess and/or
expiration, (b) Owner may relet the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term
or terms, which may at Owner’s option be less than or exceed
the period which would otherwise have constituted the balance of
the term of this Lease and may grant concessions or free rent or
charge a higher rental than that in this Lease, (c) Tenant or
the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform
said Tenant’s covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and
the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the Demised Premises for each month
of the period which would otherwise have constituted the balance of
the term of this Lease. The failure of Owner to relet the premises
or any part or parts thereof shall not release or affect
Tenant’s liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses
as Owner may incur in connection with reletting, such as legal
expenses, attorneys’ fees, brokerage, advertising and for
keeping the Demised Premises in good order or for preparing the
same for reletting. Any such liquidated damages shall be paid in
monthly
6
installments by
Tenant on the rent day specified in this Lease and any suit brought
to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency
for any subsequent month by a similar proceeding. Owner, in putting
the Demised Premises in good order or preparing the same for
re-rental may, at Owner’s option, make such alterations,
repairs, replacements and/or decorations in the Demised Premises as
Owner, in Owner’s sole judgment, considers advisable and
necessary for the purpose of reletting the Demised Premises, and
the making of such alterations, repairs, replacements and/or
decorations shall not operate or be construed to release Tenant
from liability hereunder as aforesaid. Owner shall in no event be
liable in any way whatsoever for failure to relet the Demised
Premises, or in the event that the Demised Premises are relet, for
failure to collect the rent thereof under such reletting, and in no
event shall Tenant be entitled to receive any excess, if any, of
such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant
of any of the covenants or provisions hereof, Owner shall have the
right of injunction and the right to invoke any remedy allowed at
law or in equity as if reentry, summary proceedings and other
remedies were not herein provided for. Mention in this Lease of any
particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future
laws.
Fees and
Expenses: 19 . If Tenant
shall default in the observance or performance of any term or
covenant on Tenant’s part to be observed or performed under
or by virtue of any of the terms or provisions in any article of
this Lease, then, unless otherwise provided elsewhere in this
Lease, Owner may immediately or at any time thereafter and without
notice perform the obligation of Tenant thereunder. If Owner, in
connection with the foregoing or in connection with any default by
Tenant in the covenant to pay Rent hereunder, makes any
expenditures or incurs any obligations for the payment of money,
including but not limited to attorney’s fees, in instituting,
prosecuting or defending any action or proceedings, then Tenant
will reimburse Owner for such sums so paid or obligations incurred
with interest and costs. The foregoing expenses incurred by reason
of Tenant’s default shall be deemed to be Additional Rent
hereunder and shall be paid by Tenant to Owner within five
(5) days of rendition of any bill or statement to Tenant
therefor. If Tenant’s lease term shall have expired at the
time of making such expenditures or incurring such obligations,
such sums shall be recoverable by Owner as damages.
Building
Alterations and Management: 20 . Owner shall have the right at any time without
the same constituting an eviction and without incurring liability
to Tenant therefor to change the arrangement and/or location of
public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the Building
and to change the name, number or designation by which the Building
may be known. There shall be no allowance to Tenant for diminution
of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner
or other Tenant making any repairs in the Building or any such
alterations, additions and improvements. Furthermore, Tenant shall
not have any claim against Owner by reason of Owner’s
imposition of any controls of the manner of access to the Building
by Tenant’s social or business visitors as the Owner may deem
necessary for the security of the Building and its
occupants.
No
Representations by Owner: 21 . Neither Owner nor Owner’s agents have
made any representations or promises with respect to the physical
condition of the Building, the land upon which it is erected or the
Demised Premises, the rents, leases, expenses of operation or any
other matter or thing affecting or related to the Demised Premises
or the Building except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this
Lease. Tenant has inspected the Building and the Demised Premises
and is thoroughly acquainted with their condition and agrees to
take the same “as is” on the date possession is
tendered and acknowledges that the taking of possession of the
Demised Premises by Tenant shall be conclusive evidence that the
said premises and the Building of which the same form a part were
in good and satisfactory condition at the time such possession was
so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in
this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or
abandonment is sought.
7
End of Term:
22 . Upon the expiration
or other termination of the term of this Lease, Tenant shall quit
and surrender to Owner the Demised Premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not
required to repair as provided elsewhere in this Lease excepted,
and Tenant shall remove all its property from the Demised Premises.
Tenant’s obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease. If the
last day of the term of this Lease or any renewal thereof, falls on
Sunday, this Lease shall expire at noon on the preceding Saturday
unless it be a legal holiday in which case it shall expire at noon
on the preceding business day.
Quiet
Enjoyment: 23 . Owner
covenants and agrees with Tenant that upon Tenant paying the Rent
and Additional Rent and observing and performing all the terms,
covenants and conditions, on Tenant’s part to be observed and
performed, Tenant may peaceably and quietly enjoy the premises
hereby demised, subject, nevertheless, to the terms and conditions
of this Lease including, but not limited to, Article 34 hereof
and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
Failure to
Give Possession: 24 . If
Owner is unable to give possession of the Demised Premises on the
date of the commencement of the term hereof, because of the
holding-over or retention of possession of any tenant, undertenant
or occupants or if the Demised Premises are located in a building
being constructed, because such building has not been sufficiently
completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or
if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any
liability for failure to give possession on said date and the
validity of the Lease shall not be impaired under such
circumstances, nor shall the same be construed in any wise to
extend the term of this Lease, but the Rent payable hereunder shall
be abated (provided Tenant is not responsible for Owner’s
inability to obtain possession or complete any work required) until
after Owner shall have given Tenant notice that the premises are
substantially ready for Tenant’s occupancy. If permission is
given to Tenant to enter into the possession or to occupy premises
other than the Demised Premises prior to the date specified as the
commencement of the term of this Lease, Tenant covenants and agrees
that such occupancy shall be deemed to be under all the terms,
covenants and provisions of this Lease, except as to the covenant
to pay Rent. The provisions of this Article are intended to
constitute “an express provision to the contrary”
within the meaning of Section 223-a of the New York Real
Property Law.
No Waiver:
25 . The failure of Owner
to seek redress for violation of, or to insist upon the strict
performance of any covenant or condition of this Lease or of any of
the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an
original violation. The receipt by Owner of rent with knowledge of
the breach of any covenant of this Lease shall not be deemed a
waiver of such breach and no provision of this Lease shall be
deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly Rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated Rent,
nor shall any endorsement or statement of any check or any letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without
prejudice to Owner’s right to recover the balance of such
Rent or pursue any other remedy in this Lease provided. All checks
tendered to Owner as and for the rent of the Demised Premises shall
be deemed payments for the account of Tenant. Acceptance by Owner
of rent from anyone other than Tenant shall not be deemed to
operate as an attornment to Owner by the payor of such rent or as a
consent by Owner to an assignment or subletting by Tenant of the
Demised Premises to such payor, or as a modification of the
provisions of this Lease. No act or thing done by Owner or
Owner’s agents during the term hereby demised shall be deemed
an acceptance of a surrender of said premises and no agreement to
accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner’s agent shall have any
power to accept the keys of said premises prior to the termination
of the Lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the Lease or a surrender of
the premises.
Waiver of
Trial by Jury: 26 . It is
mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property
damage) on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Owner and Tenant,
Tenant’s use of or occupancy
8
of said
premises, and any emergency statutory or any other statutory
remedy. It is further mutually agreed that in the event Owner
commences any summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding.
Inability to
Perform: 27 . This Lease
and the obligation of Tenant to pay Rent hereunder and perform all
of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no wise be affected, impaired or
excused because Owner is unable to fulfill any of its obligations
under this Lease or to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make,
or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented from so doing by reason
of strike or labor troubles or any cause whatsoever beyond
Owner’s sole control including, but not limited to,
government preemption in connection with a National Emergency or by
reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by
war or other emergency.
Bills and
Notices: 28 . Except as
otherwise in this Lease provided, a bill, statement, notice or
communication which Owner may desire or be required to give to
Tenant, shall be deemed sufficiently given or rendered if, in
writing, delivered to Tenant personally or sent by registered or
certified mail addressed to Tenant at the Building of which the
Demised Premises form a part or at the last known residence address
or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such
bill or statement and of the giving of such notice or communication
shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any
notice by Tenant to Owner must be served by registered or certified
mail addressed to Owner at the address first hereinabove given or
at such other address as Owner shall designate by written
notice.
Water
Charges: 29 . If Tenant
requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water meter and thereby
measure Tenant’s water consumption for all purposes. Tenant
shall pay Owner for the cost of the meter and the cost of the
installation thereof and throughout the duration of Tenant’s
occupancy Tenant shall keep said meter and installation equipment
in good working order and repair at Tenant’s own cost and
expense in default of which Owner may cause such meter and
equipment to be replaced or repaired and collect the cost thereof
from Tenant, as Additional Rent. Tenant agrees to pay for water
consumed, as shown on said meter at and when bills are rendered,
and on default in making such payment Owner may pay such charges
and collect the same from Tenant, as Additional Rent. Tenant
covenants and agrees to pay, as Additional Rent, the sewer rent,
charge or any other tax, rent, levy or charge which now or
hereafter is assessed, imposed or a lien upon the Demised Premises
or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption,
maintenance or supply of water, water system or sewage or sewage
connection or system. If the Building or the Demised Premises or
any part thereof is supplied with water through a meter through
which water is also supplied to other premises Tenant shall pay to
Owner, as Additional Rent, on the first day of each month, $25.00
of the total meter charges as Tenant’s portion. Independently
of and in addition to any of the remedies reserved to Owner
hereinabove or elsewhere in this Lease, Owner may sue for and
collect any monies to be paid by Tenant or paid by Owner for any of
the reasons or purposes hereinabove set forth.
Sprinklers:
30 . Anything elsewhere
in this Lease to the contrary notwithstanding, if the New York
Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of the federa
|
