This agreement
made this 4 day of January , 2008 between
Oliva Holding, LLC
6724 Thompson Road
Syracuse, NY 13211
of the first
part, (hereinafter referred to as Landlord) and
INTERACTIVE
THERAPY GROUP
500 East Brighton Avenue
Syracuse, NY 13210
of the second
part, (hereinafter referred to as Tenant)
First:
Premises . That the Landlord hereby lets to the Tenant and
the Tenant hereby hires from the Landlord the following Premises:
Approximately 5,010 square feet of office/therapy space (the
“Premises”) in the northern wing of a 16,500 square
foot building located at 1 Adler Drive, East Syracuse, NY 13057
(the “Building”). A floor plan of the space is attached
hereto and labeled Exhibit A.
Second:
Term, Rental and Use. With the appurtenances for a term of
five (5) years and two (2) months to commence on the
1 st
day of March 2008 (the
“Lease Commencement Date”) and to end on the 30
th day of April 2013; provided however, such
Lease Commencement Date may not precede the completion of the
improvements as agreed upon by Landlord and Tenant in the Addendum
attached to this Lease. After Landlord has completed said
improvements and Tenant has approved such improvements, Tenant
shall certify in writing that the improvements are complete and
Landlord and Tenant shall certify in writing a new Lease
Commencement Date if the improvements were completed subsequent to
the date provided above. Said written certifications shall be
included as attachments to this Lease. The ANNUAL RENT of this
Lease is $55,110.00, which shall be due and payable on the Lease
Commencement Date and annually thereafter on the anniversary date
of the Lease Commencement Date. Notwithstanding the foregoing,
provided that the TENANT shall not be in default hereunder, the
ANNUAL RENT shall be paid in equal monthly installments of
$4,592.50 in advance on the first day of each month at the
principal office of the Landlord, without diminution, deduction or
set-off whatsoever and without prior notice or demand. Tenant, upon
signing of this Lease, will pay the Landlord the first months rent
of ANNUAL RENT as well as a deposit equal to one (1) monthly
installment of ANNUAL RENT, totaling $9,185.00. Regular rental
payments of ANNUAL RENT will commence on May 1, 2008. The
premises are to be occupied by the Tenant for the following
purposes: General offices and children’s therapy for the
purpose of conducting Tenant’s daily operations and for no
other purpose whatsoever.
Third:
Utilities. The Landlord shall provide and pay for all water,
gas, electricity and power (the “Utilities”) used on
the Premises. The Base Year cost for Utilities is based upon $2.00
per sq. ft. of the 16,500 sq. ft. Building, which total Base Year
cost is $33,000.00. Tenant shall reimburse Landlord for its
proportionate share of any increases in the cost of Utilities over
the Base Year. It is agreed that the Tenant will be billed on an
annual basis for its proportionate share (which is 30.4%) of the
increase in the cost of Utilities over the Base Year
cost.
Fourth:
Services. The Landlord shall provide, at Landlord’s
expense snow plowing, (from all sidewalks, lands, drives and
parking areas), lawn care and exterior trash and cardboard
dumpsters. Landlord shall provide these services in a manner to be
expected for the operation of buildings in the same class and
location of the Building. Notwithstanding the above, Tenant will be
responsible for its own cleaning/janitorial service.
Fifth:
Insurance & Taxes . Tenant shall pay as additional rent
its proportionate share of any increase in the cost of building
insurance (“Insurance”) and real estate taxes
(including property tax assessments, water and sewer rents, rates
and charges, parking and environmental surcharges and any other
governmental charges, general and special, ordinary and
extraordinary), (“Taxes”) above the base year amounts
paid by Landlord. Currently, the Premises are subject to the
following Insurance and Taxes (school taxes and state, town and
county taxes). Base Year Insurance is
$1,749.60 for
2007-2008. School taxes are $11,862.12 for the 2007-2008 school
year, Base Year State, town and county taxes are $6,604.93 for the
year 2008. It is agreed Tenant will be billed in September (for
insurance and school tax increases) and January (for county tax
increases) for its proportionate share (which is 30.4%) of the
increase in the cost of Insurance and Taxes over the Base Year
cost.
Sixth:
Assignment and Subletting. Tenant shall not have the right
and option to assign, sublet, mortgage, or otherwise transfer this
Lease, by operation of law or otherwise, in whole or part, or rent
desk space in the Premises without the written consent of Landlord,
such consent shall not be unreasonably withheld or delayed. An
assignment made by Tenant with the written consent of Landlord
shall not release, discharge or otherwise affect the liability of
Tenant under this Lease, nor shall any such assignment or
subletting relieve Tenant from the requirement of obtaining the
prior written consent of Landlord to any further assignment or
subletting. If Tenant causes an event of default to occur, Tenant
shall assign to Landlord the rent due from any subtenant of Tenant
and shall authorize each subtenant to pay such rent directly to
Landlord. Tenant shall not have the right to sublease the Premises
without Landlord’s prior written consent. Such consent will
not be unreasonably withheld. Notwithstanding the foregoing, Tenant
may freely assign this Lease or sublet the Premises to a parent
entity, a subsidiary entity, an affiliate entity with a parent
common to Tenant, or an entity acquiring control of Tenant (each a
“Related Party”) without Landlord’s
consent.
Seventh:
Repairs and Maintenance. The Landlord shall make all repairs
to the structure, foundation, roof and exterior of the Premises and
the Building. The Tenant shall at all times keep the interior of
the Premises including but not limited to the walls, doors,
plumbing lighting fixtures and electrical equipment in first class
condition and repair (which is agreed they now are), shall replace
all broken glass, and at the end of the term shall peaceably quit
and surrender said Premises in such condition, ordinary wear and
tear excepted. It is further understood and agreed that Landlord
will be responsible for normal maintenance to heating and air
conditioning equipment in the Premises, i.e., filter replacement,
belts, motors, etc., and Tenant will be responsible for electrical
and plumbing maintenance of the Premises, i.e., light bulb and
ballast replacement, plugged toilets, etc.
Eighth:
Alterations. The tenant shall not make any alterations or
improvements upon the Premises without the prior written consent of
the Landlord, which may not be unreasonably withheld, conditioned
or delayed. Tenant shall not make or permit any defacement, injury
or waste, in, to or about the Premises. Except with respect to
Tenant’s trade fixtures, Tenant agrees that any changes
alterations, additions or improvements made by the Tenant shall at
the Landlord’s option remain in and become a part of the
Premises at the expiration of the lease or any renewal thereof,
provided Landlord notified Tenant of its option to retain such
alterations, additions or improvements prior to their installation.
In the event, however, any alterations, additions or improvements
are made to the Premises and Landlord has not elected to retain
such alterations, additions or improvements as provided in the
preceding sentence, Tenant shall, upon expiration of this Lease (as
may be extended), restore the Premises to their original condition
and remove therefrom any additions, improvements or alterations
made thereto. Under no circumstances shall Tenant be prevented from
removing its trade fixtures; however, Tenant shall be obligated to
restore the Premises to their condition immediately prior to the
installation of any such trade fixtures.
Ninth: Rules
and Regulations. Tenant and its agents and employees shall
comply with and observe all reasonable rules and regulations
concerning the use, management, operation, safety and good order of
the Premises and the Building which may from the time be
promulgated by Landlord. Said Rules are set forth as
follows:
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a)
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The
exterior for the Premises must be kept free of all debris not
customarily removed by Landlord’s janitorial services. This
includes pallets, drums, cardboard, etc.
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b)
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It
is expected that non-biodegradable items will not be flushed or
thrown in the toilets. These items include bur are not limited to
sanitary napkins, paper towels, plastic cups, etc. Should any of
these items be the cause of a plumbing service call, the Tenant
will be charged any expense incurred.
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c)
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Where parking lots have pavement
markings, Tenant and its employees are expected to park within the
lines.
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d)
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In
the leased areas where utilities are furnished, Landlord requires
that each tenant set back the thermostat during times when the
outside temperature is below 50° F and set ahead when outside
temperatures are above 72° F after 6:00 PM. The purpose of this
is to minimize energy consumption during periods of cold and warm
weather respectively.
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e)
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In
the event that Tenant elects to change any locks for the Premises,
Tenant must notify the Landlord in writing and forward a duplicate
key for any lock changed. At the end of the lease term, Tenant at
its own expense will reinstall the original locks.
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f)
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With the exception of service dogs
(for the handicapped persons), animals (i.e., pets) are not
permitted in the Buildings or on the grounds.
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Tenth:
Compliance with the Order of Public Authorities . The Tenant
shall comply with all laws, ordinances, rules, regulations, or
requirements of all Federal, State or Municipal Governments and
every department or bureau thereof applicable to the Premises and
shall not do or permit to be done any act upon the Premises whereby
the rate of fire insurance upon the Building may be increased or
which shall be in violation of the rules of the Board of Fire
Underwriters or the provisions of the New York State standard form
of fire insurance policies.
Eleventh:
Subordination to Mortgages. This lease is and shall be
subject and subordinate to any mortgage or mortgages now in force
or which shall at any time be placed upon the Premises or any part
thereof or the Building. The tenant agrees that it will, within
fifteen (15) days written notice, execute and deliver such
instruments as reasonably necessary to effect more fully such
subordination of this lease to the lien of any such mortgage or
mortgages as shall be desired by any mortgagee.
Twelfth:
Landlord’s Right to Access.
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a)
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Tenant shall permit Landlord, or its
authorized representatives, to enter the Premises during usual
business hours ( or at any time for the purpose of making emergency
repairs) for the purpose of (i) inspection; (ii) making
repairs to the Premises or the Building; and (iii) repairing,
replacing, altering or changing existing connections from any
fixtures, pipes, wires, or ducts in the Premises, or making new
such connections, provided, however, that in non-emergency
situations Landlord shall provide reasonable notice and shall make
reasonable efforts not to disrupt Tenant’s business
operations during normal business hours.
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b)
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Landlord may, during the last one
hundred twenty (120) days of the lease term, at reasonable
times after first notifying Tenant, show the Premises to
prospective clients for lease. If Tenant shall vacate the Premises
during the last month of the term of this Lease, Landlord shall
have the right thereafter to enter the Premises and to commence
preparations for the succeeding tenant or for any other purpose
whatsoever, without affecting Tenant’s obligation to pay rent
for the full term of this Lease.
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Thirteenth:
Surrender of Premises . Tenant covenants, at the expiration
or other termination of the Lease, to remove its property and
effects from the Premises and all keys, locks and other fixtures
connected therewith and to return the Premises to Landlord, in good
repair, order and condition, ordinary wear and tear and damage by
fire or other casualty excepted.
Fourteenth:
Events of Default and Conditional Limitation .
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a)
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If
at any time prior to or during the term any one or more of the
following events occurs, each such event shall constitute an
“event of default”:
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i.
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Tenant makes an assignment for the
benefit of its creditors;
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ii.
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Tenant becomes insolvent;
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iii.
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The
leasehold estate hereby created in Tenant is taken on execution or
by other process of law;
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iv.
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Any
petition is filed against Tenant in any court whether or not
pursuant to any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings, and Tenant is thereafter
adjudicated bankrupt, or such petition is approved by the Court, or
the Court assumes jurisdiction of the subject matter and such
proceedings are not dismissed within ninety (90) days after
the institution of the same; or any such petition is so filed by
Tenant;
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v.
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In
any proceedings, a receiver or trustee is appointed for
Tenant’s property and such receivership or trusteeship is not
vacated or set aside within ninety (90) days after the
appointment of such receiver or trustee;
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vi.
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There is a transfer or an attempted
transfer of this Lease or of Tenant’s interest thereof in
violation of the restrictions set forth in the Sixth paragraph of
this Lease;
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vii.
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Tenant abandons the
Premises;
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viii.
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Tenant fails to comply with any
local, state or federal law, rule or regulation governing the use,
handling and disposal of hazardous materials or is otherwise in
violation of the obligations contained in the Thirty-Fourth
paragraph of this Lease;
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ix.
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Tenant fails to pay any installment
of the rent or any portion of any such payment, when the same
becomes due and payable, and such failure continues for ten
(10) days after the Landlord’s notice that said rent is
overdue; or
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x.
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Tenant fails to perform or observe
any other requirement of this Lease (not hereinbefore specifically
referred to) on the part of Tenant to be performed or observed and
such failure continues for thirty (30) days after receipt of
written notice from Landlord to Tenant.
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b)
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This lease and the terms are
expressly subject to the conditional limitation that upon the
happening of any one or more of the aforementioned events of
default, Landlord, in addition to the other rights and remedies it
may have, shall have the right to immediately declare this Lease
terminated and the term ended, in which event all of the right,
title and interest of Tenant hereunder shall wholly cease and
expire upon delivery by Landlord to Tenant of a Notice of
Termination. Notwithstanding the above language, Landlord will
notify Tenant via certified mail of Landlord’s intent to
terminate the Lease due to Tenants uncured default and upon three
(3) business days from the date of the letter, Tenant will
have an additional five (5) business days to cure such default
or Tenant shall then quit and surrender the Premises to Landlord in
the manner and under the conditions as provided for under this
Lease, but Tenant shall remain liable as hereinafter
provided.
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Fifteenth:
Landlord’s Remedies .
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a)
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If
this Lease shall be terminated as provided in the Fourteenth
paragraph, Landlord or Landlord’s agents or employees may
immediately or at any time thereafter re-enter the Premises and
remove therefrom Tenant, its agents, employees, licenses, and any
subtenants and other persons, firms or corporations, and all or any
of its or their property therefrom, either by summary dispossess
proceedings or by any suitable action or proceedings at law or in
equity and repossess and enjoy the Premises, together with all
alterations, additions and improvements thereto. Landlord, in the
event of such re-entry and repossession, may store Tenant’s
Personal Property in a public warehouse or elsewhere at the cost of
and for the account of Tenant.
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b)
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In
case of any such termination, re-entry of dispossession by summary
proceedings or otherwise, the rents and all other charges required
to be paid up to the time of such termination, re-entry or
dispossession, shall be paid by Tenant, and Tenant also shall pay
to Landlord all expenses which Landlord may then or thereafter
incur for legal expenses, attorney’s fees, brokerage
commissions and all other costs paid or incurred by Landlord as the
result of such termination, re-entry or dispossession, and for
restoring the Premises to good order and condition and for altering
and otherwise preparing the same for reletting and for reletting
thereof. Landlord may, at any time and from time to time, relet the
Premises, in whole or in part, for any commercially reasonable
rental then obtainable either in its own name or as agent of
Tenant, for a term or terms which, at Landlord’s option, may
be for the remainder of the then current term of this lease or for
any longer or shorter period.
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c)
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If
this Lease be terminated as aforesaid, Tenant nevertheless
covenants and agrees notwithstanding any entry or re-entry by
Landlord whether by summary proceedings, termination or otherwise,
to pay and be liable for:
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i.
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ANNUAL RENT due and payable or that
portion of ANNUAL RENT due and payable which remains outstanding at
the time of said termination; and
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ii.
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In
the event the Premises be relet by Landlord, Tenant shall be
entitled to a credit (but not in excess of the rent, reserved under
the terms of this Lease) in the net amount of rent received by
Landlord in reletting the Premises after deduction of all expenses
and costs incurred or paid as aforesaid in reletting the Premises
and in collecting the rent in connection therewith. At any time
after the termination of the Lease, in lieu of collecting any
deficiencies, or any further deficiencies, as aforesaid, Landlord
shall, at Landlord’s option, be entitled to recover from
Tenant, in addition to any other relief, such as a sum as at the
time of such termination represents the present value of the total
rent, and other benefits which would have accrued to Landlord under
this Lease for the remainder of the Lease term, as if the Lease had
been fully complied with by Tenant, less any monthly deficiencies
for such period previously paid to Landlord by Tenant, and less the
fair value of the reletting of the Premises. Suit or suits for the
recovery of the deficiency or damages referred to in this Fifteenth
paragraph or for any installment or installments of rent hereunder,
or for a sum equal to any such installment or installments may be
brought by Landlord at once or from time to time at
Landlord’s election, and nothing in this Lease shall be
deemed to requ
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