OF THE
STATE OF NEW YORK.
42.02
THIS LEASE SHALL BE CONSTRUED WITHOUT REGARD TO ANY
PRESUMPTION OR OTHER RULE REQUIRING CONSTRUCTION AGAINST THE PARTY CAUSING THIS
LEASE TO BE DRAFTED.
42.03
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS LEASE, EACH
COVENANT, AGREEMENT, OBLIGATION OR OTHER PROVISION OF THIS LEASE ON TENANT'S
PART TO BE PERFORMED SHALL BE DEEMED AND CONSTRUED AS A SEPARATE AND INDEPENDENT
COVENANT OF TENANT, NOT DEPENDENT ON ANY OTHER PROVISION OF THIS LEASE.
42.04
ALL TERMS AND WORDS USED IN THIS LEASE, REGARDLESS OF THE
NUMBER OR GENDER IN WHICH THEY ARE USED, SHALL BE DEEMED TO INCLUDE ANY OTHER
NUMBER AND ANY OTHER GENDER AS THE CONTEXT MAY REQUIRE.
42.05
TIME SHALL BE OF THE ESSENCE WITH RESPECT TO THE EXERCISE OF
ANY OPTION GRANTED UNDER THIS LEASE.
42.06
EXCEPT AS OTHERWISE PROVIDED HEREIN, WHENEVER PAYMENT OF
INTEREST IS REQUIRED BY THE TERMS HEREOF IT SHALL BE AT THE INTEREST RATE.
45
42.07
IF THE DEMISED PREMISES OR ANY ADDITIONAL SPACE TO BE
INCLUDED WITHIN THE DEMISED PREMISES SHALL NOT BE AVAILABLE FOR OCCUPANCY BY
TENANT IN THE CONDITION REQUIRED HEREUNDER ON SEPTEMBER 1, 2008 FOR ANY REASON
WHATSOEVER, THEN THIS LEASE SHALL NOT BE AFFECTED THEREBY BUT, IN SUCH CASE,
(I) SAID DATE SHALL BE DEEMED TO BE POSTPONED UNTIL THE DATE WHEN POSSESSION OF
THE DEMISED PREMISES OR SUCH ADDITIONAL SPACE SHALL BE DELIVERED TO TENANT FOR
OCCUPANCY BY TENANT IN THE CONDITION REQUIRED HEREUNDER AND SUCH DATE SHALL BE
THE COMMENCEMENT DATE, (II) THE SCHEDULE SET FORTH IN SECTION 1.01 SHALL BE
ADJUSTED BASED ON SUCH DATE AND TENANT SHALL HAVE NO OBLIGATION TO PAY ANY FIXED
RENT OR ADDITIONAL RENT UNTIL SUCH DATE, AND (III) TENANT SHALL NOT BE ENTITLED
TO POSSESSION OF THE DEMISED PREMISES OR SUCH ADDITIONAL SPACE UNTIL THE SAME
ARE AVAILABLE FOR OCCUPANCY BY TENANT EXCEPT AS PROVIDED IN THE "WITNESSETH"
CLAUSE ABOVE; PROVIDED, HOWEVER, THAT TENANT SHALL HAVE NO CLAIM AGAINST
LANDLORD, AND LANDLORD SHALL HAVE NO LIABILITY TO TENANT BY REASON OF ANY SUCH
POSTPONEMENT OF SAID SPECIFIC DATE, AND THE PARTIES HERETO FURTHER AGREE THAT
ANY FAILURE TO HAVE THE DEMISED PREMISES OR SUCH ADDITIONAL SPACE AVAILABLE FOR
OCCUPANCY BY TENANT ON SAID DATE SHALL IN NO WISE AFFECT THE OBLIGATIONS OF
TENANT HEREUNDER (EXCEPT AS PROVIDED HEREIN) NOR SHALL THE SAME BE CONSTRUED IN
ANY WISE TO EXTEND THE TERM OF THIS LEASE AND FURTHERMORE, THIS SECTION 42.07
SHALL BE DEEMED TO BE AN EXPRESS PROVISION TO THE CONTRARY OF SECTION 223A OF
THE REAL PROPERTY LAW OF THE STATE OF NEW YORK AND ANY OTHER LAW OF LIKE IMPORT
NOW OR HEREAFTER IN FORCE.
42.08
IN THE EVENT THAT TENANT IS IN ARREARS IN PAYMENT OF FIXED
ANNUAL RENT OR ADDITIONAL RENT HEREUNDER, TENANT WAIVES TENANT'S RIGHT, IF ANY,
TO DESIGNATE THE ITEMS AGAINST WHICH ANY PAYMENTS MADE BY TENANT ARE TO BE
CREDITED, AND TENANT AGREES THAT LANDLORD MAY APPLY ANY PAYMENTS MADE BY TENANT
TO ANY ITEMS IT