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LEASE AGREEMENT BETWEEN
SEAPORT ASSOCIATES, LP,
AS LANDLORD
AND
BIGSTAR ENTERTAINMENT, INC,
AS TENANT.
Premises:
00 XXXXXX XXXXXX
FIFTH (5TH) XXXXX
XXX XXXX, XXX XXXX 00000
Prepared By:
The Law Offices of
XXXXXX & XXXX, LLP
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
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AGREEMENT OF LEASE, made as of the day of February, 1999 by and
between SEAPORT ASSOCIATES L.P., a New York limited partnership, having an
address at 0000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000 (hereinafter the
"Landlord"), and BIGSTAR ENTERTAINMENT, INC, a New York corporation having an
office located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter the
"Tenant").
The parties agree as follows:
1. DEMISED PREMISES
The Landlord does hereby lease to the Tenant and the Tenant does hereby
rent from the Landlord the entire Fifth (5th) floor which shall be deemed to
contain approximately Seven Thousand, Two Hundred and Twenty-Four (7,224)
rentable square feet (hereinafter the "Demised Premises") in the office building
located at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter the
"Building"), together with all fixtures and improvements which at the
commencement of this Lease or at any time during the term are attached thereon
or installed therein and together with all appurtenances to the premises. The
Demised Premises are shown on EXHIBIT "A" hereto.
2. TERM AND COMMENCEMENT
(a) The term of this Lease shall be for Forty-Four (44) months, commencing
on February 1, 1999 (the "Commencement Date") and expiring at noon on September
30, 2002 (the "Expiration Date"), unless the same shall sooner terminate
pursuant to any of the terms, covenants, conditions or agreements of this Lease
or pursuant to law.
(b) Landlord shall not be liable to Tenant if Landlord cannot deliver
possession of the Demised Premises on the Commencement Date due to the holding
over by a prior tenant in violation of the terms of said prior tenant's lease.
This Lease shall continue, and rent will be waived for the period between the
Commencement Date and the date on which Landlord delivers possession.
Notwithstanding the foregoing, in the event that Landlord is unable to deliver
possession of the Demised Premises on or before February 15, 1999, then in such
event, Tenant may serve notice on Lessor of its intention to terminate this
Lease and if within seven (7) days thereafter, Landlord shall not have delivered
possession of the Demised Premises, then in such events, this Lease shall
terminate on the expiration of such seven (7) day period as if such termination
date were the Expiration Date, and the Fixed Rent, Additional Rent shall be
apportioned as of such date of sooner termination and any prepaid portion of
Fixed Rent, Additional Rent and Security Deposit (as hereinafter defined) for
any period after such date shall be refunded by Landlord to Tenant.
3. RENT
(a) During the term of this Lease Tenant shall pay to Landlord a "Fixed
Annual Rent" in advance on the first day of each month of the Term of this Lease
at Landlords office, without demand, notice, setoff or deduction, as follows:
(i) during and in respect of the period from February 1, 1999
through January 31, 2000, (both dates inclusive) an amount equal to ONE HUNDRED
AND SIXTY-SIX THOUSAND,
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ONE HUNDRED AND FIFTY-TWO AND 00/100 ($166,152.00) DOLLARS (exclusive of
electric) payable in equal monthly installments of THIRTEEN THOUSAND, EIGHT
HUNDRED AND FORTY-SIX AND 001100 ($13,846.00) DOLLARS (exclusive of electric);
(ii) during and in respect of the period from February 1, 2000
through January 31, 2001, (both dates inclusive) an amount equal to ONE HUNDRED
AND SEVENTY-ONE THOUSAND, ONE HUNDRED AND THIRTY-SIX AND 56/100 ($171,136.56)
DOLLARS (exclusive of electric) payable in equal monthly installments of
FOURTEEN THOUSAND, TWO HUNDRED AND SIXTY-ONE AND 38/100 ($14,261.38) DOLLARS
(exclusive of electric);
(iii) during and in respect of the period from February 1, 2001
through January 31, 2002, (both dates inclusive) an amount equal to ONE HUNDRED
AND SEVENTY-SIX THOUSAND, TWO HUNDRED AND SEVENTY AND 64/100 ($176,270.64)
DOLLARS (exclusive of electric) payable in equal monthly installments of
FOURTEEN THOUSAND, SIX HUNDRED AND EIGHTY-NINE AND 22/100 ($14,689.22) DOLLARS
(exclusive of electric); and
(iv) during and in respect of the period from February 1, 2002
through September 30, 2002, (both dates inclusive) an amount equal to ONE
HUNDRED AND TWENTY-ONE THOUSAND, THIRTY-NINE AND 20/100 ($121,039.20) DOLLARS
(exclusive of electric) payable in equal monthly installments of FIFTEEN
THOUSAND, ONE HUNDRED AND TWENTY-NINE AND 90/100 ($15,129.90) DOLLARS (exclusive
of electric).
(b) Upon execution hereof, Tenant shall pre-pay the first (1st), third
(3rd), fifth (5th), seventh (7th), ninth (9th) and eleventh (11th) monthly
installments of Fixed Annual Rent by bank or certified check.
4. SECURITY DEPOSIT; GUARANTY
(a) Tenant shall deposit with Landlord, upon execution of this Lease, the
sum of One Hundred and Eighty Thousand, Six Hundred and 00/100 ($180,600.00)
Dollars by Letter of Credit as provided in paragraph (b) as security for the
faithful performance and observance by Tenant of the terms, provisions,
conditions and covenants of this Lease (the "Security Deposit"). Tenant agrees
that, in the event that Tenant defaults, beyond all applicable grace and cure
periods after notice, in respect of any terms, provisions, conditions and
covenants of this Lease (including the payment of Fixed Annual Rent or
Additional Rent), Landlord may notify the Issuing Bank (as such term is defined
in paragraph (b) and thereupon receive all of the monies represented by the said
Letter of Credit and use, apply, or retain the whole or any part of such
proceeds, as the case may be, to the extent required for the payment of Fixed
Annual Rent, Additional Rent, or any other sums as to which Tenant is in
default, or for any sum that Landlord may expend or may be required to expend by
reason of Tenant's default, in respect of the terms, provisions, conditions and
covenants of this Lease (including any damages or deficiency accrued before or
after summary proceedings or other re-entry by Landlord). In the event that
Landlord applies or retains any portion or all of such cash security or proceeds
of such Letter of Credit, as the case may be, Tenant shall forthwith restore the
amount so retained or applied.
(b) Tenant may deliver to Landlord a clean, irrevocable and unconditional
Letter of Credit issued by and drawn upon any commercial bank acceptable to
Landlord (the "Issuing
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Bank") with offices for banking purposes in the City of New York, which Letter
of Credit shall have a term of not less than one year, be in a form and content
reasonably satisfactory to Landlord, be for the account of Landlord and be in
the amount of One Hundred and Eighty Thousand, Six Hundred and 00/100
($180,600.00) Dollars. The Letter of Credit shall provide that:
(i) the Issuing Bank shall pay to Landlord an amount up to the face
amount of the Letter of Credit upon presentation of only the Letter of Credit, a
sight draft in the amount to be drawn and an affidavit of default;
(ii) the Letter of Credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year during the Term
of this Lease, unless the Issuing Bank sends written notice ("Non-Renewal
Notice") to Landlord by certified or registered mail, return receipt requested,
not less than thirty (30) days next preceding the then expiration date of the
Letter of Credit that it elects not to have such Letter of Credit renewed;
(iii) Landlord, after receipt of the Non-Renewal Notice, shall have
the right, exercisable by a sight draft only, to receive the moneys represented
by the Letter of Credit (which moneys shall be held by Landlord as a cash
deposit pursuant to the terms of this Article 4 pending replacement of such
Letter of Credit); and
(iv) Upon Landlord's sale of the Property, or Landlord's interest
therein, or a leasing of the Property, the Letter of Credit shall be
transferable by Landlord as provided in paragraph (c) hereof.
(c) In the event of a sale of the Property, or Landlord's interest
therein or of a leasing of the Property, Landlord shall transfer the Letter of
Credit deposited hereunder to the vendee or lessee, and Landlord shall thereupon
be released by Tenant from all liability for the return of such Letter of Credit
to a new lessor. Tenant shall execute such documents as may be necessary to
accomplish such transfer or assignment of the Letter of Credit.
(d) Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber the monies or Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors and/or assigns shall be
bound by any such assignment, or attempted encumbrance.
(e) In the event that Tenant shall fully and faithfully comply with all of
the material terms, provisions, covenants and conditions of this Lease, the
Security Deposit, or that portion not required to cure any defaults under this
Agreement, shall be returned to Tenant within ten (10) days after the date fixed
as the end of the Lease or of any extended term, if applicable, and delivery of
the entire possession of the Demised Premises to Landlord.
(f) Tenant shall deliver, upon execution of this Lease, an Limited
Personal Guaranty which shall be attached to this Lease as EXHIBIT "B" from
Tenant's principles (the "Guarantors").
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5. ELECTRIC POWER
(a) Landlord shall furnish to Tenant, electric power as provided to
Landlord from the public utility company furnishing electric power to the
Building at an annual additional charge of FOURTEEN THOUSAND FOUR HUNDRED AND
FORTY-EIGHT AND 00/100 ($14,448.00) DOLLARS payable in equal monthly
installments of ONE THOUSAND, TWO HUNDRED AND FOUR AND 00/100 ($1,204.00)
DOLLARS (the "Electric Charge"). Upon execution hereof, Tenant shall pre-pay the
first (1st), third (3rd), fifth (5th), seventh (7th), ninth (9th) and eleventh
(11th) monthly installments of Electric Charge by bank or certified check.
(b) Tenant shall use such electric power reasonably necessary for lighting
and for operation of such equipment as is normally used in ordinary business
offices. Tenant's use of electric power in the Demised Premises shall not at any
time exceed the capacity of any of the electrical conductors, conduits, and
equipment in or otherwise serving the Demised Premises. Tenant shall not make or
perform, or permit the making or performing of, any alterations to wiring
installations or other electrical facilities in or serving the Demised Premises
without the prior written consent of Landlord in each instance (which shall not
be unreasonably withheld). Should Landlord grant any such consent, all
additional risers or other equipment required therefor shall be installed by
Landlord and the cost thereof shall be paid by Tenant upon Landlords' demand as
Additional Rent.
(c) Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy furnished to the Demised
Premises by reason of any requirement, act or omission of the public utility
serving the Building and/or the Demised Premises with electricity or for any
other reason not attributable to Landlord.
(d) Landlord shall furnish and install the replacement lighting tubes,
lamps, bulbs and ballasts in the Demised Premises, at Tenant's expense.
6. ADDITIONAL RENT; LATE CHARGES
(a) Any charge or sum due Landlord under this Lease shall be payable as
"Additional RENT." If Tenant fails to pay any Additional Rent after the
expiration of any applicable grace, notice and cure period, Landlord shall have
the same rights as in the case of Tenant's nonpayment of Fixed Annual Rent.
(b) Tenant shall pay Landlord interest at an annual rate of 2% above the
prime rate, as set by Citibank, N.A., or its successor, on any sum not paid
within ten (10) days of when such sum is due.
(c) Tenant shall pay (i) all occupancy and rent taxes in respect of
Tenant's occupancy of the Demised Premises, if applicable, (ii) license and
permit fees required for Tenant's operations, and (iii) all New York State and
City sales and compensating use taxes required to be paid by Tenant during the
course of its business to the extent that Tenant is not entitled to an exemption
because (A) Tenant is an organization exempt from such taxes or (B) Tenant is
entitled to such exemption by virtue of the exemption for "capital improvements"
provided for in Section 1101 (b) (9) of the New York State Tax Law.
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7. USE AND CONDITION
(a) The Demised Premises shall be used solely for general and executive
offices. If Tenant's use as provided for herein is prohibited by Landlord,
Tenant may terminate this Lease. Landlord shall not prohibit such use except
upon a bona fide default notice duly given from the City of New York or The
South Street Seaport Corporation, their successors or assigns, based upon the
City Lease or the Office Development Lease (said Leases being defined in Section
13(a)) or any other agreement, law, rule or ordinance by which the Building,
Landlord or Tenant may be bound.
(b) In recognition of the historic and cultural importance of the South
Street Seaport and in accordance with the provisions of the Office Development
Lease (as hereinafter defined), Tenant shall use the Demised Premises
exclusively as offices and Tenant shall neither use nor occupy, nor permit or
suffer the Demised Premises or any part thereof, to be used or occupied for any
unlawful or illegal business, use or purpose, or for any business, use or
purpose which is immoral or disreputable or extra-hazardous, or in such a manner
as to constitute a nuisance of any kind (public or private) or that would in any
way adversely affect the public standing or good reputation of Landlord or any
other person associated with South Street Seaport.
(c) Landlord makes no representations, express or implied, as to the
condition of the Demised Premises and Tenant agrees to accept the same in "AS
IS" condition on the Commencement Date. Landlord shall have no obligation to
perform any work in order to prepare the Demised Premises for Tenant's
occupancy.
(d) Except as otherwise specifically provided for in Section 2(b) of this
Lease, Tenant hereby waives any right to terminate, cancel or rescind this Lease
by reason of Owner's failure to deliver possession of the Demised Premises or
otherwise perform its obligations under this Article, which Tenant might
otherwise have pursuant to any law now or hereafter in force or otherwise.
Tenant further waives the right to recover any damages which may result from
Landlord's failure to deliver possession of the Demised Premises or otherwise to
perform its obligations under this Article. The provisions of this Article shall
be considered an express provision to the contrary pursuant to New York REAL
PROPERTY LAW Section 223-(a) governing delivery of possession of the Demised
Premises and any law providing for such a contingency in the absence of such
express agreement now or hereafter enacted shall have no application is such
case to the extent inconsistent with this Lease.
8. TENANT'S ALTERATIONS
(a) From and after the date on which Tenant enters into occupancy or
possession of the Demised Premises and throughout the Term of this Lease, Tenant
shall, have the right, after obtaining Landlords written consent, which consent
shall not be unreasonably withheld, at Tenant's own cost and expense, to make
alterations, additions and improvements which are nonstructural and which do not
affect utility services or plumbing or electrical lines, including Tenant's
changes to wall or ceiling finishes or elements (collectively referred to as
"Alterations"), in or to the Demised Premises as Tenant shall deem necessary or
desirable in connection with the conduct of its business, subject, however, to
Tenant's compliance with the requirements in Section 8(b).
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(b) The performance of any such nonstructural Alteration is subject,
however, to the following requirements:
(i) The plans and specifications for all Tenant's Alterations shall
have been approved in writing by Landlord, which approval shall not be
unreasonably withheld.
(ii) The construction company or contractor for Tenant's Alterations
shall have been approved in writing by Landlord, which approval shall not be
unreasonably withheld.
(iii) Tenant's Alterations shall be made promptly in a good and
workmanlike manner.
(iv) Tenant shall pay for any reinforcement of the floors or other
parts of the Building which is necessitated by installation of Tenant's safes or
other Tenant's Alterations and Landlord shall provide access for Tenant to do
such work.
(v) The paid bills and other written documents pertaining to
Tenant's Alterations shall be submitted to Landlord evidencing payment for
Tenant's Alterations. Tenant acknowledges and agrees that if Tenant defaults
under the terms and provisions of this Article 8, such default shall be a
material default under this Lease.
(vi) Tenant shall, before performing any Tenant's Alterations, at
its own expense, obtain all permits, approvals, and certificates required by any
governmental authority and shall promptly deliver copies of same to Landlord;
and at the time such Tenant's Alterations are done, such Tenant's Alterations
shall be made in strict conformance to the requirements of all applicable laws,
codes, regulations, insurance policies and requirements of all governmental
authorities including but not limited to those laws relating to Landmark
properties. Tenant shall carry and require Tenant' s contractors and
subcontractors who perform the Tenant's Alterations involved to carry workmen's
compensation, general liability and personal and property damage insurance
reasonably acceptable to Landlord and to deliver to Landlord certificates of
such insurance prior to the commencement of Tenant's Alterations. Tenant agrees
to indemnify and hold harmless Landlord from and against all loss, damage,
liability (whether in contract or tort), and expense, including court costs and
attorneys' fees, caused by, or arising from or relating to the work involved,
including any liability for labor or materials supplied for such alterations.
Tenant shall keep the Demised Premises free from mechanics' liens of any kind by
obtaining waivers thereof and by removing or bonding any lien filed, within ten
(10) days from the filing thereof.
(c) Prior to granting its consent to any Tenant's Alteration, Landlord may
impose reasonable conditions (in addition to those expressly provided in this
Lease) to guaranty completion of and payment for any Alteration or restoration
of the Demised Premises. Tenant shall make no structural alterations, without
Landlords prior written consent, which consent shall not be unreasonably
withheld or delayed.
(d) Tenant's Alterations to the Demised Premises shall, upon installation,
become the property of the Fee Owner and a part of the Demised Premises and
shall remain upon and be surrendered with the Demised Premises without
compensation to Tenant unless Landlord advises Tenant in writing that any such
Alteration or Alterations must be removed at the end of the
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Term. If Landlord requires removal, Tenant shall be responsible, at its sole
cost and expense, to restore the Demised Premises to their condition prior to
performance of the Alterations.
(e) Tenant shall bear any cost and expense for changes to the sprinkler
system required by law as a result of any Alterations made by or for the benefit
of Tenant in the Demised Premises.
(f) Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenant's decorations or installations or to any of
Tenant's other property, the same being solely at Tenant's risk.
9. HEATING VENTILATING AND AIR CONDITIONING (HVAC)
(a) Except as otherwise specifically provided for herein, Landlord shall
supply: (i) air-conditioning (between May 31st and October 1st in each year),
heating (between October 1st and May 31st in each year) and ventilation from
8:00 a.m. to 6:00 p.m. Monday through Saturday; (ii) elevator service
twenty-four hours a day, seven days a week, (iii) water for ordinary lavatory
and drinking purposes, but if Tenant uses or consumes water for any other
purposes or in unusual quantities (of which fact Landlord shall be the
reasonable judge), Landlord may install a water meter at Tenant's expense in
good working order and repair to register such water consumption and Tenant
shall pay for water consumed as shown on said meter as Additional Rent as and
when bills are rendered.
(b) Tenant agrees at all times to use reasonable efforts to cooperate
fully with Landlord and to abide by all regulations and requirements which
Landlord may reasonably prescribe for the proper functioning and protection of
the HVAC system.
10. INTERRUPTION OF SERVICES
Landlord reserves the right to stop services of any heating, plumbing,
elevator, air conditioning or power systems, or cleaning or other services, in
order to make repairs, alterations, replacements or improvements necessary in
the judgment of Landlord for as long as may be reasonably required by reason
thereof or by reason of strikes, accidents, laws, orders or regulations or any
other reason beyond the control of Landlord and Landlord shall use its best
efforts to restore services as soon as possible. Tenant shall not be entitled to
an abatement of rent in the event that Landlord stops services for the reasons
specified herein.
11. REPAIRS
Tenant shall, throughout the term of this Lease, take good care of the
Demised Premises and the fixtures therein (unless Landlord is obligated to
maintain pursuant to this Lease) and at Tenant's sole cost and expense, make all
repairs thereto as and when needed to preserve them in good working order and
condition, reasonable wear and tear excepted. Landlord shall maintain and repair
the outside, public and structural portions of the Building and the plumbing,
heating, ventilation, electrical, sprinkler, air conditioning and water systems.
If Tenant fails after thirty (30) days notice to proceed with due diligence to
make repairs required to be made by Tenant, the same may be made by Landlord at
the expense of Tenant and the expenses thereof incurred by Landlord shall be
collectible as Additional Rent after rendition of a xxxx or statement therefor.
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12. REQUIREMENTS OF LAW FIRE INSURANCE, FLOOR LOADS
(a) Prior to the Commencement Date, if Tenant is then in possession, and
at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
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 any similar
body which shall impose any violation, order or duty upon Landlord or Tenant
with respect to the Demised Premises or the Building arising out of Tenant's
activities in connection with the permitted use hereunder, including but not
limited to the Americans with Disabilities Act. Nothing herein shall require
Tenant to make structural repairs 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 may, after securing Landlord to Landlords reasonable satisfaction against
all damages, interest, penalties and expenses, including, but not limited to,
reasonable attorneys fees, by cash deposit or by surety bond in an amount and
with a company reasonably satisfactory to Landlord, contest and appeal any such
laws, ordinances, orders, rules, regulations or requirements provided same is
done with all reasonable promptness and provided such appeal shall not subject
Landlord to prosecution for a criminal offense or constitute a default under any
Lease or mortgage under which Landlord may be obligated, or cause the Demised
Premises or any part thereof to be condemned or vacated. 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 Landlord with respect to the Demised Premises or the Building, or
which shall or might subject Landlord to any liability or responsibility to any
person or for property damage, nor shall Tenant keep anything in the Demised
Premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and in such quantity so as not to
increase the rate for fire insurance applicable to the Building, nor use the
Demised Premises in a manner which will increase the insurance rate for the
Building or any property located therein. Landlord represents that the permitted
use does not violate the provisions of this Article. Tenant shall pay all costs,
expenses, fines, penalties or damages, which may be imposed upon Landlord by
reason of Tenant's failure to comply with the provisions of this Article and if
by reason of such failure 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 Landlord, as Additional Rent hereunder, for that portion
of all fire insurance premiums thereafter paid by Landlord which shall have been
charged because of such failure by Tenant, and Tenant shall make such
reimbursement upon the first day of the month following such outlay by Landlord.
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. Landlord reserves the right to designate the height and position
of all safes, business machines and mechanical equipment. Such installations
shall be placed and maintained by Tenant, at Tenant's expense, in setting
sufficient, in Landlords reasonable judgment to absorb and prevent vibration,
noise and annoyance.
(b) Tenant shall not release, discharge or dispose of, or permit, or
suffer any release, discharge or disposal of any Hazardous Material (as
hereinafter defined) at the Demised Premises in violation of any Environmental
Law (as hereinafter defined). Tenant shall not permit
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or suffer the manufacture, generation, storage, transmission or presence of any
Hazardous Material over or upon the Demised Premises in violation of any
Environmental Law. Tenant shall: (i) promptly, upon learning thereof, notify
Landlord of any violation of, or non-compliance with, potential violation of or
non-compliance with, or liability or potential liability under, any
Environmental Law concerning the Demised Premises, (ii) promptly make (and
deliver to Landlord copies of) all reports or notices that Tenant is required to
make under any Environmental Law concerning the Demised Premises and maintain in
current status all permits and licenses required under any Environmental Law
concerning the Demised Premises, (iii) immediately comply with any orders,
actions or demands of any Governmental Authority (as herein defined) with
respect to the discharge, clean-up or removal of Hazardous Materials at or from
the Demised Premises due to a breach of a covenant set forth herein (iv) pay
when due the cost of all environmental consultants, laboratory analysis, removal
of, treatment of, or the taking of any remedial action (including abatement
and/or disposal) with respect to, any Hazardous Material on the Demised Premises
which is required by an Environmental Law due to a breach of a covenant set
forth herein, (v) keep the Demised Premises free of any lien imposed pursuant to
any Environmental Law in respect of a breach of a covenant set forth herein,
(vi) from time to time, upon the request of Landlord, execute such affidavits,
certificates and statements concerning Tenant's knowledge and belief concerning
the presence of Hazardous Materials on the Demised Premises and (vii) otherwise
comply with all Environmental Laws concerning the Demised Premises.
13. SUBORDINATION
(a) The Lease between The City of New York, as lessor ("Fee Owner"), and
the South Street Seaport Museum, as lessee, dated as of December 15, 1981, is
herein referred to as the "City Lease." The "Office Development Lease" shall
mean: (i) that certain lease dated as of October 27, 1983 between The South
Street Seaport Corporation, as landlord, and Seaport Associates, LP, as Tenant,
a memorandum of which was recorded in the Office of the Register of the City of
New York on February 6, 1984 in Reel 762 at Page 740, as thereafter supplemented
and amended by that certain First Supplement of Lease dated as of December 29,
1983, First Amendment of Lease dated as of March 15, 1988 and Second Amendment
of Lease dated as of November 23, 1998, as the same may have thereafter been
supplemented or amended; and (ii) that certain Lease Agreement dated as of March
15, 1988 made by and between The South Street Seaport Corporation, as landlord,
and Seaport Associates, LP, as tenant, a memorandum of which was recorded in the
Office of the Register of the City of New York on March 28, 1988 in Reel 1383 at
Page 106, as thereafter supplemented and amended by that certain First Amendment
to Lease dated as of November 23, 1998, as the same may have thereafter been
supplemented or amended. If any provision of this Lease shall conflict or be
inconsistent with any provisions of the City Lease or the Office Development
Lease, the provisions of the City Lease and/or the Office Development Lease
shall control and this Lease shall be deemed amended accordingly.
(b) This Lease is subject and subordinate to all the terms and conditions
of the City Lease, the Office Development Lease and any mortgage which may now
or hereafter affect the City Lease, the Office Development Lease or the real
property of which the Demised Premises are a part and to all renewals,
modifications, consolidations, substitutions, replacements and
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extensions of any such leases and mortgages. In confirmation of such
subordination, Tenant shall promptly execute any certificate Landlord may
request.
(c) If, by reason of any default on the part of Landlord or The South
Street Seaport Corporation (the "Seaport Corporation") or for any other reason,
this Lease, the Office Development Lease or the City Lease is terminated by
summary proceedings or otherwise, or if Landlord is ousted from possession
through foreclosure proceedings brought by any present or future permitted
mortgagee, Tenant, at the option and request of Landlord, the Seaport
Corporation, the Fee Owner, such mortgagee or a purchaser at foreclosure of a
mortgage, shall attorn to Landlord, the Seaport Corporation, the Fee Owner, such
mortgagee or purchaser, as the case may be, as Tenant's landlord under this
Lease for the balance of the term remaining on such Lease subject to all the
terms of this Lease. The foregoing provision shall be self-operative and no
further instrument or document shall be necessary unless required by Landlord,
the Seaport Corporation, the Fee Owner or such mortgagee or purchaser.
(d) Tenant shall execute and deliver, at any time and from time to time,
upon the request of Landlord, or of the lessor under such underlying lease, an
instrument which includes only the executory provisions of this Lease and which
may be necessary or appropriate to evidence such attornment. Tenant hereby
waives the provisions of any statute or rule of law now or hereafter in effect
which may give or purport to give Tenant any right of election to terminate this
Lease or to surrender possession of the Demised Premises in the event any
proceeding is brought by The Seaport Corporation to terminate the Office
Development Lease, or by the Fee Owner to terminate the City Lease, or by any
present or future permitted mortgagee to foreclose any mortgage, and Tenant
agrees that this Lease shall not be affected in any way whatsoever by any such
proceeding provided that Tenant's possession of the Demised Premises under the
terms of this Lease is not disturbed.
(e) The foregoing provisions of this Article 13 shall inure to the benefit
of Landlord, The Seaport Corporation, the Fee Owner, any present or future
permitted mortgagee or a purchaser at foreclosure and their respective
successors and assigns.
14. PROPERTY - LOSS, DAMAGE REIMBURSEMENT, INDEMNITY
Landlord or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to Landlords employees or agents, 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, nor
shall Landlord or its agents be liable for any such damage caused by other
tenants or persons in, upon or about said Building or caused by operations in
construction of any private, public or quasi-public work, unless caused by or
due to the gross negligence or willful misconduct of Landlord, its agents,
servants, employees, invitees, licensees or contractors. Except for Tenant's
business equipment and inventory, Tenant shall not move any safe, heavy
machinery, heavy equipment, bulky matter, or fixtures into or out of the
Building without Landlords prior written consent. If such safe, machinery,
equipment, bulky matter or fixtures requires special handling, all work in
connection therewith shall comply with the Administrative Code of the City of
New York and all other laws and regulations applicable thereto and shall be done
during such hours as Landlord may designate. Tenant shall indemnify and save
harmless Landlord against and from all liabilities, obligations, damages,
penalties,
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claims, costs and expenses, including reasonable attorneys' fees, paid, suffered
or incurred as a result of any breach by Tenant, Tenant's agents, servants,
contractors, employees, invitees, or licensees, of any covenant or condition of
this Lease, or the carelessness, negligence or improper conduct of Tenant,
Tenant's agents, servants, contractors, employees, invitees or licensees.
Tenant's liability under this Lease extends to the acts and omissions of any
subtenant, and any agent, servant, contractor, employee, invitee or licensee of
any subtenant. In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant, upon written notice from Landlord, will, at
Tenant's expense, resist or defend such action or proceeding by counsel approved
in writing by Landlord, such approval not to be unreasonably withheld or
delayed.
15. DESTRUCTION, FIRE AND OTHER CASUALTY
(a) If the Demised Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice thereof to Landlord 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 Demised Premises may be restored, at
Landlords option, by and at the expense of Landlord and the rent, until such
restoration shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the Demised Premises which is
usable.
(c) If all or substantially all of the Demised Premises are damaged or
rendered unusable, the rent shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the Demised Premises
shall have been restored by Landlord, subject to Landlords right to elect not to
restore the same as hereinafter provided.
(d) If the Demised Premises are rendered substantially unusable, unless
Landlord is obligated under terms of any other agreement to restore the Demised
Premises, Landlord shall not be obligated to restore the Demised Premises or the
Building. If the Building shall be so damaged that Landlord shall decide not to
restore it, then in such event, Landlord may elect to terminate this Lease by
written notice to Tenant within thirty (30) days after fire or other casualty
specifying a date for the expiration of this Lease, which date shall not be more
than thirty (30) 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 Demised
Premises, without prejudice however to Landlord'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 the date that the Demised Premises were rendered
substantially unusable and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to Tenant
(provided Tenant is not in default under any of the term of this Lease). Unless
Landlord shall serve a termination notice as provided for herein Landlord shall
make the restoration under the conditions of paragraphs (b) and (c) above, with
all reasonable expedition subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond Landlords control. In the event that
Landlord elects to rebuild and has not completed the making of the required
repairs and restored and rebuilt the Demised Premises and/or access thereto
within twelve (12) months from the date of such damage or destruction to the
condition the
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Demised Premises were in on the Commencement Date (except for Tenant's
property), Tenant may serve notice on Landlord of its intention to terminate
this Lease and if within thirty (30) days thereafter, Lessor shall not have
substantially completed the making of the required repairs and restored and
rebuilt the Demised Premises to the condition the Demised Premises were in on
the Commencement Date (except for Tenant's property), then in such events, this
Lease shall terminate on the expiration of such thirty (30) day period as if
such termination date were the Expiration Date, and the Fixed Rent and
Additional Rent shall be apportioned as of such date of sooner termination and
any prepaid portion of Fixed Rent and Additional Rent for any period after such
date shall be refunded by Landlord to Tenant. After any such casualty, Tenant
shall cooperate with Landlords restoration by removing from the Demised
Premises, as promptly as reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture and other property, if required by
Landlord for the restoration of the Building.
(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 of insurance required
under the terms of this Lease and to the extent permitted by law, Landlord and
Tenant each hereby releases and waives all right of recovery against the other
and any such right of recovery by any one claiming through or under each of them
by way of subrogation or otherwise. Tenant acknowledges that Landlord will not
carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances owned or used by Tenant and agrees
that Landlord will not be obligated to repair any damage thereto or replace the
same unless otherwise required under the provisions of this Lease.
(f) The parties agree that the provisions of this Article shall govern and
control in lieu of Section 227 of the Real Property Law.
16. EMINENT DOMAIN
(g) If all or substantially all of the Demised Premises are taken for
public or quasi-public purposes, then this Lease shall terminate as of the date
Tenant is required to quit the Demised Premises.
(h) In the event of any taking, the proceeds of all awards relating
thereto shall be payable to Landlord. However, Tenant shall have the right to
assert its claim for that portion of the award related to the loss of or damage
to its trade fixtures or removable personal property.
17. ASSIGNMENT, SUBLETTING OR MORTGAGING
(a) Tenant shall not, whether voluntarily or involuntarily: (i) assign or
otherwise transfer this Lease, (ii) sublet the Demised Premises or any part
thereof, or allow the same to be used, occupied or utilized by anyone other than
Tenant, or (iii) mortgage, pledge, encumber or otherwise hypothecate this Lease
in any manner whatsoever, without in each instance obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
(b) Any proposed assignee, sublessee or transferee, shall in any event:
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(i) be as credit worthy a tenant as Tenant hereunder, taking into
consideration any guaranty of this Lease, and demonstrate financial
responsibility reasonably necessary to fulfill its obligations under this Lease;
(ii) occupy the Demised Premises for the Permitted Use and only the
Permitted Use, as described in this Lease; and
(iii) in the reasonable opinion of Landlord, be a tenant whose
occupancy will be in keeping with the dignity and character of the Building and
whose occupancy will not be more hazardous than that of Tenant or impose any
additional burden upon Landlord in the maintenance and operation of the
Building.
(c) In connection with any proposed assignment sublease or transfer,
Tenant shall pay to the Landlord on demand the reasonable costs (including
attorneys fees) that may be incurred by the Landlord, including, without
limitation, the reasonable costs of making investigations as to the
acceptability of the proposed assignee or sublessee.
(d) In the event of any assignment or sublease of the Demised Premises
which requires the payment of Fixed Rent, Additional Rent and other charges in
excess of the amounts payable to the Landlord as set forth in this Lease, then
one-half of the excess or profit shall be paid to the Landlord and shall be
payable to Landlord as Additional Rent and shall be due and payable to Landlord
at such times as due and payable by such assignee or subtenant to the Tenant. In
the event the Tenant fails to make payment of such excess or profit in violation
of this Lease, Landlord may collect such rent directly from the assignee or
subtenant.
(e) Regardless of Landlord's consent, no subletting, assignment or other
hypothecation of this Lease will release Tenant from Tenant's obligations
hereunder or alter the primary liability of Tenant to pay the rental and to
perform all other obligations to be performed by Tenant under this Lease, unless
specifically released in writing by Landlord.
18. ACCESS TO PREMISES
(a) Landlord and Fee Owner and their respective agents shall have the
right (but shall not be obligated) to enter the Demised Premises in any
emergency at any time, and, at other times, upon reasonable notice, to examine
the same and to make such repairs, replacements and improvements as Landlord may
deem necessary or reasonably desirable to the Demised Premises or to any other
portion of the Building or as may be required or permitted by this Lease, the
City Lease or the Office Development Lease or which Landlord may elect to
perform following 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.
(b) Any alterations or repairs done by Landlord or Fee Owner shall be
performed in such manner so as to minimize interference with Tenant's use and
enjoyment of the Demised Premises. Landlord 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 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.
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(c) Throughout the Term hereof Landlord shall have the right to enter the
Demised Premises at reasonable hours, upon reasonable notice, for the purpose of
inspecting the Demised Premises or of showing the same to prospective purchasers
or mortgagees of the Building or of Fee Owner's interest in the property, and
during the last six (6) months of the Term, or if this Lease be renewed or
extended then during the last six (6) months of such renewed or extended term,
for the purpose of showing the same to prospective tenants and may, during said
six-month period, place upon the Demised Premises the usual notices "To Let" and
"For Sale", which notices Tenant shall permit to remain thereon without
molestation.
(d) If during the last month of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, and notified Landlord,
Landlord 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. Landlord shall have the right at any time,
without the same constituting an eviction and without incurring liability to
Tenant therefor, to redesign; alter, and 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, provided, however, that same
does not materially and adversely interfere with Tenant's ability to conduct its
business in the Demised Premises.
19. BANKRUPTCY
(a) If on the Commencement Date, or if at any time during the Term hereof,
(i) Tenant admits in writing its inability to pay its debts, or (ii) Tenant
makes an assignment for the benefit of creditors or petitions for or enters into
an arrangement with creditors, or (iii) a proceeding or arrangement for the
relief of Tenant's debts under the laws of the United States or of any state or
foreign government is commenced and is not dismissed within thirty (30) days of
commencement, or (iv) a custodian, trustee, receiver or other agent is appointed
or authorized to take charge of all or part of Tenant's property pursuant to an
arrangement or proceeding for the relief of Tenant's debts under the laws of the
United States or of any state or foreign government or otherwise and is not
removed within thirty (30) days, this Lease, at the option of Landlord, may be
canceled and terminated by written notice to Tenant and whether such
cancellation and termination occur prior to or during the Term, neither Tenant
nor any person claiming through or under Tenant by virtue, of any statute or
rule of law or of any order of any court or other body having jurisdiction,
shall thereafter be entitled to possession or to remain in possession of the
Demised Premises but shall forthwith quit and surrender said Demised Premises,
and Landlord, in addition to other rights and remedies Landlord has by virtue of
any other provision herein or elsewhere in this Lease contained or by virtue of
any statute or rule of law, may retain as liquidated damages any rent, security
deposit or moneys received from Tenant or others on behalf of Tenant.
(b) In the event of the termination of this Lease pursuant to paragraph
(a) hereof, Landlord 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(i) the Fixed Annual
Rent and Additional Rent payable hereunder for the later of the first full month
of the Term of this Lease or the month immediately preceding such termination,
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multiplied by the number of months and partial months during the period that
would otherwise have constituted the balance of the Term of this Lease, and (ii)
the fair and reasonable rental value of the Demised Premises for the same number
of months and partial months, both discounted to the date of termination at the
rate of 4% per annum to determine present worth. If such Premises or any part
hereof be re-let by Landlord 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 re-letting shall
be deemed to be the fair and reasonable rental value for the part or the whole
of the premises so re-let during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of Landlord to prove 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.
20. DEFAULT
(a) If Tenant defaults in fulfilling any of the covenants of this Lease
other than the covenants for payment of Fixed Annual Rent or Additional Rent, or
if the Demised Premises become vacant or deserted, or if the Demised Premises
are damaged by reason of negligence or carelessness of Tenant, its agents,
servants, contractors, employees, invitees or licensees and such damage is not
promptly repaired by Tenant, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property, or if a receiver or custodian is
appointed for all or a portion of Tenant's property or is appointed for or takes
possession of all or any portion of the Demised Premises and is not removed
within thirty (30) days, or if Tenant shall default with respect to any other
lease between Landlord and Tenant, in any one or more of such events, upon
Landlord serving a written ten (10) days notice upon Tenant specifying the
nature of said default and if, upon the expiration of such ten (10) days, 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 such ten (10) day period, and if Tenant
shall not have diligently commenced curing such default within such ten (10) day
period and shall not thereafter with reasonable diligence and in good faith
proceed to remedy or cure such default, then Landlord may serve a written five
(5) days' notice of cancellation of this Lease upon Tenant, and upon the
expiration of such five (5) days, this Lease and the Term hereunder shall end
and expire as fully and completely as if the expiration of such five (5) day
period were the day herein definitely fixed for the end and expiration of this
Lease and the Term hereof and Tenant shall then quit and surrender the Demised
Premises to Landlord but Tenant shall remain liable as herein provided.
(b) If the notice provided for in paragraph (a) hereof shall have been
given, and the Term shall expire as aforesaid, or if Tenant shall default in the
payment of the Fixed Annual Rent, Additional Rent or any part thereof or if
Tenant shall default in any other payment herein required within ten (10) days
after notice, or if the Lease is terminated for failure of a Guaranty as
provided in Article 4 hereof, then and in any of such events Landlord may,
without notice, re-enter the Demised Premises by summary proceedings or
otherwise, dispossess Tenant and the legal representatives of Tenant and any
other occupant of the Demised Premises and remove their effects and hold the
premises as if this Lease had not been made. Tenant hereby waives the service of
Notice of Intention to institute legal proceedings to that end unless such
notice is
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required by law. If Tenant shall default hereunder prior to the date fixed as
the commencement of any renewal or extension of this Lease, and such default has
not been cured, Landlord may cancel and terminate such renewal or extension
agreement.
21. REMEDIES OF LANDLORD AND WAIVER OF REDEMPTION
(a) In case of any such default as provided in Article 20 above,
(i) The Fixed Annual Rent and all Additional Rent shall become due
thereupon and be paid up to the time of such expiration, together with such
expenses as Landlord may incur for legal expenses, attorneys fees, brokerage
and/or putting the Demised Premises in good order, or for preparing the same for
re-rental;
(ii) Landlord may re-let the Demised Premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term or terms which
may at Landlords 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; and
(iii) Tenant or the legal representatives of Tenant shall also pay
Landlord, for the failure of Tenant to observe and perform 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 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. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent days 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 Landlord to collect the deficiency for any other month by a similar
proceeding.
(b) In place and instead of holding Tenant liable upon the several rent
days and otherwise as provided in the preceding paragraph, Landlord may elect to
recover from Tenant forthwith, as damages and not as a penalty, the liquidated
damages provided for in paragraph (b) of Article 19 hereof as if this Lease had
been terminated pursuant to paragraph (a) of Article 19 on the date of the
expiration of the term under Article 20 hereof.
(c) In addition to the amounts required to be paid by Tenant under the
preceding paragraphs of this Article 21, Tenant shall pay to Landlord, when
incurred, all expenses of Landlord in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage and advertising expenses and for keeping
the Demised Premises in good order or for preparing the same for re-letting.
Landlord, in putting the Demised Premises in good order or preparing the same
for re-rental, may, at Landlord's option, make such alterations, repairs,
replacements, and/or decorations in the Demised Premises as Landlord in
Landlords sole judgement considers advisable and necessary for the purpose of
re-letting the Demised Premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from any liability hereunder.
(d) The failure of Landlord to re-let the Demised Premises or any part or
parts thereof shall not release or affect Tenant's liability hereunder. Landlord
shall in no event be liable in any
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way whatsoever for failure to re-let the Demised Premises, or in the event that
the Demised Premises are re-let, for failure to collect the rent under such
re-letting; and in no event shall Tenant be entitled to receive the excess, if
any, of any net rents collected over the sums payable by Tenant to Landlord
hereunder by reason of a re-letting of the Demised Premises.
(e) In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this Lease of any particular remedy shall not preclude Landlord from pursuing
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 in the
event of Landlord obtaining possession of the Demised Premises by reason of the
violation by Tenant of any of the covenants and conditions of this Lease or
otherwise.
22. FEES AND EXPENSES
(a) 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 of this Lease, then, unless otherwise provided
elsewhere in this Lease, Landlord may immediately or at any time thereafter and
upon reasonable notice perform the same for the account of Tenant and if
Landlord, in connection therewith or in connection with any default by Tenant in
the covenant to pay Fixed Annual Rent or Additional Rent hereunder, makes any
expenditures or incurs any obligations for the payment of money, including, but
not limited to, reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding (provided that Landlord is the successful
party in such action or proceeding), such sums paid or obligations incurred,
with interest at 2% above the prime lending rate of Citibank, N.A. or its
successor, shall be deemed to be Additional Rent hereunder and shall be paid by
Tenant to Landlord within ten (10) days of rendition of any xxxx or statement to
Tenant therefor.
(b) Notwithstanding the foregoing, in the event that either party to this
Lease shall institute, prosecute or defend any action or proceeding in
connection with its respective obligations under this Lease, the prevailing
party shall be entitled to reasonable legal fees.
23. NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor Landlords 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 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. All understandings and agreements
heretofore made between Landlord and Tenant with respect to the subject matter
of this Lease are merged in this Lease, which alone fully and completely
expresses the agreement between Landlord and Tenant with respect to the subject
matter of this Lease, and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of this Lease
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.
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24. SOUTH STREET SEAPORT DISTRICT; XXXXXX FISH MARKET
(a) Xxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx is a mixed use cultural and
commercial complex involving public entertainment and activities throughout the
District. Tenant hereby waives all claims that traffic, pedestrian or vehicular,
and cultural and commercial entertainment and activities taking place in the
District disturb or disrupt Tenant's right to quiet enjoyment of the Demised
Premises or constitute a violation of any other obligation of Landlord under the
terms of this Lease.
(b) The Xxxxxx Fish Market is part of the historic Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxx. Tenant hereby waives all claims that fish odors or noise emanating
from the South Street Seaport District, whether made by the fish market, the
public or by performers, disturb or disrupt Tenant's right to quiet enjoyment of
the Demised Premises or constitute a violation of any other obligation of
Landlord under the terms of this Lease.
25. NO WAIVER
The failure of Landlord 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 and Regulations set forth as EXHIBIT "C' attached hereto and made a
part hereof or as hereafter adopted by Landlord, 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 Landlord 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 Landlord unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlords right to recover the balance of such rent or pursue any other remedy
provided in this Lease. No act or thing done by Landlord or Landlord'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 Landlord. No employee of Landlord or Landlord's agent shall
have any power to accept the keys to 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 Demised Premises. No
payment by Tenant shall be deemed a waiver of Tenant's rights pursuant to the
Lease.
26. WAIVER OF TRIAL BY JURY
It is mutually agreed that the parties hereto waive trial by jury in any
action brought by either of the parties hereto against the other (except for
personal injury or property damage) in any way connected with this Lease. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for possession of the Demised Premises, Tenant will not interpose any
counterclaim unless Tenant would be forever barred from litigating such
counterclaim or other claim in any future action.
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27. DEFINITIONS
(a) The term, "business days" as used in this Lease shall mean all days
except Saturdays, Sundays and legal holidays observed by the government offices
of the State of New York or United States of America and those designated as
holidays by the applicable building service union employees service contract.
(b) The term "Environmental Laws" shall mean any and all federal, state,
local, or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority regulating,
relating to or imposing liability or standards of conduct concerning
environmental conditions at the Demised Premises, Building or Property as now or
may at any time hereafter be in effect, including but not limited to and without
limiting the generality of the foregoing, The Clean Water Act also known as the
Federal Water Pollution Control Act, 88 U.S.C. Section Section 1251 et seq., the
Toxic Substance Control Act, 15 U.S.C. Section Section 2601 et seq., the Clean
Air Act, 42 U.S.C. Section Section 7401 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Section Section 186 et seq., the Safe
Drinking Water Act, 42 U.S.C. Section Section 300f et seq., the Surface Mining
Control and Reclamation Act, Section 1201 et seq., 80 U.S.C. Section 1201 et
seq., the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section Section 9601 et seq., the Superfund Amendment and
Reauthorization Act of 1986 ("XXXX"), Public Law 99-499, 100 Stat. Section 1818,
the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section
Section 1101 et seq. the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section Section 6901 et seq., and the Occupational Safety and Health Act
as amended ("OSHA"), 29 U.S.C. Section 655 and Section 657, together with any
amendments thereto, regulations promulgated thereunder and all substitutions
thereof.
(c) The term "Hazardous Material" shall mean (i) Any hazardous, toxic or
dangerous waste, substance or material defined as such in (or for the purpose
of) CERCLA, XXXX, RCRA, or any other Environmental Law as now or at any time
hereafter in effect; (ii) any other waste, substance or material that exhibits
any of the characteristics enumerated in 40 C.F.R- Section Section 261.20
through 261.24, inclusive, and those extremely hazardous substances listed under
Section 902 of XXXX that are present in threshold planning or reportable
quantities as defined under XXXX and toxic or hazardous chemical substances that
are present in quantities that exceed exposure standards as those terms are
defined under Section 6 and 8 of OSHA and 29 C.F.R. Part 1910; (iii) any
asbestos or asbestos containing substances whether or not the same are defined
as hazardous, toxic, dangerous waste, a dangerous substance or dangerous
material in any Environmental Law; (iv) "Red Label" flammable materials; (v) all
laboratory waste and by-products; and (vi) all biohazardous materials.
(d) The term "Landlord" as used in this Lease means only the owner, or the
mortgagee in possession, for the time being, of the land and Building (or the
owner of a lease of the Building or of the land and Building), so that in the
event of any conveyance, sale or sales of said land and Building or of said
lease (including a termination hereof), or in the event of a lease of the
Building, or of the land and Building, such Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder.
(e) The term "office," or "offices," wherever used in this Lease, shall
not be construed to mean premises used as a store or stores, for the sale, at
any time, of goods, wares or
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merchandise, of any kind, or as a shop, booth or other stand, xxxxxx shop, or
for other similar purposes or for manufacturing.
(f) The words "re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
(g) The term "substantially complete" and words of similar import shall be
deemed to mean, with regard to construction work, completion but for such minor
details of work, the non-completion of which would not materially interfere with
the utility of the affected space and if a certificate is issued by an
independent architect or engineer stating that the work is substantially
complete, then such determination shall be conclusive and binding upon the
parties to this Lease.
(h) The term "Tenant's Delays" shall mean: (i) any and all delays caused
by or attributable to any action or failure or refusal of Tenant to perform a
duty of, Tenant or any person claiming through or under Tenant, or any agent,
servant, employee, director, shareholder, contractor or invitee of Tenant or any
such person, and (ii) any delays included by Landlord in substantially
completing the Work by reason of Extra Work and/or changes requested by Tenant
in connection with the Work that were not reflected on the Plans.
(i) The term "Unavoidable Delays" shall mean any and all delays beyond
Landlord's reasonable control, including Tenant's Delays, governmental
restrictions, governmental preemption, strikes, labor disputes, lockouts,
shortages of labor and materials, enemy action, civil commotions, riot,
insurrection and fire, other casualty and other acts of God.
28. ADJACENT EXCAVATION - SHORING
If an excavation shall be made upon land adjacent to the Demised Premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the Demised Premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the Building from injury or damage and to support the same
by proper foundations without any claim for damages or indemnity against
Landlord unless Landlord is guilty of willful misconduct.
28. RULES AND REGULATIONS
Tenant and Tenant's agents, servants, contractors, employees, invitees,
and licensees shall observe faithfully, and comply strictly with the Rules and
Regulations attached hereto as EXHIBIT "C' and such other and further reasonable
rules and regulations as Landlord or Landlords agents may from time to time
adopt; provided however, that such rules or regulations do not impair Tenant's
rights under this Lease or alter the permitted use. Notice of any additional
rules and regulations shall be given in such manner as Landlord may elect.
Nothing herein contained shall be construed to impose upon Landlord any duty or
obligation to enforce any rules and regulations or terms, covenants or
conditions in any other lease as against any other tenant, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
agents, servants, contractors, employees, invitees or licensees.
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30. BROKER
Tenant wants and represents to Landlord that it has not dealt with any
broker in connection with the Demised Premises or the negotiation or execution
of this Lease except for Legacy Real Estate, Inc. (the "Broker"). Tenant agrees
to pay the Broker all commissions in accordance with the terms of separate
agreement. Tenant agrees that should any claim be made for commissions or
finders fee or similar fee by the Broker or any other broker or other person
arising by, through or on account of any act of Tenant or Tenant's
representative, Tenant shall indemnify and hold Landlord harmless from and
against any and all such claims, liabilities, costs or expenses (including
reasonable attorneys' fees) in connection therewith.
31. INSURANCE
(a) Tenant in its own name as insured shall secure and maintain insurance
coverage for and relating to the Demised Premises which shall be effective from
Tenant's entry into the Demised Premises and throughout the term of this Lease
as follows:
(i) Comprehensive general liability insurance including coverage for
all occurrences in and about the Demised Premises with the following minimum
coverage limits:
(1) for bodily and personal injury or wrongful death to one person,
$1,000,000.00; and
(2) for injury or wrongful death from any one accident,
$1,000,000.00; and
(3) for all damages arising out of injury to or destruction of
property in any one accident, $1,000,000.00;
(ii) All Risk insurance to cover Tenant's leasehold improvements,
alterations, fixtures, equipment, machinery, furniture and all other property of
Tenant in the Demised Premises in such amount that Tenant shall not be a
co-insurer and sufficient to cover replacement costs of all such improvements,
alterations, fixtures, equipment, machinery, furniture and other Tenant
property;
(iii) Worker's Compensation covering all persons employed by Tenant
in the Demised Premises, as required by applicable law;
(iv) Business interruption insurance in the amount required to
enable Tenant to meet its obligations under this Lease.
(b) All insurance coverage required under this Article 31 shall be issued
by New York licensed insurance companies, reasonably satisfactory to Landlord.
(c) If Landlord reasonably determines during the Term hereof that the
foregoing minimum limits set forth in paragraph (a) above have become
unsatisfactory, and Landlord gives notice to Tenant of such determination, then
Tenant shall thereafter promptly obtain insurance which has limits in accordance
with such determination and which otherwise conforms to the provisions of this
Lease concerning such insurance. If insurance provided for in this Article is
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affected by a policy of blanket insurance, said policy shall specify the amount
of the total insurance allocated to the Demised Premises, which will not be less
then the amount required by this Article 31. Any blanket insurance policy shall,
as to the Demised Premises, comply with all other provisions of this Article 31.
(d) Every policy of liability insurance required under this Article 31
shall name as additional insureds Landlord, The South Street Seaport
Corporation, the South Street Seaport Museum, the New York City Economic
Development Corporation and the City of New York, their respective successors or
assigns (the "Additional Insureds"), and shall waive all rights to subrogation
against and indemnification from said Additional Insureds. Every insurance
policy obtained by Tenant in accordance with the terms of this Article shall
also include provisions that no act or omission of any party insured thereunder
shall affect or limit the obligation of the insurance company to pay the amount
of any loss sustained and that the policy shall not be invalidated should any of
the insureds waive, in writing, prior to a loss, any and all rights of recovery
against any party for losses covered by such policies.
(e) Tenant waives all rights to recover against the Additional Insureds or
against the officers, directors, shareholders, partners, joint ventures,
employees, agents, invitees or business visitors of said Additional Insureds, or
any of them or against any other tenant or occupant of the Building for any
loss or damage arising from any cause covered by any insurance required to be
carried by Tenant pursuant to this Article 31. Tenant shall cause its insurer or
insurers to issue appropriate waiver of subrogation rights endorsements to all
policies of insurance carried in connection with the Building or the Demised
Premises or the contents of either of them Tenant will cause all other
occupants of the Demised Premises claiming by, under of through Tenant to
execute and deliver to Landlord's waiver of claims similar to the waiver in this
Article and to obtain such waiver of subrogation rights endorsements.
(f) A certified copy of any policy of liability insurance required under
this Article 31, or a certificate or certificates evidencing the existence
thereof, or binders therefor, shall be delivered to Landlord prior to Tenant's
entry into the Demised Premises. If any binder is delivered, it shall be
replaced within thirty (30) days by a certified copy of the policy or a
certificate. Each such copy or certificate shall contain a valid provision or
endorsement that the policy may not be canceled, terminated, changed or modified
without giving fifteen (15) days' written advance notice thereof to Landlord. A
renewal policy shall be delivered to Landlord at least fifteen (15) days prior
to the expiration date of each expiring policy, except for any policy expiring
after the term of this Lease.
(g) Landlord shall use its best efforts to cause to be included in any
fire insurance policies for the Building appropriate clauses pursuant to which
the insurers (i) waive all right of subrogation against Tenant with respect to
losses payable under such policies and/or (ii) agree that such policies shall
not be invalidated should the insured waive in writing prior to a loss any and
all rights of recovery against any party for losses covered by such policies.
32. SIGNS
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Tenant shall not erect or maintain any signs on the Building or on any
part of the outside of the Demised's Premises or the inside of the Demised
Premises if such is visible from the outside of the Demised Premises without the
prior written consent of Landlord.
33. LANDLORD'S RIGHT TO ALTER PUBLIC SPACES
Landlord reserves the right in its sole discretion to redesign or alter
from time to time any and all spaces in the Building which are not leased to
specific tenants, provided however, that such alterations do not materially
impair Tenant's use of the Demised Premises.
34. INDEMNIFICATION OF LANDLORD AND FEE OWNER
To the extent not covered by Landlord's insurance, Tenant shall
indemnify and hold Landlord and its agents and the Fee Owner, the City of New
York, the New York City Economic Development Corporation, the South Street
Seaport Museum, and The South Street Seaport Corporation, and their respective
successors and assigns ("Indemnified Persons") harmless against all loss, damage
and expense (including attorneys' fees) at any time suffered or incurred by
Landlord or Indemnified Persons as a result of any demand, claim, cause of
action, suit, judgment, execution or liability arising from or in connection
with any injury, loss or damage suffered by any person or property (1) while on
the Demised Premises or (2) as a result of any act or omission by Tenant or
Tenant's agents, servants, contractors, employees, guests, invitees or
licensees. Tenant agrees that Landlord and Indemnified Persons shall not be
liable to Tenant or any of its agents, servants, contractors, employees, guests,
invitees or licensees on account of any loss, damage or injury suffered by any
of them due to any defect or failure in the Demised Premises or the real
property of which they are part, including without limitation any defect in or
failure of any part of the heating, air conditioning, ventilating, plumbing or
electrical systems or any appurtenance to the Demised Premises such as
stairways, halls, roofs and elevators. In no event shall Landlord or Indemnified
Persons be liable to Tenant or any other party for any remote, incidental or
consequential damages to person or property resulting from any condition in the
Demised Premises or the real property of which they are part or any act or
omission by Landlord or Indemnified Persons or any other party.
35. LIABILITY OF LANDLORD
(a) Tenant shall look only to Landlord's estate and interest in the land
and Building for the collection of any judgment (or other judicial process
requiring the payment of money by Landlord) in the event of any default by
Landlord under this Lease, and no other property or other assets of Landlord
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use and occupancy of
the Demised Premises. Nothing contained in this Article shall be construed to
permit Tenant to offset against rents due a successor landlord, a judgment (or
other judicial process) requiring the payment of money by reason of any default
of a prior Landlord. Under no circumstances shall Tenant look to the City of New
York, The New York City Economic Development Corporation, The South Street
Seaport Museum or The South Street Seaport Corporation, for the satisfaction of
any of Tenant's remedies against the Landlord.
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(b) Tenant hereby agrees for itself and its successors and assigns that in
the event of any actual or alleged failure, breach or default by Landlord under
the terms of this Lease occurring while Seaport Associates or any other limited
partnership (for purposes of this Section, "such limited partnership") is
Landlord hereunder:
(i) the sole and exclusive remedy shall be against such limited
partnership and its partnership assets;
(ii) no partner, general or limited, of such limited partnership
shall be sued or named as a party in any suit or action (except as may be
necessary to secure jurisdiction of such limited partnership);
(iii) no service of process shall be made against any partner,
general or limited, of such limited partnership (except as may be necessary to
secure jurisdiction of such limited partnership);
(iv) no partner, general or limited, of such limited partnership
shall be required to answer or otherwise plead to any service of process (except
as may be necessary to secure jurisdiction of such limited partnership);
(v) except as may be necessary to secure judgment against such
limited partnership, no judgment will be taken against any partner, general or
limited, of such limited partnership and any judgment taken against any partner,
general or limited, of such limited partnership may be vacated and set aside at
any time nunc pro tunc;
(vi) no writ of execution will ever be levied against the personal
assets of any partner, general or limited, of such limited partnership;
(vii) these covenants and agreements are enforceable both by such
limited partnership and also by any partner, general or limited, of such limited
partnership; and
(viii) any violation of this Section 35(b) or any of its subparts
shall entitle the aggrieved partner(s), general of limited, of such limited
partnership to recover damages (including, without limitation, legal fees and
expenses) from and against Tenant, its successors and assigns.
36. DISCHARGE OF LIENS; BONDS
(a) Tenant shall not create, suffer or permit to be created or to remain
any lien, encumbrance or charge upon the Demised Premises, or any part thereof,
or this Lease, and Tenant shall not suffer any other matter or thing whereby the
estate, rights or interest of Landlord or Fee Owner in the Demised Premises or
any part thereof or in this Lease might be impaired. Tenant shall, to the extent
permitted by law, obtain and deliver to Landlord, written and unconditional
waivers of mechanic's liens upon the real property in which the Demised Premises
are located, for all work, labor and services to be performed and materials to
be finished in connection with such work, signed by all contractors,
subcontractors, materialmen and laborers that become involved in such work.
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(b) If any mechanic's, laborer's or materialman's or other lien at any
time shall be filed against the Demised Premises or any part thereof, as a
result of Tenant's work, Tenant, within thirty (30) days after the filing
thereof, shall cause the same to be vacated or discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or otherwise. If
Tenant shall fail to cause such lien to be vacated or discharged within the
period aforementioned, and if such lien shall continue for an additional ten
(10) days after notice by Landlord to Tenant, then, in addition to any other
right or remedy of Landlord hereunder, Landlord may, but shall not be obligated
to, discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceedings, and
in any such event, Landlord shall be entitled, if Landlord shall so elect, to
compel the prosecution of an action for the foreclosure of such lien by the lien
or and to pay the amount of the judgment in favor of the lien or with interest,
costs and allowances. Any amount so paid by Landlord, and all costs and
expenses, including, but not limited to, attorneys' fees and disbursements,
incurred by Landlord in connection therewith, together with interest thereon
from the date of Landlords making of the payment or incurring of the costs and
expenses shall constitute Additional Rent payable by Tenant under this Lease and
shall be paid by Tenant to Landlord within ten (10) days of Landlords demand for
such payment.
37. ESTOPPEL CERTIFICATE
(a) Tenant agrees, at any time and from time to time upon not less than
five (5) business days' notice given by Landlord, The South Street Seaport
Corporation or Fee Owner, to execute, acknowledge and deliver to Landlord, The
South Street Seaport Corporation or Fee Owner (or any other parties specified by
either of them led by either of them) a statement certifying (i) whether this
Lease is unmodified and in full force and effect (or if there have been any
modifications or supplements or other agreements executed pursuant to the terms
of this Lease that the same, as modified and/or supplemented, is in full force
and effect and stating the modifications and/or supplements), (ii) the date to
which the Rent payable by Tenant hereunder has been paid, including Fixed Annual
Rent, Additional Rent, and any extra charges, (iii) whether to the best
knowledge of the person executing such certificate there is then any existing
default in the performance of Landlord's obligations under this Lease and, if
so, specifying each such default, (iv) whether to the best knowledge of the
person executing such certificate there then exists any setoffs or defenses to
the enforcement of this Lease by Landlord or any claims by Tenant against
Landlord, and (v) any other existing condition or status concerning this Lease,
it being intended that any such statement may be relied upon by Landlord, The
South Street Seaport Corporation, Fee Owner and/or such other parties as
Landlord, The South Street Seaport Corporation or Fee Owner shall have
designated.
(b) The foregoing provision shall inure to the benefit of Landlord, The
South Street Seaport Corporation, Fee Owner and any present or future permitted
mortgagees and their respective successors and assigns.
38. NO MEMORANDUM
Tenant acknowledges that it has been informed by Landlord that it may not
record this Lease or any memorandum hereof or cause the same to be placed of
record in any manner and
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agrees that any recording or attempted recording of this Lease shall constitute
a material default hereunder.
39. NO DISCRIMINATION
Tenant covenants and agrees that it shall neither commit nor permit
discrimination or segregation by reason of race, creed, color, religion,
national origin, ancestry, sex, age, disability or marital status in any
assignment of its interest under this lease or in the subletting, use or
occupancy of the Demised Premises or any part thereof, or in connection with the
maintenance, repair or alteration of the Demise Premises or any part thereof, or
in any other instrument, agreement or transaction affecting the premises, and
that it shall comply with all federal, state and municipal laws, ordinances,
rules, codes, orders, regulations and executive orders from time to time in
effect prohibiting any such discrimination or segregation and/or requiring
affirmative action with respect to the same.
40. NO MODIFICATION
Neither this lease nor any of its provisions may be waived, change,
modified or terminated orally, but only by a written instrument of waiver,
change, modification or termination executed by the party against whom
enforcement is sought.
41. BILLS AND NOTICES
Except as otherwise in this Lease expressly provided, any notice, xxxx,
statement, demand, consent, approval or other communication required or
permitted to be given, rendered or made by either party to the other party shall
be in writing and shall be deemed to have been properly given or rendered or
made if hand delivered, or delivered by any nationally recognized overnight
delivery service, or sent by registered or certified mail, return receipt
requested, to the respective party at the following address:
(a) If to Landlord: Seaport Associates L.P.
0000 Xxxxxx Xxxxxx, Xxxxx XX0
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
with a copy to: Xxxxxx & Xxxx, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(b) If to Tenant: BigStar Entertainment, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxx & Kalamotousakis, LLP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx, Esq.
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Either party may change its address for the purpose of this Article 41 by
written notice to the other party.
42. SUCCESSORS AND ASSIGNS
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and, except as otherwise
provided in this Lease, their respective successors and assigns.
43. EXECUTION AND DELIVERY OF LEASE
This Lease shall not be binding upon Landlord or Tenant until Landlord
shall execute and deliver to Tenant a fully executed counterpart.
44. QUIET ENJOYMENT
So long as Tenant pays the Fixed Annual Rent and Additional Rent and
observes and performs all the terms, covenants and conditions on Tenant's part
to be observed and performed under this Lease, Tenant may peaceably and quietly
enjoy the Demised Premises, subject, nevertheless, to the terms and conditions
of Us Lease and of any underlying leases.
45. INABILITY TO PERFORM
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 Landlord 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 repairs, additions, alterations or
decorations required or permitted under this Lease or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strike or labor troubles or any other cause
whatsoever beyond the control of Landlord, including but not limited to,
government preemption in connection with a National Emergency, or any rule,
order or regulation of any department or subdivision of any government agency.
46. HOLDING OVER
If Tenant holds over in possession after the expiration or sooner
termination of the original Term or of any extended term of this Lease, such
holding over shall not be deemed to extend the term or renew the Lease, but such
holding over thereafter shall continue upon the covenants and conditions herein
set forth except that the charge for use and occupancy of such holding over for
each calendar month or part hereof (even if such part shall be a small fraction
of a calendar month) shall be the sum of:
(i) one twelfth (1/12th) of the highest annual rent provided for in
Article 3 of this Lease, times two (2), PLUS
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(ii) one twelfth (1/12th) of all other items of annual Additional
Rent, which annual Additional Rent would have been payable pursuant to this
Lease had this Lease not expired, times two (2), PLUS
(iii) those other items of Additional Rent which would have been
payable monthly pursuant to this Lease, had this Lease not expired, times two
(2),
which total sum Tenants agree to pay Landlord promptly upon demand, in full,
without set-off or deduction. Neither the billing nor the collection of use and
occupancy charges in the above amount shall be deemed a waiver of any right of
Landlord to collect damages for Tenant's failure to vacate the Demised Premises
after the expiration or sooner termination of this Lease. The aforesaid
provisions of this Article shall survive the expiration or sooner termination of
this Lease.
47. USE OF SOUTH STREET SEAPORT TRADENAME
South Street Seaport is a registered trademark of the South Street
Seaport Museum, Tenant shall be permitted to use the name "South Street
Seaport" on its letterhead and in advertising or other promotional materials
solely as a means of identifying the location of the Tenant. Tenant shall not
use the name "South Street Seaport" or any variation thereof without the
prior written consent of the South Street Seaport Museum except as specified
in this Article.
48. AUTHORITY
(a) If Tenant is a corporatior-4 each person executing this Lease on
behalf of Tenant hereby covenants, represents and warrants that Tenant is duly
qualified to do business in the Sate of New York; and (i) that Tenant has full
right and authority to enter into this Lease, and (ii) that each person
executing this Lease on behalf of Tenant is an officer of Tenant and is duly
authorized to execute, acknowledge and deliver this Lease to Landlord.
(b) Landlord represents and warrants: (i) that it is a limited partnership
duly organized and in good standing under the laws of the State of New York,
(ii) that it has all requisite authority to execute and to enter into this Lease
and that the execution of this Lease will not constitute a violation of any
internal by-law, agreement or other rule of governance, (iii) that the
individual executing this Lease on behalf of Landlord is so authorized, and (iv)
that Landlord does not need bankruptcy court or any other approval to enter into
this Lease.
49. HEADINGS
Headings contained herein and the Table of Contents hereto are for
convenience and reference only and do not define, limit or describe the scope or
intent of any provision of this Lease.
50. SEVERABILITY
In the event any term, covenant or provision of this Lease or the
application thereof to a person or circumstance shall be to any extent illegal,
invalid or unenforceable, the remainder thereof or the application of such term,
covenant or provision to persons or circumstances other
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than those as to which it is held illegal, invalid or unenforceable shall not be
affected thereby and each term, covenant or provision of this Lease shall be
valid and enforceable to the full extent permitted by law.
50. GOVERNING LAW
This Lease shall be construed and interpreted according to the Laws of the
State of New York.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
SEAPORT ASSOCIATES, LP, Landlord,
By: Beacon General Partners, Inc., its
managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
BIGSTAR ENTERTAINMENT, INC., Tenant
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: CEO
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LEASE AGREEMENT BETWEEN
SEAPORT ASSOCIATES, IF,
AS LANDLORD
AND
BIGSTAR ENTERTAINMENT, INC,
AS TENANT.
Premises:
00 XXXXXX XXXXXX
FIFTH (5TH) XXXXX
XXX XXXX, XXX XXXX 00000
EXHIBIT "A"
PLAN OF THE DEMISED PREMISES
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[PLAN OF DEMISED PREMISES]
33
LEASE AGREEMENT BETWEEN
SEAPORT ASSOCIATES, IF,
AS LANDLORD
AND
BIGSTAR ENTERTAINMENT, INC,
AS TENANT.
Premises:
00 XXXXXX XXXXXX
FIFTH (5TH) XXXXX
XXX XXXX, XXX XXXX 00000
EXHIBIT "B"
LIMITED PERSONAL GUARANTY
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FOR VALUE RECEIVED, and as consideration for, and as an inducement for
the granting, execution and delivery of the lease between SEAPORT ASSOCIATES, LP
("Landlord") and BIGSTAR ENTERTAINMENT, INC, as Tenant, dated January ____, 1999
(the "Lease") for entire Fifth (5th) floor in building known as and located at
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 which shall be deemed to consist of
Seven Thousand, Two Hundred and Twenty-Four (7,224) rentable square feet (the
"Premises"), and in further consideration of the stun of One ($1.00) Dollar and
other good and valuable consideration paid by the Landlord to the undersigned
the receipt and sufficiency of which are hereby acknowledged, the undersigned,
XXXXX XXXXXXXXXXX, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, ("Guarantor") hereby guarantees to Landlord, its successors and assigns,
the full and prompt payment of Fixed Annual Rent, Electric Charge, and
Additional Rent (as such terms are defined in the Lease) under the Lease, and
hereby further guarantees the full and timely performance and observance of all
the covenants, terms, conditions and agreements therein provided to be performed
and observed by Tenant, its successors and assigns, and the Guarantor hereby
covenants and agrees to and with Landlord, it successors and assigns, that if
default shall at any time be made by Tenant, its successors or assigns, in the
payment of any Fixed Annual Rent, Electric Charge, or Additional Rent or if
Tenant should default in the performance and observance of any of the terms,
covenants and provisions or conditions contained in the Lease, the Guarantor
shall and will forthwith pay Fixed Annual Rent, Electric Charge, and Additional
Rent due to Landlord, its successors and assigns, and any arrears thereof, and
shall and will forthwith faithfully perform and fulfill all of such terms,
covenants, conditions and provisions, and will forthwith pay to Landlord all
damages that may arise in consequence of any default by Tenant, its successors
and assigns, under the Lease, including, without limitation, all attorneys' fees
and disbursements incurred by Landlord or caused by any such default and/or by
the enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment and
of performance. It shall be enforceable against Guarantor, its successors and
assigns, without the necessity of any suit or proceedings on Landlords part of
any kind or nature whatsoever against Tenant, its successors and assigns and
without the necessity of any notice of non-payment, non-performance or
non-observance or of any notice of acceptance of this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives; and Guarantor hereby expressly agrees that
the validity of this Guaranty and the obligations of Guarantor hereunder shall
not be terminated, affected, diminished or impaired by reason of the assertion
or the failure to assert by Landlord against Tenant, or against Tenant's
successors or assigns, of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the Lease.
This Guaranty shall be a continuing guaranty, and the liability of the
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of any assignments, renewal, modification or extension of the Lease or by
reason of any modification or waiver of or change in any of the terms,
covenants, conditions or provisions of the Lease by Landlord and Tenant, or by
reason of any extension of time that may be granted by Landlord to Tenant, its
successors or assigns, or by reason of any dealings or transactions or matter or
thing occurring between
35
Landlord and Tenant, its successors or assigns, or by reason of any bankruptcy,
insolvency, reorganization, arrangements, assignment for the benefit of
creditors, receivership or trusteeship affecting Tenant, whether or not notice
thereof or of any thereof is given to the Guarantor.
All of Landlords right and remedies under the Lease or under this
Guaranty are intended to be distinct, separate and cumulative and no such right
or remedy therein or herein mentioned is intended to be an exclusion of or a
waiver of any of the others.
As a further inducement to Landlord to make and enter into the Lease
and in consideration thereof, Landlord and the Guarantor covenant and agree that
in any action or proceedings brought on, under or by virtue of this Guaranty,
Landlord and the Guarantor shall and do hereby waive trial by jury. This
Guaranty shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed wholly
therein.
Notwithstanding the foregoing, Guarantors shall have no liability to
Landlord under this Guaranty in the event of default under the Lease by Tenant,
provided that: (i) Tenant surrenders possession of the Premises to Landlord in
accordance with the provisions of the Lease AND (ii) on the date that Tenant
surrenders possession of the Premises to Landlord in accordance with the
provisions of the Lease, all sums due and owing Landlord as of that date have
been paid in full. Landlord agrees to provide Guarantor with a statement of the
amount due on or before the date that Tenant surrenders possession of the
Premises to Landlord, provided, however, that furnishing such a statement shall
not be deemed a waiver of any of Landlords rights against Guarantor to collect
all sums due and owing Landlord as of the date that Tenant surrenders possession
of the Premises to Landlord.
IN WITNESS HEREOF, the undersigned Guarantors has executed and
delivered this Limited Personal Guaranty this day of January, 1999.
/s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Name: XXXXX XXXXXXXXXXX, Guarantor
STATE OF NEW YORK )
)SS.:
COUNTY OF NEW YORK )
On the 3 day of February, 1999, before me personally came XXXXX
XXXXXXXXXXX, to me known, who being by me duly sworn, did depose and say that he
maintains an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and that he
executed the foregoing instrument, and to me such person duly acknowledged that
he executed the same.
/s/ Xxxxxx Xxxxxx ------------------ Notary Public
36
LEASE AGREEMENT BETWEEN
SEAPORT ASSOCIATES, IF,
AS LANDLORD
AND
BIGSTAR ENTERTAINMENT, INC,
AS TENANT.
Premises:
00 XXXXXX XXXXXX
FIFTH (5TH) XXXXX
XXX XXXX, XXX XXXX 00000
EXHIBIT "C"
RULES AND REGULATIONS
37
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
Demised Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Landlord. There shall not be used in any space, or in the public hall of the
Building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for
any purpose other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the Building, and no Tenant shall sweep or throw or permit to be swept
or thrown from the Demised Premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the Building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the Demised Premises, or permit or suffer
the Demised Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
Building. Smoking or carrying lighted cigars or cigarettes anywhere in the
Building is strictly prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Building.
5. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the Demised Premises or the Building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. No Tenant shall lay carpet or
any other floor covering, so that the same shall come in direct contact with the
floor of the Demised Premises. If carpet or other similar floor covering is
desired to be used an interlining of builder's deadening felt and/or padding
approved by Landlord shall be first installed and the carpet or other floor
shall be installed using a tackless method. The use of cement or other similar
adhesive material is expressly prohibited.
6. No additional locks or bolts of any kind shall be placed upon any of the
doors or window by any Tenant, nor shall any changes be made in existing locks
or mechanisms thereof Each Tenant must, upon the termination of its tenancy,
restore to Landlord all keys of offices and toilet
38
rooms, either furnished to, or otherwise procured by, such Tenant, and in the
event of the loss of any keys, so furnished, such Tenant shall pay to Landlord
the cost thereof.
7. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the Demised Premises
and/or Building only on the elevators and through the entrances and corridors
designated for such purposes by Landlord, and only during hours and in a manner
approved by Landlord. Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight which
violates any of these Rules and Regulations of the Lease or which these Rules
and Regulations are a part.
8. Canvasing, soliciting and peddling in the Building is prohibited and
each Tenant shall cooperate to prevent the same.
9. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 am. and at all hours on Sundays, and legal holidays
all persons who do not present a pass to the Building signed by Tenant. Landlord
will furnish passes to persons for whom any Tenant requests same in writing.
Each Tenant shall be responsible for all persons for whom he requests such pass
and shall be liable to Landlord for all acts of such persons.
10. Landlord shall have the right to prohibit any advertising by any Tenant
which in Landlords opinion, tends to impair the reputation of the Building or
its desirability as a Building of offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
11. Tenant shall not bring or permit to be brought or kept in or on the
Demised Premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the Demised Premises.
12. If the Building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Landlord with respect to such services.
13. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the Demised Premises and/or the Building
without Landlords prior written consent. If such safe, machinery, equipment,
bulky matter or fixtures requires special handling, all work in connection
therewith shall comply with all legal requirements, insurance requirements
and/or Environmental Laws and shall be done during such hours as Landlord may
designate.
