New Jersey-West Orange-425 Pleasant Valley Way Lease - WHR Realty Partnership and DEM Amusements Inc. d/b/a Rascals Comedy Club
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1st day of January, 1999, by and between W.H.R.
Realty Parnterhsip, a New Jersey partnership, 425 Pleasant Valley Way, West
Orange, New Jersey("Landlord") and D.E.M. AMUSEMENTS, Inc. d/b/a RASCALS COMEDY
CLUB ("Tenant").
WITNESSETH:
ARTICLE I
Premises and Business
1.1 The Landlord leases to the Tenant and the Tenant hereby leases from
the Landlord upon and subject to the terms and provisions of this Lease, the
premises commonly known and designated as 425 Pleasant Valley Way, West Orange,
Essex County, New Jersey which said business occupies approximately 5000 square
feet of space on the premises located at 425 Pleasant Valley Way, West Orange,
New Jersey more or less and to which the Tenant shall have the right to use and
enjoy subject to the reasonable right of access by the Landlord, its employees
and agents and such other use as Landlord shall reasonably require. The Premises
shall be further subject to (i) easements, encumbrances, liens, and restrictions
of record together with such state of facts as an accurate survey might show;
(ii) all governmental rules, regulations, and ordinances affecting the Premises,
the Business and its use; (iii) rights of the State of New Jersey, Department of
Transportation and (iv) rights, either public or private, in and to any brook,
stream water course, drain, ditch, road or lane or any public utility grant not
of record, bounding or crossing the Premises in question.
1.2 Tenant expressly represents, warrants and covenants that Tenant's
or its sub-Tenant's use of the Premises and the operation of its restaurant upon
said premises will not involve, in any way, "Hazardous Substances" nor will such
use cause the Premises to be deemed an "Industrial Establishment" as such terms
are defined in the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et
seq., and specifically, N.J.S.A. 13:1-K-8d and f, respectively. Tenant covenants
and agrees with Landlord that Tenant dos not in the present operation of its
business in the Premises engage in a use which will involve "Hazardous
Substances" or make the Premises an "Industrial Establishment" as defined above,
nor will Tenant commit any act with respect to the Premises which would prevent
Landlord from submitting or obtaining a "Negative Declaration" as defined in the
aforesaid statute. Tenant agrees to execute and deliver without reasonably delay
any written statement required by Landlord to evidence Tenant's compliance with
the provisions of this paragraph.
1.3 The Premises shall, at the commencement of this Lease, be
delivered to Tenant in its present AS IS condition. The Tenant shall
116
<PAGE>
return the Premises to the Landlord at the end of this Lease in the same
condition as delivered, subject to reasonably wear and tear.
1.4 The Business shall, at the commencement of this Lease, be delivered
to the Tenant without any representations and/or warranties by the Landlord as
to its profits, either gross or net, or as to its operating expenses.
ARTICLE II
Term of Lease
2.1 The term of this Lease shall commence on or about January 1st, 1999
and shall end on December 31st, 2004, unless this Lease shall sooner terminate
as hereinafter provided. Subject to section 2.2 hereof, this Lease shall be for
a term of five (5) years (the "Initial Term"). Possession of the said Premises
shall be delivered to tenant on the date this Lease commences on January 1st,
1999. The Tenant shall be responsible for obtaining any governmental approvals
or permits including certificates of occupancy or building permits.
2.2 Provided that the Tenant shall not be in default under the terms of
this Lease, Tenant shall have the option to lease the Premises for one (1)
additional term of five (5) years upon prior written notice given to the
Landlord at lease one (1) year and one (1) day before the termination of the
original term of this Lease (the "Option Term").
ARTICLE III
Rent
3.1 Subject to sections 3.2 and 3.4 hereof Tenant agrees to pay
Landlord, when due, without notice, demand or set-off as the aggregate rental
for the Premises for the Initial Term the sum of $840,000.00 (the "Basic Rent")
to be paid in sixty (60) monthly installments as set forth below together with
any increases thereof and such additional rents as being the other payments to
be made by Tenant hereunder as follows:
Year Annual Rent Monthly Rent
1 $168,000.00 $14,000.00
2 $168,000.00 $14,000.00
3 $168,000.00 $14,000.00
4 $168,000.00 $14,000.00
5 $168,000.00 $14,000.00
All monthly rental payment shall be payable in advance, on the first day of each
and every month beginning on the first day of the month in which this Lease
commences. If the rent hereof shall commence on a day other than the first day
of the calendar month. Tenant shall pay Landlord on the commencement of the term
the proportionate amount of rent due for the balance of such calendar month.
IN addition to all monthly rental payments, the Tenant shall pay when due all
real estate taxes upon the subject premises.
117
<PAGE>
3.2 During the Option term, the Tenant shall, consistent with the
provisions here-in-above set forth, pay an aggregate Basic Rent of $840,000.00
together with any increases thereof and such additional rents as being the other
payments to be made by Tenant hereunder payable as follows:
[a] An aggregate sum payable on a monthly basis to be
negotiated by and between the parties hereto no later than the 54th month of the
original term hereof, and in no event less than $14,000.00 per month
($168,000.00 per year) together with the Additional Rent. All installments of
Additional Rent shall be due and payable as set forth herein without abatement.
3.3 In addition to the Basic Rent stipulated herein, Tenant covenants
and agrees to pay on behalf of Landlord as addition rent (the "Additional Rent")
all other sums and charges which are, pursuant to the terms of this Lease, to be
paid by the Tenant. At the inception of this Lease, or as soon thereafter as may
be practicable, the Landlord shall estimate the amount of Additional Rent on or
before the first (1st) day of each month at the same time and in the same manner
as above provided for the Basic Rent, with a suitable proration for any
fractional period. When the Tenant has paid such estimated Additional Rent for
twelve (12) full months, the Landlord shall within thirty (30) days from the end
of such twelve month period submit to Tenant, a statement certified by the
Landlord setting forth the actual expenditures for all items included in such
Additional Rent. If the estimated Additional Rent paid by the Tenant is less
than Tenant's actual Additional Rent, then Tenant shall pay Landlord the
difference within thirty (30) days of receipt of such statement; and if the
estimated Additional Rent paid by the Tenant shall be greater than Tenant's
actual share of such Additional Rent, then Tenant shall deduct such excess
payment from the next installment of Additional Rent becoming due. Landlord
shall thereafter submit a similar certified statement at twelve (12) month
intervals and shall revise the estimated Additional Rent payments to be made in
the following months as may be required. Notwithstanding the foregoing, the
Landlord may at its option require the Tenant to pay all, insurance, utilities
and items of similar nature, directly to the supplier thereof by the Tenant with
proof of payment given to the Landlord upon written request. IT IS THE INTENT OF
THE PARTIES HERETO THAT THIS IS A FULLY NET LEASE AND THAT TENANT SHALL BE
RESPONSIBLE FOR ALL COSTS AND EXPENSES INCURRED AS A RESULT OF THE USE,
OCCUPANCY OR OPERATION OF THE PREMISES. This shall include, but not be limited
to, 100% of the annual real estate taxes, 100% of the annual charges for
insurance, sprinkler systems, utilities, and maintenance. As to repairs,
replacements or capital improvements, of any nature whatsoever, foreseen or
unforeseen, ordinary or extraordinary, the Tenant shall pay to the Landlord
within thirty (30) days of notice of the need for same, 100% of all costs and
charges incurred or to be incurred for said repairs, etc., for the Tenant's
portion of the premises.
3.4 In the event Tenant shall fail to pay Basic Rent and/or Additional
Rent when due and such failure shall continue for fifteen 915) days, then in
addition to the Landlord's rights contained in Article XVI hereof, Landlord
shall have the right to charge a late fee of five percent
118
<PAGE>
(10%) of any rental or other payment not made within five (5) days from the
original due date.
ARTICLE IV
Compliance with Laws
4.1 Tenant may use and occupy the Premises for the purposes here-
in-above set forth; provided, however, the Tenant shall not make any
alternations to eh demised Premises or conduct its business in any manner which
will constitute a nuisance. Further, Tenant shall not use, permit or suffer the
use of occupancy of the Premises in any manner other than permitted by the
zoning regulations, or ordinances, regulations and certificates of occupancy, if
any, now or hereafter applicable or issued with respect to the Premises.
4.2 Tenant shall throughout the term of the Lease at Tenants own cost
and expense, promptly comply or cause compliance with all laws and ordinances
and other orders, rules, regulations and requirements of all Federal, State,
County and Municipal or other local governments, boards, agencies or offices,
whether foreseen or unforeseen, ordinary as well as extraordinary. The
provisions and conditions of this Article shall similarly apply to all
alternations and improvements required or permitted by the Tenant under this
Lease.
4.3 In the event Tenant's use of the Demised Premises and the conduct
of its business therein constitutes the operation of an "Industrial
Establishment', as said term is defined in the Environmental Clean Up
Responsibility Act, N.J.S.A. 13:1K-6 et seq., ("The Act"), Tenant shall not
terminate such use and close its business or sell or transfer its business
unless and until it has obtained a negative declaration approved by the New
Jersey Department of Environmental Protection ("DEP") or any successor
governmental department or agency ("Successor Agency"), as required by The Act.
4.4 If, at the end of the Term, Tenant has not obtained such negative
declaration approved by DEP or such successor Agency, Tenant shall not be
discharged of its obligations and responsibilities under this Lease,
notwithstanding the fact that Tenant may not be in possession of the Premises .
Such obligations and responsibilities shall continue in full force and effect,
in accordance with the terms, covenants and conditions of this Lease, until
tenant obtains such negative declaration approved by DEP or the Successor
Agency, except, however, the monthly Fixed Rent Tenant shall be required to pay
hereunder shall be double the Fixed Rent for the last month of the Term.
4.5 In the event that Landlord shall require from Tenant information
and evidence of Tenant's Standard Industrial Classification number, the nature
of Tenant's business being operated upon the Premises, the use Tenant made of
the Premises or like information to be submitted to the New Jersey Department of
Environmental Protection ("DEP") or any successor governmental department or
agency in connection with a proposed sale, leasing, exchange, financing,
refinancing or other disposition of
119
<PAGE>
the Premises, or any part thereof, or of the building in which or land upon
which the Premises are located, or any part thereof, then Tenant shall, upon
written request of Landlord, furnish such information and evidence in Affidavit
or other form required by DEP without unreasonably delay.
4.6 The provisions set forth in section 4.3 through 4.5 shall not be
construed as a waiver or release of Tenant's representations, warranties and
covenants contained in section 1.3 above nor of Landlord's rights and remedies
to which the Landlord is entitled at law or equity.
4.7 Tenant has examined the demised Premises and is fully familiar with
the physical condition thereof, and Tenant, accepts the demised Premises "AS IS"
on the date hereof (subject to the specific exception set forth in section 1.4
hereof). Tenant assumes all risks, if any, resulting from any latent or patent
defects in the Premises or from any failure of the same to comply with all legal
requirements applicable thereto. Tenant acknowledges that Landlord has made no
representations, covenant or warranties with respect to the condition or manner
of construction of the Premises or equipment or the uses or purposes for which
the demised Premises may be occupied. Tenant also agrees that in making and
executing this Lease it has not relied upon or been induced by an statements or
representations of any person other than those, if any, set forth expressly in
this Lease with respect to the subject matter of this transaction.
4.8 Tenant shall, at its sole costs and expense, obtain and keep in
full force and effect any and all necessary permits, licenses, certificates or
other authorizations required in connection with the lawful and proper use,
occupancy, operation and management of the Premise, equipment, signs, fixture,
improvements an personal property situate thereon and Tenant shall indemnify and
hold harmless the Landlord from and against all claims, liability, damage, loss
and costs and expenses (including reasonably attorneys fees) in connection
therewith.
ARTICLE V
Utilities and Services
5.1 Tenant agrees to pay or cause to be paid all charges for gas, heat,
water, electricity or other utilities or services used, rendered or supplied to,
upon or in connection with the demised Premises throughout the term of the Lease
and as is more particularly set forth hereinabove.
5.2 Landlord does not warrant that the items provided for in Section
5.1 hereof shall be free from slow-down interruption or stoppage pursuant to
voluntary agreement by and between Landlord and governmental bodies and
regulatory agencies, or caused by the maintenance, repair, substitution,
renewal, replacement or improvement of any of the equipment involved in the
furnishing of any of said items, or caused by changes of quantity or character
of any service used in connection with said items, alterations, strikes,
lockouts, labor, controversies, shortages, accidents, acts of God or the
elements or any other cause beyond the
120
<PAGE>
reasonably control of Landlord; and specifically, no such slow-down,
interruption or stoppage of any of said items shall ever be construed as an
eviction, actual or constructive, of Tenant, nor shall same cause any abatement
of Rent or Additional Rent payable hereunder or in any manner or for any purpose
relieve Tenant from any of its obligations hereunder, and in no event shall
Landlord be liable for damage to persons or property or be in default hereunder
as a result of such slow-down, interruption or stoppage.
ARTICLE VI
Taxes
6.1 The Tenant will pay, as Additional rent, the cost of 100% all real
estate taxes and assessed for the Premises. Tenant's obligations shall be
prorated for its period of occupancy as related to the period covered by such
tax.
6.2 The term "real estate taxes" as used in this paragraph shall mean
all taxes, assessments, exercises, levies, license and permit fees, water meter
rates, and other governmental charges, general and special, ordinary and
extraordinary, unforeseen and foreseen, of any nature and kind whatsoever which,
at any time prior to or during the term of this Lease, may be assessed, levied,
confirmed, imposed upon, grow, or become due and payable out of or in respect
of, or become a lien on the demised Premises and/or the land, building and other
improvements and appurtenances constituting the Premises. If at any time after
the dat hereof the method of taxation prevailing as to the date hereof shall be
altered so that in lieu of or as a substitute for or in addition to the whole or
any part of the taxes, assessments, levies, impositions or charges now levied,
assessed or imposed on real estate and the improvements thereon there shall be
levied, assessed and imposed (i) a tax assessment, levy, imposition or charge
wholly or partially as a capital levy or otherwise, on the Rents received
therefrom or the value thereof; or (ii) a tax, assessment, levy (including but
not limited to, any municipal, state or federal levy), imposition or charge
measured by or based in whole or in part upon the demised premises and imposed
upon the Landlord, or (iii) any license fee measured by the Rent payable by
Tenant under this Lease, then all such taxes, assessments, levies, impositions
or charges or the part thereof so measured or based, shall be deemed to be
included within the term "real estate taxes" for the purpose hereof, and the
Tenant shall pay and discharge the same as herein provided in respect of the
payment of real estate taxes. Excluded from items (i) through (iii) above shall
be any tax, federal, state or local, dominated as an "income tax".
ARTICLE VII
Improvements and Alternations
7.1 Under otherwise expressly permitted hereunder, no alterations,
additions or improvements shall be made and no climate regulating, air
conditioning, cooling, heating, sprinkler systems televisions or radio
121
<PAGE>
antennae, equipment, apparatus and/or fixtures shall be installed in or attached
to the Premises without prior written consent of the Landlord which consent
shall not be unreasonably withheld. Unless otherwise provided herein, all such
alterations, additions or improvements and systems, when made, installed in/or
attached to the said Premises shall belong and become the property of the
Landlord and shall be surrendered with the Premises and as part thereof upon the
expiration or sooner termination of this Lease, without hindrance, molestation
or injury.
7.2 All alterations, additions and improvements made hereunder by
Tenant shall be performed in a first-class, workmanlike manner and shall be
completed promptly. The cost of the work shall be paid promptly so that the
premises and Tenant's leasehold estate therein shall at all time be free from
(a) liens or materials supplied and (b) chattel mortgages, conditional sales
contracts, security interests and financing statements. At all times whenever
any such work is in progress, Tenant shall maintain or cause to be maintained
(a) adequate workmen's compensation insurance covering all persons employed in
connection with said work, in an amount at least equal to the minimum amount of
such insurance required by law and (b) comprehensive general public liability
insurance for the mutual benefit of Landlord and Tenant insuring against all
hazards with limits of not less then $1,000,000 for bodily injury or death to
any one person, not less than $1,000,000 for bodily injury to any number of
persons in respect of any one single occurrence and not less than $1,000,000 for
property damage. Whenever the alteration, addition or improvement constitutes or
involves any structural alteration, addition or improvement, Landlord shall have
the right to require that the performance of the work be under the supervision
of an architect or engineer (who shall be paid by Tenant) reasonably
satisfactory to Landlord.
ARTICLE VIII
Insurance
8.1 During the term hereof and any extension of this Lease, Tenant
shall, authorizes the Landlord to secure, provide and keep in force for the
mutual benefit of Landlord and Tenant the following insurance, at Tenant's own
costs and expense, and to be adjusted in accordance with Article III, Section
3.3 above.
(a) Comprehensive general public liability insurance against
claims for bodily injury, death or property damage occurring in or about the
Demised Premises (including without limitation, bodily injury, death or property
damage resulting directly or indirectly from any change, alteration, improvement
or repair thereof), with limits of not less than $1,000,000.00 for bodily injury
or death to any one person and $1,000,000 for bodily injury or death to any
number of persons in respect of any one occurrence and with limits of not less
than $1,000,000.00 for property damage.
(b) Fire, any extended coverage, vandalism, malicious mischief
and special extended coverage insurance in an amount adequate to cover the cost
of replacement of all personal property, decoration, trade
122
<PAGE>
fixtures, furnishings and equipment in or about the Premises and all contents
therein but not less than $1,000,000.00. Landlord shall not be liable for any
damage to such property of Tenant by fire or other peril no matter how caused,
it being understood that the Tenant will look solely to its insurer for
reimbursement.
(c) Workmen's compensation insurance covering all persons with
respect to whom death or bodily injury could be asserted against Landlord in
connection with tenant's business operations, Tenant's work and/or Tenant's
alterations.
8.2 all of the aforesaid insurance policies except workmen's
compensation insurance shall show Landlord and any designee and/or mortgagee of
Landlord, as additionally insured and shall be written by one or more
responsible insurance companies authorized to do business in the State of New
Jersey. All such insurance shall contain endorsements substantially as follows:
"It is understood and agreed that the insurer will give Landlord,
W.H.R. Realty Co. ten (10) days prior written notice of any material
change in or cancellation of this policy."
8.3 Tenant shall be solely responsible for reimbursement to the
Landlord for the premiums for such insurance. Tenant shall deliver to Landlord,
within fifteen (15) days after the date hereof and thereafter at least fifteen
(15) days prior to the expiration of such policy, either a duplicate original or
certificate and true copy of all policies procured by Tenant in compliance with
its obligations hereunder, together with satisfactory evidence of the payment of
the premiums therefor.
8.4 Tenant agrees, at its own cost and expense, to comply with all
rules and regulations of the Fire Insurance Rating Organization having
jurisdiction and any similar body. If at any time or from time-to-time as a
result of or in connection with any failure by Tenant to comply with the
foregoing sentence or any act or omission or commission by Tenant, its
employees, agents, contractors or licenses or as a result of or in connection
with the use to which the Premises are put (notwithstanding that such use may be
the purpose herein before permitted or that such use may have been consented to
by Landlord), the fire insurance rate applicable to the Premises or building in
which the same are located shall be higher than that which would be applicable
for less hazardous type of occupancy legally permitted therein, Tenant agrees
that it will pay to Landlord as Additional Rent, such portion of the premium for
all insurance policies enforced with respect to the aforesaid properties and the
contents of any occupant thereof as shall be attributable to such higher rates.
ARTICLE IX
Indemnification
9.1 Tenant agrees that the use by itself, its agents, contractors,
employees and servants of the demised Premises is, at its own risk, and
123
<PAGE>
hereby releases the Landlord and its agents, servants, contractors and employees
from all claims and demands of every kind resulting from any accident, damage or
injury occurring thereon.
9.2 Tenant shall defend, indemnify and save harmless Landlord and
Landlord's agent and employees from and against liabilities, obligations,
damages, penalties, claims, costs, charges and expenses including but not
limited to reasonable attorneys fees, which may be asserted by third person
(including but not limited to those for death, personal injuries, or for loss or
damage to property) against Landlord or Landlord's agents or employees by reason
of or for any cause or reason whatsoever arising out of or by reason of the use
or occupancy by the Tenant or the conduct of the Tenant's business, including
but not limited to the following:
(a) The Tenant's operation of the Premises.
(b) The negligent or otherwise wrongful act or omission on the
part of the Tenant or any of its agents, contractors, servants, employees,
licensees, or invitees.
(c) Any work or thing done in or about the Premises or any
part thereof by or at the instants of Tenant, its agents, contractors, servants,
employees, licensees or invitees.
(d) Any accident, injury or damage to any personal property
occurring in, on or about the Premises or any part thereof, or passageway or
space adjacent thereto.
(e) Any failure on the part of Tenant to perform or comply
with any of the covenants, agreements, terms, provisions, conditions, or
limitations contained in this Lease on its part to be performed or complied
with.
In case any action or proceeding is brought against Landlord by reason of any
such claim, Tenant upon written notice from Landlord shall at Tenant's expense
resist or defend such action or proceeding, by counsel selected by the Landlord.
9.3 Landlord shall not be responsible or liable to tenant for any loss
or damage that may be occasions by or through the acts or omissions of persons
occupying any part of the Premises adjacent to or connected with the Premises
for any loss resulting to Tenant or its property from any break or leak in a
water, gas, sewer, sprinkler, plumbing fixture, electrical facility or
otherwise. All property kept, stored or maintained in the Premises shall be so
kept, stored or maintained at the sole risk of Tenant.
ARTICLE X
Maintenance and Repair
10.1 Tenant agrees to keep in good order, condition and repair the
roof, foundations, interior and exterior walls and structural and non-
structural portions of the Premises and the heating, ventilation, air
conditioning, plumbing and electrical systems of the Premises and other items of
personalty used or employed in connection with the Premises.
10.2 Tenant shall throughout the term and extension thereof of this
Lease, at Tenant's sole cost and expense, maintain and repair the Premises. When
used in this section the term "repair or repairs" shall be deemed to include
replacements, restorations and/or renewals when necessary including the blacktop
parking areas.
10.3 Tenant shall keep and maintain the grounds, curbs, and sidewalks
on the Premises and owned by Landlord in a clean and orderly condition, free of
accumulation of dirt, rubbish, snow and ice.
10.4 Tenant shall permit Landlord and its authorized representatives to
enter the demised Premises at all reasonable times upon prior notice, or at any
time without notice, in case of any emergency, for the purpose of inspecting the
same and making any necessary repairs to the demised Premises and performing any
work therein. Nothing in this section shall, however, imply and duty on the part
of the Landlord to do any such work or to make any such alterations or repairs.
The performance thereof by Landlord shall not constitute a waiver of tenant's
default in failing to perform the same.
ARTICLE XI
Assignment or Subletting
11.1 Tenant agrees not to sell, assign, mortgage, hypothecate, pledge
or in any manner transfer this lease or any interest hereunder, and not to
sublet the Premises or any part or part thereof without the prior written
consent of Landlord in each instance, which consent shall not be unreasonably
withheld. If Tenant violates the provisions of this Article, Landlord may accept
from any such assignee or sublessee the payment of any Basic Rent and/or
Additional Rent and/or the performance of any of the other obligations of Tenant
under this Lease, but acceptance shall not be deemed to be a waiver by Landlord
of the breach by Tenant of the provisions of this Article nor a recognition that
the assignee or sublessee has succeeded to the rights of Tenant; provided,
however, that any rents so collected shall be applied against Tenant's rent
obligation hereunder.
ARTICLE XII
Security Deposit
12.1 There shall be no security deposit required under the Terms of
this Lease provided that the Tenant pays rent as due. In the event that Tenant
fails to pay rent on a timely basis for three (3) consecutive months, Tenant
shall deposit with Landlord, an amount equal to one-half (1/2) month's rent (and
shall maintain the deposit at such levels to take account for the actual amount
of Basic and Additional Rents which may be due and payable from time to time) to
be held by Landlord as security.
124
<PAGE>
All or any part of said deposit may be applied by Landlord in total or partial
satisfaction of any default by Tenant including any damages or deficiency in
reletting of the Premises, whether such damage or deficiency may accrue before
or after summary proceedings or other reentry by the Landlord. The application
of all or any part of deposit to any obligation or default of Tenant under this
Lease shall not deprive Landlord of any rights or remedies Landlord may have,
nor shall such application by Landlord constitute a waiver by the Landlord. If
all or any part of the security deposit is applied to an obligation of Tenant
hereunder, Tenant agrees to restore the said security deposit to its original
amount. Tenant shall not call upon Landlord to apply all or any part of the
security deposit to cure any default or fulfill any obligation of Tenant but
such use shall be solely in the discretion of Landlord.
ARTICLE XIII
Fire
13.1 In the event of the total destruction of the Premises by fire or
other casualty during the term hereof, or in the event of such partial
destruction thereof as to render the Premiss wholly untenable or unfit for
occupancy, then in either event, unless such damage can in the opinion of
Landlord, be repaired within ninety (90) days after the occurrence, this Lease
and term hereby created, shall cease from the date of such damage or destruction
and Tenant shall, upon written notice from Landlord, immediately surrender the
Premises to Landlord, and Tenant shall pay, within said term, only to the time
of such damage or destruction. If, however, in Landlord's opinion the damage as
aforesaid can be repaired within ninety (90) days from the occurrence thereof,
Landlord shall (unless Landlord shall elect not to repair or rebuild, as
hereinafter provided), repair the Premises will reasonably speed, and this Lease
shall continue tin full force and effect but the Rent and Additional Rent shall
abate from the occurrence of the damage until the completion of such repairs,
unless such damage is due to the fault or neglect of Tenant, Tenant's servants,
agents, employees, visitors or licensees, in which event there shall ben o such
abatement or rent.
13.2 In the event of the partial destruction of the building or the
Premises by fire or other casualty during the term hereof, which partial
destruction does not render the Premises wholly untenable or unfit for
occupancy, Landlord shall (unless Landlord shall elect not to repair or rebuild
as hereinafter provided), repair the damage with all reasonable speed and this
Lease shall continue in full force and effect but until the completion of such
repairs the Basic Rent and Additional Rent shall abate in proportion to the area
of the Premises which is unusable by Tenant, unless such damage is due to the
fault or neglect of Tenant, Tenant's servants, agents, employees, visitors or
licensees in which event there shall be no such abatement of rent.
13.3 In the event that the building or the Premises shall be slightly
damage by fire or other casualty so as not to substantially effect the operation
of Tenant's business in the Premises then in that event, there shall be no
abatement of rent and this Lease shall continue
125
<PAGE>
in full force and effect, and Landlord shall enter and repair the damage with
all reasonable speed.
13.4 Notwithstanding anything contained here to the contrary: If the
Premises is damaged by a casualty which is not insured or whose cost of repair
or reconstruction exceeds the amount of insurance and Landlord decides, in its
sole judgment, either not to repair, reconstruct or rebuild or to demolish the
Premises or entire building, then upon the happening of any such event, Landlord
may cancel this Lease by giving written notice of such cancellation to Tenant
within thirty (30) days after the happening of such damage and thereupon this
Lease and the term hereof shall cease and terminate as of the date of the
happening of such damage and rent and other charges payable by Tenant shall be
prorated to the day of such damage.
13.5 Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not to unreasonably interfere with
Tenant's use and occupancy of the Premises but such effort shall be subject to
(i) Landlord's inability to obtain materials, (ii) acts of God, (iii) strikes,
fire or weather, (iv) acts of governmental authority or any other cause beyond
the control of Landlord.
ARTICLE XIV
Eminent Domain
14.1 If the Premises or such portion thereof, so as to render the
balance unsuitable for the purposes of Tenant, shall be taken by condemnation or
right of eminent domain the Tenant, upon written notice is given not later than
thirty (30) days after Tenant has been deprived of possession.
14.2 In the event of a partial (less than substantial) taking of the
building Tenant shall have the right to terminate this Lease. If Tenant provides
clear and convincing evidence to Landlord that any partial taking of the
Premises would cause the remainder of the Premises to be impractical for
Tenant's purposes, Tenant shall have the right to terminate this Lease. The
Tenant may exercise the aforesaid right or rights to terminate this Lease in its
entirety as aforesaid by giving written notice to the Landlord within sixty (60)
days after the date of the vesting of title in such proceedings, specifying a
date not more than thirty (30) days after the giving of such notice as to the
date of such termination.
14.3 In the event of any taking of the Premises or the building
designated as 425 Pleasant Valley Way, West Orange, New Jersey, Landlord shall
be entitled to receive the entire award and Tenant hereby assigns to Landlord
any and all right, title and interest of Tenant in or to any such award or any
part thereof and hereby waives all rights against Landlord and the condemning
authority except that the Tenant shall have the right to claim and prove in any
such proceeding and to receive any award which may be made, if any, specifically
for damages or condemnation of Tenant's movable trade fixtures, leasehold
interest and moving expenses, if any.
126
<PAGE>
14.4 In the event that this Lease is not terminated after the eminent
domain proceedings, Landlord shall promptly commence to repair or restore the
Premises to tenable condition and complete the same with due diligence except
for delays caused by (i) Landlord's inability to obtain materials, (ii) acts of
God, (iii) strikes, fire or weather, (iv) acts of governmental authority or any
other cause beyond the control of Landlord, and the rent shall be equitably
reduced from and after the date title vests in the condemnor for the balance of
the term by taking into account the character and amount of the taking.
ARTICLE XV
Surrender
15.1 On the last day of the term demised, or the sooner termination
thereof, Tenant shall peaceably surrender the Premises broom-clean, in good
order, condition and repair, subject to the provisions of section 1.4 hereof. If
the Premises are not surrendered at the end of the term or sooner termination
thereof, Tenant shall indemnify Landlord against loss or liability resulting
from delay by Tenant in so surrendering the Premises, including without
limitation, claims made by and succeeding Tenant founded by such delay. Tenant
shall promptly surrender all keys for the premises to the Landlord at the place
then fixed for payment of rent. Tenant's covenants hereunder shall survive the
expiration or termination of this Lease.
15.2 If the Tenant shall occupy the Premises with the consent of the
Landlord after the expiration of this Lease and the rent is accepted from
tenant, such occupancy and payment shall be construed as an extension of this
Lease for a term expiring on the last day of the month next following the month
in which the Lease expired, and occupation thereafter shall operate to extend
the term of this Lease for but one (1) month at a time, unless other terms of
such expiration are made in writing and signed by the parties hereto. In such
event, if either Landlord or Tenant desires to terminate said occupancy at the
end of any month after the termination of this Lease, the Party so desiring to
terminate shall give the other party at least thirty (30) days written notice to
that effect. Failure on the part of the Tenant to give such notice shall
obligate it to pay such rent for an additional calendar month following the
month in which the Tenant has vacated the Premises.
ARTICLE XVI
Default
16.1 Tenant shall, without any previous demand therefor, pay to
Landlord the Basic Rent and Additional Rent without deduction, set-off or
demand, at the times and in the event:
(a) of default in the payment of said rent or of any
installment or part thereof, or in the payment of any other sum or any part
thereof which may become due from Tenant to Landlord hereunder, at the time and
in the manner provided herein and if the same shall remain in
127
<PAGE>
default for fifteen (15) days after becoming due, or (b) the premises
shall be deserted, abandoned or vacated, or
(c) of the violation by tenant of any of the covenants,
agreements and conditions herein provided, or of any of the rules and
regulations now or hereafter established by the Landlord, and the failure to
cure such violation within fifteen (15) days after notice in writing of such
violation by Landlord to Tenant: then upon the happening of any such event,
Landlord may, at its option, elect to terminate this Lease or to enter the said
Premises as the agent of Tenant, either by force or otherwise without being
liable for any prosecution or damage therefor, and relet the Premises as the
agent of Tenant and receive the rent therefor, upon such terms as shall be
satisfactory to Landlord and all rights of Tenant to repossess the Premises
under this Lease shall cease and end upon such termination or entry. Such entry
for reletting by Landlord shall not operate to release Tenant from any rent to
be paid or covenant to be performed hereunder during the term of this Lease. For
the purposes of reletting, Landlord shall be authorized to make such repairs or
alterations in or to the Premises as may be necessary to place the same in good
order and condition and restore said Premises to this original condition. Tenant
shall be liable for and hereby agrees to pay Landlord the cost of such repairs
or alterations and all expenses of such reletting. If the sum realized or to be
realized from the reletting is insufficient to satisfy the rent provided in this
Lease, Landlord at its option may require Tenant to Pay such deficiency
month-by-month or at any greater intervals, or may hold Tenant, in advance, for
the entire deficiency resulting from such reletting. Landlord is hereby granted
alien, in addition to any statutory lien or right to distrain that may exist, on
all personal property of Tenant in or upon the Premises, including without
limitation furniture, fixtures (including trade fixtures) and merchandise of
Tenant, to assure payment of the rent and performance of the covenants and
conditions of this Lease. Landlord shall have the right, as agent of Tenant, to
take possession of all personal property found in or about the Premises
including without limitation furniture and fixture of Tenant and sell the same
at public warehouse or elsewhere at the cost of any for the account of Tenant,
or any other occupant, Tenant hereby waiving benefits of all laws exempting
property from execution, levy and sale on distress judgment.
16.2 In the event of any such breach or threatened breach by Tenant of
any of the agreements, terms covenants or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and
additionally shall have the right to invoke any right or remedy allowed at law
or in equity or by statute or otherwise as through re-enter summary proceedings,
any other remedies provided for in this lease.
16.3 Each right and remedy of Landlord provided for in this Lease shall
be cumulative and shall be in addition to every other right or remedy provided
for in this Lease or now or hereafter existing at law or equity or by statute or
otherwise and the exercise or beginning of the exercise by Landlord or any one
or more of the rights or remedies provided for in this Lease of now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise
128
<PAGE>
by Landlord of any or all other rights or remedies provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise.
16.4 If the term of his Lease shall be terminated due to default by the
Tenant, of any of the terms or covenants herein contained, this Lease and the
term and estate hereby granted, whether or not the term shall heretofore have
commenced, shall terminate with the same affect as if that day were the
expiration date of the term of this Lease, but Tenant shall remain liable for
all damages as are provided for herein including reasonable attorney's fees.
ARTICLE XVII
Bankruptcy
17.1 At any time prior to or during the term of this Lease, if Tenant
shall make an assignment for the benefit of its creditors, file a voluntary
petition in bankruptcy or if Tenant shall be adjudicated a bankrupt or insolvent
or if the affairs of Tenant shall be taken over by or pursuant to an order of
any other officer or governmental authority pursuant to any Federal State or
other statute or law; or if Tenant shall, admit in writing, inability to pay
debts generally as they come due or if Tenant shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or future Federal Bankruptcy act
or any other present or future applicable Federal. State or other statute or
law, or if Tenant shall seek or acquiesce in the appointment of a trustee,
receiver or liquidator of Tenant, or of all or any substantial part of its
property; or if, within sixty (60) days after the commencement of any
proceedings against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, such proceeding shall
not have been dismissed, or if within sixty (60) days after the appointment,
without consent or acquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant, or of all or any substantial part of its property, such
appointment shall not have been vacated, stayed or dismissed, or if within sixty
(60) days after the expiration of any such stay, such appointment shall not have
ben vacated, stayed or dismissed, then and in any such event, Landlord may, at
its option terminate this Lease and all rights of Tenant herein by giving the
Tenant notice, in writing of the election of Landlord to terminate and in such
event Tenant nor any person claiming by, through or under Tenant, by virtue of
statute or of any order of any court shall be entitled to possession or to
remain in possession of the Premises but shall forthwith quit and surrender the
Premises. Such causes for termination of this Lease as set forth in this Article
shall constitute a default by Tenant and all rights and remedies stated or
otherwise reserved under this Article shall be available to Landlord.
17.2 It is stipulated and agreed that in the event of the termination
of this lease pursuant to this Article, Landlord shall forthwith notwithstanding
any other provision of this Lease to the contrary be entitled to recover from
tenant as and for liquidated damages
129
<PAGE>
an amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the Initial Term demised and the then fair and reasonable
rental value of the Premises for the same. In the computation of such damage,
the difference between any installment of rent becoming due hereunder, after the
date of termination, and the fair and reasonable rental value of the Premises
for the period for which such installment was payable shall be discounted to the
date of termination at the rate of five (5%) percent per annum. If such Premises
or any part thereof be relet by Landlord for the unexpired term of said Lease or
any part thereof, before presentation of proof of such liquidated damages to any
court, the amount of rent reserved upon such reletting shall be prima facie
evidence as to fair and reasonable rental value or the part of the whole of the
Premises so relet 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 than, equal to, or less than the amount of the difference referred to
above.
ARTICLE XVIII
Quiet Enjoyment
18.1 Tenant, subject to the terms and provisions of this Lease and to
all mortgages, now or hereinafter made against the Premises and to which this
Lease may be or become subordinate, on payment of all Rent and Additional Rent
and observing and keeping and performing all of the terms and provisions of this
Lease, shall lawfully, peaceably and quietly have, hold and occupy and enjoy the
Premises during the term hereof. This covenant shall be binding upon Landlord
only during its ownership of the Premises. Int he event Landlord shall sell or
otherwise dispose of its interest in the Premises during the term of this Lease,
such sale or other disposition shall operate to release and relieve Landlord
from any further liability or obligation to Tenant hereunder.
130
<PAGE>
ARTICLE XIX
Subordination
19.1 This Lease and all rights of Tenant hereunder are and shall be
subject to subordination in all respect to all present and future mortgages on
the Premises or the building which the Premises is a part of, which may now or
hereafter affect the same and to all renewals, modifications and replacements of
such mortgages. This Section 19.1 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver at its own costs and
expense any instrument, in recordable form, if required, by the holder of any
such mortgage of their respective successors, and Tenant hereby irrevocably
constitutes and appointments Landlord attorney-in-fact for Tenant to execute any
such instrument for any on behalf of Tenant.
ARTICLE XX
Notices
20.1 Any notice required or permitted under this Lease shall, unless
otherwise specifically provided for herein be deemed sufficiently given or
served if sent by registered or certified mail return receipt requested, postage
prepaid, addressed to Tenant at the Premises and Landlord at the address then
fixed for the payment of rent. Any such notice shall be deemed given as of the
date of mailing. Either party may by fifteen (15) days prior written notice, at
any time, designate a different address to which notices shall subsequently be
mailed.
ARTICLE XXI
Waiver of Trial by Jury
21.1 To the extent permitted by law, Landlord and Tenant here waive
trial by jury in any action brought by either against the other on any matter
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant of the Tenant's use or occupancy of the Premises including
any claim for injury or damages.
Article XXII
No Waiver of Modification
22.1 The failure of either party to insist in any one or more
instances, upon the strict performance of any one or more of the agreements,
terms or covenants, conditions or obligations of this Lease, or to exercise any
right or remedy or election herein contained shall not be construed as a waiver
or relinquishment for the future performance of such one or more obligations or
rights under this Lease but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission.
131
<PAGE>
ARTICLE XXIII
Estoppel Certificate
23.1 Tenant agrees, at any time and from time-to-time, as requested by
Landlord, upon not less than five (5) days prior notice to execute and deliver
without cost or expense to the Landlord a statement certifying this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
Modifications), certifying the dates to which the Basic Rent and Additional Rent
have been paid and stating whether or not, to the best knowledge of the Tenant,
the Landlord is in default of any of its obligations under this Lease, and if
so, specifying each such default of which Tenant may have knowledge.
23.2 It is intended that any such statement delivered to the Landlord,
pursuant to this Article, may be relied upon by any prospective purchaser of the
fee or any mortgagee thereof or any assignee.
ARTICLE XXIV
Showing of Premises
24.1 The Tenant agrees to permit the Landlord or Landlord's agents or
employees or their representatives to show the Premises, at reasonable time, to
persons wishing to rent or purchase the same and after six (6) months preceding
the expiration of the term hereof the Landlord or its agents or employees or
representatives shall have the right to place a notice on the from of the
Premises indicated that the Premises if for rent or for sale. Such showing shall
be conducted so as not to unreasonably interfere with the operation of Tenant's
business.
ARTICLE XXV
Parties Bound
25.1 This Lease Agreement is binding upon and insures to the benefit of
the respective parties hereto, their successors, permitted assigns, and legal
representatives.
25.2 Notwithstanding the preceding section, the obligations of Landlord
under this Lease shall not be binding upon the Landlord herein named with
respect to any period subsequent to the transfer of its interest in the
Premises, as owner thereof, and in the event of such transfer of its interest in
the Premises, as owner thereof, and in the event of such transfer said
obligations shall thereafter be binding upon each transferee of the interest of
landlord herein named as such owner or lessee of the Premises.
25.3 Tenant shall look solely to the equity of Landlord in and to the
building of which demised Premises is a part in the event of a breach or default
by Landlord pursuant to the provisions of this Lease, and Tenant agrees that the
liability of Landlord under this Lease shall not
132
<PAGE>
exceed the value of such interest of Landlord in the building of which the
Premises is a part. No other properties or assets of Landlord shall be subject
to levy, execution or other enforcement procedures for the satisfaction of any
judgment (or other judicial process) arising out of, or in connection with, this
Lease; and if Tenant shall acquire alien on such other properties or assets by
judgment or otherwise as aforesaid Tenant shall promptly release such lien on
such other properties and assets by executing, acknowledging and delivering to
Landlord an instrument to that effect prepared by Landlord's attorney.
ARTICLE XXVI
General Provisions
26.1 The invalidity of one or more phrases, articles, sections,
sentences or clauses contained in this Lease shall not affect the remaining
portions of this Lease or any part thereof, and in the event that any one or
more of the same contained in this Lease shall be declared valid, by final
order, decrees or judgment of a court of competent jurisdiction, this Lease
shall be construed as if such invalid phrases, articles, sections, sentences or
clauses had not been inserted herein.
26.2 Tenant shall not record this lease, but if either party should
desire to record a short memorandum of lease setting forth only the parties, the
demised Premises and the term, such memorandum of lease shall be executed,
acknowledged and delivered by both parties upon notice from either party.
26.3 The laws of the State of New Jersey shall govern the validity,
performance and enforcement of this lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed their names the day
and year first above written.
W.H.R. Realty Partnership, Landlord D.E.M. Amusements, Inc.
d/b/a
d/b/a RASCALS COMEDY CLUB
---------------------------- ------------------------
BY: Eduardo Rodriguez, Partner BY: Mark Magnusson,
President
133