EXTENSION AGREEMENT
THIS AGREEMENT made and entered into this the 10th day of October, 1995 (the
"Agreement"), by THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
("Landlord") and ▇▇▇. ▇▇▇▇▇▇ COOKIES, a California corporation ("Tenant")
WITNESSETH
WHEREAS, the parties hereto have entered into a certain Lease Agreement (the
"Lease") dated July 1, 1993, demising certain premises in the building located
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇.
WHEREAS, it is the desire of the parties to extend said Lease.
NOW THEREFORE, effective July 1, 1995, the parties agree as follows, said
provisions to control whenever inconsistent with the original provisions of the
Lease:
1. TERM: The extension term of said lease shall be for an
additional thirty-four (34) months beginning on the first day
of July 1995 and expiring on the last day of April 1998.
2. PREMISES: 5,308 square feet located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. BASE RENT: Effective July 1, 1995 through April 30, 1998, the
annual base rent shall increase to Eighteen Thousand Four
Hundred Sixty-Eight and 00/100 Dollars ($18,468.00) to be paid
in equal monthly installments of One Thousand Five Hundred
Thirty-Nine and 00/100 Dollars ($1,539.00).
ALL OTHER PROVISIONS of the Lease shall remain unmodified and in full
force and effect, except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this Amendment by their
duly authorized officers or representatives.
LANDLORD: TENANT:
THE EQUITABLE LIFE ASSURANCE ▇▇▇. ▇▇▇▇▇▇ COOKIES, a
SOCIETY OF THE UNITED STATES California corporation
By: By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Investment Officer Its: Vice President
Date: 10-10-95 Date: 10-2-95
Table of Contents
Section Title
1. Industrial Park, Common Areas, and Parking Areas.................Page 1
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2. Leased Premises and Gross Leasable Area..........................Page 1
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3. Improvement of Premises.........................................Page 2
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4. Term............................................................Page 2
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5. Rent............................................................Page 2
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6. Prepaid Rent and Security Deposit...............................Page 3
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7. Operating Expenses..............................................Page 4
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8. Taxes on Tenant's Property......................................Page 6
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9. Rail Side Track Expenses........................................Page 6
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10. Parking.........................................................Page 6
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11. Use and Compliance with Law.....................................Page 7
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12. Utilities............................................ ..........Page 7
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13. Maintenance and Cleaning........................................Page 7
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14. Alterations.....................................................Page 8
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15. Signs...........................................................Page 9
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16. Rules and Regulations...........................................Page 9
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17. Landlord's Financing.................................. .........Page 10
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18. Tenant's Insurance and Indemnity................................Page 10
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19. Destruction....................................................Page 11
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20. Condemnation...................................................Page 11
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21. Assignment and Subletting......................................Page 12
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22. Default by Tenant..............................................Page 12
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23. Remedies for Tenant's Default..................................Page 13
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24. Late Charge............................................ .......Page 13
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25. Default by Landlord . . . . . . . . . . . . . . . . . . . Page 13
26. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . Page 14
27. Obligations upon Termination . . . . . . . . . . . . . . Page 14
28. Estoppel Certificate . . . . . . . . . . . . . . . . . . Page 14
29. Sale of Premises by Landlord . . . . . . . . . . . . . . Page 14
30. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14
31. Holding Over . . . . . . . . . . . . . . . . . . . . . . . Page 15
32. Access to Premises . . . . . . . . . . . . . . . . . . . . Page 15
33. Nonrecourse Provision . . . . . . . . . . . . . . . . . . Page 15
34. Waiver and Cumulative Remedies . . . . . . . . . . . . . . Page 15
35. Multiple Parties Tenant . . . . . . . . . . . . . . . . . Page 16
36. Prior Agreements, Lease Amendments, and Time Effective . . Page 16
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37. Inability to Perform . . . . . . . . . . . . . . . . . . . Page 16
38. Authority . . . . . . . . . . . . . . . . . . . . . . . . Page 16
39. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16
40. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . Page 17
41. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . Page 17
42. Rider and Deadline . . . . . . . . . . . . . . . . . . . . . Page 17
Exhibits and Attachments:
Guaranty (If applicable]
Rider (If applicable]
Exhibit A Marked floor or building plan, showing location and configuration of
Premises
Exhibit B Improvement of Premises [If applicable]
Exhibit C Rules and Regulations
Exhibit D Certified Corporate Resolution
2-1-93
LEASE
[Warehouse & Associated Space]
THIS LEASE, dated July 1, 1993, is made and entered into by
and between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New
York corporation (hereinafter referred to as "Landlord"), and ▇▇▇. ▇▇▇▇▇▇
COOKIES, a California Corporation (hereinafter referred to as "Tenant," whether
one or more). Landlord and Tenant hereby agree as follows:
1. Industrial Park, Common Areas, and Parking Areas.
Landlord is the owner of one or more buildings, and associated land, located
within or comprising the complex or industrial park commonly known as
Interchange Business Park and situated at approximately or near I-15 and I-80
Freeway Interchange (South Salt Lake) in the County of Salt Lake, Utah. All of
such buildings and land that are from time to time owned by Landlord (as such
ownership may periodically expand or contract) are hereinafter collectively
referred to as the "Industrial Park." All of the vehicular parking areas,
streets, driveways, turnaround areas, and landscaped areas that from time to
time are part of the Industrial Park are hereinafter collectively referred to as
the "Common Areas." The vehicular parking 'areas that from time to time are
contained in the Common Areas are hereinafter referred to as the "Parking
Areas."
2 . Leased Premises and Gross Leasable Area. Landlord hereby
leases to Tenant, and Tenant rents from Landlord, all or part of one of the
buildings included in the Industrial Park. The space hereby leased by Landlord
to Tenant is hereinafter referred to as the "Premises." The address of the
Premises is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, and the location and
configuration of the Premises is outlined or cross-hatched on the floor or
building plan attached hereto as Exhibit A and incorporated herein by this
reference. During the term of this Lease Tenant shall have such nonexclusive
licenses with respect to the Common Areas as may be reasonably necessary for
access to the Premises.
The "Gross Leasable Area" of the Premises is 5,308 square
feet. As used in this Lease as regards either the Premises or other leasable
space in the Industrial Park, "Gross Leasable Area" shall mean the square
footage of the area in question, determined by measurements running from the
outside surfaces of perimeter building walls and from the center of any interior
demising wall that may separate spaces leased to different lessees, without
deduction for any areas lying within the perimeter of the space in question. Any
mezzanine space shall be ignored in determining Gross Leasable Area.
3 . Improvement of Premises. The arrangement, if any, that is
to apply relative to improvement or refurbishing of the
"Standard Form" 2-1-93
Premises is described in Exhibit B attached hereto and incorporated herein by
this reference. Except for whatever work by Landlord may be called for by such
Exhibit B, the Premises are leased to Tenant "as is," and Landlord shall have no
responsibility for further improving or modifying the Premises to meet Tenant's
requirements. Such Exhibit B is [_] is not [X] part of this Lease.
4. Term. If there is no Exhibit B to this Lease, or if under
the provisions of Exhibit B Landlord has no responsibility for accomplishing any
improvements to or refurbishing of the Premises, then the term of this Lease
shall commence on the first to occur of the following dates: (i) July 1, 1993;
or (ii) The date on which Tenant, with the consent of Landlord, moves any of its
equipment or personnel into the Premises. If under Exhibit B hereto Landlord
does have such responsibility, then such term shall commence on the first to
occur of the following dates: (a) The date that falls 10 days after the
"Construction Completion Date" referred to in Exhibit B hereto; or (b) The date
on which Tenant, with the consent of Landlord, moves any of its equipment or
personnel into the Premises. The commencement date of the term which is
applicable under the foregoing provisions is hereinafter referred to as the
"Commencement Date." When the Commencement Date can be fixed, the parties shall,
upon the written request of either, enter into a writing which memorializes such
Date. Notwithstanding the foregoing provisions, if the Commencement Date has not
arrived prior to the expiration of three years after the date of this Lease,
this Lease shall thereupon automatically cease to be of any force or effect.
Unless such term is prematurely terminated pursuant to the provisions of this
Lease, the term hereof shall consist of the Two (2) year period following the
Commencement Date plus, if the Commencement Date falls on other than the first
day of a month, the balance of such partial calendar month (and any such partial
month shall, for purposes of rent adjustments and the like, be considered to be
part of the first year of the term hereof).
Those provisions of this Lease which govern the general
relationship of the parties and do not relate specifically to the payment of
rent or the use and occupancy of the Premises shall be effective immediately
upon execution of this Lease.
5. Rent. During the term hereof Tenant shall pay to Landlord
as monthly rent, in addition to any other charge to be paid by Tenant under this
Lease, the following amounts:
a. During the First year of the term, $1,428.00 per month;
then,
b. During the Second year of the term, $1,428.00 per month;
then,
Page 2
The applicable rent shall be paid in advance on the first day of each month
throughout the term hereof (if the Commencement Date of the term is other than
the first day of a month, Tenant shall pay to Landlord, on such Date, a pro rata
share of the monthly rent, as rent for the fractional calendar month with which
the term hereof begins). Each rental payment and other sum required to be paid
by Tenant under this Lease shall be delivered to Landlord at such place as
Landlord may from time to time designate in writing. Each installment of rent or
other sum required under this Lease to be paid by Tenant shall be paid to
Landlord without any offset or deduction whatsoever.
6 . Prepaid Rent and Security Deposit. Upon execution of
this Lease, Tenant shall deposit with Landlord the sum of $-O- (the "Deposit")
as prepaid rent and a security deposit. The Deposit shall be allocated as
follows:
a. Prepaid Rent:
$ N/A of the Deposit shall be applied to rent due for the
month of the Lease term.
$ N/A of the Deposit shall be applied to rent due for the
month of the Lease term.
b. Security Deposit:
$ N/A of the Deposit shall be applied to a security deposit
for the performance by Tenant of the provisions of this Lease.
If Tenant is in default, Landlord shall have the right to use the security
deposit, or any portion thereof, to cure the default or to compensate Landlord
for damage sustained by it resulting from Tenant's default. Tenant shall on
demand immediately pay to Landlord the sum necessary to replenish the security
deposit to that initially deposited with Landlord. If Tenant is not in default
at the expiration or termination of this Lease, Landlord shall return the
security deposit to Tenant within a reasonable period of time following the end
of the term hereof. Landlord's obligations with respect to the security deposit
are those of a secured party and not a trustee. Landlord shall have the right to
maintain the security deposit separate and apart from Landlord's general funds
or may commingle the security deposit with Landlord's general and other funds.
Landlord shall not be required to pay to Tenant any interest on the security
deposit.
Page 3
In the event that this Lease is for any reason terminated
before the end of the full term, any rent paid for any period beyond the
termination date shall be considered to be an additional security deposit.
In the event of an assignment or transfer of Landlord's
interest under this Lease, Landlord shall have the right to transfer the
security deposit to its assignee or transferee, and Landlord shall thereupon be
released from all liability for the return of such deposit. In the event of any
permitted assignment of this Lease by Tenant, the security deposit shall be
deemed to be held by Landlord as a deposit made by the assignee, and Landlord
shall have no further liability with respect to return of said deposit to the
assignor.
7. Operating Expenses. As used herein the term "Operating
Expenses" shall mean and include the aggregate cost and expense of each of the
following which is incurred by Landlord during or is allocable to the period in
question, with such cost and expense to be determined through the method of
accounting (cash, accrual, or a combination thereof) that Landlord determines
will most fairly and simply allocate the costs and expenses in question to the
separate periods involved and to be determined in accordance with the accounting
procedures and business practices customarily employed by Landlord: real estate
taxes and installments on special assessments attributable to the Industrial
Park or any portion thereof (real estate taxes shall be deemed to include all
taxes, assessments, impositions, charges, and fees that are or may be levied,
assessed, imposed, and/or charged upon, against, based upon, or in any way in
relation to or in connection with the Industrial Park, or the use, occupancy,
ownership, or leasing of the Industrial Park, or any income or money produced by
the Industrial Park, including, without limitation, any taxes or charges which
may be levied on or measured by rents); costs incurred by Landlord in connection
with any contest or protest regarding such real estate taxes or related
assessment values; any tax or other charge levied or assessed upon Landlord or
upon the rent payable under this Lease or under other leases of space in the
Industrial Park in lieu, in whole or in part, of real estate taxes or special
assessments; all insurance covering the Industrial Park or any portion thereof
which Landlord deems necessary or advisable to obtain and maintain; management
fees; reasonable reserves for replacement or repair of components of the Common
Areas; and the following, but only to the extent that the following occur or are
provided in connection with the Common Areas: landscaping care and gardening,
cleanup, security, painting, repair and maintenance, refurbishing, resurfacing,
pest control, snow removal, sweeping, lighting, utilities, repair of mechanical,
plumbing, HVAC systems, repair and replacement of parking lot and roofs, and any
other services or matters. In the event the exact amount of any ingredient of
Operating Expenses is not known at the time it is necessary to
Page 4
determine such Expenses, Landlord's reasonable estimate of the amount of such
ingredient shall be used.
As used herein the term "Proportionate Share" shall mean a
fraction whose numerator is the Gross Leasable Area of the Premises and whose
denominator is the Gross Leasable Area of all buildings which during the period
in question are included in the Industrial Park.
In addition to all other payments by Tenant to Landlord
required by this Lease, Tenant shall pay to Landlord Tenant's Proportionate
Share of Operating Expenses for each calendar year or portion thereof during the
term of this Lease. Estimated monthly payments toward Tenant's Proportionate
Share of Operating Expenses, in an amount to be established and from time to
time modified by Landlord, shall be made by Tenant in advance throughout the
term hereof , on or before the same date that rent is due from Tenant. By April
1 of each year Landlord shall give Tenant a statement showing the total
Operating Expenses for the prior calendar year and Tenant's Proportionate Share
thereof. In the event the total of the monthly Operating Expense payments which
Tenant has made for the prior calendar year is less than Tenant's Proportionate
Share of the actual Operating Expenses, then Tenant shall pay the difference in
a lump sum within 10 days after receipt of such statement from Landlord. Any
overpayment by Tenant shall be credited towards the monthly Operating Expense
payments next coming due. Failure by Landlord to submit any statement
contemplated hereby shall not be deemed to be a waiver of the requirement that
Tenant pay its Proportionate Share of Operating Expenses. Landlord shall not be
required to segregate the monthly operating Expense payments received from
Tenant from Landlord's own funds or from similar payments received from other
lessees of the Industrial Park.
Tenant shall be required to make the annual payment called for
in this Section even though the term of this Lease has expired or terminated
prior to the time Landlord renders a statement for such payment. However, if the
term of this Lease has not been in effect for the entirety of the annual or
other period covered by a statement contemplated hereby, the amount required to
be paid by Tenant shall be determined through a proration which takes into
account the length of time that the term has been or was in effect.
Each of the final statements and determinations provided for
above shall become absolutely binding on Tenant, and not subject to challenge by
Tenant, one year after the time the statement in question is furnished to
Tenant.
8 . Taxes on Tenant's Property. Tenant shall pay or cause to
be paid, before delinquency, any and all taxes payable during or attributable to
any period during the term hereof which are levied or assessed upon Tenant's
leasehold improvements, equipment, fixtures, or personal property located in the
Premises In
Page 5
the event any or all of Tenant's leasehold improvements, equipment, fixtures,
and personal property are assessed and taxed with the realty, Tenant shall pay
to Landlord its share of such taxes within 10 days after Landlord's delivery to
Tenant of a written statement setting forth the amount of such taxes applicable
to Tenant's property.
9. Rail Side Track Expenses. This Section shall apply only in
the event railroad side track service is provided to the Premises. Tenant shall
from time to time, each time within 10 days after being invoiced therefor by
Landlord, pay a pro rata portion of all costs incurred by Landlord in connection
with the provision, repair, and maintenance of such railroad side track,
including costs incurred by Landlord under agreements with railroad companies
relating to such track. Tenant's pro rata portion of such costs shall be a
fraction whose numerator is the Gross Leasable Area of the Premises and whose
denominator is the Gross Leasable Area of all space in the Industrial Park whose
occupants make use of railroad service on such side track.
10. Parking. During the term of this Lease Tenant shall have a
license to use, as parking (for itself and its employees and visitors), the
parking spaces situated within such portion or portions of the Parking Areas as
Landlord may from time to time designate for that purpose. Unless and except
during such periods as Landlord designates the specific parking spaces that are
to be used by Tenant, Tenant shall not have the exclusive right to use any
particular parking spaces. Rather, Tenant shall have a license to use the Number
of Spaces situated within the portion or portions of the Parking Areas then
designated by Landlord for such purpose. Tenant and its employees and visitors
shall park vehicles only within the area or areas (or in the specific parking
spaces, in the event Landlord designates specific spaces) in the Parking Areas
that are from time to time designated for use by Tenant, and shall not park
elsewhere within the Parking Areas. At no time shall Tenant and its employees
and visitors use, in the aggregate, more than the Number of Spaces.
The rules and regulations referred to in and contemplated by Section 16
hereof may include provisions designed to promote and provide for Landlord's
control, operation, and administration of the Parking Areas and of the use
rights regarding the same that are held by lessees of space in the Industrial
Park. Landlord shall have no obligation to ensure that the parking rights of
Tenant provided for in this Section are not impaired or violated by other
parties, including lessees, occupants, or users of the Industrial Park.
11. Use and compliance with Law. Tenant shall use the Premises
only as space for warehousing, distribution, and/or sales and for purposes
ordinarily incidental to such use, for lawful and proper purposes which are
permissible under applicable law. Tenant shall not make any use of the Premises
which would in any way
Page 6
increase the cost of fire or other insurance on the building containing the
Premises or limit any portion of the coverage thereunder. Tenant shall not
commit any waste upon the Premises and shall not conduct or allow any business,
activity, or thing on the Premises which is or becomes unlawful, prohibited, or
a nuisance, or which may be an annoyance or cause damage to Landlord or other
lessees, occupants, or users of the Industrial Park. Tenant shall at its own
expense comply with and abide by all laws, ordinances, regulations, and
directives of all municipal, county, state, and federal authorities which are
now in force or which may hereafter become effective or be issued with respect
to the condition, use, or occupancy of the Premises. Tenant shall not obstruct
or use for other than their intended purposes any part of the Common Areas.
Without limiting the generality of the foregoing requirements,
all activities in or about the Premises by Tenant or other occupants or users of
the Premises shall be accomplished in compliance with all applicable federal,
state, and local statutes, regulations, and ordinances pertaining to
environmental matters or hazardous substances and shall not impair access per
A.D.A. law. Tenant shall not use or permit any other person to use the Premises
for the presence, storage, use, treatment, or disposal of asbestos, petroleum,
petroleum-related substances, or any hazardous, toxic, or other substance or
material the presence, use, storage, handling, release, or cleanup of which is
or becomes prohibited or regulated by any local governmental authority, the
State in which the Premises are located, the United States of America, or any
governmental or quasi-governmental body or agency, except for the proper and
lawful storage and use of those substances or materials customarily and lawfully
stored and used in normal commercial operations of the type contemplated by the
first paragraph of this Section.
12. Utilities. Tenant shall arrange for, and shall pay all
costs, charges, and amounts required for the Premises to be furnished with, such
utility services as may be required by Tenant or for the use and occupancy of
the Premises, including telephone, electricity, water, gas, and sewer service.
In the event any utility service to the Premises is interrupted or discontinued
for any reason whatsoever, Landlord shall not be liable therefor to Tenant and
such interruption or discontinuation shall not be deemed to be an eviction or
interference with Tenant's use and occupancy of the Premises.
13. Maintenance and Cleaning. By execution of this Lease,
Tenant accepts the Premises as properly constructed and as being in good order,
condition, and repair, subject only to any work required to be performed by
Landlord pursuant to Exhibit B hereto, if applicable. Throughout the term hereof
Tenant shall, at is sole cost and expense, provide and accomplish such
janitorial, cleaning, trash removal, and other services as may be necessary to
keep the Premises and every part thereof in a clean, safe, usable, and
attractive condition. Until any trash or refuse generated by Tenant
Page 7
is removed from the Industrial Park, Tenant shall cause such material to be
stored, in containers and locations approved by Landlord, so as not to
constitute a health or fire hazard, or be an annoyance to other occupants of the
Industrial Park, or be visible to visitors to the Industrial Park. Tenant at its
own cost shall regularly sweep and remove snow and ice from any sidewalks or
walkways adjoining the Premises or extending from the Premises to Parking Areas.
Tenant shall also, at its sole cost and expense, keep the Premises and all
fixtures, mechanical and electrical equipment, and appurtenances therein or
serving the Premises (including, without limitation, the HVAC equipment serving
the Premises, irrespective of where such equipment may be located) in good,
safe, functional, and proper order, condition, maintenance, and repair. Tenant
shall obtain, and throughout the term hereof shall keep in force and pay for, a
service contract, covering the HVAC equipment serving the Premises, from a
licensed contractor specified or approved by Landlord for repairs and
maintenance of said equipment and for regular periodic inspection and service
not less frequently than once every three months, said maintenance contract to
conform to the requirements under the warranty, if any, on the HVAC equipment.
Such contract shall be entered into by Tenant and a copy thereof furnished to
Landlord within 10 days after the Commencement Date of the term. Tenant shall
permit only the contractors specified or approved by Landlord to go on the roof
of the Premises. Tenant shall, upon the expiration or earlier termination of
this Lease, deliver to Landlord all keys to the Premises and surrender the
Premises to Landlord in good condition, thoroughly cleaned, and with all
equipment, facilities, and items therein or serving the Premises properly
maintained and in good working order.
Notwithstanding the foregoing provisions, Landlord shall
maintain in good condition and repair the foundations of the Premises and the
structural portions of the exterior walls of the Premises. The cost of such
maintenance shall be borne by Landlord unless the need for the maintenance in
question is due to the act of Tenant or its agents, employees, contractors, or
invitees, in which event such cost shall be paid by Tenant upon the demand of
Landlord. Tenant shall notify Landlord as soon as Tenant discovers or observes
any condition requiring corrective action on the part of Landlord hereunder.
14. Alterations. Subsequent to any initial improvement that
may occur pursuant to Exhibit B, if such Exhibit applies, Tenant at its sole
cost and expense may make changes, additions, and improvements to the Premises
to better adapt the Premises for its use and occupancy; provided, however, that
any such change, addition, or improvement shall: (a) Not diminish Landlord's
flexibility of use of the Premises with respect to subsequent lessees or
occupants thereof; (b) Be in conformity with all applicable laws and ordinances;
(c) Be made only with the prior written consent of Landlord (which consent shall
not be unreasonably
Page 8
withheld) ; (d) Be made pursuant to plans and specifications approved in writing
by Landlord, and upon obtaining any required permits and licenses; (e) Be made
only after Tenant has provided to Landlord such indemnification and/or bonds, in
such form and amount as may be satisfactory to Landlord, to protect against
claims and liens for labor performed and materials furnished; and (f) Be carried
out only by Landlord's construction management persons or entities approved in
writing by Landlord, who, if required by Landlord, shall deliver to Landlord
before commencement of the work proof of such insurance coverage as Landlord may
require, with Landlord named as an additional insured. Any such change,
addition, or improvement shall be done only at such time and in such manner as
Landlord may specify. Tenant shall promptly pay the cost thereof. Tenant shall
indemnify, defend, and hold Landlord harmless from and against any and all
liens, claims, and liabilities, including attorneys' fees, which may arise out
of or be connected in any way with any such change, addition, or improvement.
Any increase in property taxes or insurance cost attributable to such change,
addition, or improvement shall be borne by Tenant and shall be paid by Tenant to
Landlord within 30 days after receipt by Tenant of Landlord's invoice therefor.
Any change, addition, or improvement made by Tenant shall immediately become a
part of the realty and belong to Landlord, but upon the expiration or
termination of this Lease Landlord shall have the right, with respect to each
such change, addition, or improvement, to retain the item or change concerned or
to require Tenant at its expense to restore to its original condition that part
of the Premises involved. Landlord shall not have the right to retain removable
equipment or other personal property furnished by Tenant, but Tenant at its
expense shall repair any damage to the Premises which may have been caused by
such property.
15. Signs. Tenant shall not place any sign on the exterior of
the Premises unless it has first been approved in writing by Landlord. If Tenant
wishes to obtain Landlord's approval of a proposed sign, Tenant shall supply
Landlord with a detailed description and drawing of such sign and of its
proposed location. Landlord shall not unreasonably withhold its approval of a
sign proposed for use by Tenant so long as the sign is attractive and of the
same type, style, and relative size as other signs then being displayed by
lessees of space in the Industrial Park.
16. Rules and Regulations. The rules and regulations set forth
on Exhibit C attached hereto are hereby made a part of this Lease, and Tenant
shall comply therewith. Landlord shall have and reserves the right from time to
time to amend or delete any of such rules and regulations and to adopt and
promulgate new or additional rules and regulations applicable to the Industrial
Park and the use and operation thereof. Provided that any such changed rules and
regulations are reasonable and do not discriminate against Tenant in favor of
other lessees of space in the Industrial Park, Tenant agrees to comply with and
observe them. Tenant's failure to comply with rules and regulations in effect
under this Lease shall consti-
Page 9
tute a default under the terms hereof just as if such rules and regulations were
contained herein as covenants. Landlord shall not be responsible to Tenant for
enforcement of any such rules and regulations against other parties, including
other lessees of space in the Industrial Park. In the event of any inconsistency
between the provisions of such rules and regulations and the other provisions of
this Lease, the other provisions of this Lease shall control.
17. Landlord's Financing. Tenant agrees that this Lease shall
automatically be subordinate to the lien of any first-position mortgage or deed
of trust now or hereafter placed against the realty of which the Premises
comprise a part and to all renewals, modifications, supplements, consolidations,
and extensions thereof; provided, however, in the event that the holder of any
such mortgage or deed of trust shall so elect, its mortgage or deed of trust
shall, upon the terms required by such holder, be subordinate to this Lease.
Notwithstanding any of the foregoing, so long as Tenant is not in default
hereunder, Tenant shall not be disturbed in its possession of the Premises
during the full term of this Lease. Tenant agrees to execute such further
documents in addition to this Lease as may be desired by Landlord or by the
holder of any first-position mortgage or deed of trust with respect to the
subordination arrangement that is provided for above.
In the event any proceedings are brought for foreclosure of,
or in the event of the exercise of the power of sale under, any mortgage or deed
of trust covering the Premises, Tenant shall attorn to the purchaser and shall
recognize such purchaser as the landlord under this Lease.
18. Tenant's Insurance and Indemnity. Tenant shall provide and
at all times maintain a commercial general liability insurance policy in force
insuring against bodily injury, property damage, and personal injury claims
arising from the use, ownership, or operation of the Premises, with a combined
single limit of at least $1,000,000.00 per occurrence and a general annual
aggregate limit of at least $2,000,000.00. Such insurance shall include
contractual liability coverage specifically insuring the indemnity obligations
of Tenant contained herein. The policy shall include Landlord and Landlord's
agents and representatives as additional insureds. The liability insurance
maintained by Tenant pursuant to this Section shall be primary coverage, without
right of contribution from any similar insurance that may be maintained by
Landlord. The insurance policy required by this Section to be maintained by
Tenant shall be issued by an insurer and on forms and terms acceptable to
Landlord. Such policy shall be endorsed to provide that no cancellation,
non-renewal, or material reduction in coverage can take place unless at least 30
days prior written notice is furnished to Landlord by the insurer. A certificate
of insurance acceptable to Landlord and issued by the insurer involved shall be
delivered to Landlord promptly following the execution of this Lease
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and prior to the expiration or termination of any prior or lapsing policy.
Tenant shall defend, indemnify, and hold harmless Landlord and
its agents and representatives from and against any and all claims, costs, and
liabilities, including attorneys' fees, arising in whole or in part from use or
occupancy of the Premises, from the conduct of Tenant's business, from any
activity, work, or thing done or permitted by Tenant or by any of its agents,
contractors, employees, or visitors, or from any failure by Tenant to perform or
comply with any of the provisions of this Lease requiring compliance or
observance on the part of Tenant.
19. Destruction. Tenant shall immediately notify Landlord if
the Premises are damaged to any extent by fire, earthquake, or other casualty.
Landlord shall have the right to terminate this Lease in the event the building
containing the Premises is destroyed or damaged by fire, earthquake, or other
casualty to such an extent that such building is untenantable in whole or in
part. Any such right of termination must be exercised through written notice
given by Landlord to Tenant within 60 days following the date of destruction or
damage.
In the event of any other destruction or damage, or in the
event Landlord does not exercise the above-mentioned right of termination,
Landlord shall proceed with reasonable diligence to repair and reconstruct such
building. During the period from destruction or damage until restoration, rent
hereunder shall be abated in the same ratio as the portion of the Premises which
is unfit for occupancy bears to the whole Premises. However, if damage is due to
the fault or neglect of Tenant or its agents, contractors, or employees there
shall be no abatement of rent.
Landlord shall not be required to repair any damage by fire or
other cause to, or to make any repairs or replacements of, any changes to or
property installed in the Premises by Tenant. Tenant shall not be entitled to
any compensation or damages from Landlord f or loss of the use of the whole or
any part of the Premises, Tenant's personal property, or any inconvenience or
annoyance occasioned by such damage, repair, reconstruction, or restoration.
20. Condemnation. As used in this Section the term
"Condemnation Proceeding" means any action or proceeding in which any interest
in the Industrial Park is taken for any public or quasi-public purpose by any
lawful authority through exercise of the power of eminent domain or by purchase
or otherwise in lieu thereof. If the whole of the Premises is taken through
Condemnation Proceedings, this Lease shall automatically terminate as of the
date of taking. If part, but not all, of the Premises is taken, either Landlord
or Tenant may terminate this Lease. Landlord shall have the right to terminate
this Lease in the event any portion of the
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Industrial Park (whether or not including the Premises) is taken which, in
Landlord's judgment, substantially interferes with the ability to operate or use
the Industrial Park for the purposes for which it was intended. Any such right
of termination must be accomplished through written notice to the other party
given no later than 60 days after the later of the date of taking or the date on
which the condemning authority takes possession. In all other cases, or if
neither party exercises its right to terminate, this Lease shall remain in
effect. If a portion of the Premises is taken, the rent payable hereunder shall
be reduced in the proportion that the Gross Leasable Area taken bears to the
original Gross Leasable Area of the Premises. Whether or not this Lease is
terminated as a consequence of Condemnation Proceedings, all-damages or
compensation awarded for a partial or total taking, including any award for
severance damage and any sums compensating for diminution in the value of or
deprivation of the leasehold estate under this Lease, shall be the sole and
exclusive property of Landlord; provided, however, that Tenant shall be entitled
to any award for the loss of or damage to Tenant's trade fixtures and removable
personal property.
21. Assignment and Subletting. Tenant shall not, either
voluntarily or by operation of law, assign, transfer, mortgage, or encumber this
Lease or any interest herein, or sublet the Premises or any part thereof,
without first obtaining the written consent of Landlord, which consent Landlord
may grant or withhold in its sole and absolute discretion. A consent to one such
transaction shall not be deemed to be a consent to any subsequent transaction.
Consent to any assignment or subletting shall in no way relieve Tenant of any of
its obligations under this Lease, and Tenant shall remain primarily liable for
such obligations. Any assignment or subletting without Landlord's consent shall
constitute a default under this Lease.
22. Default by Tenant. The occurrence of any one or more of
the following events shall constitute a default and breach of this Lease by
Tenant: (a) The vacating or abandonment of the Premises; (b) The failure by
Tenant to make any payment of rent within five days after such payment falls
due; (c) The failure by Tenant to make any other payment required to be made by
Tenant hereunder, as and when due, where such failure shall continue for a
period of 10 days after notice from Landlord that said payment is due and
payable; or (d) The failure by Tenant to observe or perform any of the
covenants, conditions, or provisions of this Lease to be observed or performed
by the Tenant, other than those described above, where such failure shall
continue for a period of 30 days after written notice thereof by Landlord to
Tenant.
23. Remedies for Tenant's Default. In the event of any default
or breach by Tenant, Landlord may at any time, without waiving or limiting any
other right or remedy available to it, terminate Tenant's rights under this
Lease by written notice or by
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any lawful means, or reenter and take possession of the Premises (with or
without terminating this Lease), or itself pay or perform the obligation as to
which Tenant is in default (in which event Landlord's cost of so doing shall be
immediately reimbursed to it by Tenant), or pursue any remedy allowed by law.
Tenant agrees to pay to Landlord the cost of recovering possession of the
Premises, all expenses of reletting, and any other costs or damages arising out
of Tenant's default. Tenant's monetary obligations under this Lease shall
continue regardless of whether Tenant's right to possession has been terminated;
notwithstanding any reentry or termination, the liability of Tenant for the rent
and other charges provided for herein shall not be extinguished for the balance
of the term of this Lease, and Tenant agrees to make good to Landlord any
deficiency arising from reletting the Premises for less rent and other
consideration than applies under this Lease. Any rent or other charges under
this Lease not paid by Tenant when due shall bear interest from the due date
thereof at the rate of 18% per annum.
24. Late Charge. Tenant hereby acknowledges that late payment
by Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed upon
Landlord under the terms of any mortgage or deed of trust affecting realty that
includes the Premises. Accordingly, if any payment of rent or any other sum due
from Tenant is not received by Landlord or Landlord's designee within five days
after said amount is due, Tenant shall pay to Landlord a late charge equal to
the greater of $200.00 or 10% of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment by Tenant. Such late charge
shall be in addition to, and not in lieu of, 18% interest on any delinquent
amounts owing in connection with this Lease and any and all costs and expenses,
including attorneys' fees, incurred by Landlord in collecting or attempting to
collect any such delinquent amounts.
25. Default by Landlord. Landlord shall not be in default
under this Lease unless Landlord fails to perform an obligation required of it
within 30 days after written notice by Tenant to Landlord and to the holder of
any first mortgage or deed of trust covering the realty of which the Premises
are a part whose name and address have theretofore been furnished to Tenant in
writing, specifying the respects in which Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than 30 days are reasonably required for performance or cure,
then Landlord shall not be in default if Landlord or such holder commences
performance within such 30-day period and thereafter diligently prosecutes the
same to completion. In no event shall Tenant have the right to terminate
Page 13
this Lease or to withhold the payment of rent or other charges provided for
herein as a result of Landlord's default.
26. Attorneys' Fees. If any action is brought to recover any
rent or other amount under this Lease, or because of any default under or to
enforce or interpret any of the provisions of this Lease, or for recovery of
possession of the Premises, the party prevailing in such action shall be
entitled to recover from the other reasonable attorneys' fees (including those
incurred in connection with any appeal), the amount of which shall be fixed by
the court and made a part of any judgment rendered.
27. Obligations upon Termination. Notwithstanding any
termination of this Lease or the term hereof, Tenant shall be and remain liable
to fully perform and fulfill all of its obligations under this Lease relating to
events occurring, circumstances existing, or obligations or claims arising or
attributable to, the period prior to the date of termination.
28. Estoppel Certificate. Tenant shall at any time and from
time to time, within three days after receiving written request therefor from
Landlord, execute, acknowledge, and deliver to Landlord a statement in writing
(a) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease as so modified is in full force and effect) , and the date to which the
rental and other charges hereunder have been paid, and (b) certifying that there
are not, to Tenant's knowledge, any defaults on the part of Landlord hereunder,
or specifying such defaults if any are claimed, and (c) setting forth the date
of commencement and the date of expiration of the term hereof, and (d) setting
forth such other matters as Landlord may request. Any such statement may be
relied upon by any prospective purchaser or encumbrancer of the realty of which
the Premises are a part.
29. Sale of Premises by Landlord. In the event of any sale or
transfer by Landlord of the realty of which the Premises are a part, the
transferring Landlord shall be entirely freed and relieved of all liability
under any and all of its covenants and obligations contained in this Lease
arising out of any act, occurrence, or omission occurring after the consummation
of such sale or transfer.
30. Notices. Any notice required or permitted hereunder to be
given or transmitted between the parties shall be either personally delivered
(including by courier service) or mailed postage prepaid addressed, if to
Landlord, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, with a copy
to Landlord at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such
other address for notice purposes as Landlord may hereafter designate in
writing), and, if to Tenant, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (or
at such other address for notice purposes as Tenant
Page 14
may hereafter designate in writing). Any notice which is mailed shall be
effective on the second business day following its date of mailing.
31. Holding Over. If Tenant remains in possession of the
Premises after the expiration of the term hereof without objection by Landlord,
such occupancy shall be a tenancy from month to month at a rental in the amount
of 150% of the last monthly rent that applied hereunder, plus all other charges
payable hereunder, and upon all of the other terms hereof, insofar as the same
are applicable to a month-to-month tenancy.
32. Access to Premises,. Tenant shall permit Landlord to enter
the Premises at reasonable times for the purpose of inspecting the same,
discharging its obligations under this Lease, and ascertaining compliance with
the provisions of this Lease by Tenant. Landlord may also show the Premises to
prospective purchasers, lessees, or mortgagees at reasonable times.
33. Nonrecourse Provision. Anything in this Lease to the
contrary notwithstanding, Tenant agrees that it shall look solely to the estate
and property of Landlord in the Industrial Park, subject to prior rights of the
holder of any mortgage or deed of trust, for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms,
covenants, and conditions of this Lease to be observed and/or performed by
Landlord, and no other assets of Landlord shall be subject to levy, execution,
or other procedures f or the satisfaction of Tenant's remedies.
34. Waiver and Cumulative Remedies. The waiver by Landlord of
the breach of any term, covenant, or condition herein contained shall not be
deemed to be a waiver of such term, covenant, or condition or any subsequent
breach of the same or any other term, covenant, or condition. The subsequent
acceptance by Landlord of rent or other charges hereunder shall not be deemed to
be a waiver of any preceding default by Tenant of any term, covenant, or
condition of this Lease, other than the failure of Tenant to pay the particular
rent or charge so accepted, regardless of Landlord's knowledge of such preceding
default at the time of such acceptance. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity.
35. Multiple Parties Tenant. If there is or comes to be more
than one party that constitutes Tenant hereunder: (a) Their obligations shall be
joint and several; and (b) Any notice required or permitted to be given by or to
Tenant may be given by or to any one of such parties and shall have the same
force and effect as if given by or to all of such parties.
Page 15
36. Prior Agreements, Lease Amendments, and Time Effective.
This Lease contains all of the agreements of the parties hereto with respect to
any matter covered or mentioned in this Lease, and no prior agreements or
understandings pertaining to any of such matters shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest. This Lease shall not be effective or binding on either party until
fully executed by both.
37. Inability to Perform. In the event that either party
hereto shall be delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lockouts, other labor troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war, or other reason not the fault of the
party delayed, then performance of the action in question shall be excused for
the period of delay and the period for the performance of such act shall be
extended for a period equivalent to the period of such delay. The provisions of
this Section shall not, however, operate to excuse Tenant from the prompt
payment of rent or any other charges required by the terms of this Lease.
38. Authority. Each person executing this Lease on behalf of
Tenant individually and personally represents and warrants that he or she is
duly authorized to execute and deliver the same on behalf of the entity for
which he or she is signing (whether it be a corporation, general or limited
partnership, or otherwise), and that this Lease is binding upon said entity in
accordance with its terms. If Tenant is a corporation, then at the time this
Lease is signed Tenant shall provide Landlord with a certified copy of a
resolution, adopted by the Board of Directors of Tenant, authorizing Tenant to
enter into this Lease. Such certified resolution must be in the form of the one
appended to this Lease as Exhibit D or in such other form as may be acceptable
to Landlord's legal counsel.
39. Brokers. Tenant warrants that it has had no dealings with
any real estate brokers or agents in connection with this Lease, excepting only
Compass Management and Leasing, Inc., and that it knows of no other real estate
broker or agent who may be entitled to a commission in connection with this
Lease. Tenant agrees to indemnify Landlord from and against any and all
commissions, fees, and compensation that may be due to or claimed by any real
estate broker or agent (other than the one named in the preceding sentence, if
the same was retained by Landlord) in connection with this Lease, and from and
against all costs, expenses, and attorneys' fees which Landlord may incur as a
result of any such claim.
40. Ouiet Enjoyment. Landlord covenants that so long as Tenant performs all of
its obligations hereunder it shall have,
Page 16
hold, and enjoy the Premises for the term of this Lease free from interference
by anyone claiming by, through, or under Landlord.
41. Miscellaneous. All Exhibits, addenda, riders, and
provisions, if any, attached to this Lease are a part hereof. Tenant shall not
record this Lease or any memorandum or short form hereof without the written
consent of Landlord. Any provision of this Lease which may prove to be invalid
shall in no way affect or invalidate any other provision hereof, and such other
provision shall be valid to the maximum extent permitted by law. The headings
and titles of the various provisions of this Lease shall have no effect upon the
construction or interpretation of any part hereof. As used in this Lease the
singular shall include the plural, the plural shall include the singular, the
whole shall include each part thereof, and any gender shall include both other
genders. The covenants and conditions herein contained shall, subject to the
provisions of Section 21 hereof, apply to and bind the heirs, personal
representatives, successors, and assigns of the parties hereto. Time is the
essence of this Lease and of each and all of its provisions in which performance
is a factor. This Lease shall be governed by the laws (excluding the
choice-of-laws rules) of the State in which the Premises are located.
42. Rider and Deadline. The attached Rider, consisting of N/A
page (s), is hereby made a part hereof and supersedes and controls over any
conflicting provisions elsewhere in this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed on or as of the day and year first above written.
"Landlord": "Tenant":
THE EQUITABLE LIFE ASSURANCE ▇▇▇. ▇▇▇▇▇▇ COOKIES, a
SOCIETY OF THE UNITED STATES California Corporation
By By /s/L. ▇▇▇ ▇▇▇▇▇▇
L.▇▇▇ ▇▇▇▇▇▇
Title: Title: Snr. V.P.
By /s/E L Clissold
E L Clissold
Title: Sec.
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