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EXHIBIT 10.27
FORM OF LEASE AGREEMENT BETWEEN GLORIA JEAN'S, INC.
AND TOTAL LEASE CONCEPTS
TOTAL LEASE CONCEPTS
255 FALLBROOK, SUITE 104
FRESNO, CA 93711
(209) 261-1900
FULL LEGAL NAME AND ADDRESS OF LESSEE
GLORIA JEAN'S, INC.
11480 COMMERCIAL PARKWAY
CASTROVILLE, CA 95012
SUPPLIER OF EQUIPMENT (COMPLETE ADDRESS)
GLORIA JEAN'S, INC.
DESCRIPTION OF EQUIPMENT OWNED BY LESSOR
SEE SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF
EQUIPMENT LOCATION (IF OTHER THAN ABOVE)
Rental Term
Monthly Payments (Plus Sales / Use Tax)
Advance Rentals Payable at the Signing of Lease
$
Amount represents the first month and last ________ month's rent.
RENT COMMENCEMENT DATE:
TERMS AND CONDITIONS OF LEASE
1. LEASE: LESSOR'S RIGHT TO TERMINATE. Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, the equipment described above or on any
schedule attached hereto (the "Schedule(s)") (the equipment with all
replacement parts, repairs, additions and accessories in herein called the
"Equipment") on the terms and conditions as set forth on this Lease and any
Schedule(s) referred to as the "Lease"). Lessee hereby authorizes Lessor to
order the Equipment from the Vendor and arrange for delivery to Lessee at
Lessee's expense. Lessee authorizes Lessor to insert in the Lease, when
determined, the Rent Commencement Date, the serial numbers and other
identification data of the Equipment, and other omitted factual matters. In
the event the Equipment is not delivered to Lessee within 30 days of the
date Lessor orders the Equipment, Lessor may cancel this Lease and any
obligation to Lessee hereunder.
2. NO WARRANTIES BY LESSOR. LESSOR , NEITHER BEING THE MANUFACTURER OF, NOR A
DEALER IN, THE EQUIPMENT, MAKES NO WARRANTY TO ANYONE, AS TO ANY MATTER
WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE FITNESS,
MERCHANTABILITY, DESIGN, CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER
ASPECT OF THE
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EQUIPMENT OR
ITS MATERIAL OR WORKMANSHIP OR THE TAX OR ACCOUNTING TREATMENT OF THE
LEASE. LESSOR DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE, OR INJURY TO LESSEE
THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE
EQUIPMENT. LESSOR SHALL HAVE NO OBLIGATION TO MAINTAIN, INSTALL, TEST,
ADJUST OR SERVICE THE EQUIPMENT. LESSOR SHALL NOT BE LIABLE FOR ANY
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES HOWSOEVER ARISING. IF THE
EQUIPMENT IS UNSATISFACTORY FOR ANY REASON, LESSEE SHALL MAKE CLAIM ON
ACCOUNT THEREOF SOLELY AGAINST THE MANUFACTURER AND/OR THE VENDOR AND SHALL
NEVERTHELESS PAY LESSOR ALL RENT AND OTHER MONIES PAYABLE HEREUNDER. LESSOR
NEITHER THE MANUFACTURER, DISTRIBUTOR, NOR SUPPLIER OF THE EQUIPMENT, HAS
NOT SELECTED IT, AND HAS NO CONTROL OVER OR KNOWLEDGE OF OR FAMILIARITY
WITH THE CONDITION, CAPACITY, FUNCTIONS OR OTHER CHARACTERISTICS OF THE
EQUIPMENT. Lessor hereby assigns to Lessee, solely for the purpose of
prosecuting a claim, all rights which Lessor may have against the
manufacturer or Vendor for breach of warranty or other representation
respecting the Equipment. THE PARTIES HAVE SPECIFICALLY NEGOTIATED AND
AGREED TO THIS PARAGRAPH 2. By ______________________
3. NON-CANCELABLE LEASE. THE LEASE CANNOT BE CANCELLED BY LESSEE DURING THE
TERM HEREOF. Lessee's obligations under the Lease including, without
limitation, the obligation to pay rent, are absolute and unconditional and
shall continue without any claim, set-off, counterclaim, reduction or
abatement of any kind whatsoever and regardless of any disability of Lessee
to use the Equipment or any part thereof because of any reason whatsoever.
4. TERM AND RENT. The Lease will be effective when accepted by Lessor and
shall continue for the term stated in the Lease and thereafter until all of
the obligations of the Lessee under the Lease are fully paid and performed.
The Monthly Payments shall commence on the first date that any of the
Equipment is delivered to Lessee or Lessee's agent (the "Rent Commencement
Date"). Advance rentals shall not be refundable if the Rent Commencement
Date not occur for any reason. Installments of rent shall be payable
monthly in advance as stated in the Lease, the first such installment being
due on the Rent Commencement Date, or such later date as Lessor designates
in writing, and subsequent payments shall be due on the same day of each
successive month for the Rental Term. All payments shall be made to lessor
at the address set forth herein or such other address as Lessor may in
writing designate. Time is of the essence with respect to all payments due
and all other obligations of Lessee under the Lease.
5. TITLE: QUIET ENJOYMENT. Title to the Equipment shall at all times be vested
in Lessor. All documents of a title and evidence of delivery shall be
delivered to Lessor. Lessee authorizes Lessor, at Lessee's expense, to
cause the Lease, or any statement or other instrument in respect to the
Lease showing the interest of Lessor in the Equipment, including Uniform
Commercial Code Financing Statements, to be filed or recorded, and grants
Lessor the right to sign Lessee's name thereto. Lessee agrees to execute or
procure for Lessor such estoppel certificates, landlord's or mortgagee's
waivers or other documents as Lessor may request to confirm or perfect
Lessor's rights hereunder or to otherwise effectuate the intents of the
Lease. Lessee agrees to pay or reimburse Lessor for any filing, recording
or stamp fees or taxes arising from the filing or recording of any such
instrument or statement. Lessee shall, at its expense, protect and defend
Lessor's title against all persons claiming against or through Lessee, keep
the Equipment free from legal process encumbrance, give Lessor immediate
notice thereof and shall indemnify Lessor from any loss caused tbereby. So
long
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as Lessee is not in default under the Lease, Lessee shall quietly use and
enjoy the Equipment, subject to the terms of the Lease.
(SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART
OF THE LEASE)
READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY
BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL
PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY
CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
LESSEE: GLORIA JEAN'S, INC.
By: MARK ARCHER, CFO
Date: 11/24/98
Notary:
LESSOR:
By: Dave Wesolowski, CFO
Date: 11/24/98
Witness:
6. ASSIGNMENT: WAIVER OF DEFENSES. LESSOR MAY, WITHOUT NOTICE TO OR CONSENT BY
LESSEE, ASSIGN THE LEASE, ANY RENTALS, OR ANY OTHER SUMS DUE OR TO BECOME
DUE UNDER THE LEASE, OR TRANSFER OR GRANT A SECURITY INTEREST IN ANY OF THE
EQUIPMENT, AND IN SUCH EVENTS LESSOR'S ASSIGNEE OR SECURED PARTY SHALL HAVE
ALL OF THE RIGHTS, POWERS, PRIVILEGES AND REMEDIES OF LESSOR HEREUNDER. NO
ASSIGNEE SHALL BE BOUND TO PERFORM ANY DUTY, COVENANT, CONDITION OR
WARRANTY OF LESSOR. LESSEE AGREES NOT TO RAISE ANY CLAIM OR DEFENSE WHICH
LESSEE OR WRITTEN NOTICE OF AN ASSIGNMENT FROM LESSOR OR FROM LESSOR'S
ASSIGNEE, ALL RENT AND OTHER AMOUNTS WHICH ARE THEN AND THEREAFTER DUE
UNDER THE LEASE SHALL BE PAID TO SUCH ASSIGNEE AT THE PLACE OF PAYMENT
DESIGNATED IN SUCH NOTICE. LESSEE SHALL NOT ASSIGN THE LEASES OR ANY
INTEREST IN THE LEASE OR IN THE EQUIPMENT WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT. ANY PURPORTED ASSIGNMENT OR SUBLEASE BY LESSEE WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR SHALL BE VOID.
7. FINANCE LEASE. Lessor and Lessee agree that this Lease is a Finance Lease
as that term is defined in Article 2A of the Uniform Commercial Code.
Lessee acknowledges that Lessor has appraised Lessee of the identity of the
equipment supplier. Lessor has appraised Lessee of the identity of the
equipment supplier. Lessor hereby notifies Lessee that Lessee may have
rights pursuant to the contract with the supplier and the Lessee may
contact the supplier for a description of any rights or warranties that
Lessee may have under this contract. Lessee hereby waives any and all
rights and remedies granted Lessee by Sections 508 through 522 of Article
2A of the Uniform Commercial Code including, by way of example only and not
as a limitation, the right to repudiate the Lease and reject the Equipment;
the right to cancel the Lease; the right to revoke acceptance of the
Equipment; the right to grant a security interest in the Equipment in
Lessee's possession and control for any reason; the right to recover
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damages thereunder for any breach of warranty or for any other reason; the
right to recover damages thereunder for any breach of warranty or for any
other reason deduct all or any part of the claimed damages resulting from
Lessor's default, if any, under this Lease; the right to accept partial
delivery of Equipment; the right to cover by making any purchase or leases
of or contract to purchase or lease equipment in substitution for those due
from Lessor; the right to recover any general, special, incidental or
consequential damages, for any reason whatsoever; and the right to specific
performance, replevin, detinue, sequestration, claim and delivery and the
like for the Equipment.
8. CARE, USE AND LOCATION. Lessee shall: maintain the Equipment in good
operating condition, repair and appearance, and protect it from
deterioration other than normal wear and tear; use the Equipment in the
regular course of its business, within its normal operating capacity,
without abuse; comply with all laws, ordinances, regulations, requirements
and rules with respect to the use, maintenance and operation of the
Equipment; use the Equipment solely for business purposes; not make any
modification, alteration or addition to the Equipment without the written
consent of Lessor, which shall not be unreasonably withheld; not affix the
Equipment (which shall remain personal property at all times regardless of
how attached or installed) to realty so as to change its nature to real
property or a fixture; and keep the Equipment at the location shown herein,
and not remove the Equipment without the written consent of Lessor, which
shall not be unreasonably withheld.
9. TAXES. Lessee intends the rental payments hereunder to be net to Lessor,
and Lessee agrees to pay all sales, use, excise, personal property, stamp,
documentary and ad valorem taxes, license and registration fees,
assessments, fines, penalties and similar charges imposed on the ownership,
possession or use of the Equipment during the term of the Lease, and all
taxes imposed on Lessor Lessee (except Lessor's Federal or State net income
taxes) with respect to the rental payments hereunder or the Equipment, and
shall reimburse Lessor upon demand for any taxes paid or advanced by
Lessor, Lessee shall file all personal property tax returns with respect to
the Equipment, and pay all taxes due thereon.
10. INDEMNITY. Lessee agrees to indemnify and save Lessor, its agents,
servants, successors, and assigns harmless from any and all liability,
damage or loss, including reasonable attorney's fees, arising out of the
ownership, selection, possession, operation, control, use, condition,
maintenance, delivery and return of the Equipment. Lessee's indemnities and
obligations shall continue in full force and effect notwithstanding the
termination of the Lease.
11. RISK OF LOSS. Lessee shall bear all risks of loss of and damage to the
Equipment from any cause. The occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of loss or damage,
Lessee, at Lessor's option, shall: (a)place the damaged Equipment in good
repair, condition and working order; or (b)replace lost or damaged
Equipment with new equipment of the same type and model and deliver to
Lessor documentation vesting clear title to Lessor; or (c)pay to Lessor the
present value as of the date of loss of both the unpaid balance of the
aggregate rent reserved under the Lease and the value of the Lessor's
residual interest in the Equipment at the expiration of the lease, computed
at six percent (6%) per annum.
12. INSURANCE. Lessee shall, at Lessee's sole cost and expense, keep the
Equipment insured against all risks of loss or damage from every cause
whatsoever for not less than the term, public liability insurance, covering
both personal injury and property damage arising out of or in connection
with the use or operation of the Equipment. All insurance shall be in such
form and for such amounts, and issued by such companies, as shall be
acceptable to Lessor and shall name Lessor and Lessor's assignee or secured
party as loss payees with respect to the casually coverage and as
additional insured with respect to the public liability coverage and shall
provide that the insurer will give Lessor and Lessor's assignee at least
thirty days' prior written notice of the effective date of any alteration
or cancellation of such policy. Lessee shall, upon Lessor's request,
deliver to Lessor satisfactory evidence of the required insurance
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coverage. If Lessee does not provide evidence of property insurance
acceptable to Lessor, Lessor may but will not be required to, buy such
insurance and add the cost, including any customary charges or fees
associated with the placement, maintenance or service of such insurance
(collectively, "Insurance Charge"), to the Lease Payment amount due from
Lessee. Insurance proceeds as a result of loss or damage to any of the
Equipment shall be applied to satisfy Lessee's obligation set forth in
Paragraph 11 hereof. Lessee irrevocably appoints Lessor as Lessee's
attorney-in -fact to make a claim for, receive payment of and execute and
endorse all documents, checks or drafts received in payment for loss or
damage under any such insurance policy.
13. FINANCIAL STATEMENTS. If requested by Lessor, Lessee agrees to deliver to
Lessor annual and interim financial statements.
14. DEFAULT. Each of the following events is an "Event of Default":
(a)Lessee's failure to pay, when due, any rent or any other payment
hereunder; or (b)Lessee's failure to pay, when due, any indebtedness of
Lessee to Lessor arising independently of this Lease and such failure shall
continue for five days; or (c)Lessee's failure to perform any of the other
terms, convenants or conditions of this Lease and such failure shall
continue for ten days after written notice; or (d)any representation,
warranty or statements made by Lessee or any guarantor of this Lease
("Guarantor"), whether contained in the Lease or in any guaranty,
application, financial statement or other document delivered to Lessor in
connection with the Lease, shall be untrue in any material respect; or
(e)Lessee becomes insolvent or makes an assignment for the benefit of
creditors; or (f)a receiver, trustee, conservator or liquidator of Lessee
of all or a substantial part of Lessee's assets is appointed with or
without the application or consent of Lessee; or (g)a petition is filed by
or against Lessee under the Bankruptcy Code or under any other insolvency
law or laws providing for the relief of debtors.
15. REMEDIES. Upon the occurrence of any Event of Default and at any time
thereafter, Lessor may, with or without terminating this Lease, in its sole
discretion, do any one or more of the following: (a)immediately retake
possession of its Equipment without any court order or other process of
law, and for such purpose, Lessor may enter upon any premises where said
Equipment may be, or may remove the same therefrom with or without notice
of its intention to do same, without being liable to any suit, action or
other proceeding by the Lessee; (b)upon notice to Lessee terminate this
Lease and all Lease Schedules executed pursuant thereto; (c)upon the
occurrence of any Event of Default or anytime there after, or if Lessor
decides, in its sole discretion, not to take possession of the Equipment,
Lessor continues to be the owner of the Equipment and may, but is not
obligated to, dispose of the Equipment by sale or otherwise, all of which
determinations may be made by Lessor in its absolute discretion and for its
own account; (d)declare immediately due any payable all sums due and to
become due hereunder for the full term of the Lease (including any renewal
or purchase options which Lessee has contracted to pay.); (e)if this Lease
provides for a Stipulated Loss Value of the Equipment with or without
terminating this Lease, recover the Stipulated Loss Value of the Equipment
as of the rent payment date immediately preceding Lessee's date of default
plus all commercially reasonable costs and expense incurred by Lessor in a
repossession, recovery, storage, repair, sale, re-lease, or other
disposition of the Equipment, including reasonable attorneys' fees and
costs incurred in connection therewith or otherwise resulting from Lessee's
default; (f)if this Lease does not provide for a Stipulated Loss Value of
the Equipment or if the Stipulated Loss Value of the Equipment is not
allowed under applicable law, with or without terminating this Lease,
recover from Lessee damages, not as a penalty, but herein liquidated for
all purposes and in an amount equal to the sum of (I)any accrued and unpaid
rent as of the date of entry of judgment in favor of Lessor plus interest
at the rate of fifteen percent per annum or the maximum rate provided by
state law; (II)the present value of all future rentals reserved in the
Lease and contracted to be paid over the
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unexpired term of the Lease discounted at a rate equal to the discount rate
of the Federal Reserve Bank of Kansas City as of the date of entry of
judgement in favor of Lessor plus one percent; (III)all commercially
reasonable costs incurred by Lessor in any repossession, recovery, storage,
repair, sale, re-lease, or other disposition of the Equipment including
reasonable attorneys' fees and costs incurred in connection therewith or
otherwise resulting from Lesse's default; (IV)estimated residual value of
the Equipment as of the expiration of this Lease or any renewal thereof;
and (V)any indemnity, if then determinable, plus interest at fifteen
percent per annum; (g)in its sole discretion, re-lease or sell any or all
of the Equipment at a public or private sale on such terms and notice as
Lessor shall deem reasonable and recover from Lessee damages, not as a
penalty, but herein liquidated for all purposes and in an amount equal to
the sum of (I)any accrued and unpaid rent as of the later of (A)the date of
default , (B)the date that Lessor has obtained possession of the Equipment
or such other date as Lessee has made an effective tender of possession of
the Equipment back to Lessor ("Default Date"); plus rent (at the rate
provided for in this Lease and any Lease Schedule) for the additional
period (but in no event longer two months that it takes Lessor to resell or
re-let all of the Equipment, plus interest at the rate of fifteen percent
per annum, or the maximum rate provided by state law; (II)the present value
of all future rentals reserved in the Lease and contracted to be paid over
the unexpired term of the Lease discounted at a rate equal to the discount
rate of the Federal Reserve Bank of Kansas City as of the Default Date plus
one percent; (III)all commercially reasonable costs and expense incurred by
Lessor in any repossession, recovery, storage, repair, sale, re-lease or
other disposition of the Equipment including reasonable attorneys' fees and
costs incurred in connection with or otherwise resulting from the Lessee's
default; (IV)estimated residual value of the Equipment as of the expiration
of this Lease or any renewal thereof; and (V)any indemnity, if then
determinable, plus interest at fifteen percent per annum LESS the amount
received by Lessor upon such public or private sale re-lease of such items
of Equipment, if any; (h)exercise any other right or remedy which may be
available to it under the Uniform Commercial Code or any other applicable
law; (I)a termination hereunder shall occur only upon notice by Lessor and
only as to such items of Equipment as Lessor specifically elects to
terminate and this Lease is deemed at any time to be one intended as
security, Lessee agrees that the equipment shall secure, in addition to the
indebtedness set forth herein, indebtedness at any time owning by Lessee to
Lessor. No remedy referred to in this paragraph is intended to be
exclusive, but shall be cumulative and in addition to any other remedy
referred to above or otherwise available to Lessor at law or in equity. No
express or implied waiver by Lessor or any default shall constitute a
waiver of any other default by Lessee or a waiver of any of Lessor's
rights. If Lessee fails to comply with any provision of the Lease, Lessor
shall have the right, but not the obligation, to affect compliance on
behalf to Lessee upon ten (10) days prior written notice to Lessee. In such
event all monies expended by Lessor, and all expenses of Lessor in
effecting such compliance, shall be deemed to be additional rent, and shall
be paid by Lessee to Lessor at the time of the next monthly payment. Lessee
shall also be liable for and shall pay to Lessor (a) all expenses incurred
by Lessor in connection with the enforcement of any of Lessor's remedies,
(b) Lessor's reasonable attorney's fees and expenses, and (c) interest on
all sums due Lessor from the date when the sums become due until paid, at
the rate of one and one-half (11/2%) percent per month but only to the
extent permitted by law. When any payment is not made by Lessee when due,
Lessee agrees to pay to Lessor, not later than one month thereafter, in
addition to all amounts payable by Lessee as a result of the exercise of
any of the remedies provided in the Lease, an amount calculated at the
exercise of any of the remedies provided in the Lease, an amount calculated
at the rate of 10 cents per one dollar of each such delayed payment, as an
administrative fee to offset Lessor's collection costs, but only to the
extent permitted by law.
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All remedies of Lessor are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently. The exercise of any one remedy shall not be deemed
an election of such remedy or preclude the exercise of any other remedy. No
failure on the part of Lessor to exercise and no delay in exercising, any
right or remedy shall operate as a waiver thereof or modify the terms of
the Lease. In no event shall Lessor's recovery exceed the maximum recovery
permitted by law.
16. REDELIVERY OF EQUIPMENT. Upon the expiration or earlier termination of the
Lease, Lessee shall return the Equipment, freight prepaid, to Lessor in
good repair, condition and working order, in a manner and to a location
designated by Lessor. If upon such expiration or termination, Lessee does
not immediately return the Equipment to Lessor, the Equipment shall
continue to be held and leased hereunder, and the Lease shall thereupon be
extended from month to month at the same monthly rent, on a month to month
basis, subject to the right of either Lessee or Lessor to terminate the
Lease upon thirty (30) days' written notice, whereupon Lessee shall
forthwith deliver the Equipment to Lessor as provided in this Paragraph.
17. ENTIRE AGREEMENT: CHANGES. The Lease contains the entire agreement
between the parties and may not be altered, amended, modified, terminated
or otherwise changed except in writing and signed by an executive officer
of Lessor and Lessee.
18. NOTICE. All notices under the Lease shall be sufficient if given personally
or mailed to the party intended at its respective address set forth herein,
or at such other address as said party may provide in writing from time to
time. Any such notice mailed to said address shall be effective when
deposited in the United States mail, duly addressed, postage prepaid.
19. BINDING EFFECT. The Lease shall inure to the benefit of, and be binding
upon, the parties and their respective personal representatives, successors
and assigns. Lessor and Lessee intend the Lease to be a valid and
subsisting legal instrument, and agree that no provision of the Lease which
may be deemed unenforceable shall in any way invalidate any other provision
or provisions of the Lease, all of which shall remain in full force and
effect.
20. ARBITRATION. Lessor and Lessee agree that any dispute arising from this
Lease will be submitted to binding arbitration with the American
Arbitration Association in accordance with its rules.
Arbitration will take place in Des Moines, Iowa.
21. MISCELLANEOUS. The Lessee hereby appoints Lessor as its true and lawful
attorney to prepare, execute and file any financing statements or other
documents and/or instruments to protect Lessor's interest in the property
set forth herein. In such a situation, the Lessee does hereby declare such
financing statement, document, and/or instrument signed by Lessor as its
said attorney shall have the same force and effect as if signed by the
Lessee himself, and shall be binding upon his heirs and assigns forever.
Photocopies of this executed document will have the same force and effect
as original executed copies.
22. GOVERNING LAW; JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF JURY
TRIAL. THE LEASE SHALL BE GOVERED BY THE LAWS OF THE STATE OF IOWA. LESSEE
HEREBY CONSENTS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT, LOCATED
IN POLK COUNTY, IOWA, WITH RESPECT TO ANY ACTION COMMENCED HEREUNDER.
NOTHING CONTAINED HEREIN IS INTENDED TO PRECLUDE LESSOR FROM COMMENCING ANY
ACTION HEREUNDER IN ANY COURT HAVING JURISDICTION THEREOF, LESSEE AGREES
THAT SERVICE OF PROCESS IN ANY ACTION SHALL BE SUFFICIENT IF MADE BY FIRST
CLASS, CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO THE ADDRESS OF LESSEE
HEREUNDER TO THE EXTENT PERMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN
ANY ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE, OR THE
TRANSACTIONS CONTEMPLATED HEREIN.
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SCHEDULE "A"
Schedule referred to in and made part of lease agreement number #__________ and
dated __________ between __________and TLC, LLC.
QUANTITY DESCRIPTION
COLLATERAL INCLUDES A 1ST LIEN ON ALL BUSINESS ASSETS INCLUDING, BUT NOT LIMITED
TO THE FOLLOWING:
EQUIPMENT QTY. BRAND SERIAL #
--------- ---- ----- --------
1. ESPRESSO FAEMA E87-2 93050564360
2. GRINDER(S) ESPRESSO FAEMA
3. BREW SYSTEM BUNN 95091203/95081706
4. CARAFES
5. GRINDER(S) GREW BUNN
6. ICE MACHINE SCOTTSMAN 614220
7. RERIGERATOR SILVERKING SAL558
8. BEVERAGE DISPENSER JET SPRAY/CATHCO 10064/274A2634
9. SCALES
10. PASTRY CASE
11. POS SYSTEM SDCR/CASIO
12. MENU BOARDS
13. FREEZER
14. BLENDERS
Lessee hereby appoints TLC as its true and lawful attorney to prepare, execute
and file any financing statements or other documents and/or instruments protect
TLC's interest in the property set forth herein. In such a situation, the Lessee
does hereby declare such financing statement, document and/or instrument signed
by TLC as its said attorney shall have the same force and effect as if signed by
the Lessee himself, and shall be binding upon his heirs and assigns forever.
Photocopies of this executed document will have the same force and effect as
original executed copies.
TLC, LLC LESSEE: GLORIA JEAN'S, INC.
_____________________________ BY:_____________________________
NAME/TITLE:_________________ NAME/TITLE:___________________
PURCHASE OPTION
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LEASE# ____________________________ between TLC, LLC Lessor and
______________________________ Lessee.
Provided the Lease has not terminated early and no event of default under the
Lease has occurred and is continuing, THE LESSEE MUST AT THE END OF THE ORIGINAL
TERM EXERCISE ONE OF THE FOLLOWING OPTIONS:
BUY: Purchase the Equipment for its fair market value which shall be at least
10% of Lessor's original cost of the Equipment.
OR
RENEW: Renew the Lease under the original terms and conditions for a minimum
period of eight (8) months. At the expiration of such renewal period this Lease
shall automatically renew on a month to month basis unless Lessee notifies
Lessor in writing of its intent either to purchase the equipment for a price to
be agreed upon by the Lessor and Lessee or return the Equipment to Lessor.
Failure to notify Lessor of which option is to be exercised shall constitute
exercise of the renewal option.
The options provided for in this Agreement supersede all other options contained
in the original Equipment Lease Agreement.
TLC, LLC GLORIA JEAN'S, INC.
Lessor Lessee
- ----------------------------- ------------------------------
BY BY
- ----------------------------- ------------------------------
NAME/TITLE NAME/TITLE
- ----------------------------- ------------------------------
DATE DATE
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PRO-RATE
DISCLOSURE
LESSEE: __________________________
LEASE#: __________________________
DATE : __________________________
TLC, LLC will be billing pro-rate from the start date of the lease to the
payment due date. The amount per day is $ _________ and payment is due in our
office 10 days after the billing date.
ACKNOWLEDGED:
- -----------------------------------
NAME/TITLE: ______________________
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EXHIBIT "A" TO TLC LEASE #__________ BETWEEN GLORIA JEAN'S INC, AND TOTAL LEASE
CONCEPTS WITH COFFEE PEOPLE, INC. AS CORPORATE GUARANTOR.
By signature below all parties understand and agree that the following changes
to the lease documents are for the benefit of the Lessee, Gloria Jean's, Inc.
and the Corporate Guarantor, Coffee People, Inc. only and that upon assumption
of the lease by a third party this exhibit becomes null and void. The party
assuming the lease will be subject to all terms and conditions on the lease
documents and none of the changes represented on this exhibit.
Change #1: Paragraph 20 of the LEASE AGREEMENT "Arbitration". The word "Des
Moines, Iowa" will be replaced with "Los Angeles, California".
Change #2: Paragraph 6 of the LEASE AGREEMENT "Assignment:. After the word
"shall: in the last sentence insert "which consent shall not be unreasonably
withheld," and after the words "shall be void." Insert "Upon approval by Lessor
of any proposed assignment by Lessee of its obligations under this Lease and
related agreements and assumption of those obligations by the assignee, Lessee
shall be fully and forever release from any further obligation with respect
thereto. Although it is understood that under certain circumstances, an
assignment may be requested by Gloria Jean's, Inc. and allowed by the Lessor
which does not release Gloria Jean's or it's Corporate Guarantor from liability
under the Lease or Guarantee".
Change #3: Add the following paragraph (Paragraph 11) to the "CONTINUING CROSS
- -COLLATERALIZATION AGREEMENT: "Upon approval by Lessor of any proposed
assignment by Lessee of its obligations under any Lease and related agreements
and assumption of those obligations by the assignee pursuant to the terms of the
Lease, Lessee shall be fully and forever released from any further obligations
with respect thereto, and this Continuing Cross-Collateralization Agreement
shall terminate with respect to the Equipment subject to the assigned Lease, so
that neither Lessee nor any equipment or other assets of Lessee securing any
obligations of Lessee to Lessor will be obligated for, or directly or indirectly
secure, any obligations of the assignee or the Equipment subject to the assigned
lease be obligated for or secure any of the other obligations of the Lessee to
Lessor".
Change #4: Add the following paragraph to the "GUARANTY ON LEASE" document:
"Upon approval by Lessor of any proposed assignment by Lessee of its obligations
under any Lease and related agreements and assumption of those obligation by the
assignee pursuant to the terms of the Lease, Lessee and Guarantor shall be fully
and forever released from any further obligations with respect thereto".
Change #5: The following changes to the "PURCHASE OPTION" document shall apply:
1. In the second sentence of the first paragraph substitute the word
"may" for the existing word "must".
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12
2. Remove the fourth and fifth paragraphs.
Change #6: The following change applies to the "GUARANTY ON LEASE" document:
Change paragraph #5 to read simply "The obligations of Guarantor hereunder are
independent of the obligations of Lessee".
Change #7: Paragraph 8 of the "LEASE AGREEMENT" document. In the sixth sentence
change to read "...not make any "material" modification, ..."
Change #8: Paragraph 14 of the "LEASE AGREEMENT" document. In the fourth
sentence change to read "...failure to "materially" perform..."
Change #9: Paragraph 22 of the "LEASE AGREEMENT' document. In the third sentence
change to read "...TO THE "NON-EXCLUSIVE" JURISDICTION..."
LESSEE: CORPORATE GUARANTOR:
GLORIA JEAN'S, INC. COFFEE PEOPLE, INC.
By:____________________ By:____________________
LESSOR:
TOTAL LEASE CONCEPTS
By:____________________