Exhibit 10.21
COMMERCIAL LEASE CONTRACT
THIS LEASE (the "Lease") is made this 6th day of June, 2001, by and
between M.D. XXXXXX ENTERPRISES, INC., first party, (hereinafter called
"Landlord"); having an address of 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, and UNITED NATURAL FOODS, INC., a Delaware Corporation, second
party, (hereinafter called "Tenant"); having an address of 000 Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx, 00000.
W I T N E S S E T H:
1. PREMISES - The Landlord, for and in consideration of the rents,
covenants, agreements, and stipulations hereinafter mentioned, reserved, and
contained, to be paid, kept and performed by the Tenant, has leased and rented,
and by these presents does lease and rent, unto the Tenant, and the Tenant
hereby agrees to lease and take upon the terms and conditions which hereinafter
appear, the following described property (exclusive of any easement for light or
air), hereinafter called "Premises," to wit:
311,793 Square Feet of single floor warehouse
space, located at 000 XXXXXXXX XXXXX, Xxxxxxx,
Xxxxxxx, 00000 as located in Land Xxx 000 xx xxx
00xx X.X. Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx,
being all of the building commonly known as 000
XXXXXXXX XXXXX (the "Building") (Building #440),
said building located on a tract of land
consisting of approximately 19.63 acres.
2. TERM AND PREPARATION OF PREMISES
A. The term of this Lease shall commence on the Commencement Date,
as hereinafter defined, and shall end at midnight on the last day of the month
that is 184 months after the Commencement Date, unless sooner terminated as
hereinafter provided. The "Commencement Date" shall mean: August 1, 2001;
provided, however, that Tenant shall have the right to utilize the Premises
prior to August 1, 2001 for the purpose of the storage of Tenant's products and
construction of improvements to the Premises as allowed for under the terms of
this Lease. After the Commencement Date, Tenant will, upon demand, furnish
Landlord with a written statement confirming Tenant's acceptance of the Premises
and confirming the Commencement Date of the term of this Lease.
B. After proper execution of this Lease by Landlord and Tenant,
Landlord shall furnish all labor and material as necessary to deliver the
Premises as shown on EXHIBIT "D" hereof, which plans identify the work to be
completed by Landlord with respect to the requirements of this Lease. Said work
shall be performed in a good and workmanlike manner and in compliance with all
applicable laws, regulations and building codes. The Premises and Building
currently comply with all applicable laws, regulations and building codes for
buildings completed to "shell" condition. Except for the foregoing, Tenant
agrees to accept the Premises under the provisions of the Lease "WHERE IS, AS
IS".
3. RENTAL - The Tenant agrees to pay to the Landlord promptly on the first
day of each month in advance, during the term of this Lease, a monthly rental of
AUGUST 1, 2001 THROUGH NOVEMBER 30, 2001
$0.00 monthly ZERO AND 00/100 DOLLARS Four (4)
in advance Months
DECEMBER 1, 2001 THROUGH NOVEMBER 30, 2006
$73,531.19 monthly SEVENTY-THREE THOUSAND, FIVE HUNDRED THIRTY-ONE Sixty (60)
in advance AND 19/100 DOLLARS Months
DECEMBER 1, 2006 THROUGH NOVEMBER 30, 2011
$82,625.15 monthly EIGHTY-TWO THOUSAND, SIX HUNDRED TWENTY-FIVE Sixty (60)
in advance AND 15/100 DOLLARS Months
DECEMBER 1, 2011 THROUGH NOVEMBER 30, 2016
$93,018.25 monthly NINETY-THREE THOUSAND, EIGHTEEN Sixty (60)
in advance AND 25/100 DOLLARS Months
Tenant shall pay all rent and other sums of money as shall become due from and
payable by Tenant to Landlord under this Lease at the times and in the manner
provided in this Lease, without notice, demand, set-off or counterclaim. As used
in this Lease, the term "rent" shall mean the base monthly rental, and any other
amounts that Tenant assumes or agrees to pay under the provisions of this Lease
that are owed to Landlord, including, without limitation, any and all other sums
that may become due by reason of any default of Tenant or failure on Tenant's
part to comply with the agreements, terms, covenants and conditions of this
Lease to be performed by Tenant.
The aforesaid payments of rent are to be made to: M.D. Xxxxxx Enterprises, Inc.
Xxxx Xxxxxx Xxx 000000
Xxxxxxx, XX 00000-0000
4. LATE PAYMENTS - If monthly rental or any other amount payable by Tenant
under this Lease is not paid within ten (10) days after the date such payment is
due, Tenant shall pay to Landlord a late charge equal to 5% of the delinquent
amount, and interest on the delinquent amount at the rate of 14% per annum until
paid (the "Default Rate"); provided however said interest shall not begin to
accrue until Landlord has given Tenant written notice of such non-payment.
UNITED NATURAL FOODS, INC.
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000 Xxxxxxxx Xxxxx
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5. ADVANCE RENT - Notwithstanding Section 3. of this Lease, Landlord
acknowledges receipt from Tenant of EIGHTY-THREE THOUSAND SIX HUNDRED SIXTY-FOUR
AND 47/100 DOLLARS ($83,664.47), which rent Tenant has paid in advance for the
first month's rent ($73,531.19), Tax Escrow ($7,794.83) and Common Area
Maintenance ($2,338.45).
6. SECURITY DEPOSIT - None.
7. TAXES
A. Landlord shall pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever lawfully
levied or assessed against the Premises and/or Building or any portion thereof
(all of which real estate taxes, assessments, levies, charges and costs,
excluding any late charges or penalties that may be imposed for Landlord's
failure to make payments on account of the foregoing in a timely manner, are
hereafter collectively referred to as "Taxes"), and Tenant shall reimburse
Landlord, as additional rent, for Tenant's share of any such Taxes paid with
respect to any tax year falling within the term of this Lease (prorated for any
partial years). If the Premises are not part of a multi-tenant facility,
Tenant's share of the Taxes for each tax year occurring during the Lease term
shall be one hundred percent (100%). If, however, the Premises are part of a
multi-tenant project, Tenant's share of the Taxes shall be an amount equal to
the product obtained by multiplying the Taxes for the tax year in question
(prorated for any partial years) by a fraction the numerator of which is the
gross rentable area in the Premises, and the denominator of which is the gross
rentable area in the entire Building, including the Premises. Tenant agrees to
pay Landlord promptly on the first day of each month in advance during the term
of this Lease a monthly tax escrow amount of SEVEN THOUSAND, SEVEN HUNDRED
NINETY-FOUR AND 83/100 DOLLARS ($7,794.83) toward payment of Tenant's share of
Taxes for that year (or a portion thereof) with the understanding that, upon
receipt by Landlord of the Tax xxxx, Landlord and Tenant will then determine
whether Tenant is entitled to a refund or whether Landlord shall xxxx Tenant for
an extra amount if required so that as the end result and at the end of each
calendar year, Tenant's pro rata share of the Taxes will have been paid.
Landlord shall promptly notify Tenant of actual Tax bills when final bills are
received from government authorities. Tenant and Landlord agree to pay to each
other whatever amount is required to reconcile the annual escrow funds to the
actual xxxx on December 1 of each tax year during the term of the Lease. In
addition, Landlord shall have the right to increase the monthly Tax escrow
amount no more frequently than once per calendar year based upon any changes in
the most recent Tax xxxx. However, the monthly Tax escrow amount shall not
exceed one-twelfth (1/12th) of the most recent annual Tax. Landlord has begun
the application process for the Premises to be a separate parcel for tax
purposes and will diligently pursue such process to completion.
B. Tenant shall be liable for all taxes assessed against and levied
upon the trade fixtures, furnishings, equipment and all other personal property
of Tenant contained in the Premises.
C. Landlord shall have the sole, absolute and unrestricted right,
but not obligation, to contest the validity or amount of the Taxes by
appropriate proceedings and the costs thereof shall be included in the Taxes,
and Landlord shall have the sole, absolute and unrestricted right to settle any
contest, proceeding or action upon whatever terms Landlord may, in its sole
discretion, determine. Notwithstanding the foregoing, if Landlord does not
contest the Taxes, Landlord will give Tenant written notice that it is not
contesting the Taxes, and said notice will be given to Tenant at least thirty
(30) days prior to the deadline for filing of a contest of the Taxes. If
Landlord does not contest the Taxes, then Tenant shall have the right to do so
at Tenant's sole cost and expense.
8. UTILITY BILLS - Tenant shall pay for all water, sewer, gas,
electricity, fuel, light, heat, power bills, sprinkler system service charges
(if any) and other utilities serving the Premises, or used by Tenant in
connection therewith. If Tenant does not pay the same directly to the applicable
utility company, Landlord may pay the same and such payment, together with a
reasonable administrative charge by Landlord, shall be added to the rental of
the Premises. If any of such utility services are not separately metered to the
Premises, Tenant shall pay to Landlord, as additional rental, a reasonable
proportion of the total cost of all charges jointly metered with other premises,
plus a reasonable administrative charge by Landlord, all as reasonably
determined by Landlord. With respect to water and sewer charges for multi-tenant
buildings, Landlord's reasonable determination will take into account whether
Tenant or the other tenants of the Building consume water for manufacturing or
other uses, other than water consumed for general office uses. Landlord
represents that (i) the Premises are currently separately metered for water
service, ii) the Premises can be separately metered for gas service at the time
of construction of the tenant improvements, and (iii) Landlord is in the process
of converting the primary metering of "Lakeview" to a separate meter for the
Premises.
9. USE OF THE PREMISES - The Premises shall be used for office and
warehouse and related purposes and no other. The Premises shall not be used for
any illegal purposes; nor in any manner that violates the protective covenants
for the premises set for as EXHIBIT "A" hereof, and by this reference made a
part hereof, or any other restrictions of public record with respect to the
Premises or which create any nuisance or trespass; nor in any manner to vitiate
the insurance or increase the rate of insurance on the Premises. Without
Landlord's prior written consent, Tenant shall not receive, store or otherwise
handle any product, material or merchandise which is explosive or highly
flammable. Outside storage is prohibited without Landlord's prior written
consent. Tenant agrees not vacate the Premises during the period of this Lease,
and agrees to use said Premises for the purpose herein leased until the
expiration hereof.
10. REPAIRS BY LANDLORD - The Landlord agrees to keep in good repair the
parking and truck courts, roof, foundations, and exterior walls of the Building
containing or constituting a part of the Premises; provided, however, the
Landlord shall not be responsible for the repair of glass and exterior doors and
any and all repairs rendered necessary by the negligence of Tenant, its agents,
employees, or invitees. Landlord warrants to Tenant that the structural
integrity of the floors of the Premises is sufficient for uses allowable for a
slab design of six (6) inches unreinforced, 4,000 psi concrete, and Landlord
agrees to perform all repairs necessary due to a breach in said warranty;
provided, however, that Landlord shall not be responsible for the repair of (i)
any and all repairs rendered necessary by the negligence of Tenant, its agents,
employees, or
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000 Xxxxxxxx Xxxxx
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invitees, and (ii) any areas of the floor where Tenant installs its cooler and
freezer areas. In addition, with respect to the saw joint areas, this warranty
is conditioned on Tenant providing a flexible epoxy joint sealer similar to Euco
700, manufactured by Euclid Chemical Company, in the saw joint locations of
Tenant's fork lift traffic, with said sealer being applied during the first
twelve months of the Lease term. Landlord gives to Tenant exclusive control of
the Premises and shall be under no obligation to inspect said Premises. Tenant
shall report in writing to Landlord any defective condition known to it within a
reasonable time after learning of such condition, which Landlord is required to
repair, and failure to so report such defects shall make Tenant responsible to
Landlord for any liability incurred by Landlord by reason of such failure to
report except for any repairs rendered necessary by the negligence of Tenant,
its agents, employees, or invitees. Landlord shall warrant all construction for
a period of one (1) year after the Commencement Date. Landlord shall assign to
Tenant all warranties including those for equipment and mechanical systems.
11. REPAIRS BY TENANT - Tenant shall, throughout the term of this
Lease, at its expense, maintain in good order and repair the Premises, including
the heating and air conditioning equipment (including but not limited to
replacement of parts, compressors, air handling units and heating units) and
other improvements located thereon, except those repairs expressly required to
be made by Landlord. Tenant, at its sole cost and expense, shall provide all
regular maintenance and service for the HVAC systems and warehouse unit heaters,
including, but not limited to, placing a qualified HVAC contractor under service
contract for such items as regular changing of filters at intervals not less
than quarterly (once every three months), and to make thorough annual
inspections of and to professionally service the system including, but not
limited to, coolant recharging, replacement of belts or minor electrical
components, lubrication and routine preventive maintenance, and other
miscellaneous items. Tenant shall be responsible for maintaining sprinkler,
valves, fire extinguishers and alarm systems if any, as located within the
Premises and Tenant shall maintain written records, if any, that may be required
by Landlord's insurer covering testing of sprinkler valves, fire extinguishers
and alarm systems located within the Premises. Tenant shall consistently
maintain heat within the Premises as necessary to avoid damage to the sprinkler
system by freezing. In the event Tenant fails to make any repairs required of it
hereunder, then Landlord may, but shall not be obligated to, make such repairs,
in which event, Tenant shall promptly reimburse Landlord for all expenses
incurred thereby. Tenant shall be responsible for pest and termite control.
Tenant agrees to return said Premises to Landlord at the expiration, or prior
termination, of this Lease in as good condition and repair as when first
received, natural wear and tear, damage by storm, fire, lightning, earthquake or
other insured casualty alone excepted. Aside from the aforesaid repairs, Tenant
shall not make any alterations, additions, or improvements to the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Landlord shall approve or disapprove of plans
and specifications relating to work proposed by Tenant within ten (10) business
days after receipt by Landlord.
12. COMMON AREA MAINTENANCE - Landlord shall provide exterior grounds
maintenance for the Premises. Said maintenance shall include landscaping
services, fertilizing, insecticiding, mulching, pruning of shrubbery and trees,
and cutting and weeding grass. The cost to Tenant for the grounds maintenance,
expense for insurance carried by Landlord as required in this Lease, other
miscellaneous common area charges, and administrative fees shall be TWO
THOUSAND, THREE HUNDRED THIRTY-EIGHT AND 45/100 DOLLARS ($2,338.45) per month,
payable monthly in advance, as additional rent. Landlord hereby certifies that
said costs are reasonable as of the date hereof. Landlord and Tenant hereby
agree that if these costs to Landlord increase subsequent to the date of this
Lease, such costs shall be accounted for in the following manner throughout the
term of this Lease. Upon reasonable proof to Tenant by Landlord that increases
of such costs to Landlord have occurred, Landlord shall establish a revised
monthly cost to Tenant; provided, however, that such increases in costs, if any,
shall not occur during the first twelve (12) months of the original Lease term;
and also provided that said maintenance cost adjustments, if any, shall be
limited to no more than a five percent (5%) annual increase above the previous
year's charge. Tenant shall have the right to audit these common area
maintenance charges.
13. INSURANCE
A. During the term of this Lease, Tenant shall provide and keep in
force the following insurance:
(1) comprehensive general liability insurance relating to
Tenant's business carried on, in or from the Premises, for personal and bodily
injury and death, and damage to others' property, with limits of not less than
$2,000,000.00 for any one accident or occurrence; and
(2) all risk or fire insurance (including standard extended
coverage and coverage for leakage from fire protective devices and other water
damage) relating to Tenant's fixtures, furnishings, and all personal property of
Tenant in the Premises on a full replacement cost basis; and
(3) workmen's compensation insurance as required by applicable
law.
B. During the term of this Lease, Landlord shall provide and keep in
force the following insurance (which may be maintained through one or more
blanket policies):
(1) comprehensive general liability insurance relating to
Landlord's ownership of the Premises, for personal and bodily injury and death,
and damage to other's property, with limits of not less than $2,000,000.00 for
any one accident or occurrence; and
(2) all risk or fire insurance (including standard extended
coverage) relating to the Premises (but excluding Tenant's fixtures, furnishings
and all personal property of Tenant) in an amount required by the holders of any
Security Deeds, or otherwise reasonably determined by Landlord.
C. Prior to the commencement of the Lease term and thereafter, at
least fifteen (15) days prior to the expiration date of any policy required of
Tenant, Tenant agrees to deliver to Landlord a certificate evidencing the
insurance
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000 Xxxxxxxx Xxxxx
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coverage required of Tenant under this Lease. Said certificate shall contain an
endorsement that such insurance may not be canceled except upon thirty (30)
days' prior written notice to Landlord, and shall confirm that Landlord, its
managing agent, and the holders of any Security Deeds are named as additional
insureds. The policies required to be carried by Tenant pursuant to the terms of
this Lease shall be issued by a stock or mutual company, licensed to do business
in the State of Georgia.
14. WAIVER OF SUBROGATION Notwithstanding anything else contained in this
Lease to the contrary, Landlord shall waive all rights of recovery and all
causes of action against Tenant for any loss occurring to the Premises resulting
from any of the perils insured against under such policy or policies of
insurance carried by Landlord regardless of cause, including the negligence of
Tenant, but only to the extent of any recovery received by Landlord under such
policy or policies of insurance. Landlord will cause these policies of insurance
to include an endorsement to that effect. Conversely notwithstanding anything
else contained in this Lease to the contrary, Tenant shall waive all rights of
recovery and all causes of action against Landlord regardless of cause,
including the negligence of Landlord, to the extent of any recovery received
under such policy or policies of insurance carried by Tenant (or alternatively,
to the extent of any recovery that could have been received under the insurance
required by Section 13.A. above, if such insurance is not being carried in
breach of such obligations), and Tenant will also cause these policies of
insurance to include an endorsement to that effect.
15. DESTRUCTION OF, OR DAMAGE TO PREMISES
A. If the Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this Lease shall terminate as of the date of such
destruction and rental shall be accounted for as between Landlord and Tenant as
of that date. If the Premises are damaged but not wholly destroyed by any such
casualties, rental shall xxxxx based upon the nature and extent of the damage to
the Premises and the ability of Tenant to conduct its business therefrom, as
reasonably determined by Landlord and Tenant and Landlord shall restore the
Premises to substantially the same condition as before damage as speedily as is
practicable, whereupon full rental shall recommence; provided, however, that if
(i) the Premises are more than 50% damaged or destroyed, in Landlord's
reasonable judgment, or (ii) the Premises are damaged or destroyed during the
last twelve (12) months of the Lease term, or (iii) the holder of a Security
Deed (as defined in Section 26. below) does not make available insurance
proceeds for rebuilding or repair, then and in any such events, Landlord may at
its option terminate this Lease by notice in writing to Tenant within sixty (60)
days after the day of such occurrence. If the Premises are more than 50% damaged
or destroyed, in Landlord's reasonable judgment and Landlord cannot restore the
Premises to substantially the same condition as before damage within 180 days,
then Tenant may at its option terminate this Lease by providing notice in
writing to Landlord within thirty (30) days after the date of such occurrence
that Tenant so desires to terminate this Lease.
B. Landlord shall not be required to repair any injury or damage or
to make any repairs or replacements of any improvements installed in the
Premises by or for Tenant. Tenant shall, at Tenant's sole cost and expense,
repair, replace and restore all of Tenant's personalty, trade fixtures,
equipment and fixtures, and all alterations, additions and/or improvements other
than the repairs required of Landlord under this Lease.
16. INDEMNITY -
A. Subject to Section 14. above, Tenant agrees to indemnify and hold
Landlord, Landlord's agents, and their respective agents, employees,
contractors, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) harmless from and against any and all losses, costs,
liabilities, claims, damages, expenses (including, without limitation,
reasonable attorneys' fees), penalties or fines incurred in connection with,
arising out of or resulting from: (i) any default by Tenant in the performance
of any of the terms, covenants or conditions of this Lease on Tenant's part to
be kept, observed or performed, or (ii) the use or occupancy, or manner of use
or occupancy, of the Premises by Tenant or any person claiming or entering the
Premises by, through or under Tenant, or (iii) any acts, omissions or negligence
of Tenant, its sublessees, assignees, licensees or concessionaires or any of
their respective contractors, agents, employees, guests or invitees.
B. Subject to Section 14. above, Landlord agrees to indemnify and
hold Tenant, Tenant's agents, and their respective agents, employees,
contractors, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) harmless from and against any and all losses, costs,
liabilities, claims, damages, expenses (including, without limitation,
reasonable attorneys' fees), penalties or fines incurred in connection with,
arising out of or resulting from: (i) any default by Landlord in the performance
of any of the terms, covenants or conditions of this Lease on Landlord's part to
be kept, observed or performed, or (ii) any acts, omissions or negligence of
Landlord or any of its contractors, agents, employees, guests or invitees.
17. GOVERNMENTAL ORDERS - Tenant agrees, at its own expense, to promptly
comply with all requirements of any legally constituted public authority made
necessary by reason of Tenant's occupancy of said Premises, including but not
limited to, the providing of fire extinguishers and fire alarm systems in
accordance with said requirements. Landlord agrees to promptly comply with any
such requirements if not made necessary by reason of Tenant's occupancy. It is
mutually agreed, however, between Landlord and Tenant, that if in order to
comply with such requirements, the cost to Landlord or Tenant, as the case may
be, shall exceed a sum equal to one year's rent, then Landlord or Tenant who is
obligated to comply with such requirements is privileged to terminate this Lease
by giving written notice of termination to the other party, by registered mail,
which termination shall become effective sixty (60) days after receipt of such
notice, and which notice shall eliminate necessity of compliance with such
requirement by party giving such notice, unless party receiving such notice of
termination shall, before termination becomes effective, pay to party giving
notice all cost of compliance in excess of one year's rent, or secure payment of
said sum in manner satisfactory to party giving notice.
18. CONDEMNATION - If all or any part of the Premises or the Building
shall be taken as a result of the exercise of the power of eminent domain or
agreement in lieu thereof, this Lease shall terminate as to the part so taken as
of the date of taking. In the case of a partial taking, either Landlord or
Tenant shall have the right to terminate this Lease as to the balance of the
Premises by giving written notice to the other within thirty (30) days after
such date; provided, however, that a
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000 Xxxxxxxx Xxxxx
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condition to the exercise by Tenant of such right to terminate shall be that the
portion of the Premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance of the
Premises. In the event of any taking, Landlord shall be entitled to any and all
compensation, damages, income, rent, awards or interest therein whatsoever which
may be paid or made in connection therewith. Tenant shall have no claim against
Landlord or the condemning authority for the value of any unexpired term of this
Lease or otherwise. Tenant shall have the right to claim from the condemning
authority and prove Tenant's right to an award for the unamortized trade
fixtures, alterations, additions and improvements paid for by Tenant, and for
its moving expenses. In the event of a partial taking of the Premises, which
does not result in a termination of this Lease, the base monthly rental
thereafter to be paid shall be equitably reduced.
19. ASSIGNMENT AND SUBLETTING - Tenant may not assign this Lease or
sublease the Premises or any part thereof or permit the use of the Premises by
any party other then Tenant or a Permitted Assignee (as defined below) without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. In no event shall Tenant have the right nor
shall it be permitted to assign this Lease to another party (except a Permitted
Assignee) for profit; it being understood by the parties hereto that if the
Lease is assigned to others (other then a Permitted Assignee), then any increase
in rent over the rent being paid by Tenant under this Lease or any extension or
renewal hereof shall be payable to Landlord. Consent to one or more assignments
or subleases shall not destroy or waive this provision. Subtenants and assignees
(including Permitted Assignees) shall become directly liable to Landlord for all
obligations of Tenant hereunder to the extent applicable to such subtenants or
assignees, as the case may be, without relieving Tenant's liability under this
Lease which shall continue notwithstanding such assignment or subletting. Tenant
shall promptly reimburse Landlord for Landlord's reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees, in reviewing,
approving or documenting any proposed assignment or subletting provided, that
Tenant shall have no obligation to reimburse Landlord on account of the initial
subletting of approximately 84,000 square feet of space. Any attempted
assignment of subletting made in violation of this Section 19 shall be void as
in no force or effect and shall constitute as event of default under this Lease.
Notwithstanding the foregoing, in the event that Tenant wishes to assign this
Lease or sublet the whole of the Premises (except to a Permitted Assignee), in
lieu of Landlord's providing its consent, Landlord may elect to terminate this
Lease by written notice to Tenant. For purposes of this Lease, the term
"Permitted Assignee" shall mean any one or more of the following: (a) a
successor corporation or other entity to Tenant resulting from merger,
consolidation or corporate reorganization; (b) a corporation or other entity
which controls, is controlled by or is under common control with Tenant, and (c)
a person, or entity which requires all or substantially all of Tenant's assets.
Tenant shall provide Landlord with written notice of any assignment to a
Permitted Assignee within thirty (30) days after such assignment with said
notice containing evidence demonstrating that the assignment was to a Permitted
Assignee.
20. TENANT'S DEFAULT; LANDLORD'S REMEDIES
A. In the event Tenant shall fail to pay when due, any installment
of rent or other charges or monetary obligations to be paid by Tenant hereunder
(all of which obligations of Tenant shall bear interest at the Default Rate from
the date due until paid in full) and such failure is not cured within five (5)
days after written notice thereof from Landlord; or if Tenant shall default in
performing any of the covenants, terms or provisions of this Lease (other than
the payment, when due, of any of Tenant's monetary obligations hereunder) or any
of the rules and regulations now or hereafter reasonably established and
uniformly enforced by Landlord to govern the operation of the project and fails
to cure such default within thirty (30) days after written notice thereof from
Landlord (or such additional time as may be necessary to cure such default
provided tenant commences the cure within said thirty (30) day period and
diligently completes said cure); or if there shall occur any event described as
an event of default by Tenant under this Lease; or if Tenant shall abandon or
vacate the Premises; or if Tenant or any guarantor of Tenant's obligations shall
file a petition or be adjudged bankrupt or insolvent under any applicable
federal or state bankruptcy or insolvency law or admit that it cannot meet its
financial obligations as they become due; or a receiver or trustee shall be
appointed for all or substantially all of the assets of Tenant or any guarantor
of Tenant's obligations; or Tenant shall make a transfer to defraud creditors or
shall make an assignment for the benefit of creditors; or Tenant shall do or
permit to be done any act which results in a lien being filed against the
Premises or Building, which lien is not removed or bonded over in accordance
with Georgia law within twenty (20) days after written notice thereof by
Landlord to Tenant or such shorter period as required by the holder of any
Security Deed; then, and in any of said events, Landlord, at its option may
pursue any one or more of the remedies set forth in Section 20.B. without any
notice or demand whatsoever. Landlord shall only be obligated to give written
notices of monetary defaults and opportunity to cure to Tenant two (2) times in
any period of twelve (12) consecutive months in the event of the reoccurrence of
any default.
B. Upon the occurrence of an event of default as described in
Section 20.A., Landlord shall have the option to do and perform any one or more
of the following in addition to, and not in limitation of, any other remedy or
right permitted it by law or in equity or by this Lease:
(1) Commence dispossessory proceedings with or without the
termination of this Lease. In the absence of Landlord's electing to terminate
the Lease, Tenant shall remain liable for the payment of all rents accruing
after any writ of possession as to the Premises is issued to Landlord.
(2) Commence proceedings against Tenant for all amounts owed
by Tenant to Landlord, whether as base monthly rental, additional rent, damages
or otherwise.
(3) Terminate the Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. Tenant agrees to pay on demand
the amount of all loss and damage which Landlord may suffer by reason of the
termination of the term under this Section 20. or otherwise which loss and
damage shall include, without limitation, an amount which, at the date of the
termination, represents the present value, as computed using an eight percent
(8%) per annum discount rate, of the excess, if any, of (A) the base monthly
rental, additional rental and all other amounts which would have otherwise
UNITED NATURAL FOODS, INC.
Commercial Lease Agreement
000 Xxxxxxxx Xxxxx
Page 6
been payable hereunder during the remainder of the Lease term over (B) the
aggregate reasonable net rental value of the Premises for the same period, after
deducting all expenses expected to be incurred in re-letting the Premises.
(4) Upon any termination of Tenant's right to possession only,
without termination of the Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as provided below, without such entry and possession
terminating the Lease or releasing Tenant, in whole or in part, from any
obligation, including Tenant's obligation to pay rent, including any amounts
treated as additional rent, hereunder for the full term of the Lease. In any
such case, Landlord may relet the Premises on behalf of Tenant for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the term of the Lease) and on such terms and
conditions (which may include concessions of free rent and alteration, repair
and improvement of the Premises) as Landlord, in its sole discretion, may
determine and receive directly the rent by reason of the reletting. Tenant
agrees to pay Landlord on demand any deficiency that may arise by reason of any
reletting of the Premises. Tenant further agrees to reimburse Landlord upon
demand for any expenditures made by it for remodeling or repairing in order to
relet the Premises and for all other expenses incurred in connection with such
reletting (including without limitation attorney's fees and brokerage
commissions). Landlord shall have no obligation to relet the Premises or any
part thereof and shall in no event be liable for failure to relet the Premises
or any part thereof, or, in the event of any such reletting, for refusal or
failure to collect any rent due upon such reletting. No such refusal or failure
shall operate to relieve Tenant of any liability under this Lease. Tenant shall
instead remain liable for all rent and for all such expenses.
(5) Change the locks or otherwise enter upon and take
possession of the Premises without the requirement of resorting to the
dispossessory procedures set forth in O.C.G.A. 44-7-50, and without being liable
for prosecution of any claim for damages or for trespass or other tort.
(6) Do or cause to be done whatever Tenant is obligated to do
under the terms of this Lease, in which case Tenant agrees to reimburse Landlord
on demand for any and all reasonable costs or expenses which Landlord may
thereby incur. Tenant agrees that Landlord shall not be liable for any damages
resulting to Tenant from effecting compliance with Tenant's obligations under
this Section 20., whether caused by the negligence of Landlord or otherwise.
(7) Enforce the performance of Tenant's obligations hereunder
by injunction or other equitable relief (which remedy may be exercised upon any
breach or default or any threatened breach or default of Tenant's obligations
hereunder).
21. REMOVAL OF FIXTURES - Tenant may (if not in default hereunder), prior
to the expiration of this Lease or any extension thereof, remove all fixtures
and equipment which Tenant has placed in the Premises; provided, however, that
Tenant shall not remove: (a) air conditioning, air ventilating and heating
fixtures; (b) lighting fixtures; (c) dock levelers; (d) carpeting, and (e) all
tenant improvements (except for cooler and freezer improvements) constructed in
the Premises prior to Tenant's initial use and occupancy of the Premises. Tenant
shall be required to remove all freezer and cooler equipment which Tenant has
placed in the Premises prior to the expiration of this Lease or any extension
thereof. Upon removal of said fixtures and equipment, which Tenant is allowed or
required to remove as set forth in the preceding sentences, Tenant shall repair
all damage to the Premises caused by such removal. Notwithstanding anything to
the contrary contained in this Lease, Tenant shall have the right to remove all
freezer and cooler improvements installed by Tenant; provided, however, that in
no event shall Tenant be responsible for the removal of any piping, plumbing or
other property installed by Tenant below the floor provided the floors meet or
exceed the original specifications of the floors at the time the Premises are
delivered to Tenant.
22. RIGHT OF LANDLORD TO ENTER PREMISES - Without any abatement of Rent,
Landlord and its agents, employees and independent contractors shall have the
right to enter the Premises at such times as Landlord deems reasonably necessary
or desirable for any one (1) or more of the following purposes: (i) to inspect
and examine same, (ii) to make such repairs, additions, alterations, and
improvements as Landlord desires to make to the Building and/or the common areas
or common facilities thereof, (iii) to exhibit said Premises to prospective
purchasers or lenders, and (iv) to exhibit said Premises to prospective tenants
during the last twelve (12) months of the lease term or at any time that Tenant
is in default. Except in the event of an emergency, Landlord agrees to provide
to Tenant reasonable prior oral notification of any such entry, and to use
reasonable efforts to minimize any interference with Tenant's normal business
operations. In the event of emergency or in the event of default of Tenant
hereunder, or if otherwise necessary to prevent injury to person or damage to
property, such entry to the Premises may be made by force without any liability
whatsoever on the part of Landlord for damage resulting from such forcible
entry.
23. EXTERIOR SIGNS - Tenant shall place no signs upon the outside walls or
roof of the Premises except with the written consent of the Landlord. Any and
all signs placed on the Premises by Tenant shall be maintained in compliance
with rules and regulations governing such signs and the Tenant shall be
responsible to Landlord for any damage caused by installation, use, or
maintenance of said signs, and Tenant agrees upon removal of said signs to
repair all damage incident to such removal.
24. CARDING FOR RENT OR SALE - Landlord may card the Premises "For Sale
and "For Rent" during the last twelve (12) months of the Lease term or at any
time that Tenant is in default.
25. EFFECT OF TERMINATION OF LEASE - All obligations of Tenant hereunder
not fully performed as of the expiration or termination of the term of this
Lease shall survive the expiration or earlier termination of the term hereof,
including, without limitation, all payment obligations with respect to rent,
taxes and insurance and all obligations concerning indemnification and the
condition of the Premises.
UNITED NATURAL FOODS, INC.
Commercial Lease Agreement
000 Xxxxxxxx Xxxxx
Page 7
26. SUBORDINATION AND ATTORNMENT; ESTOPPEL CERTIFICATES; SUBORDINATION OF
LANDLORD'S LIEN
A. This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to any mortgage, deed to secure debt, deed of trust,
ground lease or other instrument in the nature thereof (herein called "Security
Deed") which may now or hereafter affect Landlord's fee title to the Premises
and/or Building; provided, however, that if the holder of any Security Deed
elects to have this Lease prior to the lien of such holder's Security Deed, and
gives written notice thereof to Tenant, this Lease shall be deemed prior to such
Security Deed. Tenant shall at any time hereafter on demand execute any
instruments, releases or other documents, including the Subordination,
Non-Disturbance and Attornment Agreement substantially in the form attached
hereto as EXHIBIT "B" which may be required by the holder of a Security Deed for
the purpose of subjecting and subordinating this Lease to the lien of any such
Security Deed. If the holder of any such Security Deed shall hereafter succeed
to the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease, Tenant shall, at the request of
such holder, attorn to and recognize such successor as Tenant's landlord under
this Lease. Tenant shall promptly execute and deliver any instrument that may be
necessary to evidence such attornment. Upon Tenant's written request, Landlord
will ask the holder of any Security Deed affecting the Premises to execute a
non-disturbance agreement in favor of Tenant; subject, however, to the
conditions reasonably requested by the holder of such Security Deed as a
prerequisite to the execution of such agreement. Notwithstanding the foregoing,
Tenant's use of the Premises in accordance with the terms hereof shall not be
disturbed by any holder of a Security Deed provided Tenant is in compliance with
all of its obligations under this Lease.
B. Tenant shall upon request from Landlord at any time and from time
to time execute, acknowledge and deliver to Landlord a written statement
certifying as follows: (i) that this Lease is unmodified and in full force and
effect (or if there has been modification thereof, that the same is in full
force and effect as modified and stating the nature thereof); (ii) that to the
best of its knowledge there are no uncured defaults on the part of Landlord (or
if any such default exists, the specific nature and extent thereof); (iii) the
date to which any rent and other charges have been paid in advance, if any; and
(iv) such other matters as Landlord may reasonably request.
C. If Landlord notifies Tenant of the existence of any Security Deed
with respect to the Premises, Tenant agrees that its will not exercise any right
to terminate this Lease, to claim a partial or total eviction, or to reduce any
rental payments hereunder on account of any act or omission by Landlord or any
other occurrence, unless the situation remain unremedied after Tenant has
notified the holder of such Security Deed, in writing, of such act, omission or
occurrence, and given the holder of such Security Deed a reasonable opportunity
to remedy the situation.
D. Landlord shall upon request from Tenant at any time and from time
to time execute, acknowledge and deliver to Tenant a Subordination of Landlord's
Lien in the form attached as Exhibit "F".
27. NO ESTATE IN LAND - This contract shall create the relationship of
Landlord and Tenant between the parties hereto; no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and not
assignable by Tenant except by Landlord's consent.
28. CONSTRUCTION OF THIS AGREEMENT - No failure of Landlord to exercise
any power given Landlord hereunder, or to insist upon strict compliance by
Tenant with its obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Landlord's right
to demand exact compliance with the terms hereof. Time is of the essence of this
Lease.
29. HOLDING OVER - If Tenant remains in possession of the Premises after
expiration of the term hereof, with Landlord's acquiescence and without any
express agreement of the parties, Tenant shall be a tenant at will at a rental
rate equal to one hundred fifty percent (150%) of the rental rate in effect at
end of Lease; and there shall be no renewal of this Lease by operation of law.
30. ATTORNEYS' FEES AND HOMESTEAD - If any rent owing under this Lease is
collected by or through an attorney at law, Tenant agrees to pay reasonable
attorneys' fees. Tenant waives all homestead rights and exemptions, which he may
have under any law as against any obligation owing under this Lease. Tenant
hereby assigns to Landlord its homestead and exemption.
31. ENVIRONMENTAL MATTERS - The term "Hazardous Substances" as used in
this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or
any other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law," which term shall
mean any federal, state or local law or ordinance relating to pollution or
protection of the environment. Tenant hereby agrees that (i) no activity will be
conducted on the Premises that will produce any Hazardous Substance, except for
such activities that are part of the ordinary course of Tenant's business
activities that are consistent with Tenant's permitted uses under Section 9. of
this Lease (the "Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environment Laws and have been expressly
approved in advance in writing by Landlord; (ii) the Premises will not be used
in any manner for the storage of any Hazardous Substances except for the storage
of such materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials") and expressly approved in advance in writing by Landlord,
provided such Permitted Materials are properly stored in a manner and location
meeting all Environmental Laws and in quantities that do not exceed the amounts
approved in writing by Landlord; (iii) no portion of the Premises will be used
as a landfill or a dump; (iv) Tenant will not install any underground tanks of
any type; (v) Tenant will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time may
constitute, a public or private nuisance; (vi) Tenant will not permit any
Hazardous Substances to be brought onto the Premises, except for the Permitted
Materials described above, and if so brought or found located thereon, the same
shall be immediately removed, with proper disposal, and all required cleanup
UNITED NATURAL FOODS, INC.
Commercial Lease Agreement
000 Xxxxxxxx Xxxxx
Page 8
procedures shall be diligently undertaken pursuant to all Environmental Laws.
If, at any time during or after the term of this Lease, the Premises is found to
be so contaminated or subject to said conditions, Tenant agrees to indemnify and
hold Landlord harmless from all claims, demands, actions, liabilities, costs,
expenses, damages and obligations of any nature arising from or as a result of
the use of the Premises by Tenant. Landlord agrees to indemnify and hold Tenant
harmless from all claims, demands, actions, liabilities, costs, expenses,
damages and obligations of any nature arising from any hazardous materials which
existed before, during or after Tenant's occupancy except for such items covered
by Tenant's indemnity in the preceding sentence. The foregoing indemnifications
shall survive the termination or expiration of this Lease. Landlord acknowledges
that Tenant's cleaning solvents, office products and similar items used during
the ordinary course of business constitute Permitted Materials which may be used
without prior notification to Landlord.
32. SERVICE OF NOTICE - Tenant hereby appoints as its agent to receive
service of all dispossessory or distraint proceedings and notices thereunder,
and all notices required under this Lease, the person in charge of the Premises
at the time, or occupying said Premises; and if no person is in charge of, or
occupying said Premises, then such service or notice may be made by attaching
the same on the main entrance to said Premises. A copy of all notices under this
Lease shall also be sent to Tenant's last known address, if different from said
Premises. In addition to the foregoing, all notices to Tenant shall also be sent
to:
Xxxxx Xxxxxxxx
United Natural Foods, Inc.
000 Xxxx Xxxx
Xxxxxxxx, XX 00000
33. EXCULPATION OF LANDLORD - Provided Landlord continues to maintain in
force and effect the insurance required to be maintained pursuant to the
provisions of this Lease, the obligations contained in this Lease to be
performed by Landlord shall be binding on Landlord and its successors and
assigns, only during their respective periods of ownership. Provided Landlord is
in compliance with Section 13(B)(1) of this Lease, Tenant further agrees that
Landlord's obligations and liability to Tenant with respect to this Lease shall
be limited solely to Landlord's equity interest in the Premises, and Tenant
shall look solely to such interest for the satisfaction of any claim, judgment
or decree requiring the payment of money by Landlord based on any default under
this Lease, and no other property or assets of Landlord, its affiliates,
successors, partners, shareholders, subsidiaries, or assigns, shall be subject
to levy, execution or other enforcement procedures for the satisfaction of any
such claim, judgment, injunction or decree.
34. DEFINITIONS - The term "Landlord" and "Tenant" includes male and
female, singular and plural, corporation, partnership or individual, as may fit
the particular parties. If this Lease shall be validly assigned or the Premises
validly sublet, the term "Tenant" shall include such assignee or sublessee, as
to the Premises covered by such assignment or sublease.
35. AGENCY DISCLOSURE - Tenant and Landlord each represents and warrants
to the other that no real estate broker, agent, commission salesman, or other
person other than NAI/XXXXXXX XXXXXXX L.L.C., which has represented Tenant, in
the negotiations for and procurement of this Lease and of the Premises, and that
no commissions, fees or compensation of any kind are due and payable in
connection herewith to any real estate broker, agent, commission salesman or
other person (even including the broker or other person or firm excluded above
from the Tenant's warranty of no broker) except if and only as may be provided
in a separate written commission agreement signed by the party against whom the
commission or compensation is charged. Each party agrees to indemnify and hold
the other hereunder harmless from and against any claim for any such
commissions, fees or other form of compensation by any such third party claiming
through the indemnifying party, including, without limitation, any and all
claims, causes of action, damages, costs and expenses (including attorneys'
fees), associated therewith. Landlord is paying NAI/XXXXXXX XXXXXXX L.L.C. a
commission pursuant to a separate agreement.
36. SEVERABILITY AND INTERPRETATION - If any clause or provision of this
Lease shall be deemed illegal, invalid or unenforceable under present or future
laws effective during the Lease term, then and in that event, the remainder of
this Lease shall not be affected by such illegality, invalidity or
unenforceability. Should any of the provisions of this Lease require judicial
interpretation, it is agreed that the court interpreting or construing the same
shall not apply a presumption that the terms of any such provision shall be more
strictly construed against one party by reason of the rule of construction that
a document is to be construed most strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation of this Lease. The captions used in
this Lease are for convenience only and shall be considered to be of no effect
in the construction of any provision of this Lease.
37. GEORGIA LAW - The laws of the State of Georgia shall govern the
interpretation, validity, performance and enforcement of this Lease.
38. EXECUTION AND PUBLIC RECORDS - This Lease may be executed in any
number of counterparts, each of which shall be deemed an original and any of
which shall be deemed to be complete in itself and may be introduced into
evidence or used for any purpose without the production of the other
counterparts. No modification or amendment of this Lease shall be binding upon
the parties unless such modification or amendment is in writing and signed by
Landlord and Tenant. Without the prior written consent of both parties, neither
this Lease nor any memorandum hereof shall be recorded or placed on public
record. Notwithstanding the foregoing, Landlord agrees to execute a memorandum
of Lease that Tenant may record in the Public Records of Xxxxxx County Georgia.
UNITED NATURAL FOODS, INC.
Commercial Lease Agreement
000 Xxxxxxxx Xxxxx
Page 9
39. SUBMISSION OF LEASE - The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant and upon execution of any required
Lease guaranty attached hereto.
40. ENTIRE AGREEMENT - This Lease contains the entire agreement between
the parties hereto and no representation or warranty or agreement, oral or
otherwise, between the parties not embodied herein shall not be of any force or
effect. No modification, amendment or alterations of this Lease shall be
effective unless same shall be in writing and signed by Landlord and Tenant. If
any special stipulations are attached to this Lease, then insofar as such
stipulations conflict with any of the foregoing provisions, the stipulations
shall control.
41. SITE PLAN - One plan dated January 27, 1999, as revised through May
17, 2001 and showing a building containing 311,793 Square Feet is attached
hereto as EXHIBIT "C" and by this reference is made a part hereof.
Notwithstanding any other provision of this Special Stipulation or any plan
mentioned herein, in no event shall any plan incorporated herein be effective to
lease and rent more property than is described as the "premises" in Section 1 of
this Lease.
42. WAREHOUSE FLOOR PLAN - Two plan sheets identified as Sheets 1 of 2 and
2 of 2 each dated May 17, 2001, are attached hereto as EXHIBIT "D" and by this
reference is made a part hereof. Notwithstanding any other provision of this
Special Stipulation or any plan mentioned herein, in no event shall any plan
incorporated herein be effective to lease more property than is described as the
"premises" in Section 1 of this Lease.
43. ENTRANCE AND DRIVES - Any common entrance drives and common
maneuvering areas are described in Exhibit "A" attached hereto.
44. TENANT IMPROVEMENT ALLOWANCE -Landlord agrees to provide Tenant at
improvement allowance of ONE MILLION SIXTY AND 00/100 ($1,060,000.00) DOLLARS
for use for the construction of offices and other improvements to the premises.
All plans and specifications for such improvements must be submitted to Landlord
for approval prior to commencement of construction, which approval will not be
unreasonably withheld or delayed. In any event, Landlord will approve or
disapprove of said plans and specifications within five (5) business days after
receipt by Landlord. Landlord acknowledges that Tenant intends to build freezer
and cooler areas in the Premises, which areas are subject to Landlord's approval
as set forth herein. At Tenant's election, Landlord shall (i) pay to Tenant the
allowance of $1,060,000.00 after completion of the improvements and receipt of a
final lien waiver from the general contractor and all subcontractors or (ii) pay
the general contractor directly in accordance with requests for payment made
jointly by Tenant and the general contractor. Under subparagraph (ii), final
payment to the general contractor will be conditioned upon receipt of a final
lien waiver from the general contractor and all subcontractors.
45. PURCHASE OPTION - Tenant shall have the right to purchase the building
and land for $9,331,964 plus an additional amount of $58,325/month (prorated at
$1,917.54/day) from the Commencement Date to the purchase closing date, by
giving written notice to Landlord on or prior to September 1, 2001 and closing
on the sale on or before January 15, 2002 , with the closing date to be
determined by Landlord by giving Tenant 30 days advance written notice of the
date of closing. The purchase price shall be paid all in cash and the purchase
shall be closed by the execution of the documents in the form as attached hereto
as Exhibit "E" and by this reference made a part hereof. The sale of the
Premises is subject to the following additional terms and conditions:
A. Landlord represents and warrants, to the best of its knowledge,
that as of the date hereof and the date of closing of the sale of the Premises:
(a) this Lease and its execution, delivery and performance by Landlord have been
duly authorized by all necessary action on behalf of Landlord; and the sale of
the Premises, and the consummation of the transactions contemplated hereby, will
not result in any violation or breach of any indenture or agreement to which
Landlord is a party or by which Landlord or the Premises is affected or bound;
(b) the use of the Premises for the purposes permitted under this Lease are
permitted under applicable zoning and similar laws, rules and ordinances; (c)
neither Landlord nor any other party is in the default in the payment and
performance of any of its obligations under the protective covenants set forth
in Exhibit A or any other restrictions affecting the Premises; (d) Landlord has
received no notice of any condemnation proceeding or declaration of taking or
other similar instrument filed against the Premises, and there is no litigation
or proceeding pending or threatened which affects Landlord or the Premises; (e)
Landlord has not received any notice of any requirement of any insurance carrier
requiring any modifications or work to be performed on the Premises as a
condition to the maintenance or renewal of any policies of insurance in respect
of the Premises; and (f) no person, firm or entity, has any rights in, or rights
to acquire, the Premises or any part thereof, except as set forth in the Title
Insurance Commitment described below.
B. Notwithstanding the exercise by Tenant of its option to purchase
the Premises, Tenant's obligations to purchase shall be subject to the issuance
by a nationally recognized title insurance company of a title insurance policy
in the amount of the purchase price insuring title to the Premises free and
clear of all liens, claims and encumbrances except those (other than mortgages
and similar liens) set forth in Commitment Number 2-11924(B)(R2) issued by
Chicago Title Insurance Company to First Union National Bank of Georgia, a copy
of which has been delivered to Tenant.
C. Landlord agrees to execute and deliver such affidavits and other
documents as Tenant's lender or title insurance company may reasonably request
in connection with the sale of the Premises and the issuance of such title
insurance policy. The provisions of this Section 45 and of Section 10 shall
survive until July 31, 2002.
D. Landlord shall be responsible for the payment of any required
state and local transfer taxes and the delivery of applicable transfer tax
declarations.
UNITED NATURAL FOODS, INC.
Commercial Lease Agreement
000 Xxxxxxxx Xxxxx
Page 10
E. Concurrently with the closing, Landlord shall deliver to Tenant
copies of all plans, specifications, permits, licenses and similar documents
relating to the Premises.
46. FIRST RENEWAL OPTION - Provided this Lease is in full force and effect
at the expiration of the original one hundred eighty-four (184) month term of
this Lease, and provided that an uncured default does not exist, the term shall
be extended at the option of Tenant for an additional period of five (5) years
then next ensuing, on the same terms, covenants and conditions as herein set
forth, except that the Renewal Option provided for by this Section shall not be
part of the Lease during the extended period and except that the annual rental
shall be the then "market rent" at the time the notice required to be given by
this Paragraph is given by Tenant to Landlord for comparable space in the area
by taking into account, among other things, recent comparable leases made by
Landlord, the location of the premises, quality of construction, stacking
height, quality and type of paving, sprinkler system, bay sizes, landscaping,
age of improvements, broker commissions, Tenant improvements and modifications
and comparable obligations of Landlord provided, however, that the value of
freezers, coolers, grain room and racking equipment or systems shall be excluded
from the determination of "market rent" by Landlord and such areas shall be
valued as dry storage area only. Tenant may request in writing that Landlord
provide Tenant with the then "market rent" (as defined above) for the premises
fifteen (15) months prior to the expiration of the extended term of this Lease.
Landlord shall provide Tenant with such "market rent" in writing within fifteen
(15) days of receipt of Tenant's written request. If Tenant does not agree with
Landlord's market rent, and Landlord and Tenant cannot agree on market rent
within thirty (30) days after Landlord provides Tenant with market rent, then
Tenant shall have the option of having market rent determined by an arbitrator
(the "Arbitrator") by sending written notice to Landlord of its desire to do so
within five (5) days after the end of said thirty (30) day period. The
Arbitrator shall be selected by The Atlanta Commercial Board of Realtors and
shall be someone with at least ten (10) years experience in industrial space in
Metropolitan Atlanta. Landlord and Tenant both shall submit what they deem to be
market rent to the Arbitrator within ten (10) days after such thirty (30) day
period. The Arbitrator shall have thirty (30) days to make its decision. The
Arbitrator shall be instructed that it must select either Landlord's market rent
or Tenant's market rent. (The Arbitrator shall not select any other market rent.
It must either be Landlord's or Tenant's market rent.) The Arbitrator's decision
shall be final and shall not be appealable. The fees of the Arbitrator shall be
shared equally by Landlord and Tenant. By deciding to use the Arbitrator to
determine market rent in accordance with the above, Tenant shall be deemed to
have exercised its renewal option. If the Arbitrator is not used to determine
market rent, Tenant shall give Landlord twelve (12) months' written notice prior
to the expiration of the extended term of Tenant's desire to so extend such
term; provided further that the option to renew provided for herein shall be
terminated if and when this Lease is terminated, or if and when an uncured
default exists hereunder at any time.
47. SECOND RENEWAL OPTION - Provided this Lease is in full force and
effect at the expiration of the first extended term of this Lease, and provided
that an uncured default does not exist, the first extended term shall be
extended at the option of Tenant for an additional period of five (5) years then
next ensuing, on the same terms, covenants and conditions as herein set forth,
except that the Second Renewal Option provided for by this Paragraph shall not
be part of the Lease during the second extended period and except that the
annual rental shall be the then "market rent" at the time the notice required to
be given by this Section is given by Tenant to Landlord for comparable space in
the area by taking into account, among other things, recent comparable leases
made by Landlord, the location of the premises, quality of construction,
stacking height, quality and type of paving, sprinkler system, bay sizes,
landscaping, age of improvements, broker commissions, Tenant improvements and
modifications and comparable obligations of Landlord. The determination of
"market rate" and the timing of exercising the option shall be the same as set
forth above except that all references to the "extended term" shall refer to the
"first extended five (5) year term" for the purpose of the timing of giving
notice.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals
the day and year first above written.
Signed, sealed and delivered as of the ___ M.D. XXXXXX ENTERPRISES, INC.
day of __________, 2001, as to Landlord, in
the presence of:
By: --------------------------
------------------------------------------- Name: --------------------------
Unofficial Witness Title: --------------------------
------------------------------------------- [CORPORATE SEAL]
Notary Public
Signed, sealed and delivered as of the ___ UNITED NATURAL FOODS, INC.
day of __________, 2001, as to Landlord, in
the presence of:
By: --------------------------
------------------------------------------- Name: --------------------------
Unofficial Witness Title: --------------------------
------------------------------------------- [CORPORATE SEAL]
Notary Public
