EXHIBIT 10.23
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LEASE
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THIS LEASE IS MADE AND entered into this 12 day of July,
1990, by and between CORNUCOPIA NATURAL FOODS, INC., a
Rhode Island corporation ("Tenant") and SYLVAN AND XXXXXXXX
XXXXXXX JOINT VENTURE ("Landlord").
W I T N E S S E T H
Demise
------
Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain real property and the improvements
thereon (comprising approximately 175,380 square feet), more
particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Premises").
Such leasing is subject to the terms, covenants and
conditions herein set forth and Tenant and Landlord covenant as
a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by
them to be kept and performed.
1.
Purpose
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The Premises are to be used as a warehouse and distribution
center for Tenant's business, which is the production or sale of
health foods products, and for no other purpose without the
prior written consent of Landlord, which consent shall not be
unreasonably withheld.
2.
Term
----
SEE ADDENDUM (a) The term of this Lease shall be for a period of eight
No. 1. (8) years and eight (8) months beginning on the Commencement
Date as hereinafter defined and ending at midnight on March 31,
1999 (the "Term"), except as otherwise expressly provided in
this Lease.
3.
Definitions Used in This Lease
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(a) The term "Energy Costs" means the cost for all electric
power, water and other utilities for heating, air conditioning,
cooling, ventilating and lighting the Premises.
(b) The term "Lease Year" means the period from the
commencement date to a period six (6) months thereafter and each
successive twelve (12) month period thereafter.
(c) The term "Operating Costs" means any and all expenses,
costs and disbursements (other than taxes as defined in Section
3(d), of every kind and nature whatsoever, in connection with
the management, maintenance, operation and repair of the
Premises and the building included in the Premises (the
"Building) excepting, without limitation, Energy Costs, all
utilities, landscaping and other maintenance of property which
benefit the Premises, insurance costs, repairs, and expenses for
security services, maintenance and decorating.
(d) The term "Taxes" means any and all taxes of every kind
and nature whatsoever relating to the Premises during a calendar
year (regardless of whether such taxes were assessed or became a
lien during, prior or subsequent to the calendar year of payment
because of or in connection with the ownership, leasing and
operation of the Premises including without limitation, real
estate taxes, personal property taxes, sewer rents, water rents,
special assessments, transit taxes.
4.
Base Rent
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SEE ADDENDUM (b) Any rent or other amount due from Tenant to Landlord
No. 2. under this Lease not paid when due or within ten (10) days
thereafter shall bear interest from the date due until the date
paid at the annual rate of two (2) percentage points above the
prime rate charged by the Citizens and Southern National Bank
(also called the Corporate Base Rate by said Bank) on ninety
(90) day commercial loans to its largest customers from time to
time during during such period but the payment of such interest
shall not excuse or cure any default by Tenant under this Lease.
The covenants herein to pay rent shall be independent of any
other covenant set forth in this Lease. If the prime
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rate is no longer used by the said bank or it is not feasible to
use the prime rate to calculate the interest rate charged
herein, Landlord may use such other comparable index as the
parties mutually agree upon.
(c) Base Rent and all of the rent provided herein shall be
paid in lawful money of the United States of American to Sylvan
and Xxxxxxxx Xxxxxxx Joint Venture at 000 Xxxxx Xxxx Xxxxx,
X.X., Xxxxxxx, Xxxxxxx 00000 or as designated from time to time
by written notice from Landlord.
5.
Taxes
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(a) From the Commencement Date, Tenant shall be responsible
for and shall pay all taxes for the Premises and Building during
any calendar year or a portion thereof during the Term. Tenant
shall pay all Taxes directly to the appropriate taxing
authority. Landlord shall deliver all tax bills to Tenant as
soon as practicable after receipt by Landlord. Taxes relating to
any tax year in which the the commencement or the expiration
(for whatever reason) of the Lease occurs shall be apportioned;
provided, however, Landlord shall not be required to apportion
such payments if the Lease has been terminated by reason of
default by Tenant. Taxes shall be prorated for the first and
last Lease Year and Tenant shall deliver its pro rata portion of
such taxes to Landlord within fifteen (15) days after requested
by Landlord.
6.
Operating Costs
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As of the Commencement Date, Tenant shall pay, as additional
rent for any calendar year or portion thereof during the Term,
an amount equal to all of the Operating Costs related to the
Premises and Building. Tenant shall pay all Operating Costs as
they are incurred directly to the appropriate creditor and if
requested by Landlord, shall provide satisfactory evidence of
such payment. Tenant shall be responsible, at sole expense, for
all utilities and other services required used, rendered or
supplied in or to the premises.
7.
Insurance
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(a) During the Term, Tenant, at no cost or expense to
Landlord, will keep and maintain ("All Risk" insurance coverage
for physical loss or damage to the Premises with liability
limits of not less than 100% of the full insurable value of the
Premises (without deduction for depreciation). Such policy shall
be of broad form and shall include, but shall not be limited to,
coverage for fire, extended coverage, vandalism and malicious
mischief. Each policy shall have a "replacement cost"
endorsement, which provides for payment of the actual cost of
repair or replacement without depreciation or deduction. "Full
insurable value" as used herein, means the actual cost of
replacing the Building. All of the policies of insurance
provided in this Agreement shall be in form and substance and
with companies approved by Landlord. Tenant shall deliver to
Landlord certificates showing such insurance to be in full force
and effect, and to the extent permitted by the Tenants insurance
carrier, such policies shall contain express waivers by the
insurer thereon of any rights of subrogation against waivers by
the insurer thereon of any rights of subrogation against
Landlord and any holder of indebtedness secured by a deed to
secure debt against the Premises, as insured, all as their
respective interests may appear. All policies of insurance
required hereunder, except for general liability insurance and
workers' compensation insurance, shall also provide for payment
of loss to Landlord, Tenant and the holder of any indebtedness
secured a deed to secure debt against the Premises, as their
interests may appear.
All such policies of insurance shall also provide for the
adjustment of claims with the insured under such policy by
Landlord, Tenant and the holder of any indebtedness secured by a
deed to secure debt against the Premises in the case of any
particular casualty resulting in damage or destruction of the
Premises exceeding $25,000.00
SEE ADDENDUM (b) All insurance policies shall be renewable by Tenant
No. 3. annually. Prior to or on such expiration dates, tenant shall
deliver to the Landlord a certificate showing said insurance to
be in full force and effect.*
8.
No Waiver Adjustment
--------------------
Any delay or failure of Landlord in computing or billing for
the Base Rent or any other payments required hereunder shall not
constitute a wavier of or in any way impair the continuing
obligation of Tenant to pay Base Rent or to make such payments.
Notwithstanding
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any expiration or termination of this Lease, Tenant's obligation
to pay Base Rent or other payments required hereunder shall
continue and shall cover all periods up to the expiration date,
and shall survive any expiration or termination of this Lease.
9.
Holding Over
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Should Tenant hold over after the termination of this Lease
by lapse of time or otherwise, Tenant shall become a tenant from
month to month and shall be bound by each and all of the terms
herein provided as may be applicable to such month to month
tenancy and any such holding over shall not constitute an
extension of this Lease; provided, however, during such holding
over, Tenant shall pay Base Rent at 200% of the rate payable for
the month immediately preceding said holding over, shall
continue to be responsible for all expenses as set forth herein
and in addition, Tenant shall pay Landlord all damages,
consequential as well as direct, sustained by reason of Tenant's
holding over.
10.
Building Service
----------------
(a) Tenant shall be responsible for and shall maintain and
keep lighted the exterior Premises as determined to be necessary
by Tenant. Tenant shall not use, improve, occupy or permit or
suffer the use, improvements or occupancy of the Premises or any
part thereof or keep or allow to be kept any material,
machinery, equipment, substance or other thing in any manner:
(i) which will constitute a violation of any law, statute, rule
or regulation of any local, state or federal governmental agency
or bureau; (ii) will cause any fire insurance or other policy or
policies of insurance with respect to the Premises or protecting
Landlord to be cancelled or voided; (iii) is in violation of or
contrary to interference with any easement, covenant, condition,
restriction or agreement to which the Premises or any part
thereof or Tenant is subject; or (iv) will constitute a
commission of waste.
(b) Tenant shall obtain and keep in full force and effect
throughout the Term any and all necessary permits, licenses,
certificates or other authorizations required in connection with
the lawful and proper use, occupancy, operation and management
of the Premises.
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11.
Condition of the Premises
-------------------------
SEE ADDENDUM
No. 4.(A.)
(b) All maintenance, repairs and replacements of the
premises and Building shall be at the sole expense of the
Tenant. Landlord shall not be required to furnish any services
or facilities, or to make any repairs or alterations, of any
nature whatsoever with respect to the Premises, except as
provided in Section 11 (c) and 12 (c).
SEE ADDENDUM (c) Landlord agrees to repair or to make replacements to
No. 4.(B.) the roof of the Building so that the same remains in
substantially leak-free condition and to repair or make
replacements to the structural walls, foundation, of the
Building (specifically excluding water mains, air conditioning,
gas and water lines, fixtures, glass, utilities, connections or
other service connections, wall coverings and insulations) so
that the same shall remain reasonable sound and serviceable for
their intended purpose, provided that Landlord will not be
obligated to make any repairs or replacements caused by the
neglect or deliberate acts of Tenant, its agents, employees or
invitees.
(d) Tenant hereby agrees to keep and maintain, at its sole
expense, the Premises in clean, sanitary, good, first class
order, condition or repair, or replace as necessary throughout
the Term, the Premises and every part thereof with the exception
of only those portions of the Building for which Landlord is
responsible according to the express provisions of Section
11(c). Without limiting the foregoing, Tenant hereby agrees to
keep and maintain in good working order and repair: (i) any
sprinkler systems and utility lines serving within the Premises;
(ii) all other utility lines within and without the Premises;
(iii) any and all fixtures installed by Tenant; (iv) any portion
of the heating ventilating and air conditioning systems
servicing the Premises; (v) utility lines within or serving the
Premises; and (vi) glass within or without the Premises. Tenant
shall also, at its sole cost, remove on a regular basis any
trash, waste and debris from the Premises. Tenant shall not be
required to make any repairs if such repairs are made necessary
by any act or omission of Landlord or its employees, agents,
SEE ADDENDUM invitees, licensees, visitors or contractors. Landlord shall be
NO. 4.(C.) entitled upon reasonable notice* to enter the Premises during
normal business hours in order to make reasonable inspections of
the Premises or to make such repairs or replacements as may be
required hereunder in the
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event Tenant fails to make the same or to make any other repairs
which Landlord may deem necessary for the safety of, or the
preservation of, the Premises or the Building and to charge the
expense thereof to Tenant, which charge shall be deemed
additional rent. At the end of the Term, Tenant shall deliver
the Premises to Landlord in good repair and first class
condition, reasonable wear and tear excepted.
SEE ADDENDUM NO. * 12.
4.(D.)
Tenant Improvements
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(a) Tenant hereby agrees, and Landlord hereby acknowledges,
that Tenant is to make alterations to the Premises so as to make
the Premises suitable for use by Tenant as a warehouse. Such
improvements shall include but shall not be limited to: (i) the
realignment of the lights within the Building; (ii) adding dock
levelers to the Building; (iii) sealing the warehouse floor;
(iv) adding freezers and coolers to the Building; and (v)
SEE ADDENDUM caulking the perimeters of the building (collectively, the
No. 5.(A.) "Tenant Improvements").* The Tenant Improvements shall be at the
sole cost, expense and responsibility of Tenant except as noted
below and Tenant shall indemnify and hold Landlord harmless for
any costs, expenses, fees or damages relating to the Tenant
Improvements. At least fifteen (15) days prior to the
commencement of any work relating to the Tenant Improvements,
Tenant shall deliver to Landlord plans and specifications
setting forth the design of the Tenant Improvements. Such plans
and specifications must be approved by Landlord prior to
commencement of work by Tenant which approval shall not be
unreasonably withheld, the Landlord shall have the right, at its
sole cost and expense, to hire an architect or engineer to
review the plans and specifications. Once the plans and
specifications are approved by Landlord, Tenant shall be
entitled to commence the Tenant work, which must be
substantially completed in accordance with the plans and
specifications. Such Tenant Improvements shall be completed in a
first class workmanlike condition.
SEE ADDENDUM
No. 5.(B.)
SEE ADDENDUM * 13.
No. 6.
Compliance with Law
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Tenant shall not use the Premises or permit anything to be
done in or about the Premises which in any way conflicts with
any law, statute, ordinance or governmental rule or regulation
now in force or which may hereafter be enacted or promulgated.
Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules,
regulations or requirements now or in force or which may
hereafter be in force and with the requirements of any board of
fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or
occupancy of the Premises. The judgment of any court or
competent jurisdiction or the admission of Tenant in any action
SEE ADDENDUM against Tenant, whether Landlord be a party thereto or not, that
No. 7. Tenant has violated any law, statute, ordinance or governmental
rule, regulation or requirement shall be conclusive of that fact
as between Landlord and Tenant.
14.
Alterations and Repairs
-----------------------
Tenant shall keep the Premises in good condition and repair
and shall not do any painting or decorating, or erect any
partitions, make any alterations in or additions, changes or
repairs to the Premises without Landlord's prior written
approval in each and every instance, such consent not to be
unreasonably withheld. During the Term of this Lease, no work
shall be performed by or under the direction of Tenant without
the express written consent of Landlord, Unless otherwise
provided by written agreement, all alterations, improvements,
and changes shall remain upon and be surrendered with the
Premises, excepting however that at Landlord's option, Tenant
shall, at its expense, then surrendering the Premises, remove
from the Premises any trade fixtures provided the Premises are
restored to a condition reasonably satisfactory to Landlord. If
Tenant does not remove said additions, decorations, fixtures,
hardware, non-trade fixtures and improvements after request to
do so by Landlord, Landlord may remove the same and Tenant shall
pay the cost of such removal to Landlord upon demand. Tenant
hereby agrees to hold Landlord and Landlord's heirs and
beneficiaries, their agents and employees harmless from any and
all liabilities of every kind and description which may arise
out of or be connected in any way with said alterations or
additions. Except as provided in Section 12(c) hereof, any
mechanic's or materialmen's lien filed against Premises for work
claimed to have been furnished to Tenant shall be discharged of
record by Tenant within ten (10) days thereafter, at Tenant's
expense, provided however Tenant shall
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have the right to contest any such lien on the posting of
reasonably sufficient security.
15.
Abandonment
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During the Term, if Tenant shall abandon, vacate or
surrender (whether at the end of the stated Term or otherwise)
the Premises; or be dispossessed by process of law, or
otherwise, any personal property belonging to Tenant and left on
the Premises shall be deemed abandoned and become the property
of Landlord, at the option of Landlord.
16.
Assignment and Subletting
-------------------------
SEE ADDENDUM (a) Provided that Tenant is in good standing and not in
No. 8. default under the terms and conditions of this Lease, Tenant may
sublet*; in the event of such sublease, Tenant shall remain
liable to Landlord under the Terms of this Lease unless Landlord
releases Tenant pursuant to paragraph (e) hereof.
(b) Except as provided in Section (c) hereof, Tenant shall
not assign, transfer or otherwise encumber this Lease, or any
portion of the term thereof, without the previous written
consent in each instance of Landlord, and Tenant shall furnish
to Landlord a copy of such proposed instrument, Landlord
agreeing, however, not to unreasonably withhold consent to
assigning.
(c) Notwithstanding anything to the contrary contained
herein, Tenant shall have the right to assign this Lease to the
entity which is a parent, subsidiary or affiliate of the Tenant
named herein, without Landlord's consent.
(d) No assignment shall be effective until there shall have
been delivered to Landlord an executed counterpart of such
assignment containing an agreement, in recordable form, executed
by the assignor and the proposed assignee, (and executed by
Landlord to evidence Landlord's consent) whereby such assignee
assumes due performance of the obligations on the assignor's
part to be performed under this Lease to the end of the term
hereof.
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(e) The consent by Landlord to any assignment shall not
constitute a waiver of the necessity for such consent to any
subsequent assignment or subletting. Notwithstanding any
permitted assignment or sublease, Tenant shall remain fully
liable and shall not be released from performing any of the
terms of this Lease, except as specifically provided in Section
(e). In the event the amount of rend paid by a subtenant to
Tenant exceed the sum paid as Rent by Tenant to Landlord for the
same premises, Tenant shall be entitled to retain the excess
except as otherwise provided herein. If Tenant requests to be
released from its obligations to Landlord (including the
obligation to pay Rent to Landlord for the portion of the
Demised Premises which is subleased), and if Landlord agrees to
release Tenant, then Tenant shall assign directly to Landlord,
all of Tenant's rights to receive payments under the sublease,
in consideration for such release. Notwithstanding the
foregoing, in the event any charges due to Tenant from a
subtenant relate to logistics distribution services rendered by
Tenant to subtenant, as provided in an operating agreement
between subtenant and Tenant, such payments shall not be part of
any "rent" or other charge payable to Landlord in the event of a
release by Landlord of Tenant.
17.
Signs
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Tenant shall have the right to place or fix any exterior or
interior signs are visable from the outside of the premises
provided the placing of said signs is in compliance with
applicable law.
18.
Damage to Property - Injury to Persons
--------------------------------------
Tenant, as a material part of the consideration to be
rendered to Landlord under this Lease, to the extent permitted
by law, hereby waives all claims except claims caused by or
resulting from the non-performance, willful and wanton conduct
or negligence of Landlord, its agents, servants or employees,
which Tenant or Tenant's successor or assigns may have against
Landlord, its agent, servants or employees from loss, theft or
damage to the property and for injuries to persons in, upon or
about the Premises from any cause whatsoever. Tenant will hold
Landlord, their heirs, representatives, agents, servants, and
employees exempt and harmless from and on account of any damage
or injury to any person, or to the goods, wares and merchandise
of any person, arising from the uses of the Premises by Tenant
or arising from
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the failure of Tenant to keep the Premises in good condition as
herein provided, if non-performance by Landlord or negligence by
Landlord, its agents, servants or employees does not contribute
thereto, Tenant agrees to pay for all damage to the Premises
caused by Tenant's misuse or neglect of Premises, its apparatus
or appurtenances or caused by any licensee, contractor, agent or
employees of Tenant. Notwithstanding the foregoing provisions,
neither Landlord nor Tenant shall be liable to one another for
any loss, damage or injury caused by its act or neglect to the
extent that the other party has recovered the amount of such
loss, damage or injury from insurance and the insurance company
is bound by this waiver of liability.
Particularly, but not in limitation of the foregoing
paragraph, all property belonging to Tenant on the Premises
shall be at the risk of Tenant, and Landlord or their heirs,
representatives, agents, servants, or employees (except in case
of non-performance, negligence or willful and wanton conduct of
Landlord or their agents, servants, employees) shall not be
liable for: (i) damage to or theft of or misappropriation of
such property; nor for any damage to property entrusted to
Landlord, their agents, servants, or employees, if any; (ii) for
the loss of or damage to any property by theft or otherwise, by
any means whatsoever; (iii) for any injury or damage to persons
or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, snow, water or rain which may leak from
any part of the Building or from pipes, appliances or plumbing
works therein or frontthe roof, street or subsurface or from any
other place or resulting from dampness or any other cause
whatsoever; (iv) for interference with the light or other
incorporeal hereditaments; or (v) for any latent defect in the
Premises or in the Building. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the
Building or of defects therein or in the fixtures or equipment.
In case any action or proceeding be brought against Landlord
by reason of any obligation of Tenant's part to be performed
under the terms of this Lease, or arising from any act or
negligence of Tenant, or of their agents or employees, Tenant,
upon notice from Landlord shall defend the same at Tenant's
expense by counsel mutually agreed upon by the Landlord and the
Tenant.
Tenant shall maintain in full force and effect during the
Term of this Lease (including any period prior to the beginning
of the Term during which Tenant has taken possession and
including also any period of extension of the Term in which
Tenant obtains possession), with responsible companies; (i)
public liability insurance insuring
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Tenant against all claims, demands or actions for injury to
or death of any one person in an amount of not less than One
Million ($1,000,000.00) Dollars and for injury to or death of
not more than one person in any one accident in an amount not
SEE ADDENDUM less than One Million ($1,000,000.00) Dollars and for damage to
No. 9. property in an amount of no less than One Million
($1,000,000.00) Dollars.*
All such policies, shall name Landlord, any mortgagees of
Landlord, and all other parties designated by Landlord as
additional parties insured. All insurance policies shall
indicate that at least thirty (30) days prior written notice
shall be delivered to all additional parties insured by the
insurer prior to termination of cancellation of such insurance
and Tenant shall provide Certificates of Insurance, not less
than ten (10) days prior to the Commencement Date of the Term
hereof, evidencing the aforesaid coverage to all insured
parties. Tenant shall not violate or permit a violation of any
of the conditions or terms of any such insurance policies and
shall perform and satisfy all reasonable requirements of the
insurance company issuing such policies.
19.
Damage or Destruction
---------------------
(a) Tenant shall give prompt notice to Landlord of all
occurrences, in, on or about the Premises which result in any
personal injury or death or any damage or destruction of the
Premises or any part thereof, generally describing the nature
and extent of the injury, death, damage or destruction.
(b) In the event that the leased premises shall be totally
destroyed by fire or other casualty insured against, or shall be
so damaged that repairs and restoration cannot be accomplished
both (a) within a period of one hundred twenty (120) days, and
(b) more than ninety (90) days prior to the expiration of the
term hereof, including any renewal term for which the option
therefor shall have been exercised, this Lease shall
automatically terminate without further act of either part
hereto and each party shall be relieved of any further
obligation to the other except that the Tenant shall be liable
for and shall promptly pay the Landlord any rent then in arrears
or the Landlord shall promptly rebate to the Tenant a pro rate
portion of any rent paid in advance. In the event the leased
premises shall be so damaged that repairs and restoration can be
accomplished both (a) within a period of one hundred twenty
(120) days, and (b) more than ninety (90) days prior to the
expiration of the term hereof, including the
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renewal term if the option therefor shall have been exercised,
this Lease shall continue in effect in accordance with its
terms; the Landlord shall accomplish such repairs and
restoration as promptly as practicable (utilizing therefor the
proceeds of the insurance applicable thereto without any
apportionment therefore for damages to the leasehold interest
created by this Indenture); and until such repairs and
restoration have been accomplished a portion of the rent shall
xxxxx equal to the proportion of the leased premises rendered
unusable by the damage. In no event shall the obligation of the
Landlord to repair and restore exceed in amount the sum of the
insurance proceeds paid to him and/or released to him by any
mortgagee with which settlement was made, and the Tenant agrees
to execute and deliver to the Landlord all instruments and
documents necessary to evidence the fact that the right to such
insurance proceeds is vested in the Landlord. The Landlord shall
notify the Tenant within thirty (30) days following the date of
any such damage or destruction whether or not repairs and
restoration can be accomplished both (a) with a period of one
hundred twenty (120) days and (b) more than ninety (90) days
prior to the expiration of the term hereof, including any
renewal term for which the option therefore shall have been
exercised.
SEE ADDENDUM *
NO. 10.
20.
Entry by Landlord
-----------------
Landlord and its agents shall have the right to enter the
Premises upon reasonable notice and during normal business hours
for the purpose of examining and inspecting the same and to
supply other service to be provided by Landlord to the Tenant
hereunder show the same to prospective purchasers or Tenants of
the Premises, and make such alterations, repairs, improvements,
or additions, whether structural or otherwise, to the Premises
as Landlord may deem necessary or desirable. Landlord shall use
reasonable efforts on any such entry not to unreasonably
interrupt or interfere with Tenant's use and occupancy of the
Premises and shall further not unreasonably exercise this right.
In addition, Landlord or its agents shall have the right to
enter upon the Premises in the case of any emergency, including
but not limited to fire, hurricane, tornado and other natural or
man-made disasters.
21.
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Insolvency or Bankruptcy
------------------------
If at any time during the Term or prior thereto there shall
be filed by or against Tenant in any court pursuant to any
statute, either of the United States or of any state, a petition
in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of
Tenant's property, and within thirty (30) days thereof Tenant
fails to secure a discharge thereof, or its Tenant make an
assignment for the benefit or creditors, this Lease, at the
option of Landlord, exercised within a reasonable time after
notice of the happening of any one or more of such events, may
be cancelled and terminated and in which event either Tenant nor
any person claiming through or under Tenant by virtue of any
statute or of any order of any court shall be entitled to
possession or to remain in possession of the Premises demised
but shall forthwith quit and surrender the Premises, and
Landlord, in addition to the other rights and remedies it has by
virtue of any other provision herein or elsewhere in this Lease
or by virtue of any statute or rule of law, may retain as
liquidated damages any rent, security deposit or monies received
by it from Tenant or others on behalf of Tenant. Notwithstanding
anything to the contrary herein contained, upon the event of
cancellation of this Lease as provided in this paragraph,
Landlord shall be entitled to recover damages in an amount equal
to the present value of the Base Rent specified hereunder less
the fair market rental value of the Premises for the stated
Term.
22.
Default
-------
The following events shall constitute an event of default
hereunder:
(a) Tenant defaults for more than ten (10) days after
receipt of written notice of default in the payment of rent or
any other sum required to be paid hereunder, or any part
thereof; or
(b) Tenant defaults in the prompt and full performance of
any other covenant, agreement or condition of this Lease and
such other default shall continue for a period of thirty (30)
days after written notice thereof from Landlord to Tenant
(unless such other default involves a hazardous condition, in
which event it shall be cured forthwith); or
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(c) Tenant or any guarantor of Tenant's obligations under
this Lease shall become insolvent or shall make a transfer in
default of creditors or make an assignment for the benefit of
creditors; or
(d) A receiver or trustee shall be appointed for the
Premises or for all or substantially all of the assets of Tenant
or any guarantor of Tenant's obligations under this lease; or
SEE ADDENDUM (e) Tenant shall abandon, desert or vacate all* of the
No. 11.(A.) Premises; or
SEE ADDENDUM *
No. 11.(B.)
Tenant hereby waives all claims for damage which may be
caused by the re-entry of the Landlord provided said re-entry is
pursuant to an order of a court of competent jurisdiction and
taking possession of the premises or removing or storing the
furniture and property as herein provided, and will save
Landlord harmless from any loss, costs or damages occasioned
thereby.
Should Landlord elect to re-enter, pursuant to an order of a
court of competent jurisdiction, as herein provided, or should
it take possession pursuant to legal proceedings; it may either
terminate this Lease or it may from time to time, without
terminating this Lease, re-let the Premises or any part thereof
for such terms and at such rental or rentals and upon such terms
and conditions as Landlord in its sole discretion may deem
advisable, with the right to make alterations and repairs to the
Premises.
Landlord may elect to apply rentals received by it: (i) to
the payment of any indebtedness; (ii) to the payment of any cost
of such re-letting including but not limited to any broker's
commissions or fees in connection therewith; (iii) to the
payment of the cost of any alterations and repairs to the
Premises: (iv) to the payment of Base Rent or other charges due
and unpaid hereunder; and, (v) the residue, if any, shall be
held by Landlord and applied in payment of future rent as the
same become due and payable hereunder. Should such rentals
received from such re-letting after application by Landlord to
the payments described in the foregoing clauses (i) thorough (v)
during any month be less than that agreed to be paid during that
month by Tenant hereunder, then Tenant shall pay such deficiency
to Landlord. Such deficiency shall be calculated and paid
monthly by Tenant.
Nothing herein contained shall limit or prejudice the right
of Landlord to provide for and obtain as damages by reason of
any such
-15-
termination of this Lease or of possession an amount equal to
the maximum allowed by any statute or rule of law in effect at
the time when such termination takes place, whether or not such
amount be greater, equal to or less than the amounts of damages
which Landlord may elect to receive as set forth above.
23.
Non Real Estate Taxes
---------------------
During the term hereof, Tenant shall pay to the appropriate
agency prior to delinquency all taxes assessed against and
levied upon fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises, and
Tenant shall cause said fixtures, furnishings, equipment and
other personal property to be assessed and billed separately
from the real property of Landlord.
24.
Eminent Domain
--------------
In the event that the leased premises shall be lawfully
condemned or taken by any public authority either in their
entirety or in such proportion that they are no longer suitable
for the intended use by the Tenant, this Lease shall
automatically terminate without further act of either party
hereto on the date when possession of the leased premises shall
be taken by such public authority, and each party hereto shall
be relieved of any further obligation to the other except that
the Tenant shall be liable for and shall promptly pay to the
Landlord any rent then in arrears or the Landlord shall promptly
rebate to the Tenant a pro rata portion of any rent paid in
advance. In the event the proportion of the leased premises so
condemned or taken is such that they are still suitable for the
SEE ADDENDUM intended use by the Tenant, this Lease shall continue in effect
No. 12. in accordance with its terms and a portion of the rent shall
xxxxx equal to the proportion of the rental value of the leased
premises so condemned or taken.
25.
Subordination
-------------
Landlord has heretofore and may hereafter from time to time
execute and deliver mortgages or trust deeds in the nature of a
mortgage, both referred to herein as "Mortgages" against the
Premises,
-16-
or any interest therein. Tenant hereby agrees that (a) its
interest in this Lease is subordinate to said Mortgages, and to
any and all advance made thereunder and to the interest thereon,
to any and all advance made thereunder and to the interest
thereon, and to all renewals, replacements, modifications and
extensions thereof; and (b) Tenant's interest in this Lease is
inferior thereto. Tenant will promptly execute and deliver such
agreement or agreements as may be reasonable required by such
mortgagee or trustee under any Mortgage, provided however that
any such subordination shall provide that so long as Tenant is
not in default hereunder, its tenancy shall not be disturbed.
It is further agreed that (a) if any Mortgage shall be
foreclosed: (i) the liability of the mortgagee or trustee
thereunder or purchaser at such foreclosure sale or the
liability of a subsequent owner designated as Landlord under
this Lease shall exist only so long as such trustee, mortgagee,
purchaser or owner is the owner of the Premises and such
liability shall not continue or survive after further transfer
of ownership; and (ii) upon request of the mortgagee or trustee,
Tenant will attorn, as Tenant under this Lease, to the purchaser
at any foreclosure sale under any Mortgage, and Tenant will
execute such instruments as may be necessary or appropriate to
evidence such attornement; and (b) this Lease may not be
modified or amended so as to reduce the Base Rent or shorten the
Term provided hereunder or so as to adversely affect in any
other respect to any material extent the rights of Landlord, nor
shall this Lease be cancelled or surrendered without the prior
written consent, in each instance of the mortgagee or trustee
under any Mortgage. It is understood that Tenant's tenancy shall
not be disturbed so long as Tenant is not in default under this
Lease. In addition, Tenant will execute and deliver an estoppel
certificate, in form satisfactory to any mortgagee or trustee,
stating that there is no event of default under the Lease, and
such other matters as mortgagee or trustee may request, in their
sole discretion, within ten (10) days from written request from
said mortgagee or trustee.
SEE ADDENDUM *
No. 13.
26.
Waiver
------
The waiver of Landlord or any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition or any subsequent breach of
the same or
-17-
any other term, covenant, or condition herein contained. It is
understood and agreed that the remedies herein given to Landlord
shall be cumulative, and the exercise of any one remedy by
Landlord shall not be to the exclusion of any other remedy. It
is also agreed that after the service of notice or the
commencement of a suit or judgment for possession of the
Premises, Landlord may collect and receive any monies due, and
the payment of said monies shall not waive or affect said
notice, suit or judgment.
27.
Inability to Perform
--------------------
SEE ADDENDUM *
No. 14.
28.
Subrogation
-----------
The parties hereto agree to use good faith efforts to have
any and all fire, extended coverage or any and all material
damage insurance which may be carried endorsed with a
subrogation clause substantially as follows: "This insurance
shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party
for loss occurring to the property described herein."
29.
Sale by Landlord
----------------
The Landlord may sell or convey the Premises without the
Tenant's consent, however, any such sale or conveyance shall be
expressly subject to the Tenant's right and option to purchase
the Premises pursuant to the provisions of Section 35 of this
Lease, which right and option is binding on the Landlord, its
heirs, successors and assigns. Provided, the Landlord is not in
default at the time of said sale, the same shall operate to
release the Landlord from any future liability of any of the
covenants, conditions, express or implied, herein in favor of
the Tenant and in such event the Tenant agrees to look solely to
the responsibility of the successor and interest the Landlord in
and to this Lease. If any security deposit has been made by the
Tenant hereunder, the Landlord shall transfer such security
deposit to such successor and interest to the Landlord and
thereupon Landlord shall be released from any further
obligations hereunder. This Lease shall not
-18-
be affected by any such sale, and Tenant agrees to attorn to the
purchaser or assignee.
30.
Rights of Landlord To Perform
-----------------------------
All covenants and agreements to be performed by Tenant under
any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of
rent. If Tenant shall fail to pay any sum of money, other than
rent, required to be paid it hereunder, or shall fail to perform
any other act on its part to be performed hereunder and such
failure shall continue for ten (10) days after notice thereof by
Landlord, Landlord may, but shall not be obligated so to do, and
without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease.
All sums so paid by Landlord and all necessary incidental costs
together with interest thereon at the rate set forth in Section
4 of this lease computed from the date of such payment by
Landlord shall be payable to Landlord and Landlord shall have
(in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the non-payment thereof by
Tenant as in the case of default by Tenant in the payment of
rent.
31.
Attorneys' Fees
---------------
SEE ADDENDUM *
No. 15.
32.
Estoppel Certificate
--------------------
Tenant shall at any time and from time to time upon not less
than ten (10) days prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and
effect (or if modified, stating the nature of the modification
and certifying that this Lease, as so modified, in is in full
force and effect) and the dates to which the rental and other
charges are paid and acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the party of
Landlord
-19-
hereunder or specifying such defaults if any are claimed. It is
expressly understood and agreed that any such statement may be
relied upon by any prospective purchaser or mortgagee of any or
any portion of the Premises. Tenant's failure to deliver such
statement within such time be conclusive upon Tenant that this
Lease is in full force and effect, without modification except
as may be represented by Landlord, that there are no uncured
defaults in Landlord's performance and that not more than two
(2) months' rental has been paid in advance.
33.
Deposit
-------
SEE ADDENDUM Upon execution of this Lease, Tenant will deposit
No. 16.(A.) with Landlord the sum of __________________ Dollars as security
for the full and faithful performance of every provision of this
Lease to be performed by Tenant. If Tenant defaults with respect
to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, Landlord may use,
apply or retain all or any part of this security deposit for the
payment of any rent and any other sum in default, or for the
payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default or to
compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of said
deposit is to be used or applied, Tenant shall within ten (10)
days after written demand therefor deposit cash with Landlord in
an amount sufficient to restore the security deposit to its
original amount and Tenant's failure to do so shall be a
SEE ADDENDUM material breach of this Lease. Landlord shall* be required to
No. 16.(B.) keep the security deposit separate from its general funds and
the Tenant shall be entitled to interest on such deposit.* If
Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the security deposit or any
balance thereof shall be returned to Tenant (or at Landlord's
option to the last assignee of Tenant's interest hereunder) at
the expiration of the Term and upon Tenant's vacating of the
Premises. After the Tenant improvements have been completed and
the free rental period expired, the sum of the $24,115.00 of the
security deposit will be applied to the first month's rent
leaving the sum of __________ as the security deposit to be
SEE ADDENDUM deposited in accordance with the terms and conditions of this
No. 16.(A.) provision.
-20-
34.
Easements
---------
Landlord shall have the right to place upon the property
easements for ingress and egress or for the attachment of
utilities for the benefit of certain property contiguous to the
Premises owned by Landlord, provided that such easements do not
impair the peaceable and quiet enjoyment and possession of the
Premises by Tenant.
35.
Purchase Option
---------------
(a) For and in consideration of the sum of Ten ($10.00) and
the execution and delivery of this Lease, Landlord hereby grants
to Tenant the right and option to purchase the Premises, upon
the terms and conditions set forth in this Section 35. Tenant
may not transfer and assign its rights under this Section,
without the express written consent of Landlord.
(b) The purchase price of the Premises shall be as follows,
if exercised and closed during the time periods set forth below:
SEE ADDENDUM *
No. 17.
The purchase price shall be paid in full and in cash at closing,
by wired funds or cashier's check, drawn to the Landlord's
order.
(c) Provided that Tenant is not then in default under this
Lease, and this Lease has not sooner terminated, at any time
during the Term, Tenant can exercise its option under this
Section by giving written notice of its intention to do so to
Landlord at least 120 days prior to the end of the Term, which
notice shall designate: (i) a date and time for the closing nor
more than 90 days after the date of Tenant's notice; (ii) the
place of closing, which shall be within Xxxxxx County, Georgia;
and (iii) shall enclose therewith in good funds, Tenant's check
payable to Landlord in the amount of $25,000 to be held and
disbursed by Landlord as xxxxxxx money and to be credited toward
the purchase price at closing. The purchase and sale pursuant to
Tenant(s exercise of its option hereunder shall be closed on the
date, time and place designated by Tenant or on such earlier
date as may be agreed upon by Landlord and Tenant. At closing
Landlord shall pay
-21-
all transfer taxes or similar taxes under the general warranty
deed required hereinbelow. Tenant shall pay all other closing
and recording costs, intangibles tax, appraisal fees and
engineering fees, except that Landlord and Tenant shall each pay
their respective attorneys' fees. Ad valorem taxes, rents and
all other items of income and expense in connection with the
operation of the Premises shall be paid by Tenant whether prior
to or after the closing date. In the event that at the time of
closing the Premises is subject to or affected by any assessment
of water, sewer or other utilities, which is or shall be a
charge or lien against the Premises, then in such event such
assessment, shall be deemed due and payable for purposes of this
Lease and shall be paid in full at closing by Tenant. Nothing
contained in this Section shall be construed to relieve Tenant
of any obligation to pay for taxes, operating costs or other
expenses at set forth in this Agreement.
(d) At the closing, each party hereto shall execute and
deliver all documents necessary to affect and complete the
closing, including but not limited to, the following documents
to be executed and delivered by Landlord to Tenant: (i) limited
warranty deed from Landlord conveying fee simple title to the
Premises, free and clear of all liens, restrictions and
encumbrances other than zoning restrictions, utility or other
easements of records, real estate taxes for all years subsequent
to the year in which the sale of the Premises is closed, real
estate taxes for the year in which the sale of the Premises is
closed if any such taxes are a lien against the Premises but not
yet due and payable and matters shown on a true and accurate
survey ("Permitted Exceptions"); (ii) an owner's affidavit, in
form and substance satisfactory to the title insurance company
and sufficient to cause the title company to issue an owner's
title policy without standard exceptions for mechanic's lien,
but subject to the Permitted Exceptions. Tenant may at Tenant's
sole cost and expense obtain a survey for the Premises. Landlord
shall deliver to Tenant an affidavit, in form and substance
satisfactory to Landlord, stating Landlord's tax identification
number, Landlord and all persons holding beneficial interest in
the Premises are "United States Persons," as defined in the
Internal Revenue Code of 1986, as amended, and that the purchase
of the Premises by Tenant pursuant to this Lease is not subject
to withholding requirements of the Internal Revenue Code of 1986
as amended. The transfer of the Premises to Tenant shall be
without any representations or warranties other than as set
forth in the warranty deed.
(e) This provision shall be binding upon the Landlord's
heirs, successors and assigns.
-22-
36.
Quiet Enjoyment
---------------
The Landlord shall put the Tenant in possession of the
Leased premises at the beginning of the term hereof, and the
Tenant, upon paying the rent and observing the other covenants
and conditions herein upon its part to be observed, shall
peaceably and quietly hold and enjoy the Leased Premises.
37.
Miscellaneous Provisions
------------------------
(a) The words "Re-enter" or "Re-entry" as used in this
Lease, are not restricted to their technical legal meaning. The
term "Landlord" as used in this Lease means only Landlord from
time to time and upon conveying its interest, such conveying
Landlord shall be relieved from any further obligation or
liability.
(b) Time is of the essence of this Lease.
(c) Submission of this instrument for examination or
signature by Tenant does not constitute a reservation or offer or
option for Lease.
(d) The invalidity or unenforceability of any provision
hereof shall not affect or impair any other provisions.
(e) This Lease shall be governed by and construed pursuant
to the laws of the State of Georgia.
(f) Should any mortgage require a modification of this
Lease, which modifications will not bring about any increased
cost or expense to Tenant or in any other way substantially
change the rights and obligations of Tenant hereunder, then and
in such event, Tenant agrees that this Lease may be so modified.
(g) All rights and remedies of Landlord under this Lease,
or that may be provided by law, may be exercised by Landlord in
their own names individually, or in their names by their agent,
all legal proceedings for the enforcement of any such rights or
remedies, including distress for rent forcible detainer, and any
other legal or equitable proceedings, may be commenced and
prosecuted to final judgment and execution by Landlord in their
own names individually
-23-
or in their names or by their agent. Tenant conclusively agrees
that Landlord has full power and authority to execute this Lease
and to make and perform the agreements herein contained and
Tenant expressly stipulates that any rights or remedies available
to Landlord either by the provisions of this Lease or otherwise
may be enforced by Landlord in their own names individually or in
their names by agent or principal.
(h) Any of the covenants and conditions of this Lease shall
survive termination of this Lease.
(i) The marginal headings and titles to the paragraph of
this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(j) This Lease includes Exhibit "A," which is expressly made
a part of this Lease.
(k) This Lease shall create the relationship of Landlord and
Tenant between the parties hereto and no estate shall pass out of
Landlord. Tenant shall have only a usufruct, not subject to levy
or sale, and not assignable by Tenant, except as set forth
herein.
SEE ADDENDUM *
No. 18.(A.) () Within one hundred and twenty (120) days prior to the
end of the Term or upon notice from Tenant that it intends to
terminate this Lease, Landlord shall have the right to enter upon
the Premises, and card the Premises for rent, and show the
Premsies to Prospective tenants during normal business hours.
() The parties hereto do hereby acknowledge that Landlord
and Xxxxxxx & Xxxxxxxxx of Georgia, In. ("Xxxxxxx") have entered
into an agreement whereby Landlord will pay Xxxxxxx a leasing fee
and a sales commission upon the sale of the Premises. Landlord
and Tenant do hereby represent and warrant to each other that
neither has utilized or retained any other agent, broker or
finder.*
SEE ADDENDUM () This Lease embodies the entire agreement of the parties
No. 18.(B.) and supersedes all prior agreements, written or oral.
38.
Tenant-Corporation
------------------
-24-
In case Tenant is a corporation, Tenant represents and
warrants that this Lease has been duly authorized, executed and
delivered by and on behalf of Tenant and constitutes the valid
and binding agreement of Tenant in accordance with the terms
hereof, and does not violate the terms and conditions of its
Articles of Incorporation and Bylaws.
39.
Successors and Assigns
----------------------
The covenants and conditions herein contained shall apply to
and bind the respective heirs, successors, executors,
administrators, and assigns of the parties hereto. The terms
"Landlord" and "Tenant" shall include the successors and assigns
of either such party, whether immediate or remote.
IN WITNESS WHEREOF, the parties have hereunto set their
hands this 12 day of July, 1990.
Signed, Sealed and Delivered
In the Presence of: LANDLORD:
STANFORD AND XXXXXX X.
XXXXXXX, JOINT VENTURE
/s/ Xxxxxxxx Xxxx /s/ Xxxxxxxx Xxxxxxx (Seal)
----------------------------- ----------------------
Xxxxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxx /s/ Xxxxxx Xxxxxxx (Seal)
----------------------------- ----------------------
Xxxxxx X. Xxxxxxx
TENANT:
CORNUCOPIA NATURAL
FOODS, INC.
_____________________________ By:/s/ Xxxxxx Xxxxxxxx
-----------------------------
, Its President
/s/ Xxxxx X. Xxxxxxxx
-------------------------
-25-
EXHIBIT "A"
BEGINNING at a point on the south line of said Land Lot 23, 174.43 feet east, as
measured along the south line of said Land Lot 23, from the southwest corner
thereof; running thence south 89 degrees 02 minutes east along the south line of
said Land Lot 23, a distance of 624.17 feet to a point; thence north 00 degrees
50 minutes east 687.40 feet to the southern side of Xxxxxxx Drive, thence north
76 degrees 22 minutes west along the southern side of Xxxxxxx Drive, a distance
of 184.50 feet to a point; thence in a northwesterly direction along the
southern side of Xxxxxxx Drive, and following the curvature thereof, a distance
of 184.30 feet (the chord of the arc formed by the curvature of Xxxxxxx Drive
running north 79 degrees 55 minutes west 184.10 feet); thence north 83 degrees
42 minutes west along the southern side of Xxxxxxx Drive 263.75 feet to a point;
thence south 00 degrees 50 minutes west, a distance of 781.55 feet to the south
line of said Land Lot 23 and the point of beginning, as more particularly shown
on plat of survey for Sylvan & Xxxxxxxx Xxxxxxx by X. X. Xxxxxxx, Registered
Engineer, dated June, 1965;
Lease Addendum
Dated June 22, 1990
The following items are changes and/or clarifications to the lease agreement
dated June 22, 1990 between Cornucopia Natural Foods, Inc. and Sylvan and
Xxxxxxxx Xxxxxxx Joint Venture. This lease addendum is expressly made a
conditional part of the lease and is entered into simultaneously with the
original agreement.
Item #1) (Section 4a) Base Rent - (a) Tenant shall pay as rent to Landlord the
following sums, for the following time periods (the "Base Rent"):
Base Rent Per Equal Monthly
Lease Year Lease Year Payments
---------- ------------- -------------
7/1/90-2/28/91 No Base Rent $ -0-
3/1/91-2/28/94 $289,377.00 $24,114.75
3/1/94-2/28/97 $318,314.70 $26,535.23
3/1/97-2/28/99 $350,146.20 $29,178.85
*Subject to adjustment for the first month (March, 1991) as set forth in the
following paragraph:
The Base Rent shall be paid in equal monthly installments as set forth above
and shall be paid in advance on the first day of each month commencing on March
1, 1991, and on the first day of each calendar month thereafter during the Term
and at the same rate for fractions of a month is the Term shall begin on any day
except the first day or shall end on any day except the last day, of a calendar
month; provided however, that the payment for rent due for the month of March,
-----------------------------------------------------------------------
1991 shall be for $12,252.95. As set forth in the above table, Tenant shall not
----------------------------
be required to pay Base Rent for the period from the Commencement Date and
extending for a period of eight (8) months from said date; provided, however,
---------
that Tenant shall have all other obligations hereunder for said time period,
including but not limited to, the payment of Taxes, Operating Costs, insurance
and utilities.
Item #2) (Section 12c) - Tenant will take responsibility for roof gusset
supports and lighting relocation with landlords payment made in rent credits
which are reflected in Base Rent from Item #1 above.
Item #3) (Section 2b) - On the Commencement Date Tenant shall take possession
of the Premises and Commence the improvements to be made to the Premises, in
accordance with the terms and conditions herein.
Item #4) (Section 11e) - (e) Landlord agrees to pay Tenant, simultaneously upon
the execution and delivery of this Lease by all parties, an amount equal to the
cost of removing: (a) the mezzanine and its rack support system and (b)
distribution offices as specified in a contract calling for such removal or
demolition attached hereto as Exhibit "B".
Tenant shall be solely responsible for supervising such removal and shall hold
Landlord harmless from any loss, damage, cost or expense sustained or incurred
by any person, including Tenant, its agents, officers, employees or invites
arising from such work. As further consideration for this Lease Landlord agrees
to pay a pro-rata portion of the real estate taxes and insurance costs for the
Premises for the period of thirty (30) days following July 1, 1990, based upon
one-twelfth of the annual amount of such items.
Item #5) (Purchase Option) (Section 35b) - (b) The purchase price of the
Premises shall be as follows, if exercised and closed during the time periods
set forth below:
Closing Date Purchase Price
--------------- --------------
7/1/90 - 1/31/94 $3,000,000.00
3/1/94 - 2/28/97 $3,300,000.00
3/1/97 - 2/28/99 $3,630,000.00
The purchase price shall be paid in full and in cash at closing, by wired funds
or cashier's check, drawn to the Landlord's order.
Item #6) - This agreement is entered into by Cornucopia Natural Foods, Inc.
subject to the Tenant securing adequate financing to complete its construction
as specified in this lease as "Tenant Improvements".
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under seal,
the day and year first above written.
LANDLORD:
_______________________________(Seal)
Xxxxxxxx Xxxxxxx
_______________________________(Seal)
Xxxxxx X. Xxxxxxx
TENANT:
ATTEST: CORNUCOPIA NATURAL FOODS, INC.
By:__________________________ By:/s/ Xxxxxx Xxxxxxxx
Secretary --------------------------
Its: President
(Corporate Seal)
Exhibit B
------- -
ALLIED ASBESTOS ABATEMENT, INC.
HEREINAFTER KNOWN AS THE SELLER
0000 XXXXXX XXXXX
XXXXX 00
XXXXXXX, XX 00000
(000) 000-0000
PROPOSAL
Date July 11, 1990
--------------
TO: Xxxxxx Xxxxxx/Xxxxx Xxxxxxxx, Xxxxxxx & Xxxxxxxxx, Agents for Makeover
----------------------------------------------------------------------
& Makeover
----------
ADDRESS: 3300 One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
--------------------------------------------------------------
Georgia
-------
who shall hereinafter be known as the Buyer
The Seller proposes to furnish to the Buyer subject to provisions of Pars.
1 thru 19 on reverse side
hereof, all materials and labor necessary to install, xxxxx, construct,
fabricate, and/or place the work
described herein on/in the building project identified as follows:
PROJECT: Xxxxxxx of Atlanta - 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
---------------------------------------------------------
(Name and Address)
ARCHITECT:_________________________________________________________
(Name and Address)
OWNER: Xxxxxx X. Makeover and Stanford Makeover
----------------------------------------
(Name and Address)
Said work proposed by the Seller shall be materials and labor to complete
the following, to wit:
SCOPE OF WORK
REMOVE AND PROPERLY DISPOSE OF APPROXIMATELY 22,778 SQ. FT. OF V.A.T.
FROM MEZZANINE AND OFFICE AREA IN WAREHOUSE.
1. Work area will be barracaded 10 feet around the perimeter of the work
area and will not be accessible to other trades while work is in
progress.
2. Scheduling will allow Allied to work continuously without significant
delays.
3. Replacement of materials is not included in our proposal.
4. The proposed work will be complete within 10 days. The 10 day notice
to E.P.D. is included in this estimate.**
5. Personnel air monitoring, as required by OSHA, will be the
responsibility of Allied. Final clearance air monitoring to be done by
an outside independent laboratory (Westinghouse Environmental) and is
included in the price below.
6. Certified, trained, medically documented workers will be employed.
7. Suitable storage, water, and electrical outlets to be provided by
owner.
8. One million dollars asbestos liability insurance coverage to be
provided by Allied.
9. Project will be executed according to federal, state and local codes
and regulations.
10. Owner will be provided with E.P.D. notifications to include original
notification and final completion, landfill receipts and results of
all air tests.
PRICE: Asbestos Removal $37,583.00
TERMS: NET CASH UPON COMPLETION
NOTE: Our proposal is based upon immediate acceptance and commencement of
work following 10 day E.P.D. notification.
Respectfully submitted.
Accepted: ALLIED ASBESTOS ABATEMENT, INC.
/s/ Xxxxxx X. Xxxxxxx By/s/ Xxxxx X. Xxxxxxxxxx
---------------------------- ------------------------------------
Name Xxxxx X. Xxxxxxxxxx
___________________ 7/12/90 Title: President
Title ------- --------------------------------
Date
**NOTE: Should Emergency approval be granted by E.P.D., work will begin
as early as 07/16/90. Every effort will be made by ALLIED to
reach completion earliest possible.
ADDENDUM TO LEASE
-----------------
This Addendum is made a part of that certain Lease dated July ____, 1990
(the "Lease") between Sylvan and Xxxxxxxx Xxxxxxx Joint Venture, as Landlord,
and Cornucopia Natural Foods, Inc., as Tenant. This Addendum is an integral part
of the Lease, is entered into contemporaneously with the Lease, and in the event
of any conflict between the terms of this Addendum and the Lease, the terms of
this Addendum shall govern.
1. Term.
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(Section 2(a)). The term of the Lease shall commence on August 1, 1990
which shall be the "Commencement Date".
2. Base Rent.
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(Section 4(a)). Delete Section 4(a) and substitute the following: (a)
Tenant shall pay as rent to Landlord the following sums, for the following time
periods (the "Base Rent"):
Lease Year Base Rent Per Equal Monthly
Lease Year Payments
------------------------ ------------------- ---------------------
8/1/90 - 3/31/91 No Base Rent $ - 0 -
4/1/91 - 3/31/94 $289,377.00 $ 24,114.75
4/1/94 - 3/31/97 $318,314.70 $ 26,526.23
4/1/97 - 3/31/99 $350,146.20 $ 29,178.85
The Base Rent shall be paid in equal monthly installments as set forth above and
shall be paid in advance on the first day of each month commencing on April 1,
1991, and on the first day of each calendar month thereafter during the Term and
at the same rate for fractions of a month if the Term shall begin on any day
except the first day or shall end on any day except the last day, of a calendar
month. As set forth in the above table, Tenant shall not be required to pay Base
Rent for the period from the Commencement Date and extending for a period of
eight (8) months from said date; provided, however, that Tenant shall have all
other obligations hereunder for said time period, including but not limited to,
the payment of Taxes, Operating Costs, insurance and utilities.
3. Insurance.
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(Section 7(b)). Insert at the end of Section 7(b) the following:
All policies shall provide that they may not be cancelled by the
insured, for non-payment of premiums or otherwise, until at least 30 days after
service of notice by registered mail of the proposed cancellation upon Landlord
and upon any holder of indebtedness secured by a deed to secure debt against the
Premises, and in any event that such policy shall not be invalidated, as to the
interest of Landlord or the
holder of any deed to secure debt against the Premises by any act, omission or
neglect of Tenant or any occupant of the Premises which might otherwise result
in a forfeiture or suspension of such insurance.
4. Condition of the Premises.
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(A.) (Section 11(a)). Delete Section 11(a) and substitute the following:
(a) Tenant agrees to accept the Premises in its present condition. No
promises of Landlord to alter, remodel, decorate, clean or improve the Premises
and no representation or warranty expressed or implied, respecting the condition
of the Premises has been made by Landlord to Tenant except as set forth in
Paragraph 11(e) below.
(B.) (Section 11(c)). Delete the words "and floors" in line 4, Section
11(c).
(C.) (Section 11(d)). Insert the words "or in the event of uncorrected
default, without notice," in line 21 after the words "upon reasonable notice."
(D.) (Section 11(e)). Insert new section 11(e) as follows:
(e) Landlord shall be responsible for removing, at its expense, the floor
tiles in the mezzanine area and the distribution office referred to above prior
to the Commencement Date. Tenant acknowledges that these tiles contain a type of
asbestos. Tenant may, at its expense, conduct such investigation regarding the
existence of asbestos in the Premises as it may desire. Further, Landlord agrees
to pay Tenant, simultaneously upon the execution and delivery of this Lease by
all parties, an amount equal to the cost of removing: (a) the mezzanine and its
rack support system and (b) one distribution office as specified in a contract
calling for such removal or demolition attached hereto as Exhibit "B". Tenant
shall be solely responsible for supervising such removal (other than the floor
tiles in the mezzanine and office referred to above) and shall hold Landlord
harmless from any loss, damage, cost or expense sustained or incurred by any
persons, including Tenant, its agents, officers, employees or invitees arising
from such work.
5. Tenant Improvements.
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(A.) (Section 12(a)). Insert new language, line 8, as follows, "and (vi)
gusset the roof of the Building" after the word "building" at the end of line 8.
(B.) (Sections 12(b) and 12(c)). Delete Sections 12(b) and 12(c) and
substitute the following:
(b) Tenant shall indemnify and hold Landlord harmless from any and all
loss, damage, cost or expense sustained or incurred by Landlord and arising out
of any work done by or at the request of Tenants pursuant to this Lease.
Further, Tenant agrees to repair, replace or restore any damage to the Premises
or the
Building incurred during construction of the Tenant Improvements or the
demolition and removal referred to in Paragraph 11(e) of this Lease.
6. No Liens.
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Insert a new Section 12A as follows:
"12A. No Liens."
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Tenant shall not permit the filing of any liens against the
Premises at any time and shall promptly pay any and all contractors, sub-
contractors or suppliers. Tenant shall supply Landlord with lien waivers signed
by all contractors and subcontractors who may provide goods, materials, services
or supplies to or for the benefit of Tenant and relating to any work done at the
Premises, including, without limitation, the Tenant Improvements. In the event
of the filing of any notice of builder's, supplier's or mechanic's lien on the
Premises arising out of any work performed by or on behalf of the Tenant, the
Tenant shall, within thirty (30) days of notice of such filing, either cause
such lien to be discharged, released or satisfied or obtain and deliver to
Landlord an irrevocable letter of credit issued in favor of Landlord by a
national banking association of recognized standing in an amount sufficient to
cover the full amount of any such lien. If the Tenant shall cause such lien to
be discharged or released by the posting of bond, Tenant shall completely
indemnify the Landlord against any such claim or lien.
7. Compliance with Law.
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(Section 13). Delete the last sentence entirely beginning with "If at any
time", line 16, and ending with "terminate this Lease.", line 20.
8. Assignment and Subletting.
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(Section 16(a)). Delete the words beginning in line 3 with "any portion"
through "prior written consent" in line 5 and substitute after "sublet" in line
3, the following: "portions, but not all, of the Premises with the Landlord's
consent, which consent shall not be unreasonably withheld".
9. Damage to Property - Injury to Persons.
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(Section 18). Insert at the end of the fourth paragraph of Section 18
after the words "One Million ($1,000,000.00) Dollars," the following: "In
addition Tenant shall maintain umbrella liability coverage for the Premises with
Landlord as an additional named insured for at least an additional One Million
($1,000,000.00) Dollars."
10. Damage or Destruction.
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(Section 19). Delete Section 19(c) in its entirety and substitute the
following: "(c) Notwithstanding the foregoing, in the event substantial
destruction of the Premises occurs during the last twelve (12) months of the
Term, including any renewals, Tenant may, at its sole option, elect within
thirty (30) days of the date of such destruction, to terminate this Lease by
giving written notice thereof to the Landlord."
11. Default.
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(A.) (Section 22). In Paragraph (e), after the words "vacate all" insert
"or any portion."
(B.) (Section 22). Insert New Paragraph (f) as follows:
(f) If Tenant's assets or effects in the Premises shall be levied upon or
attached under any process against Tenant involving a judgment against
Tenant of $75,000 or more, and such levy or attachment is not
satisfied or dissolved within thirty (30) days after written notice
from Landlord to Tenant to obtain satisfaction thereof.
12. Eminent Domain.
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(Section 24). Delete the last sentence entirely, beginning in line 17,
with the words "In either of the above events" and substitute the following: "In
the event of a condemnation or taking, Landlord and Tenant shall each be
entitled to seek and recover awards for their respective interests."
13. Subordination.
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(Section 25). Delete the last paragraph entirely and substitute the
following:
Tenant agrees to give any mortgagees or trust deed holders, by registered
mail, a copy of any notice of default served upon Landlord by Tenant provided
that prior to such notice Tenant has received notice (by way of service on
Tenant of a copy of an assignment of rents and lease, or otherwise) of the
address of such mortgagees or trust deed holders. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the mortgagees or trust deed holders shall have an additional
thirty (30) days after receipt of notice thereof within which to cure such
default. Such period of time shall be extended by any period within which such
mortgagee or trust deed holder is prevented from commencing or pursuing such
foreclosure proceedings by reason of Landlord's bankruptcy. Until the time
allowed as aforesaid for mortgagee or trust deed holder to cure such defaults
has expired without cure, Tenant shall have no right to and shall not terminate
this Lease on account of default.
14. Inability to Perform.
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(Section 27). Delete Section 27 in its entirety and substitute the
following:
"27.
Inability to Perform
Landlord hereby agrees to pay Tenant upon execution of the Lease, the sum
of $7,150 to be used by Tenant to increase the electrical power supply at the
Premises. Upon termination of the Lease, Tenant shall return the Premises to
Landlord with the same amount of electrical power as exists upon completion of
Tenants of such electrical improvements. Any further increase in electrical
power shall be at Tenant's sole expense. Tenant shall provide Landlord with
proof of such improvements as Landlord may reasonably request."
15. Attorney's Fees.
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(Section 31). Delete Section 31 entirely and substitute the following:
"Time is of the essence of this Lease. In the event Landlord shall be
required to enforce any of its rights as remedies hereunder, or collect rent, by
or through an attorney, Tenant shall be obligated to pay all of Landlord's costs
and expenses, including reasonable attorney's fees."
16. Deposit.
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(A.) (Section 33). Change the amount of the deposit from "Fifty Thousand
Six Hundred Forty ($50,640.00)" to "Fifty-Three Thousand Two Hundred Ninety-
Three and 60/100 ($53,293.60)." In the next to the last line of this Section,
change the figure $26,525.00" to "$29,178.60."
(B.) (Section 33). Insert the word "not" in line 18, after "shall." Delete
the words "at the prevailing certificate of deposit rate" in lines 19-21 and
substitute the following: "at a simple interest rate equal to the rate paid by
Bank South, N.A. in Atlanta, Georgia, on its standard money market account."
17. Purchase Option.
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(Section 35). In paragraph (b) delete the dates and prices entirely and
substitute the following:
Closing Date Purchase Price
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8/1/90 - 3/31/94 $3,000,000.00
4/1/94 - 3/31/97 3,300,000.00
4/1/97 - 3/31/99 3,630,000.00
18. Miscellaneous Provisions.
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(A.) (Section 37). Insert a new paragraph (l) as follows:
(l) Upon fifteen (15) days written demand to Tenant from Landlord or its
agents, Tenant shall deliver to Landlord or its agents a financial statement
including balance sheet and statements of income as of the period most recently
prepared by Tenant, which financial statements shall be prepared, as far as
possible, in accordance with generally accepted accounting principles and shall
accurately reflect the financial condition of Tenant. Landlord shall keep all
such financial information strictly confidential at all times.
Reletter the remaining paragraphs of this Section (m)-(o).
(B.) (Section 37). Insert the following at the end of paragraph (n):
Xxxxxxx & Xxxxxxxxx of Georgia, Inc. represents that Landlord and the
Tenant jointly, and such dual agency is expressly consented to by the parties by
their execution hereof. Xxxxxxx & Wakefield of Georgia, Inc. will be paid a fee
by the
Landlord. The parties named below acknowledge, agree and consent to the
representation disclosed above.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Addendum on
and as of the 12 day of July, 1990.
Signed, Sealed and Delivered
In the Presence of: LANDLORD:
STANFORD and XXXXXX X. XXXXXXX,
JOINT VENTURE
/s/ Xxxxxxxx Xxxx /s/ Xxxxxxxx Xxxxxxx (Seal)
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Xxxxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxx /s/ Xxxxxx X. Xxxxxxx (Seal)
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Xxxxxx X. Xxxxxxx
TENANT:
CORNUCOPIA NATURAL FOODS, INC.
By:/s/ Xxxxxx Xxxxxxxx
_______________________ ---------------------------
, Its President
/s/ Xxxxxx X. Xxxxxxxx
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FIRST AMENDMENT
TO
LEASE AGREEMENT
BETWEEN
CORNUCOPIA NATURAL FOODS, INC.
AND
SYLVAN AND XXXXXXXX XXXXXXX JOINT VENTURE
THIS IS THE FIRST AMENDMENT to that certain Lease Agreement dated July 12,
1990, including an Addendum of even date and made a part thereof (collectively,
the "Lease"), between Cornucopia Natural Foods, Inc., a Rhode Island corporation
(the "Tenant"), and Sylvan and Xxxxxxxx Xxxxxxx Joint Venture, a Georgia joint
venture (the "Landlord").
The Landlord and the Tenant now mutually desire to amend the Lease in
certain particular respects as set forth herein.
THEREFORE, in consideration of the mutual promises and covenants contained
in the Lease, the mutual promises and covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1.
Effect
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(a) Except as expressly and specifically amended as set forth herein, all
of the other terms and conditions of the Lease shall continue and remain in full
force and effect, without alteration, amendment or modification. Any capitalized
terms used in this First Amendment and not specifically defined herein, shall
have the meanings set forth in the Lease.
(b) As used herein, and hereafter, the term "Lease" shall mean the Lease
as originally executed and as herein amended.
(c) This First Amendment may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement.
2.
Renewal Option
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(a) Provided that the Tenant is not in default under the Lease, the
Tenant shall have the right to renew the term of this Lease for one period of
twenty-four (24) months, commencing April 1, 1999, and expiring on Xxxxx 00,
0000 (xxx "Xxxxxxx Xxxx").
(x) During the Renewal Term all of the terms and conditions of the Lease
shall continue and remain in full force and effect; provided, however, that
during the Renewal Term, the Base Rent shall be $350,146.20 per year ($29,178.85
per month), payable in the same manner and at the same times as the Base Rent is
payable during the original term. This is the same Base Rent that will be
payable by the Tenant for the last two years of the original term.
(c) The Purchase Option set forth in Section 35 of the Lease, as contained
in Paragraph 17 of the Addendum to the Lease, shall continue to be available to
the Tenant during the Renewal Term, with no further increase or escalation
during the Renewal Term. The Purchase Option Price set forth in such Paragraph
for the last two years of the original term shall remain the price during the
entire Renewal Term.
(d) In order to exercise its option to renew the Lease as set forth
herein, the Tenant shall give the Landlord at least 180 days prior written
notice of its election to exercise its option. Failure by the Tenant to give
such notice shall be deemed a decision not to exercise the renewal option and in
the absence of such notice, such renewal option shall be void and of no further
force or effect.
IN WITNESS WHEREOF, the Tenant and the Landlord have duly executed this
First Amendment on and as of the 14th day of November, 1994.
Signed, sealed and delivered LANDLORD:
in the presence of:
XXXXXX X. AND XXXXXXXX XXXXXXX
JOINT VENTURE
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxxx (Seal)
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Xxxxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxx /s/ Xxxxxx X. Xxxxxxx (Seal)
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Xxxxxx X. Xxxxxxx
Signed, sealed and delivered TENANT:
in the presence of:
CORNUCOPIA NATURAL FOODS, INC.
/s/ Xxxxx Xxxx BY: /s/ Xxxxx Xxxxxxxx
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Title: Treasurer and Secretary
(CORPORATE SEAL)
