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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for fiscal year ended July 31, 1997
or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from __________ to
__________.
Commission File Number: 000-1020859
UNITED NATURAL FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0376157
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
260 Lake Road
Dayville, CT 06241
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (860) 779-2800
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock,
$.01 par value
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days:
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
(Cover page 1 of 2)
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The aggregate market value of the voting stock held by non-affiliates of the
registrant was $112,720,391, based upon the closing price of the registrant's
common stock on the Nasdaq National Market on September 5, 1997. The number of
shares of the registrant's common stock, $0.01 par value, outstanding as of
October 24, 1997 was 12,378,425.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive Proxy Statement for the Annual Meeting
of Stockholders to be held in December 1997 are incorporated herein by reference
into Part III of this report.
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(Cover page 2 of 2)
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UNITED NATURAL FOODS, INC.
FORM 10-K
TABLE OF CONTENTS
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Page
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Part I
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Item 1. Business 1
Item 2. Properties 13
Item 3. Legal Proceedings 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Executive Officers of the Registrant 15
Part II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters 16
Item 6. Selected Financial Data 18
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations 19
Item 7A. Quantitative and Qualitative Disclosure About Market Risk 28
Item 8. Financial Statements and Supplementary Data 29
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure 47
Part III
Item 10. Directors and Executive Officers of the Registrant 47
Item 11. Executive Compensation 47
Item 12. Security Ownership of Certain Beneficial Owners and Management 47
Item 13. Certain Relationships and Related Transactions 47
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports
on Form 8-K 48
Signatures 49
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Part I
Item 1.
Business
United Natural Foods, Inc. (the "Company" or "United Natural") is one of
only two national distributors of natural foods and related products in the
United States. The Company currently serves more than 5,800 customers located in
43 states, including independent natural products stores, natural products
supermarket chains and conventional supermarkets. The Company distributes more
than 25,000 high-quality, national, regional and private label natural products
in six categories consisting of groceries and general merchandise, nutritional
supplements, bulk and foodservice products, personal care items, perishables and
frozen foods. United Natural's distribution operations are divided into three
principal regions: Cornucopia Natural Foods, Inc. ("Cornucopia") in the eastern
United States, Mountain People's Warehouse, Inc. ("Mountain People's") in the
western United States and Rainbow Natural Foods, Inc. ("Rainbow") in the Rocky
Mountains and Plains regions. The Company operates five strategically located
distribution centers and two satellite staging facilities within these regions
to better serve its customers and realize operating efficiencies. The Company
also owns and operates nine retail natural products stores located in the
eastern United States that management believes complement its distribution
business.
On June 23, 1997, the Company announced that it had entered into an
agreement with Stow Mills, Inc. ("Stow") with respect to a merger in which the
two companies will be combined. Pursuant to such agreement, a subsidiary of the
Company will be merged with and into Stow, with Stow continuing as the surviving
corporation, which will be a wholly-owned subsidiary of the Company. The merger
is conditioned, among other things, on the approval by the stockholders of the
Company of the issuance of up to an aggregate of 5,000,000 shares of the
Company's Common Stock, $.01 par value per share, in order to effect the
proposed merger with Stow. The Company has scheduled a special meeting of
stockholders to be held on October 30, 1997 to approve the proposed issuance to
effect the merger. The principal stockholders of the Company have agreed to vote
all shares of Common Stock over which they exercise voting control
(approximately 58% of the outstanding shares) for the approval of the issuance
proposal. Consequently, the affirmative vote of the principal Company
stockholders will be sufficient to approve and adopt the issuance proposal. It
is presently expected that the proposed merger will be consummated on October
31, 1997.
Stow is a distributor of natural foods and related products in New England,
New York State and the Mid-Atlantic and Mid-West regions of the United States.
Stow currently distributes its products to more than 3,100 customers located in
30 states and the District of Columbia, including independent natural products
stores, natural products supermarket chains and conventional supermarkets. Stow
currently distributes approximately 12,000 natural products, including
groceries, vitamins and nutritional supplements, refrigerated foods, frozen
foods, bulk foods, and body care, health and beauty aids. Stow operates three
strategically located distribution facilities.
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Natural Products Industry
Natural foods and related products are minimally processed, environmentally
friendly, largely or completely free from artificial ingredients, preservatives
and other non-naturally occurring chemicals and in general as close to their
natural state as possible. Although most natural products are food products,
including organic foods, the natural products industry encompasses a number of
other categories, including nutritional and herbal supplements, toiletries and
personal care items, naturally based cosmetics, natural/homeopathic medicines
and naturally based cleaning agents.
The natural products distribution business involves the sourcing,
purchasing, warehousing, marketing and transportation of natural products from
suppliers to retailers. As the number of suppliers of and retail outlets for
natural products has continued to increase, the role of the distributor has
become increasingly important. Suppliers of natural products rely on
distributors to reach a fragmented customer base and to provide information on
consumer preferences at the retail level. At the same time, retailers are
placing increasing pressure on distributors for more frequent deliveries,
greater product selection, higher fill rates, more information on product
movement and additional specialized programs such as financing, merchandising
assistance, marketing support and assistance in consumer education. The Company
believes that in order to be successful in this market a distributor must have
access to capital to invest in systems, technology and warehouse enhancements,
broad product knowledge and the ability to provide value added services designed
to enable customers to become more efficient and profitable. Management believes
that the Company is well-positioned to meet the increasing needs of both its
suppliers and customers.
Business Strategy
The Company's objective is to better meet the changing needs of both
suppliers and retailers and to be the leading national distributor of natural
products. The key elements of the Company's business strategy include:
National Presence. With five distribution centers strategically located in
California, Colorado, Connecticut, Georgia and Washington and two satellite
staging facilities in Florida and Pennsylvania, the Company is well
positioned to provide distribution services to natural products retailers
and suppliers located across the United States. As a result, the Company is
able to (i) provide next-day delivery service to a majority of its active
customers, (ii) make multiple deliveries each week to its largest
customers, (iii) coordinate its inventory management with regional
purchasing patterns and (iv) achieve significant operating efficiencies.
Integration of Recent Acquisitions. United Natural recently made three
strategic acquisitions and is currently in the process of integrating these
operations to increase the Company's overall efficiency by: (i) eliminating
geographic overlaps in distribution, (ii) integrating administrative,
finance and accounting functions, (iii) expanding marketing and customer
service programs and (iv) upgrading information systems. To preserve its
regional
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focus, the Company intends to keep the majority of the purchasing, pricing,
sales and marketing decisions at the regional level.
Purchasing Power and Supplier Relationships. As a result of its size of
operations, national presence and access to retailers within the highly
fragmented natural products sector, the Company is able to supply a
superior selection of natural products at more competitive prices and on
better terms, including supplier-sponsored marketing dollars, than many of
its smaller, regional competitors. These prices and marketing support are
then passed on to the Company's retail customers, thereby enhancing the
Company's reputation as a low-cost supplier that offers extensive marketing
programs. In addition, in order to increase its appeal to a number of
suppliers and to receive better pricing, the Company has recently
centralized the purchasing of specific products. For example, the Company
has positioned itself as the largest purchaser of bulk products in the
natural products industry by centralizing its purchase of nuts, seeds,
grains, flours and dried foods.
Diverse, High-Quality Product Line. The Company distributes a mix of more
than 25,000 national, regional and private label natural products, which
products are continually evaluated, updated and expanded to satisfy the
needs of its diverse customer base. The Company believes that its product
selections meet or exceed its regional competitors' selection in every
market that it serves. In addition, the Company offers a selection of
private label products chosen to address customer preferences that are not
otherwise being met by other suppliers.
Regional Responsiveness. By decentralizing the majority of its purchasing,
pricing, sales and marketing decisions at the regional level, the Company
is able to respond to regional and local customer preferences, while taking
advantage of the economies of scale associated with the Company's national
operations. Each of the Company's three regional operations (Cornucopia,
Rainbow and Mountain People's) has extensive knowledge of the local and
regional taste preferences in a particular marketplace and has the ability
to provide products to accommodate local trends. In addition, the Company
is able to customize services, respond quickly with pricing decisions to
meet local competition and rapidly accommodate customer requirements, as
necessary.
Customer Service and Marketing Programs. In addition to providing its
customers with delivery services which include next-day and more frequent
deliveries and high order fill rates (excluding products unavailable from
the supplier), the Company offers its customers a selection of inventory
management, merchandising, marketing, promotional and event management
services to increase customer sales and enhance customer satisfaction. The
Company attributes its high fill rates and timely deliveries to its
experienced purchasing department and sophisticated warehousing, inventory
control and distribution systems. The Company offers its customers a broad
range of marketing services, many of which are supplier-sponsored,
including monthly and seasonal flier programs, in-store signage and
assistance in product display, all in order to assist its customers in
increasing sales.
Infrastructure and Management. The Company recently made a significant
investment in designing its proprietary, sophisticated information and
warehouse management systems and
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recently expanded its Connecticut distribution facility from 165,000 to
245,000 square feet to achieve additional operating efficiencies and cost
reductions. The Company's warehouse management systems incorporate an
efficient method of storing, locating and rotating incoming and outgoing
merchandise. The Company is planning on installing its information systems
and expanding its distribution capacity in its Colorado and California
facilities. The Company continually evaluates and upgrades its management
information systems based on the best practices at its regional operations
in order to make the systems more efficient, cost effective and responsive
to customer needs.
Growth Strategy
Key elements of the Company's growth strategy include:
Expand Customer Base. While continuing to focus on maintaining
relationships with its existing natural products retail customers, the
Company's goal is to expand its customer base to keep up with increasing
demand for natural products. The Company is continually cultivating
relationships with new customers for natural products, such as natural
products supermarket chains, as well as conventional supermarkets, other
mass market outlets, institutional foodservice providers, hotels and
gourmet stores which are increasing their natural product offerings.
Increase Sales To Existing Customers. The Company believes that a
significant opportunity exists to increase its sales penetration of its
existing retail customer base by (i) expanding the Company's role as the
primary supplier to the majority of its customers, (ii) expanding the
number of products and product categories offered and (iii) providing
pricing incentives and marketing support to generate higher sales levels by
its customers.
Expand Market Presence. The Company intends to expand its market
penetration of existing and new markets by increasing the distribution
capacity of its existing facilities and by building new distribution
facilities. In addition, while the Company has no agreements or
understandings with regard to acquisitions at this time (other than the
Agreement and Plan of Reorganization between United Natural and Stow), it
will continue to selectively evaluate opportunities to acquire local
distributors to fill in existing markets and regional distributors to
expand into new markets.
Products
Current Products
The Company's extensive selection of high-quality natural products enables
it to provide a primary source of supply to a diverse base of customers whose
product needs vary significantly. The Company distributes over 25,000 products,
consisting of national brand, regional brand, private label and master
distribution products in six product categories consisting of grocery and
general merchandise, nutritional supplements, bulk and foodservice products,
personal care items, perishables and frozen foods.
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National Brands. National brand products are recognized and
distributed throughout the United States and typically possess
features, including taste and packaging, that are recognizable and
appeal to a large and diverse customer base. The Company has secured
the distribution rights to more than 1,000 brands of nationally known
products.
Regional Brands. Regional brand products are recognized by and
distributed in selected areas of the country to satisfy the demands of
consumers in specific geographic regions. In addition, the short shelf
life of many regional brands makes national distribution
impracticable. The Company's decentralized purchasing practices enable
regional buyers familiar with consumer demand to offer products that
have a particular appeal to consumers in that region. The Company
distributes over 800 regional brands to its customers.
Private Label Products. The Company also offers private label products to
address certain preferences of customers that are not otherwise being met by
other suppliers. The Company's private label program is designed to take
advantage of market opportunities created by a lack of supply of a type of
product. The Company currently offers the following private label products:
--Clear Spring waters
--Farmer's Pride eggs
--Guardian vitamins and supplements
--Natural Sea fish products
--Organic Baby infant foods
--Gourmet Artisan pasta and oils
Master Distribution Products. Master distribution products are products
that are available exclusively through the Company as master distributor which
enables smaller manufacturers to more efficiently access the market. All
competing distributors must purchase such products from the Company. The Company
has the master distribution rights for the following brands:
--Purdey's nutritionally enhanced beverages
--Rudi's Bakery specialty breads
--Wolfgang Puck frozen pizzas and entrees
New Products
The Company evaluates more than 10,000 potential new products each year
based on existing and anticipated trends in consumer preferences and buying
patterns. The Company's buyers regularly attend regional natural, organic,
specialty, ethnic and gourmet products shows to review the latest product
introductions that are likely to be of interest to retailers and consumers. The
Company also actively solicits suggestions for new products from its customers.
For example, each month the Company distributes postage-paid postcards to its
customers to encourage them to provide suggestions. The Company makes the
majority of its new product decisions at the regional level. The Company
believes that its decentralized purchasing practices allow its regional
purchasers to react quickly to changing consumer preferences and to evaluate
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new products and new product categories regionally. In addition, many of the new
products offered by the Company are marketed on a regional basis or in the
Company's own retail stores prior to being offered nationally, which enables the
Company to evaluate local consumer reaction to the products without incurring
significant inventory risk.
Customers
The Company markets its products to more than 5,800 customers located in 43
states. The Company maintains long-standing customer relationships with
independent natural products stores and has continued to emphasize its
relationships with new customers, including natural products supermarket chains,
as well as conventional supermarkets and other mass market outlets,
institutional foodservice providers, hotels and gourmet stores, all of which are
continually increasing their natural product offerings. Management believes that
the Company is the primary supplier to the majority of its customers. No
customer accounted for more than 10% of the Company's net sales in the fiscal
year ended July 31, 1997. Among the Company's wholesale customers are leading
natural products supermarket operators doing business as Alfalfa's, Fresh Fields
Markets, Nature's Fresh, Northwest!, Whole Foods Market and Wild Oats Markets,
and conventional supermarket chains such as Carr's, City Market, Genuardis,
Harris Teeter, King Soopers, Kroger, Quality Food Centers (QFC) and Hannaford
Brothers.
Customer Service
The Company believes that customer loyalty is dependent upon outstanding
customer service to ensure accurate fulfillment of orders, timely product
delivery, low prices and a high level of product marketing support.
Sales
The Company maintains an order fill rate (excluding products unavailable
from the supplier) which the Company believes is one of the highest order fill
rates in the natural products distribution industry. The Company believes that
its high fill rates can be attributed to its experienced purchasing department
and sophisticated warehousing, inventory control and distribution systems. The
Company offers next-day delivery service to a majority of its active customers
and offers multiple deliveries each week to its largest customers.
The Company's staff of account representatives cultivates partnership
relationships with the Company's customers by emphasizing communication and
responsiveness. The primary function of the account representatives is to help
customers grow their businesses, thereby increasing the Company's own sales.
Each account representative is assigned stores in a designated geographic area
and is responsible for assisting the retailer in inventory management,
merchandising, marketing, promotional and event management and store openings.
The Company's staff of customer service representatives regularly contacts
customers by telephone to ensure that customer needs are met quickly and
efficiently. In addition to processing orders, the customer service
representatives respond to customer inquiries concerning the Company's services
and product availability. While the customer service representatives contact all
customers, the majority of the Company's sales volume is ordered electronically.
The Company distributes shelf
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identification tags which can be scanned to facilitate this electronic ordering
by the customer. The Company's account representatives and customer service
representatives regularly exchange information to facilitate better knowledge
of, and more effective response to, customer needs.
To assist customers in making purchasing decisions, each of the Company's
regions produces a quarterly catalog containing a description of all products
that are currently in stock. Each product description includes the vendor's
name, product number, price per unit, price per case, suggested retail price and
UPC bar code. The quarterly catalog also contains a variety of information on
product ordering, delivery options and vendor advertising. In addition, each
region produces a monthly specials catalog with its latest pricing promotions
and new products.
In addition, the Company's senior executives attend major specialty food
trade shows and personally meet with numerous retailers each year to solicit
their comments. The Company's commitment to service is further reflected in the
focus groups conducted annually by the Company's senior executives with a
representative sampling of the Company's customers which allows customers to
evaluate the Company's services, products and programs.
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Marketing
The Company has developed a variety of marketing services, many of which
are supplier-sponsored, that cater to a broad range of retail formats in which
retailers may participate for a nominal fee. These programs are designed to
increase sales and are attractive to retailers who often do not have the
resources necessary to conduct such marketing programs independently.
The Company offers a monthly flier program featuring the logo and address
of the participating retailer imprinted on a flier advertising sale items which
is distributed by the retailer to its customers. The color fliers are designed
by the Company's in-house marketing department utilizing modern digital
photography and contain detailed product descriptions and pricing information.
In addition, each flier generally includes detailed information on selected
vendors, recipes, product features and a comparison of the characteristics of a
natural product with a similar mass market product. The monthly flier program is
structured to pass through to the retailer the benefit of lower costs on certain
products, allowing stores to earn an improved profit margin on sale items as a
result of the Company's ability to negotiate favorable terms with the suppliers
of these items. The program also provides retailers with posters and window
banners to coincide with each month's promotions.
In addition to its monthly flier program, the Company offers thematic and
seasonal consumer fliers that are used to promote items associated with a
particular cause or season, such as environmentally sensitive products for Earth
Day or foods and gifts particularly popular during the holiday season. The
Company also (i) offers in-store signage and promotional materials, including
shopping bags and end-cap displays, (ii) provides assistance with planning and
setting up product displays and (iii) advises on pricing decisions to enable its
customers to respond to local competition.
Suppliers
The Company purchases its products from approximately 1,500 active
suppliers, many of which have had relationships with the Company for more than
ten years. Management believes that natural products suppliers seek distribution
of their products through the Company because it distributes the majority of the
supplier's products, provides access to a large and growing customer base and
supports the supplier's marketing programs. Substantially all product categories
distributed by the Company are available from a number of suppliers and the
Company is not dependent on any single source of supply for any product
category. The Company's largest supplier accounted for approximately 4.4% of
total purchases in fiscal 1997.
The Company has positioned itself to respond to regional and local customer
preferences for natural products by decentralizing the majority of its
purchasing decisions for all products except bulk commodities. The Company
believes that regional buyers are best suited to identify and to respond to
local demands and preferences. Although each of the Company's regions is
responsible for placing its own orders and can select the products that it
believes will most appeal to its customers, each region is required to
participate in Company-wide purchasing programs that enable it to take advantage
of the Company's consolidated purchasing power. For example,
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the Company has positioned itself as the largest purchaser of bulk products in
the natural products industry by centralizing its purchase of nuts, seeds,
grains, flours and dried foods.
The Company's purchasing staff cooperates closely with suppliers to provide
new and existing products. The suppliers assist in training the Company's
account and customer service representatives in marketing new products,
identifying industry trends and coordinating advertising and other promotions.
The Company maintains a comprehensive quality control assurance program.
All products sold by the Company and represented as "organic" are required to be
certified as such by an independent third-party agency. The Company maintains
current certification affidavits on all organic commodities and produce in order
to verify the authenticity of the product. All potential vendors of organic
products are required to provide such third-party certification before they are
approved as a supplier to the Company. In addition, the Company has secured the
services of the Food and Drug Administration ("FDA") counsel to audit all
labels, packaging, ingredient lists and product claims relating to products
offered by the Company to ensure that all products meet current FDA
requirements. The Company believes that it is the only natural products
distributor which has performed such an audit to date.
Distribution
The Company maintains five distribution centers located in Auburn,
California; Denver, Colorado; Dayville, Connecticut; Atlanta, Georgia; and
Seattle, Washington. The Company has recently expanded its Connecticut
headquarters from 165,000 to 245,000 square feet and significantly expanded its
capacity to store frozen foods. The Company has signed a lease for a new
facility in Colorado which, at 180,800 square feet, will be twice the size of
its current facility and which is expected to be operational in early 1998. The
Company intends to replace its 40,000 square foot auxiliary storage facility in
Sacramento, California with an 80,000 square foot storage facility located
adjacent to its Auburn, California distribution center, which is expected to be
substantially complete by summer 1998. In addition, the Company operates
satellite staging facilities in the Philadelphia, Pennsylvania and greater
Jacksonville, Florida areas. These satellite facilities serve as transfer points
for products, trucks and drivers and ensure faster service to markets located
more than five hours driving distance from the Georgia and Connecticut
distribution centers.
The five distribution centers, two satellite staging facilities and one
auxiliary storage facility have a total of approximately 805,000 square feet of
space. Each distribution center contains dry, refrigerated and frozen storage
areas as well as office space. In total, the Company's facilities encompass
approximately 652,200 square feet of dry storage space, 40,700 square feet of
refrigerated space and 44,700 square feet of frozen storage space, with the
remainder used as office space for the Company's regional purchasing, sales and
administrative operations.
The Company has carefully chosen the sites for its distribution centers to
provide direct access to its regional markets. This proximity allows the Company
to reduce its transportation costs compared to competitors that seek to service
their customers from locations that are often hundreds of miles away. The
Company believes that it incurs lower inbound freight expense than
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its regional competitors because its national presence allows it to buy full and
partial truckloads of products which, if necessary, it can backhaul using the
Company's own trucks between its distribution centers and satellite staging
facilities. Many of the Company's competitors must employ outside consolidation
services and pay higher carrier transportation fees to move products from other
regions. In addition, overstocks and inventory inbalances at one distribution
center may be redistributed by the Company to another distribution center where
products may be sold prior to their expiration date.
Products are delivered to the Company's distribution centers primarily by
its leased fleet of trucks, contract carriers and the suppliers themselves. The
Company leases most of its trucks from Ryder Truck Leasing, which maintains
facilities on some of the Company's premises for the maintenance and service of
these vehicles, and a lesser number of its trucks from regional firms that offer
competitive services.
The Company ships orders for supplements or for items that are destined for
areas outside regular delivery routes through the United Parcel Service and
other independent carriers. Deliveries to areas outside the continental United
States are shipped by ocean-going containers on a weekly basis.
Systems
The Company has made a significant investment in designing its proprietary
information and warehouse management systems. The Company continually evaluates
and upgrades its management information systems based on the best practices at
its regional operations in order to make the systems more efficient, cost
effective and responsive to customer needs. The Company has installed its
warehouse management systems at its Connecticut and Georgia facilities. These
systems include radio frequency-based inventory control, paperless receiving,
engineered labor standards, computer-assisted order processing and slot
locator/retrieval assignment systems. At the receiving docks, warehouse workers
attach computer-generated, preprinted locator tags to all inbound products.
These tags contain the expiration date, location, quantity, lot number and other
information in bar code format. To process customer orders, warehouse workers
use hand-held radio frequency devices to scan the UPC bar code as a product is
removed from its assigned slot. Similarly, customer returns are processed by
scanning the UPC bar codes. The Company also employs a management information
system that enables it to lower its inbound transportation costs by making
optimum use of its own fleet of trucks or by consolidating deliveries into full
truckloads. Orders from multiple suppliers and multiple distribution centers are
consolidated into single truckloads for efficient use of available vehicle
capacity and return-haul trips.
Retail Operations
The Company's Natural Retail Group ("NRG") currently owns and operates nine
retail natural food stores located in Connecticut, Florida, Maryland,
Massachusetts and New York. The Company's retail strategy is to selectively
acquire existing stores that meet the Company's strict criteria in categories
such as sales and profitability, growth potential, merchandising and management.
Generally, the Company will not purchase stores that directly compete with
primary retail customers of its distribution business. The Company believes its
retail stores have
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a number of advantages over their competitors, including the financial strength
and marketing expertise provided by the Company, the purchasing power resulting
from group purchasing by stores within NRG and the breadth of their product
selection. The Company's strategy for future retail growth is to identify and
acquire additional retail stores as opportunities arise and to focus on
increased sales of higher margin nutritional supplements while maintaining
emphasis on the sale of organic produce and delicatessen and bakery products and
consumer education.
The Company's retail stores offer products in each of the six categories
offered by the Company's distribution business as well as produce, meat,
poultry, fresh seafoods, baked goods and other prepared foods. These additional
product offerings range between 20% to 40% of the total sales of a typical NRG
store. NRG focuses its marketing efforts on consumer education and store
promotion. NRG provides consumer education through informational brochures,
promotional flyers, seminars, workshops, cooking classes and product samplings.
In its image advertising, NRG emphasizes its knowledgeable and courteous staff,
broad selection of natural products, environmental stewardship and frequent
price promotions.
The name and location of each of NRG's stores and their approximate square
feet and lease expiration dates are as follows:
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Store/Location Date of Acquisition Square Feet Lease Expiration
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Health Hut.................. April 1993 4,100 May 2000
Valley Stream, NY
Cheese and Stuff............ May 1993 10,000 March 2005
Hartford, CT
Food for Thought............ July 1993 12,000 November 2005
Norwalk, CT
Village Market.............. November 1993 5,875 May 2001
Pikesville, MD
Natureworks................. January 1994 8,500 December 2001
Melbourne, FL
Railway Market.............. April 1994 5,000 March 1999
Easton, MD
Cape Cod Natural Foods...... July 1994 4,500 December 2002
Centerville, MA
SunSplash Market............ April 1995 5,750 July 1999
Naples, FL
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Nature's Finest Foods August 1997 15,000 November 2003
St. Petersburg, FL
</TABLE>
As both a distributor to its retail stores and a retailer, a number of
advantages are made available to the Company, including the ability to: (i)
control the purchases made by these stores; (ii) expand the distribution of and
marketing for its private label products within these stores; (iii) expand the
number of high-growth, high-margin product categories such as produce and
prepared foods within these stores; and (iv) keep current with the retail
marketplace which allows it to better serve its distribution customers. In
addition, as the primary natural products distributor to its retail locations,
the Company expects to realize significant economies of scale and operating and
buying efficiencies. As an operator of retail stores, the Company also has the
ability to test market select products prior to offering them nationally, which
allows the Company to evaluate consumer reaction to the product without
incurring significant inventory risk. The Company is able to test new marketing
and promotional programs within its stores prior to offering them to a broader
customer base.
Competition
The natural products distribution industry is highly competitive. The
industry has been characterized in recent years by significant consolidation and
the emergence of large competitors. The Company also competes with numerous
smaller regional, local and specialty distributors of natural products. In
addition, the Company competes with national, regional and local distributors of
conventional groceries and, to a lesser extent, companies which distribute to
their own retail facilities. There can be no assurance that distributors of
conventional groceries will not increase their emphasis on natural products and
more directly compete with the Company or that new competitors will not enter
the market. Many of these distributors may have been in business longer, may
have substantially greater financial and other resources than the Company and
may be better established in their markets. There can be no assurance that the
Company's current or potential competitors will not provide services comparable
or superior to those provided by the Company or adapt more quickly than the
Company to evolving industry trends or changing market requirements. It is also
possible that alliances among competitors may emerge and rapidly acquire
significant market share. Increased competition may result in price reductions,
reduced gross margins and loss of market share, any of which could materially
adversely affect the Company's business, financial condition or results of
operations.
The Company believes that distributors in the natural products industry
compete principally on product quality and depth of inventory selection, price
and quality of customer service. Although the Company believes it currently
competes effectively with respect to each of these factors, there can be no
assurance that the Company will be able to maintain its competitive position
against current and potential competitors.
The Company's retail stores compete against other natural products outlets,
conventional supermarkets and specialty stores. The Company believes that
retailers of natural products compete principally on product quality and
selection, price, knowledge of personnel and convenience of location.
12
<PAGE>
Regulation
The Company's operations and products are subject to regulation by state
and local health departments, the U.S. Department of Agriculture and the Food
and Drug Administration, which generally impose standards for product quality
and sanitation. The Company's facilities generally are inspected at least once a
year by state or federal authorities. The Company's trucking operations are also
subject to regulation by the U.S. Department of Transportation and the U.S.
Federal Highway Administration.
Federal, state and local provisions which have been enacted or adopted
regulating the discharge of materials into the environment, or otherwise
relating to the protection of the environment, generally are not directly
applicable to the Company. Certain of the Company's distribution facilities have
above-ground storage tanks for diesel fuel and other petroleum products, which
are subject to laws regulating such storage tanks.
The Company believes that it is in compliance in all material respects with
all applicable government regulations.
Employees
As of July 31, 1997, the Company had approximately 1,200 full-time
employees, including approximately 80 in finance and administration, 102 in
sales and marketing, 81 in customer service, 263 in the retail stores and 674 in
operations. Approximately 75 of these employees are covered by a collective
bargaining agreement with Teamsters Local 117, Seattle, Washington which will
expire in July 2000. The Company has never experienced a work stoppage by its
unionized employees. The Company believes that its relationships with its
employees are good.
Item 2.
Properties
The Company owns its corporate offices and distribution center in Dayville,
Connecticut which was recently expanded from 165,000 to 245,000 square feet.
The Company leases its remaining distribution centers, two satellite
staging areas and one auxiliary storage facility. Each distribution center
contains dry, refrigerated and frozen storage areas and office space for the
purchasing, sales and administrative operations of the facility. The following
chart provides information on the approximate square footage of each of the
Company's distribution centers and staging facilities and the expiration date of
the lease for the facility (other than Dayville, Connecticut, which is owned by
the Company):
<TABLE>
<CAPTION>
Size (in Lease
Location square feet) Expiration
-------- ------------ ----------
<S> <C> <C>
Atlanta, Georgia.............. 175,000 March 1999
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Size (in Lease
Location square feet) Expiration
-------- ------------ ----------
<S> <C> <C>
Auburn, California............ 150,000 May 2008
Dayville, Connecticut......... 245,000 Not Applicable
Denver, Colorado.............. 91,000 July 2000
Seattle, Washington........... 100,000 February 2001
Jacksonville, Florida......... 3,000 December 1996 (renewal
negotiations ongoing)
Philadelphia, Pennsylvania.... 2,800 December 1996 (renewal
negotiations ongoing)
Sacramento, California........ 40,000 October 1996 (negotiating
purchase of distribution center)
</TABLE>
The Company has signed a lease for a new facility in Denver which, at
180,800 square feet, will be twice the size of its current facility. The new
Denver facility is expected to be operational in early 1998. The Company intends
to replace its 40,000 square foot auxiliary storage facility in Sacramento,
California with an 80,000 square foot storage facility located adjacent to its
Auburn, California distribution center. Construction of the new leased space is
expected to be substantially complete by summer 1998. The Company believes that
it will be able to continue to expand or replace its facilities as and when
needed to accommodate the Company's future growth.
Equipment and machinery owned by the Company and used in its operations
consist primarily of electronic data processing and material handling equipment,
racking, coolers and freezers. The Company leases a majority of its trucks and
trailers under master lease agreements with Ryder Truck Leasing. Ryder is
responsible for all truck maintenance costs.
Item 3.
Legal Proceedings
From time to time, the Company is involved in routine litigation which
arises in the ordinary course of its business. There are no pending material
legal proceedings to which the Company is a party or to which the property of
the Company is subject.
Item 4.
Submission of Matters to a Vote of Security Holders
There were no matters submitted to a vote of the security holders, through
the solicitation of proxies or otherwise, during the fourth quarter of the
fiscal year ended July 31, 1997.
14
<PAGE>
Executive Officers of the Registrant
The executive officers of United Natural and their ages as of September 30, 1997
are as follows:
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
Norman A. Cloutier 43 Chairman of the Board and Chief Executive Officer
Michael S. Funk 43 Vice Chairman of the Board and President
Steven H. Townsend 44 Chief Financial Officer, Director, Treasurer and
Secretary
Daniel V. Atwood 39 President of NRG, Vice President, Assistant
Treasurer, Assistant Secretary and Director of
United Natural
Andrea R. Hendricks 37 Director of Purchasing of Mountain People's and
Director of United Natural
Kevin T. Michel 39 Chief Financial Officer of Mountain People's and
Director of United Natural
</TABLE>
Norman A. Cloutier founded United Natural in 1978. Mr. Cloutier has
been Chairman of the Board and Chief Executive Officer of United Natural since
its inception. Mr. Cloutier served as President of United Natural from its
inception until October 1996. Mr. Cloutier previously operated a natural
products retail store in Coventry, Rhode Island from 1977 to 1978.
Michael S. Funk has been Vice Chairman of the Board of United
Natural since February 1996 and President of United Natural since October 1996.
Mr. Funk served as Executive Vice President of United Natural from February 1996
until October 1996. Since its inception in July 1976, Mr. Funk has been
President of Mountain People's. Mr. Funk has served on the Board of Directors
since February 1996.
Steven H. Townsend has been Vice President - Finance and Administration
of United Natural since 1983 and Chief Financial Officer of United Natural since
August 1988. From 1980 to 1983, Mr. Townsend was Director of Finance for the
Town of Mansfield, Connecticut. From
15
<PAGE>
1976 to 1980, Mr. Townsend was an Accounting Supervisor at Harris Corporation, a
manufacturer of printing presses and related products. Mr. Townsend has served
on the Board of Directors since August 1988.
Daniel V. Atwood has been President of NRG and Vice President of
United Natural since August 1995. Mr. Atwood was Vice President - Marketing of
United Natural from January 1984 to August 1995. From 1979 to 1982, Mr. Atwood
was a Store Manager at Bread & Circus Supermarkets, a chain of independent
natural products stores. Mr. Atwood has served on the Board of Directors since
August 1988.
Andrea R. Hendricks has been Director of Purchasing for Mountain
People's since January 1990. Ms. Hendricks oversees the purchasing, pricing and
promotional departments for United Natural's western region. Ms. Hendricks has
served on the Board of Directors since February 1996.
Kevin T. Michel had been the Chief Financial Officer of Mountain
People's since January 1995. From January 1992 until January 1995, Mr. Michel
held several different accounting and finance positions at Mountain People's.
From March 1991 until December 1991, Mr. Michel was the sole proprietor of a
restaurant. Mr. Michel has served on the Board of Directors since February 1996.
Part II
Item 5.
Market for the Registrant's Common Equity and Related Stockholder Matters
The Company's Common Stock is traded on the Nasdaq National Market under
the symbol "UNFI."
The United Natural Common Stock began trading on the Nasdaq National
Market on November 1, 1996. The following table sets forth for the periods
indicated the high and low sale prices per share of United Natural Common Stock
on the Nasdaq National Market:
<TABLE>
<CAPTION>
Fiscal 1997 High Low
----------- ---- ---
<S> <C> <C>
Second Quarter $17.500 $12.375
Third Quarter 17.000 13.000
Fourth Quarter 24.375 15.000
</TABLE>
On September 5, 1997, United Natural had 30 stockholders of record. The
number of record holders may not be representative of the number of beneficial
holders because many shares are held by depositories, brokers or other nominees.
16
<PAGE>
The Company has never declared or paid any cash dividends on its capital
stock. The Company anticipates that all of its earnings in the foreseeable
future will be retained to finance the continued growth and development of its
business and has no current intention to pay cash dividends. The Company's
future dividend policy will depend on the Company's earnings, capital
requirements and financial condition, requirements of the financing agreements
to which the Company is then a party and other factors considered relevant by
the Board of Directors. The Company's existing revolving line of credit
agreement prohibits the declaration or payment of cash dividends to the
Company's stockholders without the written consent of the bank during the term
of the credit agreement and until all obligations of the Company under the
credit agreement have been met.
17
<PAGE>
Item 6.
Selected Financial Data
The selected consolidated financial data presented below under the
caption Consolidated Statement of Income Data with respect to the fiscal years
ended October 31, 1994 and 1995, the nine months ended July 31, 1996, and the
fiscal year ended July 31, 1997, under the caption Consolidated Balance Sheet
Data at October 31, 1994 and 1995 and July 31, 1996 and 1997, are derived from
the consolidated financial statements of the Company, which financial statements
have been audited by KPMG Peat Marwick LLP, independent certified public
accountants. The selected consolidated financial data presented below under the
caption Consolidated Statement of Income Data with respect to the fiscal year
ended October 31, 1993 and the nine months ended July 31, 1995, and under the
caption Consolidated Balance Sheet Data at October 31, 1993, are derived from
the unaudited consolidated financial statements of the Company that have been
prepared on the same basis as the audited financial statements and, in the
opinion of management, contain all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of the results for such
periods. The historical results are not necessarily indicative of results to be
expected for any future period. The following selected consolidated financial
data should be read in conjunction with and are qualified by reference to
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Company's Consolidated Financial Statements and Notes
thereto included elsewhere in this Form 10-K
<TABLE>
<CAPTION>
Nine Months Ended Year Ended
Year Ended October 31, July 31, July 31,
---------------------- -------- --------
1993 1994 1995 1995 1996 1997
---- ---- ---- ---- ---- ----
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C>
Consolidated Statement of Income Data:
Net sales ................................................ $153,636 $200,616 $283,323 $188,502 $286,448 $421,698
Cost of sales ............................................ 121,148 156,498 223,482 147,706 226,482 334,584
-------- -------- -------- -------- -------- --------
Gross profit ............................................. 32,488 44,118 59,841 40,796 59,966 87,114
Operating expenses ....................................... 27,176 36,195 48,653 32,740 48,565(2) 67,633
Amortization of intangibles .............................. 199 538 2,426(1) 603 792 1,060
-------- -------- -------- -------- -------- --------
Total operating expenses ................................. 27,375 36,733 51,079 33,343 49,357 68,693
-------- -------- -------- -------- -------- --------
Operating income ......................................... 5,113 7,385 8,762 7,453 10,609 18,421
-------- -------- -------- -------- -------- --------
Interest expense ......................................... 1,078 2,275 3,403 2,184 3,943 3,081
Other, net ............................................... 137 122 (173) (124) (137) (331)
-------- -------- -------- -------- -------- --------
Total other expense ...................................... 1,215 2,397 3,230 2,060 3,806 2,750
-------- -------- -------- -------- -------- --------
Income before income taxes and extraordinary item ........ 3,898 4,988 5,532 5,393 6,803 15,671
Income taxes ............................................. 1,579 1,971 2,929 2,161 2,778 6,416
-------- -------- -------- -------- -------- --------
Income before extraordinary item ......................... 2,319 3,017 2,603 3,232 4,025 9,255
Extraordinary item (4) ................................... -- -- -- -- -- 933
-------- -------- -------- -------- -------- --------
Net income ............................................... $ 2,319 $ 3,017 $ 2,603 $ 3,232 $ 4,025 $ 8,322
======== ======== ======== ======== ======== ========
Income per share of common stock before extraordinary item $ 0.26 $ 0.30 $ 0.26 $ 0.32 $ 0.40 $ 0.79
======== ======== ======== ======== ======== ========
Extraordinary item (4) ................................... -- -- -- -- -- $ 0.08
======== ======== ======== ======== ======== ========
Net income per share of common stock ..................... $ 0.26 $ 0.30 $ 0.26 $ 0.32 $ 0.40 $ 0.71
======== ======== ======== ======== ======== ========
Weighted average shares of common stock and common stock
equivalents (3) .......................................... 8,982 10,094 10,148 10,148 10,144 11,698
======== ======== ======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
October 31, July 31,
------------------------------ --------------------
1993 1994 1995 1996 1997
------ ------ ------ ------ ------
(in thousands)
<S> <C> <C> <C> <C> <C>
Consolidated Balance Sheet Data:
Working capital ................................................. $ 3,895 $ 10,180 $ 8,583 $ 10,087 $ 48,883
Total assets .................................................... 37,006 48,476 88,822 98,744 110,985
Long-term debt and capital leases, excluding current installments 8,169 10,627 21,878 23,019 16,553
Stockholders' equity ............................................ 4,258 10,257 13,022 18,182 62,177
</TABLE>
(1) Operating income for fiscal 1995 includes a non-recurring expense of $1.6
million related to the write-off of intangible assets. Excluding the $1.6
million non-recurring expense, operating income would have been $10.4
million in fiscal 1995.
(2) Operating income for the nine months ended July 31, 1996 includes a
non-recurring expense of $1.0 million related to the grant of options under
the Company's 1996 Stock Option Plan and a non-recurring expense of $0.5
million representing costs associated with the
18
<PAGE>
Mountain People's merger. Excluding the $1.5 million of non-recurring
expenses, operating income would have been $12.1 million in the nine months
ended July 31, 1996.
(3) For all years and periods prior to fiscal year ended July 31, 1997, does
not reflect the repurchase by the Company, upon the repayment of the
outstanding indebtedness under the Senior Note issued to Triumph -
Connecticut Limited Partnership ("Triumph"), of 380,930 shares of Common
Stock issuable upon the exercise of the Triumph Warrant.
(4) Extraordinary item for fiscal 1997 relates to the loss on early retirement
of debt, net of income tax benefit of approximately $.7 million, which
resulted from the repayment of debt with proceeds from the Company's
initial public offering in November 1996.
Item 7.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
The following discussion of United Natural's financial condition and
results of operations should be read in conjunction with the Company's
consolidated financial statements and notes thereto, as well as with the
selected financial data.
This Annual Report on Form 10-K contains forward-looking statements
that are made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Any statements contained herein (including
without limitation statements to the effect that United Natural or its
management "believes," "expects," "anticipates," "plans" and similar
expressions) that are not statements of historical fact should be considered
forward-looking statements. United Natural cautions that a number of important
factors could cause its actual results to differ materially from those expressed
in any forward-looking statements made by, or on behalf of, United Natural,
including those factors set forth under "Certain Factors That May Affect Future
Results."
Overview
- --------
United Natural is one of only two national distributors of natural
foods and related products in the United States. The Company currently
distributes more than 25,000 natural products to more than 5,800 customers
located in 43 states. United Natural's distribution operations are divided into
three principal regions: Cornucopia in the eastern United States; Mountain
People's in the western United States; and Rainbow in the Rocky Mountains and
Plains regions. Through its subsidiary, the Natural Retail Group, Inc. (NRG),
the Company also owns and operates nine retail natural products stores located
in the eastern United States.
In recent years, the Company has increased sales to existing and new
customers through the acquisition of or merger with natural product
distributors, the opening of distribution centers in new geographic areas, the
expansion of existing distribution centers, and the continued growth of the
natural products industry in general. Through these efforts, management believes
that the Company has been able to broaden its geographic penetration, expand its
customer base, enhance and diversify its product selections and increase its
market share.
The Company currently is in the process of integrating certain
operating functions of its acquisitions in order to improve operating
efficiencies. It is accomplishing this through (i) integrating administrative,
finance and accounting functions in the three regions, (ii) expanding marketing
and customer service programs across the three regions, (iii) expanding national
purchasing opportunities, (iv) consolidating system applications between
physical locations and regions, and (v) eliminating geographic overlap between
regions. In addition, the Company's
19
<PAGE>
continued growth has created the need for expansion of existing facilities to
achieve maximum operating efficiencies and to assure adequate space for future
needs. While operating margins may be affected in periods in which expenses are
incurred, over the long-term, the Company expects to benefit from the increased
absorption of its expenses over a larger sales base.
In recent years, the Company has made considerable expenditures in
connection with the expansion of its facilities, including the expansion of its
distribution center and headquarters in Connecticut and the expansion of
refrigerated and frozen space at its Auburn and Atlanta facilities. The Company
recently announced that it has signed a multi-year lease for a new 180,800 sq.
foot distribution center in Aurora, Colorado that is expected to open in early
1998. In addition, the Company expects to replace its auxiliary storage facility
in Sacramento, California with a larger facility adjacent to its Auburn,
California distribution center. This project should be completed by summer 1998.
The Company's retail strategy for NRG is to selectively acquire
existing natural products stores that meet the Company's strict criteria in
areas such as sales growth, profitability, growth potential and management.
Management believes the Company's retail business serves as a natural complement
to its distribution business.
The Company's net sales consist primarily of sales of natural products
to retailers adjusted for customer volume discounts, returns and allowances and
to a lesser extent, sales to its natural product stores. The principal
components of the Company's cost of sales include the amount paid to
manufacturers and growers for product sold, plus the cost of transportation
necessary to move the product to the Company's distribution facilities.
Operating expenses include salaries and wages, employee benefits (including
payments under the Company's Employee Stock Ownership Plan), warehousing and
delivery, selling, occupancy, administrative, depreciation and amortization
expense. Other expenses include interest payments on outstanding indebtedness,
miscellaneous expenses, interest income and miscellaneous income.
Recent Acquisitions
On June 23, 1997, the Company announced that it had entered into an
agreement with Stow with respect to a merger in which the two companies will be
combined in a transaction which will be accounted for as a pooling of interests.
It is expected that the Company will issue up to 5,000,000 shares of its Common
Stock in order to effect the proposed merger. The Company expects that the
proposed merger will be consummated on October 31, 1997. See "Business."
On February 20, 1996, a subsidiary of the Company merged with and into
Mountain People's, whereupon Mountain People's became a wholly owned subsidiary
of the Company. The merger with Mountain People's was accounted for as a pooling
of interests and, accordingly, all financial information included is reported as
though the companies had been combined in all periods reported.
On May 22, 1995, prior to its merger with United Natural, Mountain
People's acquired Nutrasource, Inc. (Nutrasource), a distributor of natural
products in the Pacific Northwest region. On July 29, 1995, the Company acquired
Rainbow, a distributor of natural products in the Rocky
20
<PAGE>
Mountains and Plains regions. The acquisitions of Nutrasource and Rainbow were
accounted for under the purchase method of accounting and, accordingly, all
financial information for Nutrasource and Rainbow has been included since the
respective dates of acquisition. The excess of the purchase price over the net
assets acquired in each of these acquisitions has been recorded as goodwill and
is being amortized by the Company over 30 years.
United Natural's fiscal years ended October 31, 1994 and 1995 are
referred to herein as "fiscal 1994" and "fiscal 1995," respectively. United
Natural has changed its fiscal year end to July 31.
Results of Operations
The following table presents, for the periods indicated, certain income
and expense items expressed both in dollars and as a percentage of net sales:
<TABLE>
<CAPTION>
Twelve Months Ended July 31, Nine Months Ended July 31,
---------------------------- --------------------------
1997 1996 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales $421,697,941 100.0% $ 381,270,375 100.0% $ 286,448,399 100.0% $ 188,501,456
Cost of sales 334,583,617 79.4% 302,257,965 79.3% 226,481,766 79.1% 147,706,348
----------------------------------------------------------------------------------------------
Gross profit 87,114,324 20.6% 79,012,410 20.7% 59,966,633 20.9% 40,795,108
----------------------------------------------------------------------------------------------
Operating expenses 67,633,123 16.0% 64,479,189 16.9% 48,564,649 17.0% 32,739,675
Amortization of intangibles 1,060,442 0.3% 2,615,560 0.7% 792,615 0.2% 602,672
----------------------------------------------------------------------------------------------
Total operating expenses 68,693,565 16.3% 67,094,749 17.6% 49,357,264 17.2% 33,342,347
----------------------------------------------------------------------------------------------
Operating income 18,420,759 4.3% 11,917,661 3.1% 10,609,369 3.7% 7,452,761
----------------------------------------------------------------------------------------------
Other expense (income):
Interest expense 3,081,440 0.7% 5,161,485 1.4% 3,942,820 1.4% 2,184,345
Other, net (331,983) -0.1% (185,702) -0.1% (136,869) -0.1% (124,477)
----------------------------------------------------------------------------------------------
Total other expense 2,749,457 0.6% 4,975,783 1.3% 3,805,951 1.3% 2,059,868
----------------------------------------------------------------------------------------------
Income before income taxes
and extraordinary item 15,671,302 3.7% 6,941,878 1.8% 6,803,418 2.4% 5,392,893
Income taxes 6,416,070 1.5% 3,547,110 0.9% 2,778,121 1.0% 2,159,865
----------------------------------------------------------------------------------------------
Income before extraordinary item 9,255,232 2.2% 3,394,768 0.9% 4,025,297 1.4% 3,233,028
Extraordinary item - loss on early
extinguishment of debt, net of
income tax benefit of $661,822 932,929 0.2% - - - - -
----------------------------------------------------------------------------------------------
Net income $8,322,303 2.0% $3,394,768 0.9% $4,025,297 1.4% $3,233,028
==============================================================================================
</TABLE>
Twelve Months Ended July 31, 1997 Compared to Twelve Months Ended July 31, 1996
Net Sales. The Company's net sales increased approximately 10.6%, or
$40.4 million, to $421.7 million for the twelve months ended July 31, 1997 from
$381.3 million for the twelve months ended July 31, 1996. The increase in net
sales was primarily attributable to increased sales by the Company to its
existing customers, sales to new customers, increased sales attributable to the
introduction of new products not formerly offered by the Company, and increased
market penetration in existing geographic territories. The Company believes that
sales were negatively impacted by winter storms in the Northwest region during
the second quarter of
21
<PAGE>
fiscal 1997.
Gross Profit. The Company's gross profit increased approximately 10.3%,
or $8.1 million, to $87.1 million for the twelve months ended July 31, 1997 from
$79.0 million for the twelve months ended July 31, 1996. The Company's gross
profit as a percentage of net sales decreased to 20.6% for the twelve months
ended July 31, 1997 from 20.7% for the twelve months ended July 31, 1996. The
decrease in gross profit as a percentage of net sales resulted primarily from
increased sales to existing customers who earned greater discounts under the
Company's volume discount program.
Operating Expenses. The Company's total operating expenses increased
approximately 2.4 %, or $1.6 million, to $68.7 million for the twelve months
ended July 31, 1997 from $67.1 million for the twelve months ended July 31,
1996. However, as a percentage of net sales, operating expenses decreased to
16.3% for the twelve months ended July 31, 1997 from 17.6% for the twelve months
ended July 31, 1996. The decrease in total operating expenses as a percentage of
net sales was attributable to the Company's absorption of fixed expenses and
overhead over a larger sales base.
Operating expenses for the twelve months ended July 31, 1996 included
total non-recurring charges of $3.2 million. These non-recurring charges
included $1.6 million representing the write-down of intangible assets, $0.5
million for costs associated with the merger with Mountain People's and $1.1
million for costs associated with the grant of stock options under the Company's
1996 Stock Option Plan. Excluding these non-recurring charges, the Company's
total operating expenses for the twelve months ended July 31, 1996 would have
been $ 63.9 million, or 16.8% of net sales.
The Company's amortization of intangibles decreased $1.6 million, or
approximately 59.5%, to $1.0 million for the twelve months ended July 31, 1997
from $2.6 million for the twelve months ended July 31, 1996. The Company
incurred a non-recurring charge of $1.6 million in the twelve months ended July
31, 1996 associated with the write-down of intangible assets.
Operating Income. Operating income increased $6.5 million, or
approximately 54.6 %, to $18.4 million for the twelve months ended July 31, 1997
from $11.9 million for the twelve months ended July 31, 1996. As a percentage of
net sales, operating income increased to 4.3% for the twelve months ended July
31, 1997 from 3.1% for the twelve months ended July 31, 1996.
During the twelve months ended July 31, 1996, the Company incurred $3.2
million in non-recurring charges as discussed above. Excluding these
non-recurring charges, operating income for the twelve months ended July 31,
1996 would have been $15.1 million, or 4.0% of net sales.
Other (Income)/Expense. Total other expense, net, decreased by $2.3
million, or approximately 44.7%, to $2.7 million for the twelve months ended
July 31, 1997 from $5.0 million for the twelve months ended July 31, 1996. The
decrease was primarily attributable to
22
<PAGE>
lower interest payments for the twelve months ended July 31, 1997 resulting from
the use of the proceeds of the Company's initial public offering to re-pay debt.
As a result, interest expense decreased to $3.1 million for the twelve months
ended July 31, 1997 from $5.2 million for the twelve months ended July 31, 1996.
Income Taxes. The Company's effective income tax rate was 40.9% and
51.1% for the twelve months ended July 31, 1997 and 1996, respectively. The
effective rates were higher than the federal statutory rate primarily due to
nondeductible amortization, especially the write-off of the intangible assets in
the twelve months ended July 31, 1996, as well as the impact of state and local
income taxes.
Net Income. As a result of the foregoing, the Company's income before
extraordinary item for the twelve months ended July 31, 1997 was $9.3 million,
or $0.79 per share. In November 1996, the Company completed its initial public
offering of stock, the net proceeds of which were used to retire debt. In
connection with the Company's early retirement of debt from the proceeds of its
initial public offering, the Company recorded an extraordinary loss of $1.6
million ($0.9 million net of taxes) in fiscal 1997. Net income for the twelve
months ended July 31, 1997 was $8.3 million, or $0.71 per share.
Net income for the twelve months ended July 31, 1996 was $3.4 million,
or $0.33 per share. Net income for the year included non-recurring charges of
$3.2 million ($1.3 million net of taxes) as discussed above. Excluding these
non-recurring charges, net income for the twelve months ended July 31, 1996
would have been $4.7 million, or $0.46 per share.
Nine Months Ended July 31, 1996 Compared to Nine Months Ended July 31, 1995
Net Sales. The Company's net sales increased 51.9%, or $97.9 million,
to $286.4 million in the nine months ended July 31, 1996 from $188.5 million in
the nine months ended July 31, 1995. The increase in net sales was primarily due
to additional sales of $74.5 million attributable to Nutrasource and Rainbow,
whose operations were included for the entire nine-month period in 1996. Sales
of $6.5 million were attributable to two months of operations of Nutrasource
during the comparable 1995 period. The increase was also attributable to
increased sales by the Company to existing customers, including net sales
attributable to new products offered by the Company and net sales to new
customers in existing geographic distribution areas as well as new geographic
areas not formerly served by the Company.
Gross Profit. The Company's gross profit increased 47.0%, or $19.2
million, to $60.0 million in the nine months ended July 31, 1996 from $40.8
million in the nine months ended July 31, 1995. The Company's gross profit as a
percentage of net sales decreased to 20.9% for the nine months ended July 31,
1996 from 21.6% in the nine months ended July 31, 1995. The decrease in the
gross profit as a percentage of net sales was primarily due to the lower-margin
business of the Company's recently acquired distributors and to an increase in
net sales during fiscal 1996 attributable to natural product supermarket chains.
These chains tend to buy in larger quantities and thus qualify for greater
volume discounts.
23
<PAGE>
Operating Expenses. The Company's total operating expense increased
48.3%, or $16.1 million, to $49.4 million in the nine months ended July 31, 1996
from $33.3 million in the nine months ended July 31, 1995. As a percentage of
net sales, operating expenses decreased to 17.2% in the nine months ended July
31, 1996 from 17.7% in the nine months ended July 31, 1995. Total operating
expenses in the nine months ended July 31, 1996 included a non-cash expense of
$1.0 million related to the grant of options under the Company's 1996 Stock
Option Plan and a non-recurring expense of $0.5 million representing costs
associated with the Mountain People's merger. Excluding the $1.5 million of
non-recurring expenses, the Company's total operating expenses would have been
$47.8 million, or 16.7% of net sales, for the nine months ended July 31, 1996.
The decrease in total operating expenses as a percentage of net sales was
primarily attributable to the Company's increased absorption of overhead and
fixed expenses over a larger sales base. In addition, the Company achieved
increased operating efficiencies through the implementation of new information
and warehouse management systems in its Connecticut and Georgia facilities.
The Company's amortization of intangible assets increased 31.5%, or
$0.2 million, to $0.8 million in the nine months ended July 31, 1996 from $0.6
million in the nine months ended July 31, 1995. This increase was primarily
attributable to the inclusion of amortization expense for Nutrasource and
Rainbow for the entire nine months ended July 31, 1996, compared with the
inclusion of two months of amortization expense for Nutrasource for the nine
months ended July 31, 1995.
Operating Income. Operating income increased $3.1 million, or 42.3%, to
$10.6 million in the nine months ended July 31, 1996 from $7.5 million in the
nine months ended July 31, 1995. As a percentage of net sales, operating income
declined to 3.7% in the nine months ended July 31, 1996 from 3.9% in the nine
months ended July 31, 1995. Excluding the $1.5 million of non-recurring expenses
discussed above, operating income would have been $12.1 million, or 4.2% of net
sales, in the nine months ended July 31, 1996.
Other (Income)/Expense. The $1.8 million increase in interest expense
in the nine months ended July 31, 1996 compared to the nine months ended July
31, 1995 was primarily attributable to the indebtedness incurred in connection
with the purchase of the Company's Connecticut facility in August 1995 and the
acquisitions of Nutrasource and Rainbow, along with an increase in borrowings
under the Company's revolving line of credit to fund increasing inventory and
accounts receivable balances related to the Company's increased sales.
Income Taxes. The Company's effective income tax rates were 40.8% and
40.1% for the nine months ended July 31, 1996 and 1995, respectively. The
effective rates were higher than the federal statutory rate due to nondeductible
costs associated with the merger with Mountain People's, non-deductible
amortization and state and local income taxes.
Net Income. As a result of the foregoing, the Company's net income
increased by 24.5%, or $0.8 million, to $4.0 million in the nine months ended
July 31, 1996 from $3.2 million in the nine months ended July 31, 1995.
Excluding the $1.5 million ($0.9 million net of taxes) non-recurring expenses
discussed above, net income would have been $4.9 million, or 1.7% of net sales,
in the nine months ended July 31, 1996.
24
<PAGE>
Liquidity and Capital Resources
The Company historically has financed its operations and growth
primarily from cash flows from operations, borrowings under its credit facility,
seller financing of acquisitions, operating and capital leases, trade payables,
bank indebtedness and the sale of equity securities. Primary uses of capital
have been acquisitions, expansion of plant and equipment and investment in
accounts receivables and inventory.
Net cash provided by operations was $0.5 million for the twelve months
ended July 31, 1997 and $1.5 million for the nine months ended July 31, 1996.
Net income increased in fiscal 1997 as compared with fiscal 1996 although cash
provided by operating activities decreased. The decrease in cash generated from
operations was primarily attributable to increases in accounts receivable and
inventory that resulted from the expansion of product lines and the continued
growth of the Company's business. The Company's working capital at July 31, 1997
was $48.9 million.
Net cash used in investing activities was $3.3 million for the twelve
months ended July 31, 1997 and $7.0 million for the nine months ended July 31,
1996. Investing activities were primarily related to capital expenditures
necessary to fund the expansion of its Connecticut distribution facility, the
related purchase of material handling equipment, tractors and trailers and
continued upgrade of existing management information systems. The capital
expenditures were primarily funded from senior bank indebtedness, including term
loans, and capital and operating leases.
Net cash provided by financing activities was $2.8 million for the
twelve months ended July 31, 1997 and $5.3 million for the nine months ended
July 31, 1996. During fiscal 1997, the Company issued 2.9 million shares of its
common stock in its initial public offering which resulted in net proceeds of
$35.5 million. The proceeds were used to pay down debt of the Company. During
fiscal 1996, approximately $5.3 million in long-term debt was repaid from cash
provided from operations and with the cash proceeds from the re-financing of the
Company's senior bank facility.
On February 20, 1996, the Company entered into a credit agreement with
its bank to provide a $50 million facility for working capital, term loans and a
mortgage for its Connecticut facility. In March 1997, the Company amended its
$50 million credit agreement to allow borrowings up to $10 million for
acquisitions, and changed the interest rate under the credit facility to either
the New York Prime Rate or 1.00% above the bank's London Interbank Offered Rate
(LIBOR). The Company has the option to fix the rate for all or a portion of the
debt for a period of up to 180 days. Interest on the mortgage facility will
accrue at a rate of 1.25% above the bank's LIBOR rate, although the Company has
the option to fix the rate for a period of five years at 1.25% above the
five-year U.S. Treasury Note rate. The Company has pledged all of its assets as
collateral for the obligations under the credit agreement. As of July 31, 1997,
the Company's outstanding borrowings under the credit agreement totaled $6.3
million. The credit agreement expires on July 31, 2002.
25
<PAGE>
The Company expects to spend approximately $10 million over the next
five years in capital expenditures to fund the expansion of existing facilities,
upgrade information systems and technology and to update its material handling
equipment. Management believes that it will have adequate capital resources and
liquidity to meets its debt obligations and to fund its planned capital
expenditures and operate its business for the foreseeable future.
Impact of Inflation
Historically, the Company has been able to pass along inflation-related
increases. Consequently, inflation has not had a material impact upon the
results of the Company's operations or profitability.
Seasonality
Generally, the Company does not experience any material seasonality.
However, the Company's sales and operating results may vary significantly from
quarter to quarter due to factors such as changes in the Company's operating
expenses, management's ability to execute the Company's operating and growth
strategies, personnel changes, demand for natural products, supply shortages and
general economic conditions.
New Accounting Standards
The Company adopted Statement of Financial Accounting Standards (SFAS)
No. 123, "Accounting for Stock-Based Compensation," during fiscal 1997. While
SFAS No. 123 established financial accounting and reporting standards for stock-
based employee compensation plans using a fair value method of accounting, it
allows companies to continue to measure compensation using the intrinsic value
method of accounting as prescribed in APB Opinion No. 25 (APB No. 25),
"Accounting for Stock Issued to Employees." The Company will continue to use its
present APB No. 25 accounting treatment for stock-based compensation. The
adoption of SFAS No. 123 did not have a material impact on the Company's
financial condition, results of operations or cash flows.
In February 1997, the Financial Accounting Standards Board released
SFAS No. 128, "Earnings per Share." This Statement establishes standards for
computing and presenting earnings per share (EPS) and applies to entities with
publicly held common stock or potential common stock. The Statement replaces the
presentation of primary EPS with a presentation of basic EPS. The Statement also
requires a dual presentation of basic and diluted EPS on the face of the income
statement for all entities with complex capital structures and requires a
reconciliation of the numerator and denominator of the basic EPS computation to
the numerator and denominator of the diluted EPS computation.
Basic EPS excludes dilution and is computed by dividing income
available to common stockholders by the weighted average number of common shares
outstanding for the period. Diluted EPS reflects the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised or converted into common stock or resulted in the issuance of common
stock that then shared in the earnings of the entity. The effect of the adoption
of SFAS
26
<PAGE>
No. 128 will not have a material impact on the Company's financial condition,
results of operations or cash flows.
The Financial Accounting Standards Board recently issued SFAS No. 129,
"Disclosure of Information about Capital Structure." This statement establishes
standards for disclosing information about an entity's capital structure. This
statement is effective for periods ending after December 15, 1997. The effect of
the adoption of SFAS No. 129 will not have a material impact on the Company's
financial condition, results of operations or cash flows.
The Financial Accounting Standards Board recently issued SFAS No. 130,
"Reporting Comprehensive Income." This statement establishes standards for
reporting and display of comprehensive income and its components in a full set
of general purpose financial statements. This statement is effective for fiscal
years beginning after December 15, 1997 and requires reclassification of
financial statements for earlier periods provided for comparative purposes. The
effect of the adoption of SFAS No. 130 will not have material impact on the
Company's financial condition, results of operations or cash flows.
The Financial Accounting Standards Board recently issued SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information." This
statement establishes standards for the way that public business enterprises
report information about operating segments in annual financial statements and
requires that those enterprises report selected information about operating
segments in interim financial reports issued to shareholders. This statement
supersedes SFAS No. 14, "Financial Reporting for Segments of a Business," but
retains the requirement to report information about major customers. This
statement also amends SFAS No. 94, "Consolidation of All Majority-Owned
Subsidiaries." This statement is effective for financial statements for periods
beginning after December 15, 1997 and requires that comparative information for
earlier years be restated. The effect of the adoption of SFAS No. 131 will not
have a material impact on the Company's financial condition, results of
operations or cash flows.
Certain Factors That May Affect Future Results
The following important factors, among others, could cause actual
results to differ materially from those indicated by forward-looking statements
made in this Annual Report on Form 10-K and presented elsewhere by management
from time to time. Any statements contained herein (including without
limitations statements to the effect that United Natural or its management
"believes," "expects," "anticipates," "plans" and similar expressions) that are
not statements of historical fact should be considered forward-looking
statements.
A number of uncertainties exist that could affect United Natural's
future operating results, including, without limitation, continued demand for
current products offered by United Natural, the success of United Natural's
acquisition strategy, competitive pressures, general economic conditions, the
success of new product introductions and government regulation.
A significant portion of United Natural's historical growth has been
achieved through acquisitions of or mergers with other distributors of natural
products. United Natural recently
27
<PAGE>
acquired or merged with three large regional distributors of natural products,
and, if the merger with Stow is consummated, will merge with another large
regional distributor. The successful and timely integration of these
acquisitions and mergers is critical to future operating and financial
performance of United Natural. While the integration of these acquisitions and
mergers with United Natural's existing operations has begun, United Natural
believes that the integration will not be substantially completed until the end
of calendar 1998. The integration will require, among other things, coordination
of administrative, sales and marketing, distribution, and accounting and finance
functions and expansion of information and warehouse management systems among
United Natural's regional operations. The integration process could divert the
attention of management, and any difficulties or problems encountered in the
transition process could have a material adverse effect on United Natural's
business, financial condition or results of operations. In addition, the process
of combining the companies could cause the interruption of, or loss of momentum
in, the activities of the respective businesses, which could have an adverse
effect on their combined operations.
United Natural is currently experiencing a period of growth which could
place a significant strain on its management and other resources. United
Natural's business has grown significantly in size and complexity over the past
several years. The growth in the size of United Natural's business and
operations has placed and is expected to continue to place a significant strain
on United Natural's management. United Natural's future growth is limited in
part by the size and location of its distribution centers. There can be no
assurance that United Natural will be able to successfully expand its existing
distribution facilities or open new distribution facilities in new or existing
markets to facilitate growth. In addition, United Natural's growth strategy to
expand its market presence includes possible additional acquisitions. To the
extent United Natural's future growth includes acquisitions, there can be no
assurance that it will successfully identify suitable acquisition candidates,
consummate and integrate such potential acquisitions or expand into new markets.
United Natural operates in highly competitive markets, and its future
success will be largely dependent on its ability to provide quality products and
services at competitive prices. United Natural's competition comes from a
variety of sources, including other distributors of natural products as well as
specialty grocery and mass market grocery distributors. There can be no
assurance that the mass market grocery distributors will not increase their
emphasis on natural products and more directly compete with United Natural or
that new competitors will not enter the market.
The grocery distribution industry generally is characterized by relatively
high volume with relatively low profit margins. The continuing consolidation of
retailers in the natural products industry and the emergence of natural products
supermarket chains may have an adverse effect on United Natural's profit margins
in the future as more customers qualify for greater volume discounts offered by
United Natural. The grocery industry is also sensitive to national and regional
economic conditions, and the demand for product supply may be adversely affected
from time to time by economic downturns.
Item 7A. Quantitative and Qualitative Disclosure About Market Risk.
Not applicable.
28
<PAGE>
Item 8.
Financial Statements and Supplementary Data
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
United Natural Foods, Inc. and Subsidiaries:
Independent Auditors' Report........................................ 30
Consolidated Balance Sheets......................................... 31
Consolidated Statements of Income................................... 32
Consolidated Statements of Stockholders' Equity..................... 33
Consolidated Statements of Cash Flows............................... 34
Notes to Consolidated Financial Statements.......................... 36
</TABLE>
29
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors
United Natural Foods, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of United
Natural Foods, Inc. and Subsidiaries as of July 31, 1996 and 1997 and the
related consolidated statements of income, stockholders' equity and cash flows
for the year ended October 31, 1995, for the nine months ended July 31, 1996,
and for the year ended July 31, 1997. These consolidated financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of United
Natural Foods, Inc. and Subsidiaries as of July 31, 1996 and 1997 and the
results of their operations and their cash flows for the year ended October 31,
1995, for the nine months ended July 31, 1996, and for the year ended July 31,
1997 in conformity with generally accepted accounting principles.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Providence, Rhode Island
September 5, 1997
30
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
July 31, July 31,
1996 1997
---- ----
ASSETS
<S> <C> <C>
Current assets:
Cash .......................................................................................... $ 51,255 $ 16,477
Accounts receivable, net of allowance for doubtful accounts of $1,277,755 in 1996 and
$2,149,628 in 1997 .......................................................................... 25,657,156 30,019,556
Notes receivable, trade ....................................................................... 360,137 866,160
Inventories ................................................................................... 38,667,548 45,030,476
Prepaid expenses .............................................................................. 1,691,548 3,496,385
Deferred income taxes (note 10) ............................................................... 796,216 1,031,767
Total current assets ........................................................................ 67,223,860 80,460,821
------------- -------------
Property and equipment, net (note 6) ............................................................. 20,603,663 20,379,327
------------- -------------
Other assets:
Notes receivable, trade, net .................................................................. 1,067,697 995,398
Goodwill, net of accumulated amortization of $556,345 in 1996 and $790,684 in 1997 (note 2) .. 8,096,395 7,579,408
Covenants not to compete, net of accumulated amortization of $711,737 in 1996 and
$1,552,306 in 1997 (note 2) ................................................................. 1,117,234 591,665
Deferred acquisition related expenses ......................................................... - 217,856
-------------
Other, net .................................................................................... 635,290 760,879
------------- -------------
10,916,616 10,145,206
------------- -------------
Total assets ................................................................................ $ 98,744,139 $ 110,985,354
============= =============
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
Current liabilities:
Notes payable (note 4) ........................................................................ $ 30,112,868 $ 6,277,300
Current installments of long-term debt (note 5) ............................................... 4,086,795 2,247,281
Current installments of obligations under capital leases (note 7) ............................. 357,404 499,984
Accounts payable .............................................................................. 17,139,406 17,994,561
Accrued expenses .............................................................................. 4,978,331 3,991,025
Income taxes payable .......................................................................... 303,513 377,322
Other ......................................................................................... 158,149 190,667
------------- -------------
Total current liabilities ................................................................... 57,136,466 31,578,140
Long-term debt, excluding current installments (note 5) .......................................... 22,170,855 15,569,665
Deferred income taxes (note 10) .................................................................. 407,346 677,560
Obligations under capital leases, excluding current installments (note 7) ........................ 847,918 983,432
------------- -------------
Total liabilities ........................................................................... 80,562,585 48,808,797
------------- -------------
Stockholders' equity (note 12):
Common stock, $.01 par value, authorized 25,000,000 shares;
issued 8,713,100 shares and outstanding 8,692,695 shares in 1996, issued 12,398,830 shares
and outstanding 12,378,425 shares in 1997 ................................................... 87,131 123,988
Additional paid-in capital .................................................................... 1,383,511 40,056,154
Stock warrants (note 5) ....................................................................... 3,200,000 -
Unallocated shares of employee stock ownership plan (note 11) ................................. (3,073,600) (2,910,400)
Retained earnings ............................................................................. 16,628,966 24,951,269
Treasury stock, 20,405 shares at cost ......................................................... (44,454) (44,454)
------------- -------------
Total stockholders' equity .................................................................. 18,181,554 62,176,557
------------- -------------
Commitments (notes 8 and 9)
Total liabilities and stockholders' equity .................................................. $ 98,744,139 $ 110,985,354
============= =============
</TABLE>
See accompanying notes to consolidated financial statements.
31
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Nine
Year ended months ended Year ended
October 31, July 31, July 31,
1995 1996 1997
----- ----- ----
<S> <C> <C> <C>
Net sales ....................................................... $ 283,323,435 $ 286,448,399 $ 421,697,941
Cost of sales ................................................... 223,482,549 226,481,766 334,583,617
------------- ------------- -------------
Gross profit ........................................ 59,840,886 59,966,633 87,114,324
------------- ------------- -------------
Operating expenses .............................................. 48,653,214 48,564,649 67,633,123
Amortization of intangibles (note 1(f)) ......................... 2,425,618 792,615 1,060,442
------------- ------------- -------------
Total operating expenses ............................ 51,078,832 49,357,264 68,693,565
------------- ------------- -------------
Operating income .................................... 8,762,054 10,609,369 18,420,759
------------- ------------- -------------
Other expense (income):
Interest expense .......................................... 3,403,009 3,942,820 3,081,440
Other, net ................................................ (173,312) (136,869) (331,983)
------------- ------------- -------------
Total other expense ................................. 3,229,697 3,805,951 2,749,457
------------- ------------- -------------
Income before income taxes and
extraordinary item .............................. 5,532,357 6,803,418 15,671,302
Income taxes (note 10) .......................................... 2,929,856 2,778,121 6,416,070
------------- ------------- -------------
Income before extraordinary item ..................... 2,602,501 4,025,297 9,255,232
------------- ------------- -------------
Extraordinary item - loss on early retirement
of debt, net of income tax benefit $661,822 ........ -- -- 932,929
------------- ------------- -------------
Net income ......................................... $ 2,602,501 $ 4,025,297 $ 8,322,303
============= ============= =============
Income per share of common stock before
extraordinary item ................................. $ 0.26 $ 0.40 $ 0.79
============= ============= =============
Extraordinary item .............................................. $ -- $ -- $ 0.08
============= ============= =============
Net income per share of common stock ............................ $ 0.26 $ 0.40 $ 0.71
============= ============= =============
Weighted average common and common equivalent shares ............ 10,148,374 10,143,809 11,697,587
============= ============= =============
</TABLE>
See accompanying notes to consolidated financial statements.
32
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Unallocated
Outstanding Additional Shares of
Number Common Paid-in Stock Employee Stock Retained
of Shares Stock Capital Warrants Ownership Plan Earnings
--------- ----- ------- -------- -------------- --------
<S> <C> <C> <C> <C> <C> <C>
Balances October 31, 1994..... 8,713,100 $87,131 $327,411 $3,200,000 $(3,359,200) $10,001,168
Allocation of shares of
ESOP..................... -- -- -- -- 163,200 --
Net income................. -- -- -- -- -- 2,602,501
---------- --------- --------- --------- ------------ ------------
Balances October 31, 1995..... 8,713,100 87,131 327,411 3,200,000 (3,196,000) 12,603,669
Allocation of shares to
ESOP..................... -- -- -- -- 122,400 --
Purchase of treasury
stock.................... (20,405) -- -- -- -- --
Stock options (note 3)..... -- -- 1,056,100 -- -- --
Net income................. -- -- -- -- -- 4,025,297
---------- --------- --------- --------- ------------ ------------
Balances July 31, 1996........ 8,692,695 87,131 1,383,511 3,200,000 (3,073,600) 16,628,966
Issuance of common stock
(note 1(n)).............. 2,900,000 29,000 35,480,500 -- -- --
Exercise of stock warrants 785,730 7,857 3,192,143 (3,200,000)
Allocation of shares of
ESOP..................... -- -- -- -- 163,200 --
Net income................. -- -- -- -- -- 8,322,303
---------- --------- --------- --------- ------------ ------------
Balances July 31, 1997........ 12,378,425 $ 123,988 $ 40,056,154 -- $(2,910,400) $ 24,951,269
========== ========== ============ ========= ============ ============
<CAPTION>
Total
Treasury Stockholders'
Stock Equity
----- ------
<S> <C> <C>
Balances October 31, 1994..... -- $10,256,510
Allocation of shares of
ESOP..................... -- 163,200
Net income................. -- 2,602,501
--------- ------------
Balances October 31, 1995..... -- 13,022,211
Allocation of shares to
ESOP..................... -- 122,400
Purchase of treasury
stock.................... $ (44,454) (44,454)
Stock options (note 3)..... -- 1,056,100
Net income................. -- 4,025,297
--------- ------------
Balances July 31, 1996........ (44,454) 18,181,554
Issuance of common stock
(note 1(n)).............. -- 35,509,500
Exercise of stock warrants --
Allocation of shares of
ESOP..................... -- 163,200
Net income................. -- 8,322,303
--------- ------------
Balances July 31, 1997........ $ (44,454) $ 62,176,557
========= ============
</TABLE>
See accompanying notes to consolidated financial statements.
33
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year ended Nine months Year ended
October 31, ended July 31, July 31,
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................................. $ 2,602,501 $ 4,025,297 $ 8,322,303
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Extraordinary loss on early extinguishment of debt, net of tax.......... -- -- 932,929
Depreciation, amortization and write-off of intangibles................. 4,273,244 3,012,061 4,416,661
Loss (gain) on disposals of property and equipment...................... (123,583) 24,441 8,930
Accretion of original issue discount.................................... 530,004 458,541 152,847
Compensation expense related to stock options........................... -- 1,056,100 --
Deferred income taxes................................................... 330,158 (270,254) (4,520)
Provision for doubtful accounts......................................... 762,764 646,828 2,112,015
Increase in accounts receivable......................................... (5,544,515) (1,997,444) (6,474,415)
Increase in inventory................................................... (9,989,327) (3,203,177) (6,362,928)
Increase in prepaid expenses............................................ (228,391) (708,539) (1,804,837)
Decrease (increase) in other assets..................................... 2,025,426 300,253 (375,853)
Increase in notes receivable, trade..................................... (265,113) (203,630) (433,724)
Increase (decrease) in accounts payable................................. 4,488,652 (2,871,234) 855,155
Increase (decrease) in accrued expenses................................. 503,467 1,080,891 (954,789)
Increase (decrease) in income taxes payable............................. (220,989) 195,332 73,809
----------- ----------- -----------
Net cash provided by (used in) operating activities............... (855,702) 1,545,466 463,583
----------- ----------- -----------
Cash flows from investing activities:
Proceeds from disposals of property and equipment.......................... 147,666 43,021 95,028
Capital expenditures....................................................... (9,934,590) (7,091,280) (3,350,378)
Payments for purchases of subsidiaries, net of cash acquired............... (8,672,834) -- --
----------- ----------- -----------
Net cash used in investing activities............................. (18,459,758) (7,048,259) (3,255,350)
----------- ----------- -----------
Cash flows from financing activities:
Net borrowings (repayments) under note payable............................. 12,388,997 4,922,460 (23,835,568)
Repayments of long-term debt............................................... (2,046,824) (5,349,788) (20,969,524)
Proceeds from long-term debt............................................... 9,604,443 6,184,986 12,528,820
Principal payments of capital lease obligations............................ (251,632) (387,947) (476,239)
Payment of financing costs................................................. (321,044) -- --
Proceeds from issuance of common stock, net................................ -- -- 35,509,500
Purchase of treasury stock................................................. -- (44,454) --
----------- ----------- -----------
Net cash provided by financing activities......................... 19,373,940 5,325,257 2,756,989
----------- ----------- -----------
Net increase (decrease) in cash............................................... 58,480 (177,536) (34,778)
Cash at beginning of period................................................... 170,311 228,791 51,255
----------- ----------- -----------
Cash at end of period......................................................... $ 228,791 $ 51,255 $ 16,477
=========== =========== ===========
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest................................................................ $ 2,638,000 $ 2,120,000 $ 3,299,475
=========== =========== ===========
Income taxes............................................................ $ 2,838,000 $ 2,467,000 $ 5,319,860
=========== =========== ===========
</TABLE>
34
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS--(Continued)
Supplemental schedule of non-cash investing and financing activities:
In 1995, the Company purchased substantially all of the assets of
one retail store, substantially all of the assets of one wholesale
distributor and the capital stock of another wholesale distributor for
$6,725,000. In conjunction with the acquisitions, liabilities were assumed
as follows:
<TABLE>
<S> <C>
Fair value of assets acquired...................... $21,315,000
Cash paid.......................................... 6,725,000
-----------
Liabilities assumed and debt issued.......... $14,590,000
===========
</TABLE>
In 1996 and 1997, the Company incurred capital lease obligations of
approximately $582,000 and $786,000 respectively for equipment.
See accompanying notes to consolidated financial statements.
35
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JULY 31, 1996 AND 1997
(1) SIGNIFICANT ACCOUNTING POLICIES
(a) Nature of Business
United Natural Foods, Inc. and Subsidiaries (the Company) is a
distributor and retailer of natural products. The Company sells its products
throughout the United States. For purposes of segment reporting, the Company
considers its operations to be within a single industry.
(b) Basis of Consolidation
The accompanying financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All significant intercompany transactions and
balances have been eliminated in consolidation.
(c) Inventories
Inventories are stated at the lower of cost or market, with cost being
determined using the first-in, first-out (FIFO) method.
(d) Property and Equipment
Property and equipment are stated at cost. Equipment under capital leases
is stated at the present value of minimum lease payments at the inception of the
lease. Depreciation and amortization are principally provided under the
straight-line method over the estimated useful lives.
(e) Income Taxes
The Company accounts for income taxes under the asset and liability
method. Under the asset and liability method, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
(f) Intangible Assets
Intangible assets consist principally of goodwill and covenants not to
compete. Goodwill represents the excess purchase price over fair value of net
assets acquired in connection with purchase business combinations and is being
amortized on the straight line method over thirty years. Covenants not to
compete are stated at cost and are amortized using the straight-line method over
the lives of the respective agreements, generally five years.
The Company evaluates impairment of intangible assets annually, or more
frequently if events or changes in circumstances indicate that carrying amounts
may no longer be recoverable. Impairment losses are determined based upon the
excess of carrying amounts over expected future cash flows (undiscounted) of the
underlying business. The assessment of the recoverability of intangible assets
will be impacted if estimated future cash flows are not achieved.
36
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In fiscal 1995, the Company wrote off approximately $1,564,000 in
intangible assets, primarily goodwill, upon evaluating impairment of the
underlying business of certain of its retail operations. The impairment was
indicated by projected cash flow losses caused by increased competition at one
location and a change in demographics for the other affected location. This
amount is included in "Amortization of Intangibles" in the 1995 Consolidated
Statement of Income.
(g) Revenue Recognition and Trade Receivables
The Company records revenue upon shipment of products. Revenues are
recorded net of applicable sales discounts. The Company's sales are with
customers located throughout the United States.
(h) Fair Value of Financial Instruments
The carrying amounts of the Company's financial instruments including
cash, accounts receivable, accounts payable, and accrued expenses approximate
fair value due to the short term nature of these instruments. The carrying value
of notes receivable, long term debt and capital lease obligations approximate
fair value based on the instruments' interest rate, terms, maturity date, and
collateral, if any, in comparison to the Company's incremental borrowing rate
for similar financial instruments.
(i) Change in Fiscal Year
Effective November 1, 1995, the Company elected to change its fiscal year
end from October 31 to July 31.
(j) Accounting Changes
Effective November 1, 1995, the Company changed its method of accounting
for certain inventories from the last-in, first-out (LIFO) method to the
first-in, first-out (FIFO) method. Due to a number of recent acquisitions, the
Company's subsidiaries were accounting for inventories on varying methods (LIFO,
FIFO) and using different calculation methodologies for LIFO. In order to
conform all the Company's inventories to the same valuation method and to
enhance the comparability of the Company's financial results with other publicly
traded entities, the conforming change to FIFO was made, which was deemed
preferable for these reasons. This change has been applied retroactively and
financial statements of prior periods have been restated.
(k) Use of Estimates
Management of the Company has made a number of estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure of
contingent assets and liabilities to prepare these financial statements in
conformity with generally accepted accounting principles. Actual results could
differ from those estimates.
(l) Notes Receivable, Trade
The Company issues notes receivable, trade to certain customers under two
basic circumstances, inventory purchases for initial store openings and overdue
accounts receivable. Initial store opening notes are generally receivable over a
period not to exceed twelve months. The overdue accounts receivable notes may
extend for periods greater than one year. All notes are issued at a market
interest rate and contain certain guarantees and collateral assignments in favor
of the Company.
37
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(m) Employee Benefit Plans
The Company sponsors various defined contribution plans that cover
substantially all employees. Pursuant to certain stock incentive plans, the
Company has granted stock options to key employees and to non-employee
directors. The Company accounts for stock option grants using the intrinsic
value based method.
(n) Net Income Per Share
Net income per share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the period and
common stock equivalents. For purposes of this calculation, outstanding stock
options and stock warrants are considered common stock equivalents and totaled
approximately 1.8 million shares for all periods presented (approximately 1.4
million incremental shares under the treasury stock method). Pursuant to
Securities and Exchange Commission Staff Accounting Bulletin No. 83, common and
common equivalent shares issued during the twelve month period prior to the date
of the initial filing of the Company's registration statement relating to its
initial public offering have been included in the calculation, using the
treasury stock method, as if they were outstanding for all periods presented.
Fair market value for the purpose of this calculation was the assumed initial
public offering price. The number of shares used in all calculations has been
adjusted to reflect a fifty-five-for-one stock split effective August 30, 1996.
In November 1996, the Company completed a public offering of its common
stock. Proceeds from the sale of 2.9 million shares were used to repay
outstanding bank indebtedness. Assuming the aforementioned sale of common stock
and repayment of debt occurred effective August 1, 1996, supplementary income
before extraordinary item per common and common share equivalent for the year
ended July 31, 1997 would have been $0.76 based upon 12,670,732 weighted average
common and common equivalent shares.
(2) ACQUISITIONS
Subsequent event
In June 1997, the Company entered into an Agreement and Plan of
Reorganization with Stow Mills, Inc. of Chesterfield, New Hampshire, which
distributes natural products. This business combination transaction will be
accounted for as a pooling of interests. The Company expects the transaction to
be closed during the first quarter of 1998.
Fiscal 1996
In February 1996, Cornucopia Natural Foods, Inc. (CNF) and Mountain
People's Warehouse, Inc. (MPW) merged in a business combination accounted for as
a pooling of interests. CNF issued 3,213,100 shares, which represented
approximately 37% of the common stock of CNF after the merger, in exchange for
all of the outstanding common stock of MPW. The combined entity changed its name
to United Natural Foods, Inc. The financial statements for all periods presented
reflect the merger. Net sales for fiscal 1995 and the quarter ended January 31,
1996 for CNF were $145.6 million and $48.7 million (unaudited), respectively.
Net income for fiscal 1995 and the quarter ended January 31, 1996 for CNF was
$0.9 million and $1.0 million (unaudited), respectively. Net sales for fiscal
1995 and the quarter ended January 31, 1996 for MPW were $137.7 million and
$43.6 million (unaudited), respectively. Net income for fiscal 1995 and the
quarter ended January 31, 1996 for MPW $1.7 million and $0.1 million
(unaudited), respectively.
Fiscal 1995
During fiscal 1995, the Company acquired substantially all of the assets
of one natural products retailer, SunSplash Market, Inc. (in April 1995), one
wholesale distributor, Prem Mark, Inc. (the predecessor business to
38
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Rainbow Natural Foods, Inc.) (in July 1995) and the capital stock of another
wholesale distributor, Nutrasource, Inc. (in May 1995) in business combinations
accounted for as purchases. The results of operations of these acquisitions have
been included in the accompanying financial statements since the dates of the
acquisitions. The total cash paid and debt issued for these acquisitions was
approximately $12,470,000, which exceeded the fair value of the net assets
acquired by approximately $6,329,000. This excess of purchase price over the net
assets acquired has been recorded as goodwill, and is being amortized over
thirty years.
In connection with these acquisitions, the Company executed covenants
not to compete and consulting agreements totaling $505,000 to be amortized using
the straight-line method over the lives of the respective agreements, generally
five years.
(3) STOCK OPTION PLAN
The Company implemented Statement of Financial Accounting Standards
No. 123, "Accounting for Stock- Based Compensation," during fiscal 1997. While
SFAS No. 123 established financial accounting and reporting standards for
stock-based employee compensation plans using a fair value method of accounting,
it allows companies to continue to measure compensation using the intrinsic
value method of accounting as prescribed in APB Opinion No. 25 (APB No. 25),
"Accounting for Stock Issued to Employees." The Company will continue to use its
present APB No. 25 accounting treatment for stock-based compensation. If the
fair value method of accounting had been used, net income would have been $2.4
million and $8.1 million for 1996 and 1997, respectively, and earnings per share
would have been $0.24 and $0.70 for 1996 and 1997, respectively. The weighted
average grant date fair value of options granted during 1996 and 1997 was $6.47
and $5.84 per option, respectively. The fair value of each option grant was
estimated using the Black-Sholes Option Pricing Model with the following
weighted average assumptions for 1996 and 1997: a dividend yield of 0.0%, an
expected volatility of 46.5%, a risk free interest rate of 6.07% and an expected
life of 8 years.
On July 29, 1996, the Board of Directors adopted, and on July 31, 1996 the
stockholders approved, the 1996 Stock Option Plan which provides for grants of
stock options to employees, officers, directors and others. These options are
intended to qualify as incentive stock options within the meaning of Section 422
of the Internal Revenue Code or options not intended to qualify as incentive
stock options ("non-statutory options"). A total of 1,375,000 shares of common
stock may be issued upon the exercise of options granted under the 1996 Stock
Option Plan.
In 1996, as consideration for their services on the Company's Board of
Directors, four employee-directors were awarded a total of 324,500 non-statutory
stock options under the Company's 1996 Stock Option Plan at an exercise price of
$6.38 per share which vested immediately. In addition, one non-employee director
was awarded a total of 16,500 non-statutory stock options under the 1996 Stock
Option Plan at an exercise price of $9.64 per share which vest after three
years. Incentive stock options to purchase an aggregate of 297,000 shares of
common stock were also granted to several employees at not less than the fair
value at the date of grant, with vesting at various rates generally over the
next five years. Compensation expense of $1,056,100 was charged to operations in
fiscal 1996 related to the employee-director stock options.
The following table summarizes the stock option activity for fiscal 1996
and 1997.
39
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<CAPTION>
1996 1997
---- ----
Average Weighted Average Weighted Average
Shares Exercise Price Shares Exercise Price
------ -------------- ------ --------------
<S> <C> <C> <C> <C>
Outstanding at beginning of year - - 638,000 $8.11
Granted 638,000 $8.11 16,500 $9.64
Exercised - - - -
Canceled - - - -
------- -------
Outstanding at end of year 638,000 $8.11 654,500 $8.14
======= ===== ======= =====
Options exercisable at year end 434,500 $7.18
======= =====
</TABLE>
The 654,500 outstanding stock options at July 31, 1997 had a range of exercise
prices from $6.38 to $10.60 per share. The weighted average remaining years of
contractual life for these outstanding stock options is 9 years.
(4) NOTES PAYABLE
The Company entered into a line of credit and term loan agreement (see
note 5) with a bank effective February 20, 1996. The agreement has had two
subsequent amendments effective March 1, 1997 and July 1, 1997. The line of
credit agreement permits the Company to borrow up to a maximum of $50,000,000.
The term loan agreement provides for the Company to borrow up to $13,000,000 to
finance real estate acquisitions as well as $10,000,000 to finance acquisitions.
The amount of borrowing is based upon the sum of 90% of eligible accounts
receivable and 55% of eligible inventory. Interest on the loans is at New York
prime interest rate or 1.00% above the LIBOR rate.
The Company has the option to fix the rate for all or a portion of the debt for
a period of up to 180 days. Interest on the mortgage facility will accrue at
1.25% above the bank's LIBOR rate, and the Company has the option to fix the
rate for a period of five years at 1.25% above the five-year U.S. Treasury Note
rate. The bank's prime rate was 8.25% and 8.50% at July 31, 1996 and 1997,
respectively. The line of credit agreement, which terminates July 2002, is
secured by all assets of the Company and contains certain restrictive covenants.
The Company was in compliance with its restrictive covenants at July 31, 1997.
(5) LONG-TERM DEBT
Long-term debt consisted of the following:
<TABLE>
<CAPTION>
July 31, July 31,
1996 1997
---- ----
<S> <C> <C>
Note payable to limited partnership, secured, with interest ranging from
8% to 12% per annum payable quarterly, maturing October 1998.......................... $ 4,744,545 -
Term loan for employee stock ownership plan, secured by stock of the
Company, due $13,600 monthly plus interest at 10%, balance due
May 1, 2015........................................................................... 3,073,600 $2,910,400
Real estate term loan payable to bank, secured by land and building,
refinanced in July 1997............................................................... 5,775,000 25,000
Term loan payable to former owners of acquired business, secured by
substantially all assets of subsidiary, repayment made in November 1996............... 2,785,409 -
</TABLE>
40
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<S> <C> <C>
Term loan payable to bank, secured by substantially all assets of the
Company, with monthly principal payments of $50,000 through July
2002 and the remaining principal due on July 31, 2002, interest at bank's
prime plus 0.25% or at 2.25% above the LIBOR rate..................................... 4,702,381 12,000,000
Installment notes secured by equipment, payable in monthly installments
through 2002 at interest rates ranging from 7.43% to 11.82%........................... 1,958,257 2,319,553
Other notes payable to former owners of acquired businesses and former
stockholders of subsidiaries, maturing at various dates through
February 2002 at interest rates ranging from 6% to 10%................................ 3,164,835 527,679
Notes payable to bank, secured by automobiles, including interest
ranging from 6.25% to 7.25%, primarily due over three years........................... 53,623 34,314
------ ------
26,257,650 17,816,946
Less: current installments............................................................... 4,086,795 2,247,281
------------ ------------
Long-term debt, excluding current installments........................................... $22,170,855 $ 15,569,665
=========== ============
</TABLE>
The Company entered into a Note and Warrant Purchase Agreement (the Agreement)
with a limited partnership (the Purchaser) on November 17, 1993. Under the
Agreement, the Company issued to the Purchaser a Senior Note in the principal
amount of $6,500,000 and a Common Stock Purchase Warrant for 1,166,660 shares of
the common stock of the Company. The Senior Note was repaid in full in November
1996 upon receipt of the proceeds from the initial public offering. The loss on
the early retirement of debt has been reflected as an extraordinary item of
$932,929, net of the income tax benefit of $661,822. This loss represents the
charge off of the remaining original issue discount at the date of repayment.
The Purchaser exercised stock warrants to purchase 785,730 shares of common
stock during fiscal 1997 at a price of $.01 per share, with the remaining stock
warrants repurchased by the Company. Interest on the Senior Note ranged from 8%
to 12% per annum.
Aggregate maturities of long-term debt for the next five years and
thereafter are as follows at July 31, 1997:
<TABLE>
<S> <C>
1998............ $ 2,247,281
1999............ 1,439,660
2000............ 1,233,060
2001............ 1,025,435
2002............ 9,777,110
Thereafter...... 2,094,400
-----------
$17,816,946
===========
</TABLE>
(6) PROPERTY AND EQUIPMENT
Property and equipment consisted of the following at July 31, 1996 and
1997:
41
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<CAPTION>
Estimated
Useful
Lives (Years) 1996 1997
------------- ---- ----
<S> <C> <C> <C>
Land....................................................... $ 266,870 $ 266,870
Building................................................... 40 9,477,204 9,600,602
Leasehold improvements..................................... 5-10 3,380,199 4,440,907
Warehouse equipment........................................ 5-10 5,454,745 5,360,479
Office equipment........................................... 3-5 4,075,772 4,657,930
Motor vehicles............................................. 3 4,669,065 5,195,933
Equipment under capital leases............................. 5 1,769,139 2,532,031
Construction in progress................................... 337,507 196,392
----------- -----------
29,430,501 32,251,144
Less accumulated depreciation and amortization............. 8,826,838 11,871,817
----------- -----------
Net property and equipment........................... $20,603,663 $20,379,327
=========== ===========
</TABLE>
(7) CAPITAL LEASES
The Company leases computer, office and warehouse equipment under capital
leases expiring in various years through 2002. The assets and liabilities under
capital leases are recorded at the lower of the present value of the minimum
lease payments or the fair value of the assets. The assets are depreciated over
the lower of their related lease terms or their estimated productive lives.
Minimum future lease payments under capital leases as of July 31, 1997 for
each of the next five fiscal years and in the aggregate are:
<TABLE>
<CAPTION>
Year ended July 31 Amount
- ------------------ --------
<S> <C>
1998....................................................................... $ 601,193
1999....................................................................... 472,868
2000....................................................................... 423,112
2001....................................................................... 71,292
2002 and thereafter........................................................ 120,262
-----------
Total minimum lease payments......................................... 1,688,727
Less: Amount representing interest......................................... 205,311
-----------
Present value of net minimum lease payments.......................... 1,483,416
Less: current installments................................................. 499,984
-----------
Capital lease obligations, excluding current installments............ $ 983,432
===========
</TABLE>
(8) COMMITMENTS AND CONTINGENCIES
The Company leases various facilities under operating lease agreements
with varying terms. Most of the leases contain renewal options and purchase
options at several specific dates throughout the terms of the leases.
The Company also leases equipment under master lease agreements. Payment
under these agreements will continue for a period of four years. The equipment
lease agreements contain covenants concerning the maintenance of certain
financial ratios. The Company was in compliance with its covenants at July 31,
1997.
Future minimum annual fixed payments required under non-cancelable
operating leases having an original term of more than one year as of July 31,
1997 are as follows:
42
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<S> <C>
1998............ $ 3,459,526
1999............ 3,249,833
2000............ 2,617,024
2001............ 1,570,894
2002............ 1,072,295
------------
$ 11,969,572
============
</TABLE>
Rent and other lease expense for the year ended October 31, 1995 totaled
approximately $5,441,000. Rent and other lease expense for the nine months ended
July 31, 1996 and the year ended July 31, 1997 totaled approximately $4,667,000
and $6,321,000, respectively.
Outstanding commitments as of July 31, 1997 for the purchase of inventory
were approximately $9,523,000. The Company had outstanding letters of credit of
approximately $352,000 at July 31, 1997 which were necessary in order to secure
business with certain foreign vendors.
The Company may from time to time be involved in various claims and legal
actions arising in the ordinary course of business. In the opinion of
management, the ultimate disposition of these matters will not have a material
adverse effect on the Company's consolidated financial position or results of
operations.
(9) SALARY REDUCTION/PROFIT SHARING PLANS
The Company has several salary reduction/profit sharing plans, generally
called "401(k) Plans" (the Plan), covering various employee groups. Under this
type of Plan the employees may choose to reduce their compensation and have
these amounts contributed to the Plan on their behalf. In order to become a
participant in the Plan, the employee must meet certain eligibility requirements
as described in the Plan document. In addition to amounts contributed to the
Plan by employees, the Company makes contributions to the Plan on behalf of the
employees. The Company contributions to the Plan were $279,354, $290,991 and
$359,275 for the year ended October 31, 1995, for the nine months ended July 31,
1996 and the year ended July 31, 1997, respectively.
(10) INCOME TAXES
Total Federal and state income tax expense consists of the following:
<TABLE>
<CAPTION>
Current Deferred Total
----------- ------------ ---------
<S> <C> <C> <C>
Fiscal year ended October 31, 1995:
U.S. Federal............................ $2,079,758 $ 302,052 $2,381,810
State and local......................... 519,940 28,106 548,046
---------- --------- ----------
$2,599,698 $ 330,158 $2,929,856
========== ========= ==========
Nine months ended July 31, 1996:
U.S. Federal............................ $2,427,429 $(254,587) $2,172,842
State and local......................... 620,946 (15,667) 605,279
---------- --------- ----------
$3,048,375 $(270,254) $2,778,121
========== ========= ==========
Fiscal year ended July 31, 1997:
From continuing operations
U.S. Federal............................ $4,838,809 $18,979 $4,857,788
State and local......................... 1,581,781 (23,499) 1,558,282
---------- --------- ----------
6,420,590 (4,520) 6,416,070
---------- --------- ----------
</TABLE>
43
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<CAPTION>
Extraordinary item
<S> <C> <C> <C>
U.S. Federal............................ (542,215) -- (542,215)
State and local......................... (119,607) -- (119,607)
--------- -- ---------
(661,822) -- (661,822)
--------- -- ---------
$5,758,768 $(4,520) $5,754,248
========== ======== ==========
</TABLE>
Total income tax expense was different than the amounts computed
using the United States statutory income tax rate (35% for Fiscal 1997) applied
to income before income taxes as a result of the following:
<TABLE>
<CAPTION>
October 31, July 31, July 31,
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Computed "expected" tax expense................................... $1,881,001 $2,313,162 $4,926,793
State and local income tax, net of Federal income tax
benefit........................................................ 361,710 399,484 935,139
Merger related expenses........................................... -- 155,743 --
Non-deductible expenses........................................... 20,240 69,871 42,140
Non-deductible amortization....................................... 478,623 4,714 15,666
Other, net........................................................ 188,282 (164,853) (165,490)
---------- ---------- ----------
$2,929,856 $2,778,121 $5,754,248
========== ========== ==========
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the net deferred tax assets and deferred tax liabilities at July 31,
1996 and 1997 are presented below:
<TABLE>
<CAPTION>
1996 1997
----- ----
Deferred tax assets:
<S> <C> <C>
Inventories, principally due to additional costs inventoried for tax
purposes................................................................... $ 421,099 $460,184
Rents deducted for book purposes in excess of tax.................................. 27,732 22,133
Financing costs.................................................................... 24,662 25,272
Intangible assets.................................................................. 221,242 300,636
Deferred compensation.............................................................. 400,896 410,823
Accrued vacation................................................................... 59,048 77,336
Accounts receivable, principally due to allowances for uncollectible
accounts........................................................................ 280,693 201,574
Other.............................................................................. 165,141 --
---------- ---------
Total gross deferred tax assets.............................................. 1,600,513 1,497,958
Less valuation allowance................................................................. -- --
---------- ---------
Net deferred tax assets...................................................... 1,600,513 1,497,958
---------- ---------
Deferred tax liabilities:
Plant and equipment, principally due to differences in depreciation................ 536,295 571,195
Reserve for LIFO inventory method.................................................. 675,348 522,712
Other.............................................................................. -- 49,844
---------- ---------
Total deferred tax liabilities............................................... 1,211,643 1,143,751
--------- ---------
Net deferred tax assets.................................................................. $388,870 $354,207
========= ========
Current deferred income tax assets....................................................... $ 796,216 $1,031,767
Non-current deferred income tax liabilities.............................................. (407,346) (677,560)
--------- ---------
$ 388,870 $354,207
========= ========
</TABLE>
44
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In assessing the recoverability of deferred tax assets, the Company
considers whether it is more likely than not that some portion or all of the
deferred tax assets will not be realized. Due to the fact that the Company has
sufficient taxable income in the federal carryback period and anticipates
sufficient future taxable income over the periods which the deferred tax assets
are deductible, the ultimate realization of deferred tax assets for Federal and
state tax purposes appears more likely than not.
(11) EMPLOYEE STOCK OWNERSHIP PLAN
The Company adopted the Cornucopia Natural Foods, Inc. (predecessor
company) Employee Stock Ownership Plan (the Plan) for the purpose of acquiring
outstanding shares of the Company for the benefit of eligible employees. The
Plan was effective as of November 1, 1988 and has received notice of
qualification by the Internal Revenue Service.
In connection with the adoption of the Plan, a Trust was established to
hold the shares acquired. On November 1, 1988, the Trust purchased 40% of the
outstanding Common Stock of the Company at a price of $4,080,000. The trustees
funded this purchase by issuing promissory notes to the initial stockholders,
with the ESOT shares pledged as collateral. These notes bear interest at 10% and
are payable through May 2015. As the debt is repaid, shares are released from
collateral and allocated to active employees, based on the proportion of debt
service paid in the year.
The Accounting Standards Executive Committee of the American Institute of
Certified Public Accountants issued Statement of Position 93-6, "Employers'
Accounting for Employee Stock Ownership Plans," in November 1993. The statement
provides guidance on employers' accounting for ESOPs and is required to be
applied to shares purchased by ESOPs after December 31, 1992, that have not been
committed to be released as of the beginning of the year of adoption. In
accordance with SOP 93-6, the Company elected not to adopt the guidance in SOP
93-6 for the shares held by the ESOP, all of which were purchased prior to
December 31, 1992. The debt of the ESOP is recorded as debt and the shares
pledged as collateral are reported as unearned ESOP shares in the Consolidated
Balance Sheets. During 1995, 1996 and 1997 contributions totaling approximately
$492,000, $358,000 and $463,000, respectively, were made to the Trust. Of these
contributions, approximately $328,000, $235,000 and $300,000, respectively,
represented interest.
The ESOP shares were classified as follows:
<TABLE>
<CAPTION>
July 31, July 31,
1996 1997
---- ----
<S> <C> <C>
Allocated shares......................... 484,000 550,000
Shares released for allocation........... 66,000 88,000
Shares distributed to employees.......... (20,405) (20,405)
Unreleased shares........................ 1,650,000 1,562,000
--------- ---------
Total ESOP shares.................. 2,179,595 2,179,595
========= =========
</TABLE>
The fair value of unreleased shares was approximately $37,488,000 at July
31, 1997. Employees have the option of putting their shares back to the Company
upon leaving employment. This option will remain available until the shares held
by the Trust are registered.
(12) STOCK SPLIT
In connection with the Company's initial public offering of shares of
common stock, on August 30, 1996, the Board of Directors adopted, and the
stockholders approved, an amendment to the Company's certificate of
incorporation increasing the number of authorized shares of common stock from
200,000 to 25,000,000 and stating the par value of such shares as $0.01, and the
Company effected a fifty-five-for-one split of its issued and outstanding common
stock. All share, option and warrant and per share data presented in the
accompanying
45
<PAGE>
UNITED NATURAL FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
consolidated financial statements have been restated to reflect the increased
number of authorized and outstanding shares of common stock.
(13) QUARTERLY FINANCIAL DATA (UNAUDITED)
Following is a summary of quarterly operating results and share data. Quarterly
information shown below does not vary from amounts reported on any Form 10-Q
previously filed by the Company. There were no dividends paid or declared during
1996 and 1997, and the Company anticipates that it will continue to retain
earnings for use in its business and not pay cash dividends in the foreseeable
future. The comparable fiscal year 1996 information has been created by
combining actual fiscal 1996 results with the fourth quarter results for fiscal
1995.
<TABLE>
<CAPTION>
First Second Third Fourth Full Year
- ------------------------------------------------------------------------------------------------------------------------------------
1997
- ---
Net sales $99,500,710 $103,405,227 $108,132,374 $110,659,630 $421,697,941
Gross profit 20,591,933 21,425,693 22,399,006 22,697,692 87,114,324
Income before income taxes
and extraordinary item 2,448,117 3,691,870 4,918,188 4,613,127 15,671,302
Extraordinary item - 932,929 - - 932,929
Net income 1,387,036 1,250,541 2,881,952 2,802,774 8,322,303
Per common share
Income before
extraordinary item $ 0.14 $ 0.20 $ 0.23 $ 0.22 $ 0.79
Market Price
High 17 1/2 17 24 3/8 24 3/8
Low 12 1/2 13 15 12 1/2
Weighted average shares
outstanding 10,114,228 12,411,226 12,411,226 12,748,733 11,697,587
<CAPTION>
1996
- ----
<S> <C> <C> <C> <C> <C>
Net sales $94,821,978 $ 92,283,081 $ 96,432,295 $ 97,733,021 $381,270,375
Gross profit 19,045,778 19,344,448 20,218,680 20,403,504 79,012,410
Income before income taxes 138,462 1,807,008 2,779,175 2,217,233 6,941,878
Net income (loss) (630,527) 1,109,060 1,552,023 1,364,212 3,394,768
Per common share
Income $ (0.06) $ 0.11 $ 0.15 $ 0.13 $ 0.33
Weighted average shares
outstanding 10,134,693 10,134,693 10,134,693 10,138,172 10,145,823
</TABLE>
46
<PAGE>
Item 9.
Changes In and Disagreements With Accountants on Accounting and Financial
Disclosure
Not applicable.
Part III
Item 10.
Directors and Executive Officers of the Registrant
The information required by this item is contained in part under the
caption "Executive Officers of the Registrant" in PART I hereof, and the
remainder is contained in the Company's Proxy Statement for its Annual Meeting
of Stockholders to be held in December 1997 (the "1997 Proxy Statement") under
the captions "PROPOSAL 1 ELECTION OF DIRECTORS" and "SECTION 16(a) BENEFICIAL
OWNERSHIP REPORTING COMPLIANCE" and is incorporated herein by this reference.
Officers are elected on an annual basis and serve at the discretion of the
Board of Directors.
Item 11.
Executive Compensation
The information required by this item is contained under the captions
"Director Compensation," "Compensation of Executive Officers" and "Compensation
Committee Interlocks and Insider Participation" in the 1997 Proxy Statement and
is incorporated herein by this reference.
Item 12.
Security Ownership of Certain Beneficial Owners and Management
The information required by this item is contained in the 1997 Proxy
Statement under the caption "Stock Ownership of Certain Beneficial Owners and
Management" and is incorporated herein by this reference.
Item 13.
Certain Relationships and Related Transactions
The information required by this item is contained under the caption
"Certain Transactions" in the 1997 Proxy Statement and is incorporated herein by
this reference.
47
<PAGE>
PART IV
Item 14.
Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) Documents filed as a part of this Form 10-K
--------------------------------------------
1. Financial Statements. The Financial Statements listed in
--------------------
the Index to Financial Statements in Item 8 hereof are filed as
part of this Annual Report on Form 10-K.
2. Financial Statement Schedules. Schedule II Valuation and
-----------------------------
Qualifying Accounts
All other schedules are omitted, since the required information
is not present or is not present in amounts sufficient to require
submission of the schedule or because the information required is
included in the consolidated financial statements and notes
thereto.
Independent Auditor's Report on Financial Statement Schedule.
3. Exhibits. The Exhibits listed in the Exhibit Index
--------
immediately preceding such Exhibits are filed as part of this
Annual Report on Form 10-K.
(b) Reports on Form 8-K.
-------------------
On July 9, 1997, the Company filed a Current Report on Form 8-K
dated June 23, 1997 announcing under Item 5 (Other Events) that
the Company had executed an agreement with Stow Mills, Inc. with
respect to a merger in which the two companies will be combined.
48
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
UNITED NATURAL FOODS, INC.
/s/ Steven H. Townsend
-----------------------------
Steven H. Townsend
Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: October 29, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ NORMAN A. CLOUTIER Chairman of the Board and Chief Executive Officer October 29, 1997
- ---------------------- (Principal Executive Officer)
Norman A. Cloutier
/s/ MICHAEL S. FUNK Vice Chairman of the Board and President October 29, 1997
- -------------------
Michael S. Funk
/s/ STEVEN H. TOWNSEND Chief Financial Officer, Treasurer, Secretary and Director October 29, 1997
- ---------------------- (Principal Financial and Accounting Officer)
Steven H. Townsend
/s/ DANIEL V. ATWOOD Director October 29, 1997
- --------------------
Daniel V. Atwood
/s/ ANDREA R. HENDRICKS Director October 29, 1997
- -----------------------
Andrea R. Hendricks
/s/ KEVIN T. MICHEL Director October 29, 1997
- -------------------
Kevin T. Michel
/s/ RICHARD J. WILLIAMS Director October 29, 1997
- -----------------------
Richard J. Williams
/s/ THOMAS B. SIMONE Director October 29, 1997
- --------------------
Thomas B. Simone
</TABLE>
49
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2 ** Agreement and Plan of Reorganization by and among the Registrant,
Gem Acquisition Corp., Stow Mills, Inc., Barclay McFadden and
Richard S. Youngman, dated as of June 23, 1997, and amended and
restated as of August 8, 1997.
3.1 * Amended and Restated Certificate of Incorporation of the
Registrant.
3.2 * Amended and Restated By-Laws of the Registrant.
4 * Specimen Certificate for shares of Common Stock, $.01 par value,
of the Registrant.
10.1 * Amended and Restated Employee Stock Ownership Plan.
10.2 * Employee Stock Ownership Trust, as amended.
10.3 * ESOT Loan Agreement among Norman A. Cloutier, Steven H. Townsend,
Daniel V. Atwood, Theodore Cloutier and the Employee Stock
Ownership Plan and Trust, dated November 1, 1988, as amended.
10.4 * Stock Pledge Agreement between the Employee Stock Ownership Trust
and Steven H. Townsend, Trustee for Norman A. Cloutier, Steven H.
Townsend, Daniel V. Atwood and Theodore Cloutier, dated November
1, 1988, as amended.
10.5 * Trust Agreement between Norman A. Cloutier, Steven H. Townsend,
Daniel V. Atwood, Theodore Cloutier and Steven H. Townsend as
Trustee, dated November 1, 1988.
10.6 * Guaranty Agreement between the Registrant and Steven H.
Townsend as Trustee for Norman A. Cloutier, Steven H. Townsend,
Daniel V. Atwood and Theodore Cloutier, dated November 1, 1988.
10.7 *+ 1996 Stock Option Plan.
10.8 * Stock Acquisition Agreement and Plan of Merger among the
Registrant, MPW Acquisition Corporation, Michael S. Funk and
Judith A. Funk, individually and as trustees of the Funk Family
1992 Revocable Living Trust, and Mountain People's Warehouse
Incorporated (Mountain People's"), dated December 8, 1995.
10.9 * Asset Purchase Agreement between the Registrant and PREM MARK,
Inc., d/b/a Rainbow Natural Foods Distributing ("Rainbow"), dated
July 27, 1995.
10.10 * Stock Purchase Agreement, dated May 22, 1995, between Mountain
People's and Nutrasource, Inc. ("Nutrasource").
<PAGE>
EXHIBIT 10.27
UNITED NATURAL FOODS, INC.
260 LAKE ROAD
DAYVILLE, CONNECTICUT 06241
As of July 1, 1997
FLEET CAPITAL CORPORATION
200 Glastonbury Boulevard
Glastonbury, Connecticut 06033
Re: Second Amendment to Amended and Restated Loan Agreement
-------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Amended and Restated Loan and Security Agreement
dated February 20, 1996 as amended by a First Amendment thereto dated as of
March 1, 1997 ("Loan Agreement") and all promissory notes, mortgages,
guaranties, agreements, documents and instruments entered into by United
Natural Foods, Inc., Mountain People's Warehouse Incorporated, Natural
Retail Group, Inc., Rainbow Natural Foods, Inc., and Nutrasource, Inc.
(collectively, the "Borrowers") and any other person or obligor pursuant
thereto (collectively, the "Loan Documents") with or for the benefit of
Fleet Capital Corporation ("Lender"). Except as otherwise defined herein,
capitalized terms used herein shall have the meanings given them in the
Loan Agreement. This Second Amendment to Loan Agreement is referred to as
the "Second Amendment". Background. The Borrowers have requested that the
----------
Lender agree to amend the Loan Agreement to make certain modifications and
amendments to the covenants set forth in Section 8 thereof. Subject to the
satisfaction of the terms and conditions hereof, Lender and Borrowers have
agreed that the Loan Agreement shall be amended as follows:
Amendments to the Loan Agreement.
--------------------------------
Section 8.2.1 of the Loan Agreement is deleted in its entirety and the following
provision is inserted in place thereof:
"8.2.1 Mergers; Consolidations; Acquisitions. Merge or consolidate or
-------------------------------------
permit any Subsidiary or New Subsidiary of Borrowers to merge or
consolidate, with any Person (except for mergers or consolidations among
the Borrowers or mergers or consolidations of Subsidiaries or New
Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of
its Subsidiaries to acquire all or any substantial part of the Properties
or stock or securities of any Person except that Borrowers may purchase
businesses in the lines of business conducted by the Borrowers which
Borrowers have determined, in their reasonable business judgment, would
enhance the business. operations, prospects and condition (financial or
otherwise) of the Borrowers. Whether or not the Borrowers utilize
Acquisition Loans pursuant to Section 1.4 hereof in connection with such
acquisition, the Borrowers agree to furnish to the Lender notice and copies
of any letter of intent or other memorandum of understanding and purchase
documents for any acquisition they may contemplate and allow Lender and its
representatives reasonable access to financial information and the assets
and properties to be acquired which will, upon consummation of the
acquisition, become Collateral for the Obligations. If any such acquisition
is structured as the acquisition of stock or other securities of a Person
to be acquired or Borrowers create a Subsidiary to make the acquisition,
Borrowers shall cause such entity to enter into a guaranty of the
Obligations and to grant to Lender a security interest in its assets to
secure such guaranty reasonably satisfactory to the Lender. The Lender
agrees to enter into confidentiality agreements with the Persons that
Borrower may acquire on terms mutually agreeable to Lender and such
Person."
Section 8.2.2 of the Loan Agreement is amended to add the following clause to
the end of the first sentence therein:
"and Borrowers may make loans or other advances of money between and
among the Borrowers in the ordinary course of business."
Subsection 8.2.3 of the Loan Agreement is deleted in its entirety and the
following is inserted in place thereof:
"8.2.3 Total Indebtedness. Create, assume, suffer to exist, or permit
------------------
any Subsidiary of Borrowers to create, incur or suffer to exists, any
Indebtedness except:
(i) Obligations owing to Lender;
(ii) obligations to pay Rentals permitted by Subsection 8.2.13; and
(iii) Indebtedness (inclusive of the Obligations but excluding the
obligations under paragraph (ii) above and the Indebtedness evidenced by the
ESOP Notes) which does not result in aggregate Indebtedness for the Borrowers
and their Subsidiaries taken as a whole, exceeding five times the Tangible Net
Worth of the Borrowers and their Subsidiaries taken as a whole, provided that at
all times each Borrower shall remain Solvent and such other Indebtedness shall
not be secured by a Lien (other than Permitted Purchase Money Indebtedness
<PAGE>
secured by Liens permitted under subsection 8.2.5(iv)).
Section 8.2.6 is hereby deleted in its entirety and the following is inserted in
place thereof:
"8.2.6 Subordinated Debt. Issue or enter into any agreement to issue
----------------
Subordinated Debt except upon terms and provisions relating to the maturity
and repayment thereof and terms relating to the subordination of payment
thereof to the Obligations, in each case reasonably acceptable to the
Lender.
Section 8.2.8 is hereby deleted in its entirety.
Section 8.2.16 is hereby amended to delete the following from clause (a)
thereof "New Subsidiaries in connection with the opening of retail stores" and
by inserting the following in lieu thereof "Borrowers and their Subsidiaries".
Section 8.2.18 is hereby deleted in its entirety and the following is inserted
in place thereof:
"8.2.18 Subsidiaries. Hereafter create any Subsidiary except as
------------
provided in subsections 1.4 or 8.2.1 hereof."
Section 8.2.21 is hereby deleted in its entirety.
Representations and Warranties.
------------------------------
To induce Lender to enter into this Second Amendment, each Borrower
warrants, represents and covenants to Lender that:
(a) Organization and Qualification. Each Borrower is a corporation
------------------------------
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Each Borrower is duly qualified or is
authorized to do business and is in good standing as a foreign corporation or
limited liability company in all states and jurisdictions in which the failure
of such Borrower to be so qualified would have a material adverse effect on the
financial condition, business or properties of the Borrower.
(b) Corporate Power and Authority. Each Borrower is duly authorized
-----------------------------
and empowered to enter into, execute, deliver and perform this Second Amendment
and this Second Amendment has been duly authorized by all necessary corporate
action and does not and will not (i) require any consent or approval of the
shareholders or members of a Borrower; (ii) contravene any Borrower's charter,
by-laws or operating agreement; (iii) violate, or cause Borrower to be in
default under, any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award in effect having
applicability to any Borrower; (iv) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which any Borrower is a party or by which Borrower's
Properties may be bound or affected; or (v) result in, or require, the creation
or imposition of any Lien (other than Permitted Liens) upon or with respect to
any of the Properties now owned or hereafter acquired by Borrower.
(c) Legally Enforceable Agreement. This Second Amendment is a legal,
-----------------------------
valid and binding obligation of each Borrower, enforceable against each Borrower
in accordance with its respective terms.
(d) No Material Adverse Change. Since the date of the last financial
--------------------------
statements provided by the Borrower to the Lender, there has been no material
adverse change in the condition, financial or otherwise, of any Borrower as
shown on the Consolidated balance sheet as of such date and no change in the
aggregate value of Equipment and real property owned by Borrowers, except
changes in the ordinary course of business, none of which individually or in the
aggregate has been materially adverse.
(e) Continuous Nature of Representations and Warranties. Each
---------------------------------------------------
representation and warranty contained in the Loan Agreement and the other Loan
Documents remains accurate, complete and not misleading in any material respect
on the date of this Second Amendment, except for representations and warranties
that explicitly relate to an earlier date and changes in the nature of any
Borrower's business or operations that would render the information in any
exhibit attached thereto either inaccurate, incomplete or misleading, so long as
such changes were disclosed in the Form S-1 Registration Statement of UNF as
filed with the Securities and Exchange Commission on September 4, 1996, as
amended, or Lender has
<PAGE>
consented to such changes or such changes are expressly permitted by the Loan
Agreement.
Conditions Precedent.
--------------------
Notwithstanding any other provision of this Second Amendment or any of
the other Loan Documents, and without affecting in any manner the rights of
Lender under the other sections of this Second Amendment, this Second Amendment
shall not be effective as to Lender unless and until each of the following
conditions has been and continues to be satisfied:
(a) Documentation. Lender shall have received, in form and substance
-------------
satisfactory to Lender and its counsel, a duly executed copy of this Second
Amendment with such additional documents, instruments and certificates as Lender
and its counsel shall require in connection therewith, all in form and substance
satisfactory to Lender and its counsel.
(b) No Default. No Default or Event of Default shall exist except as
----------
previously disclosed to and consented to by Lender.
(c) No Litigation. Except as previously disclosed to and consented to
-------------
by Lender, no action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain or prohibit, or to obtain damages
in respect of, or which is related to or arises out of the Loan Agreement or
this Second Amendment or the consummation of the transactions contemplated
thereby or hereby.
Acknowledgment of Obligations.
-----------------------------
Each Borrower hereby (1) reaffirms and ratifies all of the promises,
agreements, covenants and obligations to Lender under or in respect of the Loan
Agreement and other Loan Documents as amended hereby and (2) acknowledges that
it is unconditionally liable for the punctual and full payment of all
Obligations, including, without limitation, all charges, fees, expenses and
costs (including reasonable attorneys' fees and expenses) under the Loan
Documents, as amended hereby, and that it has no defenses, counterclaims or
setoffs with respect to full, complete and timely payment and performance of all
Obligations.
Confirmation of Liens.
---------------------
Each Borrower acknowledges, confirms and agrees that the Loan
Documents, as amended hereby, are effective to grant to Lender duly perfected,
valid and enforceable first priority security interests and liens in the
Collateral described therein and that the locations for such Collateral
specified in the Loan Documents have not changed. Borrower further acknowledges
and agrees that all Obligations of Borrower are and shall be secured by the
Collateral.
Miscellaneous.
-------------
Except as set forth herein, the undersigned confirms and agrees that
the Loan Documents remain in full force and effect without amendment or
modification of any kind. Each Borrower hereby acknowledges its obligation to
pay to Lender's reasonable attorneys' fees and costs incurred in connection with
this Second Amendment, as set forth in the Loan Agreement. The execution and
delivery of this Second Amendment by Lender shall not be construed as a waiver
by Lender of any Default or Event of Default under the Loan Documents. This
Second Amendment, together with the Loan Agreement and other Loan Documents,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior dealings, correspondence, conversations
or communications between the parties with respect to the subject matter hereof.
This Second Amendment and the transactions hereunder shall be deemed to be
consummated in the State of Connecticut and shall be governed by and interpreted
in accordance with the laws of that state. This Second Amendment and the
agreements, instruments and documents entered into pursuant hereto or in
connection herewith shall be "Loan Documents" under and as defined in the Loan
Agreement.
Executed under seal on the date set forth above.
ATTEST: UNITED NATURAL FOODS, INC.
<PAGE>
/s/ John F. Breggia By: /s/ Steven Townsend
- ----------------------------- ------------------------------------
Name: Steven Townsend
---------------------------
Title: Chief Financial Officer
--------------------------
ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE, INC.
/s/ Ginny Feth-Michel By: /s/ Kevin Michel
- ----------------------------- ---------------------------------
Name: Kevin Michel
---------------------------
Title: CFO / Treasurer
--------------------------
<PAGE>
ATTEST: NATURAL RETAIL GROUP, INC.
/s/ John F. Breggia By: /s/ Steven Townsend
- ----------------------------- ---------------------------------
Name: Steven Townsend
---------------------------
Title: Chief Financial Officer
--------------------------
ATTEST: NUTRASOURCE, INC.
/s/ Ginny Feth-Michel By: /s/ Kevin Michel
- ----------------------------- ---------------------------------
Name: Kevin Michel
---------------------------
Title: CFO / Treasurer
--------------------------
ATTEST: RAINBOW NATURAL FOODS, INC.
/s/ John F. Breggia By: /s/ Steven Townsend
- ----------------------------- ---------------------------------
Name: Steven Townsend
---------------------------
Title: Chief Financial Officer
--------------------------
Accepted in Glastonbury, Connecticut
on September 2, 1997
FLEET CAPITAL CORPORATION
By: /s/ Howard Handman
--------------------------
Name: Howard Handman
--------------------
Title: Vice President
------------------
<PAGE>
EXHIBIT 10.28
STANDARD FORM LEASE
(Industrial, Multi-tenant, Net)
This Lease dated July 11, 1997, by and between AmberJack, Ltd., an Arizona
Corporation, ("Landlord") and United Natural Foods, Inc., a Delaware
Corporation, ("Tenant") for the Premises known as 15965 East 32nd Avenue, Suite
A, Aurora, Colorado 80011.
ARTICLE I
Basic Lease Provisions
----------------------
Each reference in this Lease to the "Basic Lease Provisions" shall mean and
refer to the following terms, the application of which shall be governed by the
provisions in the remaining Articles of this Lease:
1.1 Address of Landlord: AmberJack, Ltd., c/o Birtcher
Property Services, 1100 Stout, Suite
100, Denver, CO 80204
1.2 Premises Address: 15965 East 32nd Avenue, Suite A,
Aurora, Colorado 80011
1.3 Address of Tenant-Notices/Billings:
Prior to Commencement Date: 260 Lake Road, Dayville, CT 06241
After Commencement Date: 15965 East 32nd Avenue, Suite A,
Aurora, Colorado 80011
1.4 Tenant's Trade Name: d.b.a. Rainbow Natural Foods, Inc.
1.5 Tenant's Contact: Norman Cloutier
Telephone: (860) 719-2800
1.6 Premises Square Footage: Approximately 180,800 Square Feet
Building Square Footage: Approximately 220,800 Square Feet
1.7 Anticipated Commencement Date: January 15, 1998
1.8 Term: Fifteen (15) Years and Zero (0)
Months
1.9 Initial Monthly Rent: Fifty Two Thousand Seven hundred
thirty three Dollars and thirty three
cents 33/100 ($52,733.33) Per Month
1.10 Security Deposit: Fifty Two Thousand Seven hundred
thirty three Dollars and thirty three
cents 33/100 ($52,733.33)
1.11 Permitted Uses: Any and all lawful uses and
operations required by, incidental to
or in any way connected with the
business of Tenant, including, but
not limited to, the distribution and
internal storage of natural food
products, provided such use is in
compliance with Applicable Laws and
Restrictions (as hereafter defined)
and in accordance with any approvals
that Tenant is required to obtain
from all relevant City, County and
other applicable governmental
Applicable agencies and authorities .
1.12 Broker: CB Commercial and Cushman Wakefield
1.13 Landlord's Architect: M+O+A
1.14 Guarantor - Name & Address: None
1.15 Vehicle Parking Spaces: Two Hundred Twenty-two (222)
1.16 Additional Insureds: AmberJack, Ltd. and Birtcher Property
Services
1.17 Tenant's Liability Insurance Limits:
$ 5,000,000.00
1.18 Tenant's Share: See Section 7.2
Exhibits: A Description of the Premises E Adjustments to Monthly Rent
B Project Site Plan F Rules and Regulations
C Work Letter G Environmental Questionnaire
D Commencement Date Memorandum H Sign Criteria
I Parking
Rider No. 1: Option to Extend Term
Rider No. 2 Right of First Opportunity
Rider No. 3 Assignment of Warranties
<PAGE>
ARTICLE II
Definitions
-----------
2.1 Certain Definitions. The capitalized terms set forth below, unless the
context clearly requires otherwise, shall have the following meanings in
this Lease:
"Additional Rent" means any and all sums (whether or not specifically
called "Additional Rent" in this Lease) other than Monthly Rent which
Tenant is or becomes obligated to pay to Landlord under this Lease. See
also Rent.
"Alterations" means any alterations, decorations, modifications, additions
or improvements made in, on, about, under or contiguous to the Building or
the Premises after the Commencement Date including, but not limited to,
lighting, HVAC and electrical fixtures, pipes and conduits, transfer,
storage and disposal facilities, partitions, drapery, wall coverings,
shelves, cabinetwork, carpeting and other floor coverings, ceiling tiles,
fixtures and carpentry installations.
"Applicable Laws" means the laws, rules, regulations, ordinances,
restrictions, and practices described in Section 5.2.
"Applicable Rate" means the greater of ten percent (10%) per annum or five
percent (5%) in excess of the discount rate of the Federal Reserve Bank of
Kansas City in effect on the twenty-fifth (25th) day of the calendar month
immediately prior to the event giving rise to the Applicable Rate
imposition; provided, however, the Applicable Rate shall in no event exceed
the maximum interest rate permitted to be charged by applicable law.
"Broker" means the person or entity identified in Item 1.12 of the Basic
Lease Provisions.
"Building" means that certain building within which the Premises are
located.
"Casualty" is defined in Section 12.1.
"CC&R's" means the Declaration of Covenants, Conditions and Restrictions
applicable to the Project, if any, recorded in the Official Records of the
County, as the same may be amended from time to time, provided no such
amendment shall unreasonably materially interfere with Tenant's Permitted
Use.
"City" means the city in which the Premises are located.
"Commencement Date" means the commencement date of the Term, described in
Section 3.2.
"Common Area" means all areas and facilities within the Project exclusive
of the Premises and other portions of the Project leased (or to be leased)
exclusively to other tenants. The Common Area includes, but is not limited
to, parking areas, access and perimeter roads, sidewalk, landscaped areas
and similar areas and facilities. Tenant's use of the Common Area, and its
rights and obligations with respect thereto, are more particularly
described in Article X .
"County" means the county in which the Premises are located.
"Event of Default" means the Tenant defaults described in Section 15.1.
"Guarantor" means the person(s) or entity identified in Item 1.14 of the
Basic Lease Provisions, if any.
"HVAC" means the heating, ventilating and air conditioning system serving
the Building.
"Hazardous Materials" is defined in Section 6.1.
"Landlord's Group" means Landlord's authorized representatives, property
managers, whether as independent contractors, consultants, contractors,
partners, subsidiaries, affiliates, directors, officers and employees,
including without limitation the Additional Insureds named in Item 1.16 of
the Basic Lease Provisions.
"Landlord's Architect" means the architect or architectural firm from time
to time designated by Landlord to perform the function of Landlord's
Architect set forth in this Lease. Landlord's Architect initially shall be
the architect or architectural firm designated in Item 1.13 of the Basic
Lease Provisions.
"Lease" means this instrument together with all exhibits, amendments,
addenda and riders attached hereto and made a part hereof.
"Monthly Rent" means the monthly rental which Tenant is to pay to Landlord
pursuant to Section 4.1, as the same may be adjusted from time to time as
set forth in this Lease. See also Rent.
<PAGE>
"Mortgage" means any mortgage, deed of trust, or similar lien on or
covering the Project or any part thereof.
"Mortgagee" means any mortgagee of a mortgage, beneficiary of a deed of
trust or lender having a lien on or covering the Project or any part
thereof.
"Notice" means each and every notice, communication, request, demand, reply
or advice, or duplicate thereof, in this Lease provided or permitted to be
given, made or accepted by either party to any other party, which shall be
in writing and given in accordance with the provisions of Section 21.6.
"Operating Expenses" means, collectively, Project Costs and Real Property
Taxes.
"Plans" means the final working drawings for the construction of the Tenant
Improvements to be prepared and approved as set forth in the Work Letter.
"Premises" means the premises shown in Exhibit A, and all areas appurtenant
thereto, if any, for the exclusive use of Tenant, as shown in Exhibit A.
The Premises are located within and constitute a portion of the Building at
the address set forth in Item 1.2 of the Basic Lease Provisions.
"Premises Square Footage" means the approximate floor area of the Premises
and, if the Building has other internal common features, then at Landlord's
option, an additional factor approximating the total square footage of such
features times the ratio of Tenant's floor area to the total square footage
of the Building, as determined by Landlord's Architect. The Premises Square
Footage as of the execution of this Lease is set forth in Item 1.6 of the
Basic Lease Provisions.
"Project" means that certain real property, and all improvements thereon,
including the Building and other buildings, if any, now or hereafter
located within the boundaries of such property, shown on the Project Site
Plan; provided however Landlord reserves the right to change the boundaries
of the property and to increase or decrease the size of the Project so long
as the Building is included within the Project.
"Project Costs" is defined in Section 7.3.
"Project Site Plan" means Exhibit B.
"REA" means the Reciprocal Easement Agreement applicable to the Project, if
any, recorded in the Official Records of the County as the same may be
amended from time to time.
"Real Property Taxes" is defined in Section 7.4.
"Rent" means Monthly Rent and Additional Rent, collectively.
"Restrictions" means, collectively, the CC&R's, the REA and any other
covenants, conditions or restrictions affecting the Premises or any portion
thereof, as the same may be amended from time to time.
"Rules and Regulations" means the rules and regulations of general
application and any modifications thereto promulgated by Landlord or
Landlord's Group from time to time.
"Security Deposit" means the amount set forth in Item 1.10 of the Basic
Lease Provisions, which shall be paid to Landlord by Tenant pursuant to
Section 4.6.
"Substantial Completion" and "substantially completed" means the Tenant
Improvements, or repair of the Premises following a Casualty, have been
fully completed except for minor details of construction, mechanical
adjustments or decoration including exterior painting and landscaping which
do not materially interfere with Tenant's use and enjoyment of the Premises
(items normally referred to as "punch list" items) and a certificate of
occupancy (temporary or otherwise) has been issued with respect thereto.
"Tenant Delays" means (i) any and all delays in the construction of the
Tenant Improvements due to the fault of the Tenant, as defined and
specified in the Work Letter, and (ii) Tenant's failure to deliver to
Landlord prior to the Anticipated Commencement Date, executed copies of
policies of insurance or certificates thereof as required under Section
11.8.
"Tenant Improvements" means those certain improvements, if any, to be
constructed on the Premises as provided in Article XX and in the Work
Letter.
"Tenant's Agents" means Tenant's agents, representatives, consultants,
contractors, affiliates, subsidiaries, officers, directors, employees,
subtenants, guests and invitees.
"Tenant's Personal Property" means Tenant's removable trade fixtures,
furniture, equipment and other personal property located in or on the
Premises.
"Term" means the term of this Lease, as provided in Section 3.2.
<PAGE>
"Unavoidable Delay" means any delays which are beyond a party's reasonable
control including, but not limited to, delays due to inclement weather,
strikes, acts of God, inability to obtain labor or materials, inability to
secure governmental approvals or permits, governmental restrictions, civil
commotion, fire, earthquake, explosion, flood, hurricane, the elements, or
the public enemy, action or interference of governmental authorities or
agents, war invasion, insurrection, rebellion, riots, lockouts or any other
cause whether similar or dissimilar to the foregoing which is beyond a
party's reasonable control; provided however, that in no event shall any of
the foregoing ever apply with respect to the payment of any monetary
obligation.
"Work Letter" means the work letter between Landlord and Tenant regarding
the construction of the Tenant Improvements, if any, in the form of
Exhibit C.
2.2 Other Definitions. Terms defined elsewhere in this Lease, unless the
context clearly requires otherwise, shall have the meaning as they're
given.
ARTICLE III
Premises And Term
-----------------
3.1 Lease of Premises. Subject to and upon the terms and conditions set forth
herein, Landlord hereby leases the Premises to Tenant, and Tenant hereby
leases the Premises from Landlord.
3.2 Terms and Commencement. Unless sooner terminated as provided herein, the
Term of this Lease shall be for that period of years and months set forth
in Item 1.8 of the Basic Lease Provisions, as the same may be extended in
accordance with any option or options to extend the Term granted herein,
and shall commence (the "Commencement Date") on the earlier of (i) the date
upon which the City has approved the Tenant Improvements in accordance with
its building code, as evidenced by its written approval thereof in
accordance with the building permits issued for the Tenant Improvements,
and issuance of a certificate of occupancy (temporary or otherwise) from
the City for the Premises and Landlord's Architect has certified in writing
that the Tenant Improvements are substantially completed in accordance with
the Plans, provided that in such event Landlord shall deliver to Tenant a
certificate of occupancy (temporary or otherwise) from the City for the
Premises within five (5) business days of such date, or (ii)the date Tenant
commences occupancy within the Premises to conduct business. When the
actual Commencement Date has occurred, Landlord and Tenant shall execute a
Commencement Date Memorandum in the form shown in Exhibit D. Landlord and
Tenant anticipate that the Term will commence on the "Anticipated
Commencement Date" set forth in Item 1.7 of the Basic Lease Provisions, but
the Anticipated Commencement Date shall in no event affect the actual
Commencement Date, which shall be determined as set forth in this Section
3.2.
3.3 Early Entry. Tenant and its authorized agents, contractors, subcontractors
and employees shall be granted a license by Landlord to enter upon the
Premises, at Tenant's sole risk and expense, during ordinary business hours
prior to the Commencement Date, for the sole purpose of installing Tenant's
trade fixtures and equipment in the Premises; provided, however, that (i)
the provisions of this Lease, other than with respect to the payment of
Rent, shall apply during such early entry including, but not limited to,
the provisions of Article XI relating to Tenant's indemnification of
Landlord, (ii) prior to any such entry, Tenant shall pay for and provide
evidence of the insurance to be provided by Tenant pursuant to the
provisions of Article XI, (iii) Tenant shall pay all utility, service and
maintenance charges for the Premises attributable to Tenant's early entry
and use of the Premises as reasonably determined by Landlord, (iv) Tenant
shall not unreasonably interfere, delay or hinder Landlord, its agents,
contractors or subcontractors in the construction of the Tenant
Improvements in accordance with the provisions of this Lease, and (v)
Tenant shall not use the Premises for the storage of inventory or otherwise
commence the operation of business during the period of such early entry.
Upon Tenant's breach of any of the foregoing conditions, Landlord may, in
addition to exercising any of its other rights and remedies set forth
herein, revoke such license upon notice to Tenant. Early entry by Tenant in
accordance with this Section 3.3 shall not constitute occupancy of the
Premises for purposes of establishing the Commencement Date.
3.4 Delay in Possession. If for any reasons Landlord cannot deliver possession
of the Premises to Tenant with the Tenant Improvements substantially
completed on or before the Anticipated Commencement Date, Landlord shall
not be subject to any liability therefor, and such failure shall not affect
the validity of this Lease or the obligations of Tenant hereunder, but in
such case, Tenant shall not be obligated to pay Monthly Rent or Additional
Rent other than as provided in Section 3.3 and Section 3.5 until the
Commencement Date has occurred. If the Commencement Date has not occurred
within one hundred twenty (120) days following the Anticipated Commencement
Date plus periods attributable to Tenant Delays or Unavoidable Delay,
Tenant may, at its option, by Notice to Landlord within ten (10) days
thereafter, terminate this Lease, in which event the parties shall be
discharged from all further obligations hereunder; provided, however, if
Tenant fails to give such notice to Landlord within such ten-day period,
Tenant shall no longer have the right to terminate this Lease under this
Section 3.4. Tenant understands that, notwithstanding anything to the
contrary contained herein, Landlord shall have no obligation to deliver
possession of the Premises to Tenant for so long as Tenant fails to deliver
to Landlord executed copies of policies of insurance or certificates
thereof as required under Section 11.8.
<PAGE>
3.5 Tenant Delays. The Commencement Date shall not be delayed or postponed due
to Tenant Delays, and the Term, Tenant's obligations to pay Rent and all of
Tenant's other obligations under this Lease shall commence upon the date
which would have been the Commencement Date but for Tenant Delays.
3.6 Condition of Premises. Landlord's sole construction obligations, if any,
regarding Tenant Improvements for the Premises are set forth in Article XX
and the Work Letter. The taking of possession or use of the Premises by
Tenant for any purpose other than as provided in Section 3.3 shall
conclusively establish that Tenant has inspected the Premises and accepts
them as being in good and sanitary order, condition and repair and that the
Tenant Improvements have been constructed in accordance with the Plans;
provided, however, Tenant shall have a period of thirty (30) days after
taking possession of the Premises in which to notify Landlord in writing of
any construction deficiencies or defects and any uncompleted punch list
items (the punch list shall be limited to items required to be accomplished
by Landlord under the Work Letter) and, except as hereafter provided,
Landlord will repair, replace or complete at its expense all items
referenced in such notice within thirty (30) days after receipt of such
notice, subject to Unavoidable Delay, or as soon thereafter as Landlord,
acting in good faith, can repair, replace or complete the same. If Landlord
reasonably contends that a particular item in such notice is not justified,
the parties will refer the issue to Landlord's Architect for resolution.
Landlord's Architect's determination shall be final and binding upon the
parties. Nothing in this Section 3.6 shall limit or expand Landlord's
maintenance and repair obligations set forth in Article IX. Notwithstanding
the foregoing, Landlord represents that the Building and Premises shall be
delivered to Tenant in good operating condition as of the Commencement Date
and that the Building and the Premises are in substantial compliance with
all current government regulations, ordinances, and laws including zoning
and building codes, regulations and ordinances and Title III of the
American with Disabilities Act of 1990.
3.7 No Representations. Tenant acknowledges that neither Landlord nor any of
Landlord's Group has made any representations or warranties as to the
suitability or fitness of the Premises for the conduct of Tenant's business
including, but not limited to, any representations or warranties regarding
zoning or other land use matters, or for any other purpose, and that
neither Landlord nor any of Landlord's Group has agreed to undertake any
alterations or additions or construct any Tenant Improvements to the
Premises except as expressly provided in this Lease.
ARTICLE IV
Rent And Adjustments
--------------------
4.1 Monthly Rent. From and after the Commencement Date, Tenant shall pay to the
Landlord, for each calendar month of the Term, the Monthly Rent set forth
in Item 1.9 of the Basic Lease Provisions, as the same may be adjusted from
time to time as provided in Section 4.2. Monthly Rent shall be due and
payable to Landlord in lawful money of the United States, in advance, on
the first (1st) day of each calendar month of the Term, without abatement,
deduction, claim or offset, and without prior notice, invoice or demand, at
Landlord's address set forth in Item 1.1 of the Basic Lease Provisions or
at such place as Landlord may from time to time designate. Tenant's payment
of Monthly Rent for the first (1st) month of the Term shall be delivered to
Landlord concurrently with Tenant's execution of this Lease.
4.2 Adjustments. Monthly Rent shall be adjusted from time to time as provided
in Exhibit E.
4.3 Additional Rent. All Additional Rent shall be due and payable to Landlord
in lawful money of the United States, at Landlord's address set forth in
Item 1.1 of the Basic Lease Provisions or at such other place as Landlord
may from time to time designate, without abatement, deduction, claim or
offset, within ten (10) days of receipt of Landlord's invoice or statement
for same, or if this Lease provides another time for the payment of certain
items of Additional Rent, then at such other time.
4.4 Prorations. If the Commencement Date is not the first (1st) day of a month,
or if the expiration of the Term of this Lease is not the last day of a
month, a prorated installment of Monthly Rent based on a thirty (30) day
month shall be paid for the fractional month during which the Term
commences or terminates.
4.5 Late Payment Charges. Tenant acknowledges that late payment by Tenant to
Landlord of Rent under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which is extremely
difficult or impracticable to determine. Such costs include, but are not
limited to, processing and accounting charges, late charges that may be
imposed on Landlord by the terms of any Mortgage, and late charges and
penalties that may be imposed due to late payment of Real Property Taxes.
Therefore, if any installment of Monthly Rent or any payment of Additional
Rent due from Tenant is not received by Landlord in good funds ten (10)
days from the applicable due date, Tenant shall pay to Landlord an
additional sum equal to five percent (5%) of the amount overdue as a late
charge for every month or portion thereof that such amount remains unpaid.
The parties acknowledge that this late charge presents a fair and
reasonable estimate of the costs that Landlord will incur by reason of the
late payment by Tenant. Acceptance of any late Rent and late charge
therefor shall not prevent Landlord from exercising any of the other rights
and remedies available to Landlord for any other Event of Default under
this Lease. Notwithstanding the foregoing (i) should any payment of Rent by
personal check be rejected for insufficient funds, Landlord shall have the
right, upon notice to Tenant, to require that all future payments by Tenant
under this Lease be by cashier's check acceptable to Landlord.
<PAGE>
4.6 Security Deposit. Tenant has deposited with Landlord the sum set forth in
Item 1.10 of the Basic Lease Provisions as a Security Deposit for the full
and faithful performance of every provision of this Lease to be performed
by Tenant. Landlord may apply, in its sole discretion at any time during
the Term of this Lease, all or any part of the Security Deposit to the
payment of all prepaid expenses by Landlord for which Tenant would be
required to reimburse Landlord under this Lease, including without
limitation for Tenant Improvements and Broker commissions. Such application
of the Security Deposit is not and shall never be dependent upon an Event
of Default. Upon an Event of Default, and whether or not Landlord is
informed of or has knowledge of the event of Default, the Security Deposit
(if not already applied as hereinabove provided) shall be deemed to be
automatically applied, without waiver of any rights Landlord may have under
this Lease or at law or in equity as a result of an Event of Default, to
the payment of any Rent not paid when due, the repair of damage to the
Premises or the payment of any other amount which Landlord may spend or
become obligated to spend by reason of an Event of Default, to the full
extent permitted by law. If any portion of the Security Deposit is so
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. Landlord shall not be required to keep the
Security Deposit separate from its general funds. The unused portion of the
Security Deposit, if any, shall be returned to Tenant within thirty (30)
days of the expiration of this Lease or any termination of this Lease not
resulting from an Event of Default, so long as Tenant has vacated the
Premises in the manner required by this Lease and paid all sums required to
be paid under this Lease, provided however, that Landlord may retain the
Security Deposit until such time as any amounts of Additional Rent due from
Tenant have been determined and paid in full.
ARTICLE V
Use
---
5.1 Tenant's Use. Tenant shall use the Premises solely for the purposes set
forth in Item 1.11 of the Basic Lease Provisions and shall use the Premises
for no other purpose. Tenant's use of the Premises shall be subject to all
of the terms and conditions of this Lease including, but not limited to,
all the provisions of this Article V. Tenant, at Tenant's sole cost and
expense, shall procure, maintain and make available for Landlord's
inspection after reasonable notice during normal business hours throughout
the Term, all governmental approvals, licenses and permits required for the
proper and lawful conduct of Tenant's permitted use of the Premises.
5.2 Compliance With Applicable Laws. Throughout the Term, Tenant, at Tenant's
sole cost and expense, shall comply with, and shall not use the Premises,
Building or Common Area, or suffer or permit anything to be done in or
about the same which will in any way conflict with, (i) any and all present
and future laws, statutes, zoning restrictions, ordinances, orders,
regulations, directions, rules and requirements of all governmental or
private authorities having jurisdiction over all or any part of the
Premises (including, but not limited to, state, municipal, county and
federal governments and their departments, bureaus, boards and officials)
pertaining to the use or occupancy of, or applicable to, the Premises or
privileges appurtenant to or in connection with the enjoyment of the
Premises, (ii) any and all applicable federal, state and local laws,
regulations or ordinances pertaining to air and water quality, Hazardous
Materials (as defined in Section 6.1), waste disposal, air emissions and
other environmental or health and safety matters, zoning, land use and
utility availability, which impose any duty upon Landlord or Tenant
directly or with respect to the use or occupation of the Project or any
portion thereof, (iii) the requirements of the Board of Fire Underwriters
or other similar body now or hereafter constituted relating to or affecting
the condition, use or occupancy of the Project or any portion thereof, (iv)
any covenants, conditions, easements or restrictions including, but not
limited to, the Restrictions, now or hereafter affecting or encumbering the
Project or any portion thereof, regardless of when they become effective,
provided no such Restrictions shall unreasonably materially interfere with
Tenants Permitted Use, (v) the Rules and Regulations, and (vi) good
business practices (collectively, (i) through (vi) above are hereinafter
referred to as "Applicable Laws"). Tenant shall not commit any waste of the
Premises, Building or Project, or any public or private nuisance or any
other act or thing which might or would disturb the quiet enjoyment of any
other tenant of Landlord or any occupant of nearby property. Tenant shall
not place or permit to be placed any loads upon the floors, walls or
ceilings in excess of the maximum designed load specified by Landlord or
which might damage the Premises or the Building, or place or permit to be
placed any harmful liquids in the drainage systems, and Tenant shall not
dump or store, or permit to be dumped or stored, any inventory, waste
materials, refuse or other materials or allow any such materials to remain
outside the Building proper, except in designated enclosed trash areas.
Tenant shall not conduct or permit any auctions, sheriff's sales or other
like activities at the Project or any portion thereof.
5.3 Restrictions. Tenant agrees that this Lease is subject and subordinate to
the Restrictions, as the same may now or hereafter exist, and that it will
execute and deliver to Landlord within fifteen (15) days of Landlord's
request therefor, any further documentation or instruments which Landlord
deems necessary or desirable to evidence or effect such subordination.
Without limiting the provisions of Section 5.2, Tenant shall throughout the
Term timely comply with all of the terms, provisions, conditions and
restrictions of the Restrictions which pertain to, restrict or affect the
Premises or Tenant's use thereof, or Tenant's use of any other area of the
Project permitted hereunder, including the payment by Tenant of any
periodic or special dues or assessments charged by governmental agencies
against the Premises or Tenant which may be allocated to the Premises or
Tenant in accordance with the provisions of the Restrictions. Tenant shall
hold Landlord, Landlord's Group and the Premises harmless and shall
indemnify, protect and defend Landlord
<PAGE>
and Landlord's Group from and against any loss, expense, damage, attorneys'
fees and costs or liability arising out of or in connection with the
failure of Tenant to so perform or comply with the Restrictions. Tenant
agrees that it will subordinate this Lease to any other covenants,
conditions and restrictions and any reciprocal easement agreements or any
similar agreements which Landlord may hereafter record against the Premises
and to any amendment or modification to any of the existing Restrictions,
provided that such Restrictions and subordination do not unreasonably
materially interfere with Tenant's use and enjoyment of the Premises.
5.4 Landlord's Right of Entry. Landlord and Landlord's Group shall have the
right to enter the Premises at all reasonable times upon reasonable notice
to Tenant, except for emergencies in which case no notice shall be
required, to inspect the Premises, to take samples and conduct
environmental investigations, to post notices of nonresponsibility and
similar notices and signs indicating the availability of the Premises for
sale, to show the Premises to interested parties such as prospective
lenders and purchasers, to make necessary Alterations or maintenance and
repairs, to perform Tenant's obligations as permitted herein when Tenant
has failed to do so and, at any reasonable time after one hundred eighty
(180) days prior to the expiration of the Term, to place upon the Premises
reasonable signs indicating the availability of the Premises for lease and
to show the Premises to prospective tenants, all without being deemed to
have caused an eviction of Tenant and without any liability to Tenant or
abatement of Rent. The above rights are subject to reasonable security
regulations of Tenant, and in exercising its rights set forth herein,
Landlord shall endeavor to cause the least possible interference with
Tenant's business. Landlord shall at all times have the right to retain a
key which unlocks all of the doors in the Premises, excluding Tenant's
vaults and safes, and Landlord and Landlord's Group shall have the right to
use any and all means which Landlord may deem proper to open the doors in
an emergency to obtain entry to the Premises, and any entry to the Premises
so obtained by Landlord or Landlord's Group shall not under any
circumstances be deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or an eviction of Tenant from the Premises.
ARTICLE VI
Hazardous Materials
-------------------
6.1 Definition of Hazardous Materials. For purposes of this Lease, the term
"Hazardous Materials" includes (i) all hazardous or toxic substances,
materials or waste listed in the United States Department of Transportation
Table (49 C.F.R. 172.1010 as amended) or by the Environmental Protection
Agency as hazardous substances (40 C.F.R. Part 302 as amended), unless
Tenant establishes, to the satisfaction of Landlord, that because of the
quantity, concentration, or physical or chemical characteristics, such
substance or matter does not pose a present or potential hazard to human
health and safety or to the environment, (ii) any other substance or matter
which results in liability to any person or entity from exposure to which
substance or matter under any statutory or common law theory, and (iii) any
substance or matter which is in excess of relevant and appropriate levels
set forth in any applicable federal, state or local law or regulation
pertaining to any hazardous or toxic substance, material or waste, or for
which any applicable federal, state or local agency orders or otherwise
requires removal, treatment or remediation.
6.2 Use of Hazardous Materials. Tenant shall not cause or permit any Hazardous
Materials to be brought upon, stored, used, generated, released into the
environment or disposed of on, under, from or about the Premises (which for
purposes of this Article VI shall include, but is not limited to,
subsurface soil and groundwater) by Tenant or Tenant's Agents without the
prior written consent of Landlord. Landlord may, in its sole discretion,
place such conditions as Landlord deems appropriate with respect to such
Hazardous Materials, and may further require that Tenant demonstrates to
Landlord that such Hazardous Materials are necessary or useful to Tenant's
business and will be generated, stored, used and disposed of in a manner
that complies with all Applicable Laws regulating such Hazardous Materials
and with good business practices. Tenant shall have no responsibility or
incur costs, however, for any Hazardous Materials whose existence pre-
existed the Commencement Date of this Lease (except to the extent Tenant or
Tenant's Agent's introduce such Hazardous Materials). Tenant understands
that Landlord may utilize an environmental consultant to assist in
determining conditions of approval and monitoring in connection with the
presence, storage, generation or use of Hazardous Materials on or about the
Premises by Tenant, and Tenant agrees that any costs reasonably incurred by
Landlord in connection with any such environmental consultant's services
shall be reimbursed by Tenant to Landlord as Additional Rent upon demand.
6.3 Environmental Questionnaire; Disclosure. Prior to the execution of this
Lease, Tenant shall complete, execute and deliver to Landlord an
Environmental Questionnaire and Disclosure Statement (the "Environmental
Questionnaire") in the form of Exhibit G, and Tenant shall certify to
Landlord all information contained in the Environmental Questionnaire as
true and correct to the best of Tenant's knowledge and belief. The
completed Environmental Questionnaire shall be deemed incorporated into
this Lease for all purposes, and Landlord shall be entitled to rely fully
on the information contained therein. On each anniversary of the
Commencement Date (each such date is hereinafter referred to as a
"Disclosure Date"), until and including the first Disclosure Date occurring
after the expiration or sooner termination of this Lease, Tenant shall
disclose to Landlord in writing the names and amounts of all Hazardous
Materials, or any combination thereof, which were stored, generated, used
or disposed of on, under or about the Premises for the twelve (12) month
period prior to each Disclosure Date, and which Tenant intends to store,
generate, use or dispose of on, under or about the Premises through the
next Disclosure Date. At
<PAGE>
Landlord's option, Tenant's disclosure obligations under this Section 6.3
shall include a requirement that Tenant update, execute and deliver to
Landlord the Environmental Questionnaire, as the same may be modified by
Landlord from time to time. In addition to the foregoing, Tenant shall
promptly notify Landlord of, and shall promptly provide Landlord with true,
correct, complete and legible copies of, all of the following environmental
items relating to the Premises: reports filed pursuant to any self-
reporting requirements; reports filed pursuant to any Applicable Laws or
this Lease; all permit applications, permits, monitoring reports, workplace
exposure and community exposure warnings or notices, and all other reports,
disclosures, plans or documents (even those which may be characterized as
confidential) relating to water discharges, air pollution, waste generation
or disposal, underground storage tanks or Hazardous Materials; all orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation,
compliance, cleanup, remedial and corrective actions, and abatement of
Hazardous Materials whether or not required by Applicable Laws; and all
complaints, pleadings and other legal documents filed against Tenant
related to Tenant's use, handling, storage or disposal of Hazardous
Materials.
6.4 Inspection; Compliance. Landlord and Landlord's Group shall have the right,
but not the obligation, to inspect, investigate, sample and/or monitor the
Premises, upon prior written notice to Tenant, including any air, soil,
water, groundwater or other sampling, and any other testing, digging,
drilling or analyses, at any time to determine whether Tenant is complying
with the terms of this Article VI, and in connection therewith, Tenant
shall provide Landlord with full access to all relevant facilities, records
and personnel. If Tenant is not in compliance with any of the provisions of
this Article VI, or in the event of a release of any Hazardous Material on,
under, from or about the Premises, by Tenant or, Tenant's Agent's, Landlord
and Landlord's Group shall have the right, but not the obligation, without
limitation on any of Landlord's other rights and remedies under this Lease,
to immediately enter upon the Premises and to discharge Tenant's
obligations under this Article VI at Tenant's expense, including without
limitation the taking of emergency or long-term remedial action. Landlord
and Landlord's Group shall endeavor to minimize interference with Tenant's
business but shall not be liable for any such interference. In addition,
Landlord, at Tenant's sole cost and expense, shall have the right, but not
the obligation, to join and participate in any legal proceedings or actions
initiated in connection with any claims or causes of action arising out of
the storage, generation, use or disposal by Tenant or Tenant's Agents of
Hazardous Materials on, under, from or about the Premises. All sums
reasonably disbursed, deposited or incurred by Landlord in connection
herewith including, but not limited to, all costs, expenses and actual
attorneys' fees, shall be due and payable by Tenant to Landlord, as an item
of Additional Rent, on demand by Landlord, together with interest thereon
at the Applicable Rate from the date of such demand until paid by Tenant.
6.5 Tenant Obligations. If the presence of any Hazardous Materials on, under or
about the Premises or the Project caused or permitted by Tenant or Tenant's
Agents results in (i) injury to any person, (ii) injury to or contamination
of the Premises or the Project, or (iii) injury to or contamination of any
real or personal property wherever situated, Tenant, at its sole cost and
expense, shall promptly take all actions necessary to return the Premises
and the Project to the condition existing prior to the introduction of such
Hazardous Materials to the Premises and the Project and to remedy or repair
any such injury or contamination. Without limiting any other rights or
remedies of Landlord under this Lease, Tenant shall pay the cost of any
cleanup work performed on, under or about the Premises, the Building and
the Project as required by this Lease or any Applicable Laws in connection
with the removal, disposal, neutralization or other treatment of such
Hazardous Materials caused or permitted by Tenant or Tenant's Agents. If
Landlord has reason to believe that Tenant or Tenant's Agents may have
caused or permitted the release of a Hazardous Material on, under, from or
about the Premises, then Landlord may require Tenant, at Tenant's sole cost
and expense, to conduct monitoring activities on or about the Premises
satisfactory to Landlord, in its sole reasonable judgment, concerning such
release of Hazardous Materials, on, under, from or about the Premises.
Notwithstanding anything in the foregoing, Tenant shall not, without
Landlord's prior written consent, take any remedial action in response to
the presence of any Hazardous Materials on, under or about the Premises, or
enter into any settlement agreement, consent decree or other compromise
with any governmental agency with respect to any Hazardous Materials
claims; provided, however, Landlord's prior written consent shall not be
necessary in the event that the presence of Hazardous Materials on, under
or abut the Premises (i) poses an immediate threat to the health, safety or
welfare of any individual or (ii) is of such a nature that an immediate
remedial response is necessary and it is not possible to obtain Landlord's
consent before taking such action.
6.6 Indemnification. To the fullest extent permitted by law, Tenant hereby
agrees to indemnify, hold harmless, protect and defend (with attorneys
acceptable to Landlord) Landlord and Landlord's Group, and any successors to all
or any portion of Landlord's interest in the Premises, the Building and the
Project and their directors, officers, partners, employees, affiliates,
representatives and Mortgagees, from and against any and all liabilities,
losses, damages (including, but not limited to, damages for the loss or
restriction on use of rentable or usable space or any amenity of the Premises,
the Building and the Project), diminution in the value of the Premises, the
Building and the Project, judgments, fines, demands, claims, recoveries,
deficiencies, costs and expenses (including, but not limited to, reasonable
attorneys' fees, disbursements and court costs and all other professional or
consultant's expenses), whether foreseeable or unforeseeable, arising directly
or indirectly out of the presence, use, generation, storage, treatment, on or
off-site disposal or transportation of Hazardous Materials on, into, from, under
or about the Premises, the Building and the Project by Tenant or Tenant's
Agents, and specifically including the cost of any required or necessary repair,
restoration, cleanup (including, but not limited to, the costs of investigation
and removal of Hazardous Materials) or detoxification of the Premises, the
Building and the Project and the preparation of any closure or other required
plans, whether or not such action is required or necessary during the Term or
after
<PAGE>
the expiration of this Lease. Notwithstanding the foregoing, Tenant shall
have no responsibility with respect to Hazardous Materials on or within the
Premises which Tenant proves existed prior to the Commencement Date of this
Lease which were not present through acts of Tenant or Tenant's Agent's.
6.7 Tenant's Responsibility at Conclusion of Lease. Promptly upon the
expiration or sooner termination of this Lease, Tenant shall represent to
Landlord in writing no such Hazardous Materials exist on, under or about
the Premises other than as specifically identified to Landlord by Tenant in
writing as a result of any acts or omissions of Tenant or Tenant's Agent's.
If Tenant discloses the existence of Hazardous Materials on, under or about
the Premises, or if Landlord at any time discovers that Tenant or Tenant's
Agents caused or permitted the release of a Hazardous Material on, under,
from or about the Premises, Tenant shall, at Landlord's request,
immediately prepare and submit to Landlord within thirty (30) days after
such request a comprehensive plan, subject to Landlord's approval,
specifying the actions to be taken by Tenant to return the Premises to the
condition existing prior to the introduction of such Hazardous Materials.
Upon Landlord's approval of such cleanup plan, Tenant shall, at Tenant's
sole cost and expense, without limitation on any rights and remedies of
Landlord under this Lease or at law or in equity, immediately implement
such plan and proceed to clean up such Hazardous Materials in accordance
with all Applicable Laws and as required by such plan and this Lease.
ARTICLE VII
Operating Expenses; Taxes; Utilities
------------------------------------
7.1 Tenant to Bear Tenant's Share of Operating Expenses. Tenant shall pay to
Landlord Tenant's Share (as defined in Section 7.2) of Project Costs and
Real Property Taxes (the "Operating Expenses") as follows: Prior to the
Commencement Date and thereafter prior to the commencement of each of
Landlord's fiscal years during the Term, Landlord shall give Tenant a
written estimate of Tenant's Share of Operating Expenses for the ensuing
fiscal year or partial fiscal year, as the case may be. Tenant shall pay,
as an item of Additional Rent, such estimated amount in equal monthly
installments, in advance, on or before the first (1st) day of each calendar
month concurrent with its payment of Monthly Rent. If Landlord has not
furnished its written estimate by the time set forth above, Tenant shall
pay monthly installments of Operating Expenses at the rate established for
the prior fiscal year, if any; provided that when the new estimate is
delivered to Tenant, Tenant shall at the next monthly payment date pay
Landlord any accrued deficiency based on the new estimate, or Landlord
shall credit any accrued overpayment based on such estimate toward Tenant's
next installment payment hereunder. Within a reasonable period of time
after the end of each fiscal year (in no event less than one hundred twenty
(120) days after the end of each fiscal year unless sooner completed by
Landlord) Landlord shall furnish Tenant a statement showing in reasonable
detail Tenant's Share of the actual Operating Expenses incurred for the
period in question. If Tenant's estimated payments are less than Tenant's
Share of actual Operating Expenses as shown by the applicable statement,
Tenant shall pay the difference to Landlord within thirty (30) days
thereafter. If Tenant shall have overpaid Landlord, Landlord shall credit
such overpayment toward Tenant's next installment payment hereunder. When
the final determination is made of Tenant's Share of the actual Operating
Expenses for the fiscal year in which this Lease terminates, Tenant shall,
even if this Lease has terminated, pay to Landlord within fifteen (15) days
after notice the excess of Tenant's Share of such actual Operating Expenses
over the estimate of Tenant's Share of Operating Expenses paid. Conversely,
any overpayment shall be rebated by Landlord to Tenant. If Landlord shall
determine at any time that the estimate of Tenant's Share of Operating
Expenses for the current fiscal year is or will become inadequate to meet
Tenant's Share of all such Operating Expenses for any reason, Landlord
shall immediately determine the approximate amount of such inadequacy and
issue a supplemental estimate as to Tenant's Share of such Operating
Expenses and Tenant shall pay any increase as reflected by such
supplemental estimate. Landlord shall keep or cause to be kept separate and
complete books of accounting covering all Operating Expenses and showing
the method of calculating Tenant's Share of Operating Expenses, and shall
preserve for at least twelve (12) months after the close of each fiscal
year all material documents evidencing said Operating Expenses for that
fiscal year. Tenant, at its sole cost and expense, through any certified
public accountant designated by it, shall have the right, during reasonable
business hours and not more frequently than once during any fiscal year, to
examine and/or audit the books and documents mentioned above evidencing
such costs and expenses for the previous fiscal year. Any delay or failure
by Landlord in delivering any estimate or statement pursuant to this
Section 7.1 shall not constitute a waiver of its right to require Tenant to
pay Tenant's Share of Operating Expenses pursuant hereto.
7.2 Definition of Tenant's Share. The term "Tenant's Share" means that portion
of an Operating Expense determined by multiplying the cost of such item by
a fraction, the numerator of which is the Premises Square Footage and the
denominator of which is the total square footage of the floor area of all
buildings within the Project, as of the date on which the computation is
made, which are to be charged with such Operating Expense. Landlord
reserves the right (but shall have no obligation to do so) to construct
additional buildings from time to time or to otherwise increase the total
leasable square footage within the Project, and Tenant's Share shall be
recalculated to reflect the increased leasable square footage at such time
as the additional area is ready for occupancy. Likewise, Landlord may at
its election reduce the total leasable square footage within the Project by
subdividing, selling or otherwise segregating from the Project, one of more
additional buildings which may be hereafter constructed, and Tenant's Share
shall be recalculated to reflect the reduction in leasable square footage.
<PAGE>
7.3 Definition of Project Costs. The term "Project Costs" means all costs and
expenses incurred by Landlord or Landlord's Group in connection with the
operation of the Project including, but not limited to, the following:
repair and maintenance of the roof, foundation and exterior walls of the
buildings in the Project, periodic painting of the buildings in the
Project, periodic cleaning of the exterior windows of the buildings in the
Project, landscaping services, outside pest control, normal maintenance and
repair of the HVAC including unit heaters through maintenance contracts or
otherwise (but not including repair or maintenance of any Specialized HVAC,
unless Landlord elects to maintain the same pursuant to Section 9.2),
sweeping, maintenance services, repairs to and replacement of paving,
bumpers, striping, light bulbs, light standards, monument and directional
signs and lighting systems, perimeter walls, retaining walls, sidewalks,
planters, landscaping and sprinkler system in planting area, any and all
assessments levied against the Project pursuant to the Restrictions, water,
electrical and other utility services not supplied directly to a tenant,
outside removal of trash, rubbish and other refuse from the Project
(excluding trash dumpsters), cleaning of and replacement of monument and
directional signs of the Project, including relamping and repairs made as
required; repair, operation and maintenance of the Common Area including,
but not limited to, removal of any obstructions not reasonably required for
the Common Area uses, prohibition and removal of the sale or display of
merchandise or the storing of materials and/or equipment in the Common
Area, and payment of all electrical, water and other utility charges or
fees for services furnished to the Common Area; obtaining and maintaining
public liability, property damage and other forms of insurance which
Landlord may or is required to maintain in connection with the Project
(including the payment of any deductibles thereunder); costs incurred in
connection with compliance of any laws or changes in laws applicable to the
Project, including without limitation any laws or changes in laws regarding
Hazardous Materials; establishment of reasonable reserves for replacements
and/or repair of Common Area improvements, equipment and supplies;
employment of such personnel as Landlord may deem reasonably necessary, if
any, to direct parking and police the Common Area and facilities; the cost
of any capital improvements (other than Tenant Improvements for specific
tenants) made by or on behalf of Landlord to the Project or Common Area to
the extent of the amortized amount thereof over the useful life of such
capital improvements as reasonably determined by Landlord, for each such
year of useful life during the Term; employment of personnel used in
connection with any of the foregoing, including, but not limited to,
payment or provision for unemployment insurance, worker's compensation
insurance and other employee costs; the cost of bookkeeping, accounting and
auditing and legal services provided in connection with any of the
foregoing; the cost of any environmental consultant or other services used
in connection with Landlord's monitoring of the Project with respect to
Hazardous Materials; the cost of any tax, insurance or other consultant
utilized in connection with the Project; and any other items reasonably
necessary from time to time to properly repair, replace, maintain and
operate the Project. Project Costs shall also include a management fee to
cover Landlord's management, provided, however, that such management fees
shall be consistent with the then prevailing rates in the industry;
overhead and administrative expenses; provided, however, if Landlord elects
to delegate its duties hereunder to a professional property manager, then
Project Costs shall not include any management fee to Landlord (except for
any costs and/or administrative and overhead expenses reasonably incurred
by Landlord in monitoring and auditing the performance delegated to the
professional property manager), but under such circumstances any reasonable
amounts paid to the professional property manger shall be added to and
deemed a part of Project Costs. (Notwithstanding the foregoing, non-
recurring Project Costs incurred solely for the benefit of one building in
the Project, including repair of a building's roof, foundation or exterior
walls, exterior painting of a building and other major expenses which in
Landlord's judgment are readily attributable to a single building
("Building Costs"), shall be allocated solely to the tenants and occupants
of the affected building.) If Landlord elects to perform any maintenance or
repair therein described in conjunction with properties other than the
Project, and if a common maintenance contractor is contracted with for such
purpose, the contract amount allocable to the Project, as reasonably
determined by Landlord, shall be added to and deemed a part of Project
Costs hereunder. Increases in Project Costs by reason of a disproportionate
impact by Tenant thereon (for example, and not by way of limitation,
increases in costs of trash collection because of Tenant's excessive
generation of trash or increases in costs of Common Area maintenance
because of Tenant's unpermitted storage of inventory or materials in the
Common Area), in Landlord's reasonable judgment, may be billed by Landlord,
as an item of Additional Rent, directly to Tenant. Notwithstanding anything
to the contrary in this section 7.3 Project Costs shall not include (a)
legal expenses or any other costs incurred in negotiations or disputes with
occupants or prospective occupants; (b) the cost to prepare space for
occupancy by any tenant; (c) interest, principal or late fee payments on
notes secured by mortgages or deeds and trust, and other debt service
costs; (d) any costs or expenditure (or portion thereof) for which landlord
is reimbursed, whether by insurance proceeds or otherwise; (e) cost of any
service furnished to any other occupant of the Building which Landlord does
not provide to Tenant; (f) penalties due to late payment of invoices; (g)
advertising, real estate commissions, legal fees, moving expenses or other
costs or expenses incurred in leasing or procuring any tenants; (h) ground
lease payments; (i) any costs of selling, exchanging or refinancing the
Building or Project; (j) Landlord's general administrative and corporate
overhead not directly attributed to management or operation of the Project;
(k) advertising and promotional expenditures; (l) costs of curing latent
and/or construction defects, if any; (m) costs for any unrelated
facilities; (n) costs incurred in the operation of any restaurant or health
or exercise club or any facility, which Landlord operates for a separate
fee to other tenants; (o) cost of repairing and maintaining the premises of
other tenants; or (p) depreciation on the Building, Common Areas, or other
Tenants' premises or the Premises.
7.4 Definition of Real Property Taxes. The term "Real Property Taxes" means any
form of tax, assessment, charge, license, fee, rent tax, levy, penalty (if
a result of Tenant's delinquency), real property or other tax
<PAGE>
(other than Landlord's net income, estate, succession, inheritance, or
franchise taxes), now or hereafter imposed with respect to the Project or
any part thereof (including any alterations), this Lease or any Rent
payable under this Lease by any authority having the direct or indirect
power to tax, or by any city, county, state or federal government or any
improvement district or other district or division thereof, whether such
tax or any portion thereof (i) is determined by the area of the Project or
any part thereof or the Rent payable under this Lease by Tenant including,
but not limited to, any gross income or excise tax levied by any of the
foregoing authorities with respect to receipt of the Rent due under this
Lease, (ii) is levied or assessed in lieu of, in substitution for, or in
addition to, existing or additional taxes with respect to the Project or
any part thereof whether or not now customary or within the contemplation
of Landlord or Tenant, or (iii) is based upon any legal or equitable
interest of Landlord in the Project or any part thereof.
7.5 Apportionment of Taxes. If the Building is assessed as part of a larger
parcel, then Landlord shall equitably apportion the Real Property Taxes
assessed against the real property, which includes the Building and
reasonably determine the amount of Real Property Taxes attributable to the
Building. If more than one building exists on the assessed parcel and Real
Property Taxes are separately assessed against each of the buildings,
Tenant's share of the Real Property Taxes included in the Operating
Expenses shall be apportioned by Landlord between the taxes which are
separately assessed against the Building in which the Premises are located
(the "Building Tax") and those Real Estate Taxes assessed against Common
Areas and other portions of the Project which are not exclusively reserved
for use by tenants of other buildings. Landlord's reasonable determination
of such apportionment shall be resumed correct absent manifest error and
conclusive.
7.6 Payment of Real Property Taxes. Landlord shall pay, at Tenant's expense and
subject to reimbursement by Tenant as hereinafter set forth, all Real
Property Taxes levied against the Premises during the term. The amount of
such payments by Landlord shall be based on tax bills and notices received
by Landlord pertaining to the Premises (and if Tenant receives any such tax
bills or notices, Tenant shall immediately forward same to Landlord) and
such payment shall be made before the last day such Real Property Taxes are
payable without penalty. Tenant shall reimburse to Landlord, as an item of
Additional Rent, the full amount of such Real Property Taxes paid by
Landlord within thirty (30) days after Landlord's statement or invoices
therefore, which statement or invoice shall be accompanied by reasonable
evidence of the amount of such Real Property Taxes. Real Property Taxes
shall not include any late charges, penalties or interest attributable to
Landlord's late payment (other than caused solely by Tenant) or any
charges, assessments or levies attributable to another tenant or another
tenant's improvements or another Tenant's late payment.
7.7 Tax on Improvements; Permitted Contests. Tenant shall, at Landlord's
election, be directly responsible for and shall pay the full amount of any
increase in Real Property Taxes attributable to any and all Tenant
Improvements and any other improvements of any kind whatsoever placed in,
on or about the Premises for the benefit of, at the request of, or by
Tenant. Tenant may contest the amount or validity of any Real Property
Taxes by appropriate proceedings, provided that Tenant gives Landlord prior
Notice of any such contest and keeps Landlord advised as to all
proceedings, and provided further that Tenant shall continue to reimburse
Landlord for Landlord's payment of such Real Property Taxes unless such
proceedings shall operate to prevent or stay such payment and the
collection of the tax so contested. Landlord shall join in any such
proceedings if any Applicable Laws shall so require, provided that Tenant
shall hold harmless, indemnify, protect and defend Landlord from and
against any liability, claim, demand, cost or expense in connection
therewith including, but not limited to, actual attorneys' fees and costs
reasonably incurred.
7.8 Utilities and Services. Tenant shall be responsible for and shall pay
promptly, directly to the appropriate supplier, all charges for water, gas,
electricity, heat, light, power, telephone, exterior trash dumpster refuse
pickup, janitorial service, interior landscape maintenance and all other
utilities, materials and services furnished directly to Tenant or the
Premises or used by Tenant in, on or about the Premises during the Term,
together with any taxes thereon. If any utilities or services are not
separately metered or assessed to Tenant, Landlord shall make a reasonable
determination of Tenant's proportionate share of the cost of such utilities
and services and Tenant shall pay such amount to Landlord, as an item of
Additional Rent, within ten (10) days after receipt of Landlord's statement
or invoice therefor. Alternatively, Landlord may elect to include such cost
in the definition of Project Costs, in which event Tenant shall pay
Tenant's share of such cost in the manner set forth in Section 7.1.
Landlord may also require Tenant to have any Specialized HVAC system
separately metered to Tenant, at Tenant's expense. Landlord shall not be
liable in damages or otherwise for any failure or interruption of any
utility or other service furnished to the Premises. No such failure or
interruption shall be deemed an eviction or entitle Tenant to terminate
this Lease or withhold or abate any Rent due hereunder, however, if any
utilities or services as described in this Section 7.8 or elsewhere in the
Lease cease to be provided to Tenant as a result of the negligence or
willful misconduct of Landlord result in the Premises being rendered
uninhabitable, and if such interruption continues in excess of five (5)
consecutive days, then all Rent payable by Tenant to Landlord under this
Lease shall be abated for the period the Premises are rendered
uninhabitable for such reasons.
7.9 Economic Incentives. Notwithstanding anything to the contrary contained
within the Lease, Tenant shall receive the full, direct benefit of all
state, county and city tax incentives, enterprise zone tax credits and
similar economic development benefits granted to Tenant solely by reason of
its relocation to the Premises, including Property Tax and Sales Tax
reductions and credits.
ARTICLE VIII
<PAGE>
Alterations
-----------
8.1 Permitted Alterations. After the Commencement Date, Tenant shall not make
or permit any Alterations in, or about the Premises without the prior
written consent of Landlord (which consent shall not be unreasonably
withheld or delayed), except for Alterations not exceeding Ten Thousand
Dollars ($10,000.00)in any calendar year. Notwithstanding the foregoing,
without the prior written consent of Landlord (which consent shall not be
unreasonably withheld), in no event shall any Alterations (i) affect the
exterior of the Building or the outside areas (or be visible from adjoining
sites), (ii) affect or penetrate any of the structural portions of the
Building including, but not limited to, the roof, (iii) require any change
to the basic floor plan of the Premises, any change to the structural or
mechanical components of the Premises, or any governmental approval or
permit as a prerequisite to the construction thereof, (iv) interfere in any
manner with the proper functioning of or Landlord's access to any
mechanical, electrical, plumbing or HVAC systems, facilities or equipment
located in or serving the Building, or (v) diminish the value of the
Premises. All Alterations requiring Landlord's consent shall be constructed
pursuant to plans and specifications previously provided to and, when
applicable, approved in writing by Landlord, shall be installed by a
licensed contractor at Tenant's sole expense in compliance with all
Applicable Laws, and shall be accomplished in a good and workmanlike manner
conforming in quality and design with the Premises existing as of the
Commencement Date. No Hazardous Materials including, but not limited to,
asbestos or asbestos-containing materials, shall be used by Tenant or
Tenant's Agents in the construction of any Alterations permitted hereunder.
Tenant shall, if reasonably required by Landlord, obtain and pay for, at
its own expense, a completion and indemnity bond covering such work, the
form and amount of which shall be subject to the approval of Landlord. All
Alterations made by Tenant shall be and become the property of Landlord
upon the installation thereof and shall not be deemed Tenant's Personal
Property; provided, however, that Landlord may, at its option, require that
Tenant, upon the termination of this Lease, at Tenant's expense, remove any
or all nonstructural Alterations installed by or on behalf of Tenant and
return the Premises to its condition as of the Commencement Date of this
Lease, normal wear and tear excepted. Notwithstanding any other provisions
of this Lease, Tenant shall be solely responsible for the maintenance,
repair and replacement of any and all Alterations made by or on behalf of
Tenant (including without limitation by Landlord on behalf of Tenant) to
the Premises.
8.2 Trade Fixtures. Tenant shall, at its own expense, provide, install and
maintain in good condition all of Tenant's Personal Property required in
the conduct of its business in the Premises.
8.3 Mechanic's Liens. Tenant shall give Landlord Notice of Tenant's intention
to perform any work on the Premises which might result in any claim of lien
at least twenty (20) days prior to the commencement of such work to enable
Landlord to post and record a notice of nonresponsibility or other notice
Landlord deems proper prior to the commencement of any such work. Tenant
shall not permit any mechanics', materialmens' or other liens to be filed
against the property of which the Premises are a part or against Tenant's
leasehold interest in the Premises. If Tenant fails to cause the release of
record of any lien(s) filed against the Premises or its leasehold estate
therein by payment or posting of a proper bond within twenty (20) days from
the date of the lien filing(s), then Landlord may, at Tenant's expense,
cause such lien(s) to be released by any means Landlord deems proper
including, but not limited to, payment of or defense against the claim
giving rise to the lien(s). All sums reasonably disbursed, deposited or
incurred by Landlord in connection with the release of the lien(s)
including, but not limited to, all costs, expenses and actual attorneys'
fees, shall be due and payable by Tenant to Landlord, as an item of
Additional Rent, on demand by Landlord, together with interest thereon at
the Applicable Rate from the date of such demand until paid by Tenant.
ARTICLE IX
Maintenance And Repair
----------------------
9.1 Landlord's Maintenance and Repair Obligations. Landlord shall, subject to
receiving Tenant's Share of Operating Expenses, and subject to Section 9.2,
Article XII and Article XIII, maintain in good condition repair and replace
the roof including any skylights, exterior walls and foundation of the
Building, provide normal maintenance services for the HVAC serving the
Building through maintenance contracts or otherwise, and paint the exterior
of the Building and clean the exterior windows of the Building as and when
such painting or window cleaning, as the case may be, becomes necessary in
Landlord's reasonable discretion. Landlord shall also provide inspections,
maintenance and repair services to the electrical, plumbing, fire life
safety, and mechanical systems serving the Building. Landlord shall not be
required to make any repairs to the roof, exterior walls, foundation or any
systems within the Premises unless and until Tenant has notified Landlord
in writing of the need for such repair and Landlord shall have a reasonable
period of time thereafter to commence and complete said repair, if
warranted. The cost of any maintenance and repairs on the part of Landlord
provided for in this Section 9.1 shall be considered part of Project Costs,
except that repairs which Landlord deems arise out of any act or omission
of Tenant or Tenant's Agents shall be made at the expense of Tenant.
Landlord's obligation to so repair and maintain the services to the
Building shall be limited to the cost of effecting such repair and
maintenance and in no event shall Landlord be liable for any costs or
expenses in excess of said amounts including, but not limited to, any
consequential damages, opportunity costs or lost profits incurred or
suffered by Tenant.
9.2 Tenant's Maintenance and Repair Obligations. Tenant shall at all times
during the Term of this Lease, at Tenant's sole cost and expense, clean,
keep, maintain, repair and make necessary improvements to, the Premises and
every portion thereof and all improvements therein or thereto, in and
sanitary order and
<PAGE>
condition to the reasonable satisfaction of Landlord and in compliance with
all Applicable Laws, usual wear and tear excepted. Landlord agrees to be
reasonable in enforcing Tenant's repair obligations. Any damage or
deterioration of the Premises shall not be deemed usual wear and tear if
the same could have been prevented by good maintenance practices by Tenant.
Tenant's repair and maintenance obligations herein shall include, but are
not limited to interior pest control, all necessary maintenance and repairs
to all portions of the Premises, and all exterior entrances, all interior
glass, interior windows, including interior window casements and interior
show window moldings, partitions, doors, doorjambs, door closures,
hardware, fixtures, tenant signage, electrical lighting and outlets,
plumbing fixtures, sewage facilities, interior walls, floors, ceilings,
fans and exhaust equipment, fire extinguisher equipment and systems, and
all repairs to Specialized HVAC (as hereinafter defined). As part of its
maintenance obligations hereunder, Tenant shall, at Landlord's request,
permit Landlord to inspect copies of all maintenance schedules, reports and
notices prepared by, for, or on behalf of Tenant. Repairs by Tenant, shall
be at least equal in quality to the original work, and the provisions of
Section 8.3 shall apply to all such repairs. Tenant's obligation to repair
includes the obligation to replace, as necessary, regardless of whether the
benefit of such replacement extends beyond the Term. Any special or above-
standard heating, ventilating and air conditioning installed by, on behalf
of, or at the request of Tenant ("Specialized HVAC"), shall be paid for and
maintained by Tenant at Tenant's sole cost and expense. Notwithstanding the
foregoing, Landlord shall have the right, upon Notice to Tenant, to
undertake the responsibility for maintenance and repair of automatic fire
extinguisher equipment, such as sprinkler systems and alarms, Specialized
HVAC and other obligations of Tenant hereunder which Landlord deems
appropriate to undertake that affect the Building as a whole, in which
event the cost thereof shall be included as part of Project Costs and paid
by Tenant in the manner set forth in Section 7.1. Tenant shall not permit
or authorize any person to go onto the roof of the building without the
prior written consent of Landlord.
9.3 Waiver. Tenant hereby waives all rights provided for by any present or
future Applicable Laws to make repairs at the expense of Landlord or to
terminate this Lease because of the condition of the Premises.
9.4 Self-Help. If Tenant refuses or fails to commence and diligently pursue to
repair and maintain the Premises as required hereunder within ten (10) days
from the date on which Landlord makes a written demand on Tenant to effect
such repair and maintenance, Landlord may enter upon the Premises and make
such repairs or perform such maintenance without liability to Tenant for
any loss or damage that may accrue to Tenant or its merchandise, fixtures
or other property or to Tenant's business by reason thereof. All sums
reasonably disbursed, deposited or incurred by Landlord in connection with
such repairs or maintenance, plus ten percent (10%) for overhead, shall be
due and payable by Tenant to Landlord, as an item of Additional Rent, on
demand by Landlord, together with interest at the Applicable Rate on such
aggregate amount from the date of such demand until paid by Tenant.
ARTICLE X
Common Area And Parking
-----------------------
10.1 Grant of Nonexclusive Common Area License and Right. Landlord hereby grants
to Tenant and its permitted subtenants, in common with Landlord and all
persons, firms and corporations conducting business in the Project and
their respective customers, guests, licenses, invitees, subtenants,
employees and agents, to use the Common Area within the Project for
vehicular parking, for pedestrian and vehicular ingress, egress and travel,
and for such other purposes and for doing such other things as may be
provided for, authorized and/or permitted by the Restrictions, such
nonexclusive license and right to be appurtenant to Tenant's leasehold
estate created by this Lease. The nonexclusive license and rights granted
pursuant to the provisions of this Article X shall be subject to the
provisions of the Restrictions, which pertain in any way to the Common Area
covered by such Restrictions, and the provisions of this Lease.
10.2 Use of Common Area. Notwithstanding anything to the contrary herein, Tenant
and its successors, assigns, employees, agents and invitees shall use the
Common Area only for the purposes permitted hereby and by the Restrictions
and the Rules and Regulations. All uses permitted within the Common Area
shall be undertaken with reason and judgment so as not to interfere with
the primary use of the Common Area which is to provide parking and
vehicular and pedestrian access throughout the Common Area within the
Project and to adjacent public streets for the Landlord, Landlord's Group,
its tenants, subtenants and all persons, firms and corporations conducting
business within the Project and their respective customers, guests and
licensees. In no event shall Tenant erect, install, or place, or cause to
be erected, installed, or placed any structure, building, trailer, fence,
wall, signs or other obstructions on the Common Area except as otherwise
permitted herein and in the Restrictions, and Tenant shall not store or
sell any merchandise, equipment or materials on the Common Area.
10.3 Control of Common Area. Subject to provisions of the Restrictions, all
Common Area and all improvements located from time to time within the
Common Area shall at all times be subject to the exclusive control and
management of the Landlord. Landlord shall have the right to construct,
maintain and operate lighting facilities within the Common Area; to police
the Common Area from time to time; to change the area, level, location and
arrangement of the parking areas and other improvements within the Common
Area; to restrict parking by tenants, their officers, agents and employees
to employee parking areas; to close all or any portion of the Common Area
or improvements therein to such extent as may, in the opinion of counsel
for Landlord, be legally sufficient to prevent a dedication thereof or the
accrual of
<PAGE>
any rights to any person or to the public therein; to close temporarily all
or any portion of the Common Area and/or the improvements thereon; to
discourage non-customer parking; and to do and perform such other acts in
and to said Common Area and improvements thereon as, in the use of good
business judgment, Landlord shall determine to be advisable.
10.4 Maintenance of Common Area. Subject to the provisions of the Restrictions,
Landlord shall operate and maintain (or cause to be operated and
maintained) the Common Area in a first-class condition, in such manner as
Landlord in its reasonable sole discretion shall determine from time to
time. Without limiting the scope of such discretion, Landlord shall have
the full right and authority to employ or cause to be employed all
personnel and to make or cause to be made all rules and regulations
pertaining to or necessary for the proper operation and maintenance of the
Common Area and the improvements located thereon. The cost of such
maintenance of the Common Area shall be included as part of Project Costs.
No part of the Common Area may be used for the storage of any items,
including without limitation, vehicles, materials, inventory and equipment.
All trash and other refuse shall be placed in designated receptacles. No
work of any kind including, but not limited to, painting, drying, cleaning,
repairing, manufacturing, assembling, cutting, merchandising or displaying
shall be permitted upon the Common Area.
10.5 Revocation of License. All Common Area and improvements located thereon
which Tenant is permitted to use and occupy pursuant to the provisions of
this Lease are to be used and occupied under a revocable license and right,
and if any such license be revoked, or if the amount of such areas be
diminished, Landlord shall not be subject to any liability nor shall Tenant
be entitled to compensation or diminution or abatement of Rent, and such
revocation or diminution of such areas shall not be deemed constructive or
actual eviction. It is understood and agreed that the condemnation or other
taking or appropriation by any public or quasi-public authority, or sale in
lieu of condemnation, of all or any portion of the Common Area shall not
constitute a violation of Landlord's agreements hereunder, and Tenant shall
not be entitled to participate in or make any claim for any award or other
condemnation proceeds arising from any such taking or appropriation of the
Common Area. Notwithstanding the foregoing, so long as no Event of Default
has occurred and is continuing, Landlord shall provide to Tenant the number
of vehicle parking spaces set forth in Item 1.15 of the Basic Lease
Provisions throughout the Term (subject to the rights of Landlord under
this Article X).
10.6 Landlord's Reserved Rights. Landlord reserves the right to install, use,
maintain, repair, relocate and replace pipes, ducts, conduits, wires and
appurtenant meters and equipment included in the Premises or outside the
Premises, change the boundary lines of the Project and install, use,
maintain, repair, alter or relocate, expand and replace any Common Area;
provided, however, Landlord shall not unreasonably interfere with Tenant's
use of the Premises. Such rights of Landlord shall include, but are not
limited to, designating from time to time certain portions of the Common
Area as exclusively for the benefit of certain tenants in the Project.
10.7 Parking. Tenant shall be entitled to the number of vehicle parking spaces
set forth in Item 1.15 of the Basic Lease Provisions, which spaces shall be
unreserved and unassigned, on those portions of the Common Area designated
by Landlord for parking. Tenant shall not use more parking spaces than such
number. All parking spaces shall be used only for parking by vehicles no
larger than full-size passenger automobiles or pick-up trucks except in
Tenant's truck bays. Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked in areas
other than those designated by Landlord for such activities. If Tenant
permits or allows any of the prohibited activities described above, then
Landlord shall have the right, without notice, in addition to such other
rights and remedies that Landlord may have, to remove or tow away the
vehicle involved and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord. Parking within the Common Area
shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, accessways or in any area which would prohibit
or impede the free flow of traffic within the Common Area. Vehicles which
have been abandoned or parking in violation of the terms hereof may be
towed away at the owner's expense. Notwithstanding any other provision of
Article X, overnight parking of trucks used for Tenant's daily business
shall be permitted by Landlord within the truck bays immediately adjacent
to the Premises. The location of such parking shall be agreed upon by both
parties.
ARTICLE XI
Indemnity And Insurance
-----------------------
11.1 Indemnification. Tenant agrees to indemnify, defend and hold Landlord and
Landlord's Group entirely harmless from and against all liabilities,
losses, demands, actions, expenses or claims, including attorneys' fees and
court costs, for bodily injury to or death of any person or for property
liability damages to any property arising out of, to the extent
contributed, or in any manner connected with (i) the use, occupancy or
enjoyment of the Premises, Building or Common Areas by Tenant or Tenant's
Agents, or any work, activity or other things allowed or suffered by Tenant
or Tenant's Agents to be done in or about the Premises, Building or Common
Area, (ii) any negligence or willful misconduct of Tenant or Tenant's
employees, agents or contractors on or about the Premises, Building or
Common Area. Notwithstanding the foregoing, Tenant shall not be liable and
Landlord shall indemnify and hold Tenant free and harmless to the extent
that damage or injury is caused by the negligence or willful misconduct of
Landlord, or Landlord's Group, on or about the Premises, the Building or
the Common Area. Tenant's agreement to indemnify and hold Landlord harmless
pursuant to
<PAGE>
this Article XI and the exclusion from Tenant's indemnity and the agreement
by Landlord to indemnify and hold Tenant harmless pursuant to this Article
XI are not intended to and shall not relieve any insurance carrier of its
obligations under policies required to be carried by Landlord or Tenant,
respectively, pursuant to the provisions of this Lease to the extent that
such policies cover the results of such negligence or omissions or such
willful misconduct. If either party breaches their obligations under this
Lease by its failure to carry required insurance, such failure shall
automatically be deemed to be the covenant and agreement by Landlord or
Tenant, respectively, to self-insure such required coverage, with full
waiver of subrogation. All property of Tenant kept or stored on the
Premises or in the Building shall be so kept or stored at the risk of
Tenant only, and Tenant shall hold Landlord harmless from any claims
arising out of damage to the same, including subrogation claims by Tenant's
insurance carriers, unless such damages shall be caused by the negligence
or willful misconduct of Landlord, or Landlord's Group. The
indemnifications contained herein shall survive the expiration or earlier
termination of this Lease as to all matters occurring prior to the
expiration or earlier termination of this Lease.
11.2 Property Insurance. Landlord shall obtain and keep in force during the Term
of this Lease a policy or policies of insurance including loss of Rent,
with deductibles at the sole discretion of Landlord, covering loss or
damage to the Premises and the Building, the Tenant Improvements and
objects owned by Landlord and normally covered under a "Boiler and
Machinery" policy (as such term is used in the insurance industry) at least
in the amount of the full replacement cost thereof, and in no event less
than the total amount required by Mortgagees, against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils ("all risk" or "special causes of
action," as such terms are used in the insurance industry, including, at
Landlord's option, collapse, earthquake and flood) and other perils as
required by the Mortgagees or deemed necessary by Landlord. A stipulated
value or agreed amount endorsement deleting any co-insurance provision of
said policy or policies shall be procured with said insurance. The cost of
such insurance policies shall be included in the definition of Project
Costs, and shall be paid by Tenant in the manner set forth in Section 7.1.
Such insurance policies shall provide for payment of loss thereunder to
Landlord or, at Landlord's election, to the Mortgagees. If the Premises are
part of a larger building, or if the Premises are part of a group of
buildings owned by Landlord which are adjacent to the Premises, then Tenant
shall pay for any increase in the property insurance of the Building or
such other building or buildings within the Project if such increase is
caused by Tenant's acts, omissions, use or occupancy of the Premises.
Tenant shall obtain and keep in force during the Term, at its sole cost and
expense, (i) an "all risk" or "special causes of action" property policy in
the amount of the full replacement cost covering Tenant's Personal Property
and any alterations made by or at the request of Tenant, with Landlord
insured as its interest may appear.
11.3 Liability/Miscellaneous Insurance. Tenant shall maintain in full force and
effect at all times during the Term (plus such earlier and later periods as
Tenant may be in occupancy of the Premises), at its sole cost and expense,
for the protection of Tenant, Landlord and Landlord's Group and Mortgagees,
policies of insurance issued by a carrier or carriers acceptable to
Landlord and the Mortgagees which afford the following coverages: (i)
statutory workers' compensation, (ii) employer's liability with minimum
limits of Five Hundred Thousand Dollars ($500,000), (iii)
comprehensive/commercial general liability including, but not limited to,
blanket contractual liability (including the indemnity set forth in Section
11.1), fire and water legal liability, broad form property damage, personal
injury, completed operations, products liability, independent contractors,
warehouser's legal liability and, if alcoholic beverages are served,
manufactured, distributed or sold in the Premises, comprehensive liquor
liability, and owned, non-owned and hired vehicles, of not less than the
limits set forth in Item 1.17 of the Basic Lease Provisions (or current
limit carried, whichever is greater), naming Landlord, the Mortgagees, and
the Additional Insureds named in Item 1.16 of the Basic Lease Provisions as
additional insureds, and including a cross-liability or severability
interests endorsement, and (iv) plate glass insurance, if applicable, and
any other insurance in such form and amounts as may be commercially
reasonable Landlord or Landlord's Group on behalf of Landlord will obtain
liability insurance with minimum limits of One Million Dollars
($1,000,000.00) on such terms as Landlord shall determine, and the cost
thereof shall be included in Project Costs and paid by Tenant in the manner
described in Section 7.1.
11.4 Hazardous Materials. In the event Landlord consents to a material change in
Tenant's use, generation or storage of Hazardous Materials on, under or
about the Premises pursuant to Section 6.2, Landlord shall have the
continuing right to require Tenant, at Tenant's sole cost and expense, to
purchase insurance specified and approved by Landlord, with coverage of no
less than Five Million Dollars ($5,000,000), insuring (i) any Hazardous
Materials shall be removed from the Premises, (ii) the Premises shall be
restored to a clean, neat, attractive, healthy, safe and sanitary
condition, and (iii) any liability of Tenant, Landlord and Landlord's Group
arising from such Hazardous Materials.
11.5 Deductibles; Blanket Coverage Tenant shall be solely responsible for the
payment of any deductible. Any insurance required of Tenant pursuant to
this Lease may be provided by means of a so-called "blanket policy," so
long as (i) the Premises are specifically covered (by rider, endorsement or
otherwise), (ii) the limits of the policy are applicable on a "per
location" basis to the Premises and provide for restoration of the
aggregate limits, and (iii) the policy otherwise complies with the
provisions of this Lease.
11.6 Increased Coverage. Upon written demand, Tenant shall provide Landlord, at
Tenant's reasonable expense, with such increased amount of existing
insurance, and such other insurance as Landlord or the Mortgagees may
reasonably require.
<PAGE>
11.7 Sufficiency of Coverage. Neither Landlord nor any of Landlord's Group
makes any representation that the types of insurance and limits specified
to be carried by Tenant under this Lease are adequate to protect Tenant.
If Tenant believes that any such insurance coverage is insufficient,
Tenant shall provide, at its own expense, such additional insurance, as
Tenant deems adequate. Nothing contained herein shall limit Tenant's
liability under this Lease, and Tenant's liability under any provision of
this Lease, including without limitation under any indemnity provisions,
shall not be limited to the amount of any insurance obtained.
11.8 Insurance Requirements. Tenant's insurance (i) shall be in a commercially
reasonable form and shall be carried with companies that have a general
policyholder's rating of not less than "A" (ii) shall provide that such
policies shall not be subject to material alteration or cancellation
except after at least thirty (30) days prior written notice to Landlord,
and (iii) shall be primary, and any insurance carried by Landlord or
Landlord's Group shall be noncontributing. Tenant's policy or policies,
or duly executed certificates for them shall be deposited with Landlord
prior to the Commencement Date, and prior to renewal of such policies. If
Tenant fails to procure and maintain the insurance required to be
procured by Tenant under this Lease, Landlord may, but shall not be
required to, order such insurance at Tenant's expense. All sums
reasonably disbursed, deposited or incurred by Landlord in connection
therewith including, but not limited to, all costs, expenses and actual
reasonable attorneys' fees, shall be due and payable by Tenant to
Landlord, as an item of Additional Rent, on demand by Landlord, together
with interest thereon at the Applicable Rate from the date of such demand
until paid by Tenant.
11.10 Landlord's Disclaimer. Notwithstanding any other provisions of this
Lease, and to the fullest extent permitted by law, Landlord and
Landlord's Group shall not be liable for any loss or damage to persons or
property resulting from theft, vandalism, fire, explosion, falling
materials, glass, tile or sheetrock, steam, gas, electricity, water or
rain which may leak from any part of the Premises, or from the pipes,
appliances or plumbing works therein or from the roof, street or
subsurface or whatsoever, unless caused by or due to the sole negligence
or willful misconduct of Landlord. Landlord and Landlord's Group shall
not be liable for interference with light or air, or for any latent
defect in the Premises except as otherwise expressly provided in this
Lease. Tenant shall give prompt Notice to Landlord in case of a casualty,
accident or repair needed to the Premises.
11.11 Waiver of Subrogation. Landlord, except to the extent Tenant's insurance
covers loss to Landlord plus Tenant's obligations with respect to
maintenance and repair and payment of insurance deductibles hereunder,
and Tenant each hereby waives all rights of recovery against the other
and the other's agents on account of loss and damage occasioned to such
waiving party to the extent only that such loss or damage is insured
against under any insurance policies required by this Article XI (and to
the extent such insurance is inadequate to cover such loss, this waiver
shall not apply to amounts of loss above such coverage). Tenant and
Landlord shall, upon obtaining policies of insurance required hereunder,
give notice to the insurance carriers that the foregoing waiver of
subrogation is contained in this Lease. Notwithstanding the foregoing, it
is agreed that in the event that any loss is due to the act, omission or
negligence or willful misconduct of Tenant or Tenant's Agents, Tenant's
liability insurance shall be primary and shall cover all losses and
damages prior to any other insurance hereunder.
ARTICLE XII
Damage Or Destruction
---------------------
12.1 Landlord's Obligation to Rebuild. If the Premises are damaged or
destroyed by fire or other casualty (a "Casualty"), Tenant shall promptly
give notice thereof to Landlord, and Landlord shall thereafter repair the
Premises as set forth in Sections 12.4 and 12.5 unless Landlord has the
right to terminate this Lease as provided in Section 12.2 and Landlord
elects to so terminate or Tenant has the right to terminate this Lease as
provided in Section 12.3 and Tenant elects to so terminate.
12.2 Landlord's Right to Terminate. Landlord shall have the right to terminate
this Lease following a Casualty if any of the following occurs: (i)
insurance proceeds are not available to Landlord to pay one hundred
percent (100%) of the cost to fully repair the Premises, excluding the
deductible (ii) Landlord's Architect determines that the Premises cannot,
with reasonable diligence, be fully repaired by Landlord (or cannot be
safely repaired because of the presence of hazardous factors including,
but not limited to, Hazardous Materials, earthquake faults, radiation,
chemical waste and other similar dangers) within one hundred eighty (180)
days after the date of such Casualty or; (iii) the Premises are destroyed
or damaged during the last twelve (12) months of the Term. If Landlord
elects to terminate this Lease following a Casualty pursuant to this
Section 12.2, Landlord shall give Tenant Notice of its election to
terminate within thirty (30) days after Landlord has knowledge of such
Casualty, and this Lease shall terminate fifteen (15) days after the date
of such Notice.
12.3 Tenant's Right to Terminate. Subject to the latter terms hereof, Tenant
shall have the right to terminate this Lease following the destruction of
the Premises (or damage to the Premises so extensive as to reasonably
prevent Tenant's substantial use and enjoyment of the Premises) if any of
the following occurs: (i) the Premises cannot, with reasonable diligence,
be fully repaired by Landlord within one hundred eighty
<PAGE>
(180) days after the date of the damage or destruction, as determined by
Landlord's Architect; (ii) the Premises cannot safely be repaired because
of the presence of hazardous factors, including Hazardous Materials,
earthquake faults, radiation, chemical waste and other similar dangers;
or (iii) the damage or destruction occurs during the last twelve (12)
months of the Term and cannot, with reasonable diligence, be fully
repaired by Landlord within ninety (90) days after the date of the
destruction or damage, as determined by Landlord's Architect.
Notwithstanding the foregoing, Tenant shall not have the right to
terminate under this Section 12.3 if (a) an Event of Default has occurred
and is continuing at the time of such damage or destruction or at the
time of exercising the right to terminate, or (b) the damage or
destruction was caused, in whole or in part, by the act or omission of
Tenant's or Tenant's Agents. If Tenant elects to terminate this Lease
pursuant to this Section 12.3, Tenant shall give Landlord Notice of its
election to terminate within ten (10) days after the date of such damage
or destruction, and this Lease shall terminate thirty (30) days after the
date of such Notice.
12.4 Effect of Termination. If this Lease is terminated following a Casualty
pursuant to Section 12.2 or Section 12.3, Landlord shall, subject to the
rights of the Mortgagees, be entitled to receive and retain all the
insurance proceeds resulting from or attributable to such Casualty,
except for those proceeds payable under policies obtained by Tenant which
specifically insure Tenant's Personal Property. If neither party
exercises any such right to terminate this Lease, this Lease will
continue in full force and effect, and Landlord shall, promptly following
the tenth (10th) day after the date of such Casualty and receipt of the
amounts set forth in clause (i) of Section 12.2, commence the process of
obtaining necessary permits and approvals for the repair of the Premises,
and shall commence such repair and prosecute the same diligently to
completion as soon thereafter as is practicable. Tenant shall fully
cooperate with Landlord in removing Tenant's Personal Property and any
debris from the Premises to facilitate the making of such repairs.
12.5 Limited Obligation to Repair. Landlord's obligation, should it elect or
be obligated to repair the Premises following a Casualty, shall be
limited to the basic Building and Tenant Improvements and Tenant shall,
at its expense, replace or fully repair all Tenant's Personal Property
and any Alterations installed by Tenant existing at the time of such
Casualty. If the Premises are to be repaired in accordance with the
foregoing, Tenant shall make available to Landlord any portion of
insurance proceeds it receives which are allocable to the Tenant
Improvements.
12.6 Abatement of Monthly Rent. During any period when Landlord or Landlord's
Architect reasonably determines that there is substantial interference
with Tenant's use of the Premises by reason of a Casualty, Rent shall be
temporarily abated in proportion to the degree of such substantial
interference. Such abatement shall commence upon the date Tenant notifies
Landlord of such Casualty and shall end upon the Substantial Completion
of the repair of the Premises which Landlord undertakes or is obligated
to undertake hereunder. Tenant shall not be entitled to any compensation
or damages from Landlord for loss of the use of the Premises, Tenant's
Personal Property or other damage or any inconvenience occasioned by a
Casualty or by the repair or restoration of the Premises thereafter,
including, but not limited to, any consequential damages, opportunity
costs or lost profits incurred or suffered by Tenant.
12.7 Landlord's Determination. The reasonable good faith determination by
Landlord's Architect of or relating to the estimated cost of repair of
any damage, replacement cost, the time period required for repair or the
interference with or suitability of the Premises for Tenant's use or
occupancy shall be conclusive for purposes of this Article XII and
Article XIII.
ARTICLE XIII
Condemnation
------------
13.1 Total Taking--Termination. If title to the Premises or so much thereof is
taken for any public or quasi-public use under any statute or by right of
eminent domain so that reconstruction of the Premises will not result in
the Premises being reasonably suitable for Tenant's continued occupancy
for the uses and purposes permitted by this Lease, this Lease shall
terminate as of the date possession of the Premises or part thereof is so
taken.
13.2 Partial Taking. If any part of the Premises is taken for any public or
quasi-public use under any statute or by right of eminent domain and the
remaining part is reasonably suitable for Tenant's continued occupancy
for the conduct of Tenant's business in the ordinary course as then
conducted, this Lease shall, as to the part so taken, terminate as of the
date that possession of such part of the Premises is taken and the
Monthly Rent shall be reduced in the same proportion than the floor area
of the portion of the Premises so taken (less any addition thereto by
reason of any reconstruction) bears to the original floor area of the
Premises, as reasonably determined by Landlord or Landlord's Architect.
Landlord shall, at its own cost and expense, make all necessary repairs
or alterations to the Premises so as to make the portion of the Premises
not taken a complete architectural unit. Such work shall not, however,
exceed the scope of the work done by Landlord in originally constructing
the Premises. If severance damages from the condemning authority are not
available to Landlord in sufficient amounts to permit such restoration,
Landlord may terminate this Lease upon Notice to Tenant. Monthly Rent due
and payable hereunder shall be temporarily abated during such restoration
period in proportion to the degree to which there is substantial
interference with Tenant's use of the Premises, as reasonably determined
by Landlord or Landlord's Architect.
<PAGE>
13.3 Taking of Parking Areas. In the event there shall be a taking of portions
of the Common Area made available to Tenant for vehicle parking under
this Lease such that Landlord can no longer provide to Tenant the number
of vehicle parking spaces set forth in Item 1.15 of the Basic Lease
Provisions, Landlord may substitute reasonably equivalent parking spaces
in a location reasonably close to the Building; provided that if Landlord
fails to make such substitution within one hundred twenty (120) days
following the taking and if the taking materially impairs Tenant's use
and enjoyment of the Premises, Tenant may, at its option, terminate this
Lease by giving Landlord Notice of its election to terminate within
thirty (30) days after the expiration of such 120-day period. In the
event of such termination by Tenant, there shall be no abatement of Rent
and this Lease shall continue in full force and effect.
13.4 No Apportionment of Award. No award for any partial or total taking shall
be apportioned, it being agreed and understood that Landlord shall be
entitled to the entire award for any partial or entire taking. Tenant
assigns to Landlord its interest in any award which may be made in such
taking or condemnation, together with any and all rights of Tenant
arising in or to the same or any part thereof. Nothing contained herein
shall be deemed to give Landlord any interest in or require Tenant to
assign to Landlord any separate award made to Tenant for the taking of
Tenant's Personal Property, for the interruption of Tenant's business or
its moving costs, or for the loss of its goodwill.
13.5 Temporary Taking. No temporary taking of the Premises (which for purposes
hereof shall mean a taking of all or any part of the Premises for one
hundred twenty (120) days or less) shall terminate this Lease or give
Tenant any right to any abatement of Rent. Any award made to Tenant by
reason for such temporary taking shall belong entirely to Tenant and
Landlord shall not be entitled to share therein. Each party agrees to
execute and deliver to the other all instruments that may be required to
effectuate the provisions of this Section 13.5.
13.6 Sale Under Threat of Condemnation. A sale made in good faith to any
authority having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be
deemed a taking under the power of eminent domain for all purposes of
this Article XIII.
ARTICLE XIV
Assignment And Subletting
-------------------------
14.1 Prohibition. Tenant shall not directly or indirectly, voluntarily or by
operation of law, assign (which term shall include any transfer,
assignment, pledge, mortgage or hypothecation) this Lease, or any right
or interest hereunder, or sublet the Premises or any part thereof, or
allow any other person or entity to occupy or use all or any part of the
Premises without first obtaining the written consent of Landlord in each
instance, which consent shall not be unreasonably withheld. No
assignment, encumbrance, subletting, or other transfer in violation of
the terms of this Article XIV, whether voluntary or involuntary, by
operation of law, under legal process or proceedings, by receivership, in
bankruptcy, or otherwise shall be valid or effective and, at the option
of Landlord, shall constitute an Event of Default under this Lease. To
the extent not prohibited by provisions of the Bankruptcy Code of 1978,
11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"), Tenant on behalf
of itself, creditors, administrators and assigns waives the applicability
of Sections 541(c) and 365(e) of the Bankruptcy Code unless the proposed
assignee of the trustee for the estate of the bankrupt meets Landlord's
standards for consent as set forth below. Landlord has entered into this
Lease with Tenant in order to obtain for the benefit of the Project the
unique attraction of Tenant's name and business; the foregoing
prohibition on assignment or subletting is expressly agreed to by Tenant
in consideration of such fact. If this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Landlord,
shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or the estate of Tenant within the meaning
of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the proceeding sentence not paid
or delivered to Landlord shall be held in trust for the benefit of
Landlord and be promptly paid or delivered to Landlord. Any person or
entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and
deliver to Landlord an instrument confirming such assumption.
14.2 Landlord's Consent. In the event Landlord consents to any assignment or
subletting, such consent shall not constitute a waiver of any of the
restrictions of this Article XIV and the same shall apply to each
successive assignment or subletting hereunder, if any. In no event shall
Landlord's consent to an assignment or subletting affect the continuing
primary liability of Tenant (which, following assignment, shall be joint
and several with the assignee), or relieve Tenant of any of its
obligations hereunder without an express written release being given by
Landlord. In the event that Landlord shall consent to an assignment or
subletting under this Article XIV, such assignment or subletting shall
not be effective until the assignee or sublessee shall assume all of the
obligations of this Lease on the part of Tenant to be performed or
observed and whereby the assignee or sublessee shall agree that the
provisions contained in this Lease shall, notwithstanding such assignment
or subletting, continue to be binding upon it with respect to all future
assignments and sublettings. Such assignment or sublease agreement shall
be duly executed and a fully executed copy thereof shall be delivered to
Landlord, and Landlord may collect Monthly Rent
<PAGE>
and Additional Rent due hereunder directly from the assignee or
sublessee. Collection of Monthly Rent and Additional Rent directly from
an assignee or sublessee shall not constitute a recognition of such
assignee or sublessee as the Tenant hereunder or a release of Tenant from
the performance of all of its obligations hereunder.
14.3 Information. Regardless of whether Landlord's consent is required under
this Article XIV, Tenant shall notify Landlord in writing of Tenant's
intent to assign this Lease or any right or interest hereunder, or to
sublease the Premises or any part thereof, and of the name of the
proposed assignee or sublessee, the nature of the proposed assignee's or
sublessee's business to be conducted on the Premises, the terms and
provisions of the proposed assignment or sublease, a copy of the proposed
assignment or sublease form, and such other information as Landlord may
reasonably request concerning the proposed assignee or sublessee
including, but not limited to, net worth, income statements and other
financial statements for a two-year period preceding Tenant's request for
consent, evidence of insurance complying with the requirements of Article
XI, a completed Environmental Questionnaire from the proposed assignee or
sublessee, and the fee described in Section 14.7.
14.4 Standard for Consent. Landlord shall, within thirty (30) days of receipt
of such Notice and all information requested by Landlord concerning the
proposed assignee or sublessee, elect to take one of the following
actions:
(a) consent to such proposed assignment or sublease;
(b) refuse to consent to such proposed assignment or sublease, which
refusal shall be on reasonable grounds; or
(c) if Tenant proposes to sublease all or part of the Premises for the
entire remaining Term, Landlord may, at its option exercised by
thirty (30) days Notice to Tenant, elect to recapture such portion
of the Premises as Tenant proposes to sublease and as of the
thirtieth (30th) day after Landlord so notifies Tenant of its
election to recapture, this Lease shall terminate as to the portion
of the Premises recaptured and the Monthly Rent payable under this
Lease shall be reduced in the same proportion that the floor area
of that portion of the Premises so recaptured bears to the floor
area of the Premises prior to such recapture.
Tenant agrees, by way of example and without limitation, that it shall
not be unreasonable for Landlord to withhold its consent to a proposed
assignment or subletting if any of the following situations exist or may
exist:
(i) Landlord determines that the proposed assignee's or sublessee's use
of the Premises conflicts with Article V or Article VI, presents an
unacceptable risk, as determined by Landlord, under Article VI (and
Landlord may require such assignee or sublessee to complete the
Environmental Questionnaire in the manner described in Section 6.5
prior to making such determination), or conflicts with any other
provision under this Lease;
(ii) Landlord determines that the proposed assignee or sublessee is not
as financially responsible as Tenant as of the date of Tenant's
request for consent or as of the effective date of such assignment
or subletting;
(iii) Landlord determines that the proposed assignee or sublessee lacks
sufficient business reputation or experience to conduct on the
Premises a business of a type and quality equal to that conducted
by Tenant;
(iv) Landlord determines that the proposed assignment or subletting
would breach a covenant, condition or restriction in some other
lease, financing agreement or other agreement relating to the
Project, the Building, the Premises or this Lease;
(v) Landlord determines that the proposed assignee or sublessee (a) has
been required by any prior Landlord, lender or governmental
authority to take remedial action in connection with Hazardous
Materials contaminating a property if such contamination resulted
from the proposed assignee's or sublessee's actions or use of the
property in questions, or (b) is subject to any enforcement order
issued by an governmental authority in connection with the use,
disposal or storage of a Hazardous Material; or
(vi) An Event of Default has occurred and is continuing at the time of
Tenant's request for Landlord's consent, or as of the effective
date of such assignment or subletting.
Tenant acknowledges that if Tenant has any exterior sign rights under
this Lease, such rights are personal to Tenant and may not be assigned or
transferred to any assignee of this Lease or sublessee of the Premises
without Landlord's prior written consent, which consent may be withheld
in Landlord's sole and absolute discretion.
14.5 Bonus Value. Tenant agrees that fifty percent (50%) of any amounts paid
by the assignee or sublessee, however described, in excess of (i) the
monthly Rent payable by Tenant hereunder (or, in the case of
<PAGE>
sublease of a portion of the Premises, in excess of the Monthly Rent
reasonably allocable to such portion), plus (ii) Tenant's direct out-of-
pocket costs which Tenant certifies to Landlord have been paid to provide
occupancy-related services to such assignee or sublessee of a nature
commonly provided by Landlords of similar space, shall be the property of
Landlord and such amounts shall be payable directly to Landlord by the
assignee or sublessee. At Landlord's request, a written agreement shall
be entered into by and among Tenant, Landlord and the proposed assignee
or sublessee confirming the requirements of this Section 14.5.
14.6 Certain Transfers. The sale of all or substantially all of Tenant's
assets (other than bulk sales in the ordinary course of business), or, if
Tenant is a corporation, an unincorporated association, or a partnership,
the transfer, assignment or hypothecation of any stock or interest in
such corporation, association or partnership in the aggregate in excess
of twenty-five percent (25%) (except for transfers of shares of a company
required to file reports under the Securities Exchange Act of 1934, as
amended) shall be deemed an assignment within the meaning and provisions
of this Article XIV. Notwithstanding anything to the contrary in this
Article XIV, Tenant may assign this Lease or sublet all or any portion of
the Premises, without Landlord's consent, to any entity which controls,
is controlled by, or is under common control with Tenant; to any entity
which results from a merger or consolidation with Tenant; or to any
entity which acquires substantially all of the stock or assets of Tenant,
as a going concern, with respect to the business that is being conducted
in the Premises, providing such entity has at least the same net worth as
Tenant as of the date of this Lease (each a "Permitted Transferee," and
each such transfer a "Permitted Transfer)" Landlord shall have no right
to terminate the Lease in connection with, and shall have no right to any
sums or other economic consideration resulting from any Permitted
Transfer.
14.7 Landlord's Fee and Expenses. If Tenant requests Landlord's consent to an
assignment or subletting by Tenant under this Lease, Tenant shall pay to
Landlord a fee of Five Hundred Dollars ($500) and all of Landlord's out-
of-pocket expenses including, but not limited to, attorneys' fees
reasonably incurred related to such assignment or subletting by Tenant,
whether or not the assignment or subletting is approved.
14.8 Transfer of the Premises by Landlord. Upon any conveyance of the Premises
and assignment by Landlord of this Lease, Landlord shall and is hereby
entirely released from all liability under any and all of its covenants
and obligations contained in or derived from this Lease occurring after
the date of such conveyance and assignment, provided transferee assumes
obligations of Landlord under this Lease, and Tenant agrees to attorn to
any entity purchasing or otherwise acquiring the Premises.
<PAGE>
ARTICLE XV
Defaults And Remedies
---------------------
15.1 Tenant's Default. At the option of Landlord, a default under this Lease by
Tenant shall exist if any of the following events shall occur (each is
called an "Event of Default"):
(a) Tenant fails to pay the Rent payable hereunder, for a period of ten
(10) days from when due;
(b) Tenant attempts to make or suffers to be made any transfer,
assignment or subletting, except as provided in Article XIV hereof;
(c) Any of Tenant's rights under this Lease are sold or otherwise
transferred by or under court order or legal process or otherwise or
if any of the actions described in Section 15.2 are taken by or
against Tenant or any Guarantor;
(d) The Premises are used for any purpose other than as permitted
pursuant to Article V;
(e) Tenant vacates or abandons the Premises or fails to continuously and
uninterruptedly conduct its business in the Premises;
(f) Any representation or warranty given by Tenant under or in connection
with this Lease proves to be materially false or misleading;
(g) Tenant fails to timely comply with the provisions of Article VI
("Hazardous Materials"), Article XIV ("Assignment and Subletting"),
Article XVI ("Subordination; Estoppel Certificate; Financials"),
Section 21.5 ("Modifications for Mortgagees") or Section 21.19
("Authority"); or
(h) Tenant fails to observe, keep, perform or cure within fifteen (15)
days after Notice by Landlord any of the other terms, covenants,
agreements or conditions contained in this Lease or those set forth
in any other agreements or rules or regulations which Tenant is
obligated to observe or perform. In the event such default reasonably
could not be cured or corrected within such fifteen (15) day period,
but is reasonably susceptible to cure or correction, then Tenant
shall not be in default hereunder if Tenant commences the cure or
correction of such default within such default within such fifteen
(15) day period and diligently prosecutes the same to completion
after commencing such cure or correction.
Notices given under this Section 15.1 shall specify the alleged default
and shall demand that Tenant perform the provisions of this Lease or pay
the Rent that is in arrears, as the case may be, within the applicable
period of time, or quit the Premises. No such Notice shall be deemed a
forfeiture or a termination of this Lease unless Landlord so elects in the
Notice.
15.2 Bankruptcy or Insolvency. In no event shall this Lease be assigned or
assignable by operation of law and in no event shall this Lease be an
asset of Tenant in any receivership, bankruptcy, insolvency or
reorganization proceeding. In the event:
(a) A court makes or enters any decree or order adjudging Tenant to be
insolvent, or approving as properly filed by or against Tenant a
petition seeking reorganization or other arrangement of Tenant under
any provisions of the Bankruptcy Code or any applicable state law, or
directing the winding up or liquidation of Tenant and such decree or
order shall have continued for a period of thirty (30) days;
(b) Tenant makes or suffers any transfer which constitutes a fraudulent
or otherwise avoidable transfer under any provisions of the
Bankruptcy Code or any applicable state law;
(c) Tenant assigns its assets for the benefit of its creditors; or
(d) The material part of the property of Tenant or any property essential
to Tenant's business or of Tenant's interest in this Lease is
sequestered, attached or executed upon, and Tenant fails to secure a
return or release of such property within ten (10) days thereafter,
or prior to sale pursuant to such sequestration, attachment or levy,
whichever is earlier.
Then this Lease shall, at Landlord's election, immediately terminate and
be of no further force or effect whatsoever, without the necessity for any
further action by Landlord, except that Tenant shall not be relieved of
obligations which have accrued prior to the date of such termination. Upon
such termination, the provisions herein relating to the expiration or
earlier termination of this Lease shall control and Tenant shall
immediately surrender the Premises in the condition required by the
provisions of this Lease. Additionally, Landlord shall be entitled to all
relief, including recovery of damages from Tenant, which may from time to
time be permitted, or recoverable, under the Bankruptcy Code or any other
applicable state laws.
<PAGE>
15.3 Landlord's Remedies. Upon the occurrence of an Event of Default, then, in
addition to and without waiving any other rights and remedies available to
Landlord at law or in equity or otherwise provided in this Lease, Landlord
may, at its option, cumulatively or in the alternative, exercise the
following remedies:
(a) Landlord may terminate Tenant's right to possession of the Premises,
in which case Tenant's right to possession of the Premises under this
Lease shall terminate and Tenant shall immediately surrender
possession of the Premises to Landlord. No act by Landlord other than
giving Notice to Tenant of Landlord's election to terminate Tenant's
right to possession shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this Lease
shall not constitute a termination of Tenant's right to possession.
Termination shall terminate Tenant's right to possession of the
Premises, but shall not relieve Tenant of any obligation under this
Lease, which has accrued prior to the date of such termination. Upon
such termination, Landlord shall have the right to re-enter the
Premises, and remove all persons and property, and Landlord shall
also be entitled to recover from Tenant:
(i) The worth at the time of award of the unpaid Monthly Rent and
Additional Rent which had been earned at the time of
termination;
(ii) The worth at the time of award of the amount by which the
unpaid Monthly Rent and Additional Rent which would have been
earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could have been
reasonably avoided;
(iii) The worth at the time of award of the amount by which the
unpaid Monthly Rent and Additional Rent for the balance of the
Term after the time of award exceeds the amount of such rental
loss that Tenant proves could be reasonably avoided;
(iv) Any other reasonable amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the
ordinary course of things would be likely to result from
Tenant's default including, but not limited to, the cost of
recovering possession of the Premises, commissions and other
expenses of reletting, including necessary repair, demolition
and renovation of the Premises to the condition existing
immediately prior to Tenant's occupancy, the unamortized
portion of any Tenant Improvements and brokerage commissions
funded by Landlord in connection with this Lease, the cost of
rectifying any damage to the Premises occasioned by the act or
omission of Tenant, reasonable attorneys' fees, and any other
reasonable costs; and
(v) At Landlord's election, all other amounts in addition to or in
lieu of the foregoing as may be permitted by law.
As used in subsections (i) and (ii) above, the "worth at the time of
award" shall be computed by discounting the amount at the discount rate of
the Federal Reserve Bank of Kansas City at the time of award plus one
percent (1%).
(b) Landlord may elect not to terminate Tenant's right to possession of the
Premises, in which event this Lease will continue in full force and effect
as long as Landlord does not terminate Tenant's right to possession, and
Landlord may continue to enforce all of its rights and remedies under this
Lease, including the right to collect all Rent as it becomes due. In the
event that Landlord elects to avail itself of the remedy provided by this
subparagraph 15.3(b), Landlord shall not unreasonably withhold its consent
to an assignment or subletting of the Premises subject to the reasonable
standards for Landlord's consent as are contained in this Lease. In
addition, in the event Tenant has entered into a sublease which is valid
under the terms of this Lease, Landlord may also, at its option, cause
Tenant to assign to Landlord the interest of Tenant under said sublease
including, but not limited to, Tenant's right to payment of Rent as it
becomes due. Landlord may elect to enter the Premises and relet them, or
any part of them, to third parties for Tenant's account. Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in reletting
the Premises including, but not limited to, broker's commissions, expenses
of cleaning and remodeling the Premises required by the reletting,
attorneys' fees and like costs. Reletting can be for a period shorter or
longer than the remaining Term of this Lease and for the entire Premises
or any portion thereof. Tenant shall pay to Landlord the Monthly Rent and
Additional Rent due under this Lease on the dates the Monthly Rent and
such Additional Rent are due, less the Rent Landlord actually collects
from any reletting. Except as provided in the preceding sentence, if
Landlord relets the Premises or any portion thereof, such reletting shall
not relieve Tenant of any obligation hereunder. Notwithstanding the above,
no act by Landlord allowed by this subparagraph 15.3(b) shall terminate
this Lease unless Landlord notifies Tenant in writing that Landlord elects
to terminate this Lease.
<PAGE>
15.4 No Surrender. No agreement to accept a surrender shall be valid unless in
writing and signed by Landlord. No employee of Landlord or of Landlord's
Agent shall have any power to accept the keys to the Premises prior to the
termination of this Lease, and the delivery of the keys to any employee
shall not operate as a termination of this Lease or a surrender of the
Premises.
15.5 Interest on Late Payments. Any Rent due under this Lease that is not paid
to Landlord within ten (10) days of the date when due shall commence to
bear interest at the Applicable Rate until fully paid. Neither the accrual
nor the payment of interest shall cure any default by Tenant under this
Lease.
15.6 Attorneys' and Other Fees. All sums reasonably incurred by Landlord in
connection with an Event of Default or holding over of possession by
Tenant after the expiration or termination of this Lease including, but
not limited to, all reasonable costs, expenses and actual accountants',
appraisers', attorneys' and other professional fees, and any collection
agency or other collection charges, shall be due and payable by Tenant to
Landlord on demand, and shall bear interest at the Applicable Rate from
the date of such demand until paid by Tenant. In addition, in the event
that any action shall be instituted by either of the parties hereto for
the enforcement of any of its rights in and under this Lease, the party in
whose favor judgment shall be rendered shall be entitled to recover from
the other party all expenses reasonably incurred by the prevailing party
in such action, including actual costs and reasonable attorneys' fees.
15.7 Landlord's Default. Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder
unless and until it has failed to perform such obligation within fifteen
(15) days after receipt of Notice by Tenant to Landlord (and the
Mortgagees who have provided Tenant with notice) specifying the nature of
such default; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it
shall commence such performance within such fifteen (15)day period and
thereafter diligently prosecutes the same to completion.
15.8 Limitation of Landlord's Liability. The obligations of Landlord do not
constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent
partners. If Landlord shall fail to perform any covenant, term, or
condition of this Lease upon Landlord's part to be performed, Tenant shall
be required to deliver to Landlord Notice of the same. If, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against
the right, title and interest of Landlord in the Building and out of rent
or other income from such property receivable by Landlord or out of
consideration received by Landlord from the sale or other disposition of
all or any part of Landlord's right, title or interest in the Building,
and no action for any deficiency may be sought or obtained by Tenant.
15.9 Mortgagee Protection. Upon any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any Mortgagee who has
provided Tenant with notice of its interest together with an address for
receiving notice, and shall offer such Mortgagee a reasonable opportunity
to cure the default (which in no event shall exceed sixty (60) days,
including time to obtain possession of the Premises by power of sale or a
judicial foreclosure, if such should prove necessary, to effect a cure.
Tenant agrees that each of the Mortgagees to whom this Lease has been
assigned by Landlord is an express third-party beneficiary of this section
15.9. Tenant shall not make any prepayment of Monthly Rent more than one
(1) month in advance without the prior written consent of such Mortgagee.
Tenant agrees to make all payments under this Lease to the Mortgagee with
the most senior encumbrance upon receiving a direction, in writing, to pay
said amounts to such Mortgagee. Tenant shall comply with such written
direction to pay without determining whether an event of default exists
under such Mortgagee's loan to Landlord.
15.10 Landlord's Right to Perform. If Tenant shall at any time fail to make any
payment or perform any other act on its part to be made or performed under
this Lease, Landlord may (but shall not be obligated to), at Tenant's
expense, fifteen (15) days after written notice from Landlord and without
waiving or releasing Tenant from any obligation of Tenant under this
Lease, make such payment or perform such other act to the extent Landlord
may deem desirable, and in connection therewith, pay expenses and employ
counsel. All sums paid by Landlord and all penalties, interest and costs
including, but not limited to, collection costs and attorneys' fees
reasonably incurred in connection therewith, shall be due and payable by
Tenant to Landlord, as an item of Additional Rent, on demand by Landlord,
together with interest thereon at the Applicable Rate from the date of
such demand until paid by Tenant.
15.12 Waiver of Jury Trial. To the fullest extent permitted by law, Tenant
hereby waives the right to trial by jury in any action, proceeding or
counterclaim brought by Tenant on any matter whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises and/or any claim of
injury or damage.
ARTICLE XVI
Subordination; Estoppel Certificate; Financials
-----------------------------------------------
<PAGE>
16.1 Subordination, Attornment and Non-Disturbance. Without the necessity of
any additional document being executed by Tenant for the purpose of
effecting a subordination, and at the election of Landlord or any
Mortgagee or any ground lessor with respect to the land of which the
Premises are a part, this Lease shall be subject and subordinate at all
times to (1) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building and (2) the lien of any First
Mortgage which may now exist or hereafter be executed in any amount for
which the Project, the Building, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as
security. Landlord or any such Mortgagee or ground lessor shall have the
right, at its election, to subordinate or cause to be subordinated any
such ground leases or underlying leases or any such liens to this Lease
provided in the event Landlord desires for this Lease to be subordinate,
Landlord delivers to Tenant a non-disturbance agreement from any party
which is to have a superior interest in this Lease. No subordination shall
permit material interference with Tenant's rights hereunder, and any
ground lessor or Mortgagee shall recognize Tenant and its permitted
successors and assigns as the Tenant of the Premises and shall not disturb
Tenant's right to quiet possession of the Premises during the Term so long
as no Event of Default has occurred and is continuing under this Lease. If
Landlord's interest in the Premises is acquired by any ground lessor or
Mortgagee, or in the event proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under, any Mortgage made
by Landlord covering the Premises or any part thereof, or in the event a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination and upon the request of such successor
in interest to Landlord, attorn to and become the Tenant of the successor
in interest to Landlord and recognize such successor in interest as the
Landlord under this Lease. Although this Section 16.1 is self-executing,
Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord, or any Mortgagee or ground
lessor, any additional commercially reasonable documents evidencing the
priority or subordination of this Lease with respect to any such ground
leases or underlying leases or the lien of any such Mortgage, or
evidencing the attornment of Tenant to any successor in interest to
Landlord as herein provided. Tenant's failure to timely execute and
deliver such additional documents shall, at Landlord's option, constitute
an Event of Default hereunder. Any subordination/non-disturbance agreement
shall contain, at a minimum, the following provisions:
(i) the lender or ground lessor recognizes and approves the
Lease;
(ii) the Lease and Tenant's leasehold interest will not be
extinguished or terminated nor will the possession or rights thereunder of
Tenant be disturbed, affected, or impaired by the foreclosure of any such
security device arising out of any default thereunder or by delivery of a
deed in lieu of foreclosure of such security device or otherwise or by
termination of such ground lease or default by Landlord thereunder. Tenant
agrees to give prompt notice to lender in the Event of Default under the
Lease by Landlord and an opportunity to lender to cure such Event of
Default (although lender is not obligated to cure such default);
(iii) Tenant shall not be named or joined as a party defendant
or otherwise in any proceeding for the foreclosure of any such mortgage or
to enforce any rights thereunder or any proceeding to enforce any rights
under any such ground lease;
(iv) all condemnation awards and payments and all proceeds of
insurance paid or payable with respect to the Premises shall be applied
and used in the manner set forth in the Lease; and
(v) neither the mortgage nor any other security instrument
executed in connection therewith nor any ground lease shall cover or be
construed as subjecting in any manner to the lien thereof of any trade
fixtures, business equipment, signs, or other personal property at any
time supplied or installed by Tenant in or on the Premises, regardless of
the manner or mode of attachment thereof to the Premises.
16.2 Estoppel Certificate. Tenant shall, within ten (10) days following written
request by Landlord, execute and deliver to Landlord any documents,
including estoppel certificates, in a commercially reasonable form
required by Landlord (i) certifying that this Lease is unmodified and in
full force and effect or, if modified, attaching a copy of such
modification and certifying that this Lease, as so modified, is in full
force and effect and the date to which the Rent and other charges are paid
in advance, if any, (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of the Landlord or stating the
nature of any uncured defaults, (iii) evidencing the status of this Lease
as may be required by a Mortgagee or a purchaser of the Premises, (iv)
certifying the current Monthly Rent among and the amount and form of
Security Deposit on deposit with Landlord, and (v) certifying to such
other information within Tenant's knowledge as Landlord, Landlord's Group,
Mortgagees and prospective purchasers may reasonably request including,
but not limited to, any requested information regarding Hazardous
Materials. Tenant's failure to deliver an estoppel certificate within ten
(10) days after delivery of Landlord's written request therefor shall
constitute an Event of Default hereunder.
16.3 Financial Information. Tenant shall deliver to Landlord, prior to the
execution of this Lease, and within ten (10) days following written
request therefor by Landlord at any time during the Term, Tenant's current
financial statements, and Tenant's financial statements for the two (2)
years prior to the current fiscal financial statement's year, certified to
be true, accurate and complete by the chief financial officer of Tenant,
including a balance sheet and profit and loss statement for the most
recent prior year (collectively, the "Statements"), which Statements shall
accurately and completely reflect the financial condition of Tenant.
Landlord agrees that it will keep the Statements confidential, except that
Landlord shall have the right to deliver the same to any proposed
purchaser of the Premises, the Project or any portion thereof, and
<PAGE>
to the Mortgagees of Landlord or such purchaser. Tenant acknowledges that
Landlord is relying on the Statements in its determination to enter into
this Lease, and Tenant represents to Landlord, which representation shall
be deemed made on the date of this Lease and again on the Commencement
Date, that no material change in the financial condition of Tenant, as
reflected in the Statements, has occurred since the date Tenant delivered
the Statements to Landlord. If any material change in Tenant's financial
condition, as reflected in the Statements, occurs prior to the date of
this Lease or prior to the Commencement Date, as the case may be, or if
Tenant fails to inform Landlord of any such material change, Landlord
shall have the right, in addition to any other rights and remedies of
Landlord, to terminate this Lease by notice to Tenant given within thirty
(30) days after Landlord learns of such material change.
ARTICLE XVII
Signs And Graphics
------------------
Landlord shall designate the location on the Premises, if any, for one (1) or
more exterior identification signs for Tenant. Tenant shall have no right to
maintain identification signs in any other location in, on, or about the
Premises and shall not display or erect any other signs, displays or other
advertising materials that are visible from the exterior of the Building. The
size, design, color and other physical aspects of permitted signs shall be
subject to Landlord's written approval prior to installation, which approval may
be withheld in Landlord's discretion, any Restrictions and any applicable
municipal or other governmental permits and approvals. All such signs and
graphics shall conform to the Sign Criteria set forth in Exhibit H. The cost of
all signs and graphics, including the installation, maintenance and removal
thereof, shall be at Tenant's sole cost and expense. If Tenant fails to
maintain its signs, or if Tenant fails to remove same upon termination of this
Lease and repair any damage caused by such removal (including, but not limited
to, repainting the affected area, if required by Landlord), Landlord may do so
at Tenant's expense. All sums reasonably disbursed, deposited or incurred by
Landlord in connection with such removal including, but not limited to, all
costs, expenses and actual attorneys' fees, shall be due and payable by Tenant
to Landlord or deemed by Landlord, together with interest thereon at the
Applicable Rate from the date of such demand until paid by Tenant.
ARTICLE XVIII
Quiet Enjoyment
---------------
Landlord covenants that Tenant, upon performing the terms, conditions and
covenants of this Lease, shall have quiet and peaceful possession of the
Premises as against any person claiming the same by, through or under Landlord.
ARTICLE XIX
Surrender; Holding Over
-----------------------
19.1 Surrender of the Premises. Upon the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises to Landlord in its
condition existing as of the Commencement Date, broom clean, normal wear
and tear and acts of God excepted, all to the reasonable satisfaction of
Landlord. Tenant shall remove from the Premises all of Tenant's
Alterations which Landlord requires Tenant to remove pursuant to Section
8.1 and all Tenant's Personal Property, and shall repair any damage and
perform any restoration work caused by such removal. If Tenant fails to
remove such Alterations and Tenant's Personal Property which Tenant is
authorized and obligated to remove pursuant to the above, and such failure
continues after the termination of this Lease, Landlord may retain such
property and all rights of Tenant with respect to it shall cease, or
Landlord may place all or any portion of such property in public storage
for Tenant's account. Tenant shall pay to Landlord, upon demand, the costs
of removal of any such Alterations and Tenant's Personal Property and
storage and transportation costs of same, and the cost of repairing and
restoring the Premises, together with attorneys' fees and interest on said
amounts at the Applicable Rate from the date of expenditure by Landlord.
If the Premises are not so surrendered at the termination of this Lease,
Tenant hereby agrees to indemnify Landlord and Landlord's Group against
all loss or liability resulting from any delay by Tenant in so
surrendering the Premises including, but not limited to, any claims made
by any succeeding Tenant, losses to Landlord due to lost opportunities to
lease to succeeding tenants, and actual attorneys' fees and costs.
19.2 Holding Over. If Tenant remains in possession of all or any part of the
Premises after the expiration of the Term with the prior written consent
of Landlord, such possession shall constitute a month-to-month tenancy
only and shall not constitute a renewal or extension for any further term.
If Tenant remains in possession of all or any part of the Premises after
the expiration of the Term without the prior written consent of Landlord,
such possession shall constitute a tenancy at sufferance. In either of
such events, Monthly Rent shall be increased to an amount equal to one
hundred fifty percent (150%) of the Monthly Rent payable during the last
month of the Term, and any other sums due hereunder shall be payable in
the amounts and at the times specified in this Lease. Any such tenancy
shall be subject to every other term, condition, and covenant contained in
this Lease.
<PAGE>
ARTICLE XX
Construction Of Tenant Improvements
-----------------------------------
The obligations of Landlord and Tenant, if any, with respect to the Tenant
Improvements, are set forth in the Work Letter attached as Exhibit C. It is
acknowledged and agreed that all Tenant Improvements under this Lease are and
shall be the property of Landlord from and after their installation.
ARTICLE XXI
Miscellaneous And Interpretive Provisions
-----------------------------------------
21.1 Broker. Landlord and Tenant each warrant and represent to the other that
neither has had any dealings with any real estate broker, agent or finder
in connection with the negotiation of this Lease or the introduction of
the parties to this transaction, except for the Broker (as defined in
Article 1.12 whose commission shall be paid by Landlord), and that it
knows of no other real estate broker, agent or finder who is or might be
entitled to a commission or fee in connection with this Lease. In the
event of any additional claims for brokers' or finders' fees with respect
to this Lease, Tenant shall indemnify, hold harmless, protect and defend
Landlord from and against such claims if they shall be based upon any
statement or representation or agreement made by Tenant, and Landlord
shall indemnify, hold harmless, protect and defend Tenant from and against
such claims if they shall be based upon any statement, representation or
agreement made by Landlord.
21.2 Examination of Lease. Submission of this Lease for examination or
signature by Tenant does not create a reservation of or option to lease.
This Lease shall become effective and binding only upon full execution of
this Lease by both Landlord and Tenant.
21.3 No Recording. Tenant shall not record this Lease. However, if Landlord or
Tenant so requests, either party shall agree to execute, and deliver a
memorandum of this Lease in recordable form which either thereafter may
file for record.
21.4 Quitclaim. Upon any termination of this Lease Tenant shall, at Landlord's
request, execute, have acknowledged and deliver to Landlord an instrument
in writing releasing and quitclaiming to Landlord all right, title and
interest of Tenant in and to the Premises by reason of this Lease or
otherwise.
21.5 Modifications for Mortgagees. If in connection with obtaining financing
for the Premises or any portion thereof, Landlord's Mortgagees shall
request reasonable modifications to this Lease as a condition to such
financing, Tenant shall not unreasonably withhold, delay or defer its
consent thereto, provided such modifications do not adversely affect
Tenant's rights hereunder. Tenant's failure to so consent shall constitute
an Event of Default under this Lease.
21.6 Notice. Any Notice required or desired to be given under this Lease shall
be in writing and shall be addressed to the address of the party to be
served. The addresses of Landlord and Tenant are as set forth in Items 1.1
and 1.3, respectively, of the Basic Lease Provisions, except that (a)
prior to the Commencement Date, the address for Notices to Tenant shall be
as set forth opposite Tenant's signature on this Lease, and (b) from and
after the Commencement Date, notwithstanding the addresses for Tenant set
forth in Item 1.3 of the Basic Lease Provisions, all Notices regarding the
operation and maintenance of the Project shall be delivered to Tenant as
provided in Section 1.3. Each such Notice shall be deemed effective and
given (i) upon receipt, if personally delivered (which shall include
delivery by courier or overnight delivery service), (ii) upon being
telephonically confirmed as transmitted, if sent by telegram, telex or
telecopy, (iii) three (3) business days after deposit in the United States
mail, certified and postage prepaid, properly addressed to the party to be
served, or (iv) upon receipt if sent in any other way. Any party hereto
may from time to time, by Notice to the other in accordance with this
Section 21.6, designate a different address than that set forth above for
the purposes of Notice.
21.7 Captions. The captions and headings used in this Lease are for the purpose
of convenience only and shall not be construed to limit or extend the
meaning of any part of this Lease.
21.8 Executed Copy. Any fully executed copy of this Lease shall be deemed an
original for all purposes.
21.9 Time. Time is of the essence for the performance of each term, condition
and covenant of this Lease.
21.10 Severability. If any one or more of the provisions contained herein shall
for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if
such invalid, illegal or unenforceable provision had not been contained
herein.
21.11 Survival. All covenants and indemnities set forth herein which contemplate
the payment of sums, or the performance by Tenant after the Term or
following an Event of Default, including specifically, but not limited to,
the covenants and indemnities set forth in Section 5.3, Article VI,
Article VII, Section 8.1,
<PAGE>
Section 9.2, Section 11.1, Section 11.10, Article XV, and Article XIX,
and all representations and warranties of Tenant, shall survive the
expiration or sooner termination of this Lease.
21.12 Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the State of Colorado. The language in all parts of this
Lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Landlord or Tenant.
21.13 Gender; Singular, Plural. When the context of this Lease requires, the
neuter gender includes the masculine, the feminine, a partnership or
corporation or joint venture, the singular includes the plural and the
plural includes the singular.
21.14 Non-Agency. It is not the intention of Landlord or Tenant to create hereby
a relationship of master-servant or principal-agent, and under no
circumstance shall Tenant herein be considered the agent of Landlord, it
being the sole purpose and intent of the parties hereto to create a
relationship of Landlord and Tenant.
21.15 Successors. The terms, covenants, conditions and agreements contained in
this Lease shall, subject to the provisions as to assignment, subletting,
and bankruptcy contained herein and any other provisions restricting
successors or assigns, apply to and bind the heirs, successors, legal
representatives and assigns of the parties hereto.
21.16 Waiver; Remedies Cumulative. The waiver by either party of any term,
covenant, agreement or condition herein contained shall not be deemed to
be a waiver of any subsequent breach of the same or any other term,
covenant, agreement or condition herein contained, nor shall any custom or
practice which may grow up between the parties in the administration of
this Lease be construed to waive or to lessen the right of Landlord to
insist upon the performance by Tenant in strict accordance with all of the
provisions of this Lease. The subsequent acceptance of Rent hereunder by
Landlord shall not be deemed to be a waiver of any proceeding breach by
Tenant of any provisions, covenant, agreement or condition of this Lease,
other than the failure of Tenant to pay the particular Rent payment so
accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent payment. Landlord's acceptance of any
check, letter of payment shall in no event be deemed an accord and
satisfaction, and Landlord shall accept the check, letter or payment
without prejudice to Landlord's right to recover the balance of the Rent
or pursue any other remedy available to it. The rights and remedies of
either party under this Lease shall be cumulative and in addition to any
and all other rights and remedies which either party has or may have.
21.17 Unavoidable Delay. Except for the monetary obligations of Tenant under
this Lease, neither party shall be chargeable with, liable for, or
responsible to the other for anything or in any amount for any Unavoidable
Delay and any Unavoidable Delay shall not be deemed a breach of or default
in the performance of this Lease, it being specifically agreed that any
time limit provision contained in this Lease (other than the scheduled
expiration of the Term) shall be extended for the same period of time lost
by Unavoidable Delay.
21.18 Entire Agreement. This Lease is the entire agreement between the parties,
and supersedes any prior agreements, representations, negotiations or
correspondence between the parties, except as expressed herein. Except as
otherwise provided herein, no subsequent change or addition to this Lease
shall be binding unless in writing and signed by the parties hereto.
21.19 Authority. If Tenant is a corporation or a partnership, each individual
executing this Lease on behalf of the corporation or partnership, as the
case may be, represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said entity in accordance with its
corporate bylaws, statement of partnership or certificate of limited
partnership, as the case may be, and that this Lease is binding upon said
entity in accordance with its terms. If Tenant is a corporation, Tenant
shall, if requested by Landlord, within thirty (30) days after execution
of this Lease and prior to entering into possession of the Premises,
deliver to Landlord a certified copy of a resolution of the Board of
Directors of the corporation or certificate of the Secretary of the
corporation, authorizing, ratifying or confirming the execution of this
Lease. If Tenant is a partnership, Tenant shall, if requested by Landlord,
within thirty (30) days after the execution of this Lease and prior to
entering into possession of the Premises, deliver to Landlord a certified
copy of this partnership agreement authorizing such execution.
21.20 Guaranty. As a condition to the execution of this Lease by Landlord, the
obligations, covenants and performance of the Tenant as herein provided
shall be guaranteed in writing by the Guarantor listed in Item 1.14 of the
Basic Lease Provisions, if any, on a form of guarantee approved by
Landlord.
21.21 Exhibits; References. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of
this Lease. In the event of variation or discrepancy, the duplicate
original hereof (including exhibits, amendments, riders and addenda, if
any, specified above) held by Landlord shall control. All references in
this Lease to Articles, Sections, Exhibits, Riders and clauses are made,
respectively, to Articles, Sections, Exhibits, Riders and clauses of this
Lease, unless otherwise specified.
<PAGE>
21.22 Basic Lease Provisions. The Basic Lease Provisions at the beginning of
this Lease are intended to provide general information only. In the event
of any inconsistency between the Basic Lease Provisions and the specific
provisions of this Lease, the specific provisions of this Lease shall
prevail.
21.23 No Merger. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work
a merger, and shall, at the option of Landlord, terminate all or any
existing subtenancies or may, at the option of Landlord, operate as an
assignment to Landlord of any or all such subtenancies.
21.24 Joint and Several Obligations. If more than one person or entity is
Tenant, the obligations imposed on each such person or entity shall be
joint and several.
21.25 No Light or Air Easement. Any diminution or shutting off of light or air
by any structure which may be erected on lands adjacent to the Building
shall in no way affect this Lease, abate Rent or otherwise impose any
liability on Landlord. This Lease does not confer any right with regard to
the subsurface below the ground level of the Building.
21.26 Security Measures. Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide guard service or other security measures
for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, Tenant's Agents and the
property of Tenant and of Tenant's Agents from acts of third parties.
Nothing herein contained shall prevent Landlord, at Landlord's sole
option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the
definition of Project Costs and paid by Tenant in the manner set forth in
Section 7.1.
THIS LEASE is effective as of the date the last signatory necessary to execute
this Lease shall have executed this Lease.
<TABLE>
<CAPTION>
LANDLORD: TENANT:
<S> <C>
AmberJack, Ltd., an Arizona United Natural Foods, Inc., a Delaware
Corporation Corporation
Birtcher Property Services as Manager
By: /s/ G. Roger Gielow By: /s/ Norman Cloutier
----------------------------------- -----------------------------------------
Name: G. Roger Gielow Name: Norman
Cloutier
----------------------------------- -----------------------------------------
Title: Assistant Title: CEO
Secretary
----------------------------------- -----------------------------------------
Date: 8/5/97 Date: 7/25/97
----------------------------------- -----------------------------------------
By: /s/ Earle B. Johnson, Jr. By: /s/ Steven Townsend
----------------------------------- -----------------------------------------
Name: Earle B. Johnson, Jr. Name: Steven
Townsend
----------------------------------- -----------------------------------------
Title: Vice Title: CFO
President
----------------------------------- -----------------------------------------
Date: 8/5/97 Date: 7/24/97
----------------------------------- -----------------------------------------
</TABLE>
<PAGE>
EXHIBIT A
DESCRIPTION OF THE PREMISES
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
(To be attached)
<PAGE>
EXHIBIT B
PROJECT SITE PLAN
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
<PAGE>
EXHIBIT C
WORK LETTER
(Pending Preliminary Plans)
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
1. APPLICATION OF EXHIBIT
Capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Work Letter
shall apply to the planning and completion of Leasehold Improvements
requested by Tenant (the "Tenant Improvements") for the fitting out of the
initial Premises, as more fully set forth herein.
2. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
(a) Preliminary Plans. Within five (5) business days following full
execution of this Lease by both Landlord and Tenant, Landlord's
Architect shall prepare preliminary space plans for the Tenant
Improvements (the "Preliminary Plans") which shall include, without
limitation, sketches and/or drawings showing the locations of doors,
partitioning, electrical fixtures, outlets and switches, plumbing
fixtures, floor loads and other requirements, and a list of all
specialized installations and improvements and upgrade specifications
determined by Tenant as required for its use of the Premises. Tenant
agrees to and shall promptly and fully cooperate with Landlord's
Architect and shall supply all information Landlord's Architect deems
necessary for the preparation of the Preliminary Plans. Tenant
acknowledges that the Preliminary Plans shall be prepared by Landlord's
Architect after consultation and cooperation between Tenant and
Landlord's Architect regarding the proposed Tenant Improvements and
Tenant's requirements. Landlord and Landlord's Architect shall be
entitled, in all respects, to rely upon all information supplied by
Tenant regarding the Tenant Improvements, The costs associated with
preparation of the Preliminary Plans shall be borne by Tenant and paid
as set forth in Section 5 and 6 of the Work Letter. Such costs shall
not exceed Five Thousand Dollars ($5,000.00).
(b) Working Drawings. Within twenty-one (21) days following Preliminary
Plan Approval by both Landlord and Tenant, Landlord's Architect shall
prepare working drawings (the "Working Drawings") for Tenant
Improvements based upon the approved Preliminary Plans. The Working
Drawings shall include architectural, mechanical and electrical
construction drawings for the Tenant Improvements based on the
Preliminary Plans. Notwithstanding the Preliminary Plans, in all cases
the Working Drawings (i) shall be subject to Landlord's and Tenant's
final approval, which approval shall not be unreasonably withheld, (ii)
shall not be in conflict with building codes for the City or County or
with insurance requirements for a comparable industrial building, and
(iii) shall be in a form satisfactory to appropriate governmental
authorities responsible for issuing permits and licenses required for
construction. The cost associated with preparation of the Working
Drawings shall be borne by Tenant and paid as set forth in Section 5
and 6 of this Work Letter.
(c) Approval of Working Drawings. Landlord or Landlord's Architect shall
submit the Working Drawings to Tenant for Tenant's review, and Tenant
shall notify Landlord and Landlord's Architect within five (5) business
days after delivery thereof of any requested revisions. Within five (5)
business days after receipt of Tenant's notice, Landlord's Architect
shall make all approved revisions to the Working Drawings and submit
two (2) copies thereof to Tenant for its
<PAGE>
final review and approval, with Contractors written price which
approval or rejection shall be given within five (5) business days
thereafter. Concurrently with the above review and approval process,
Landlord may submit all plans and specification to City and other
applicable governmental agencies in an attempt to expedite City
approval and issuance of all necessary permits and licenses to
construct the Tenant Improvements as shown on the Working Drawings. Any
changes which are required by City or other governmental agencies shall
be immediately submitted to Landlord for Landlord's review and
reasonable approval, and Landlord shall promptly notify Tenant of such
changes.
<PAGE>
(d) Schedule of Critical Dates. Set forth below is a schedule of certain
critical dates relating to Landlord's and Tenant's respective
obligations for the design and construction of the Tenant Improvements.
Such dates and the respective obligations of Landlord and Tenant are
more fully described elsewhere in this Work Letter. The purpose of the
following schedule is to provide a reference for Landlord and Tenant
and to make certain the Final Approval Date occurs as set forth herein.
Following the Final Approval Date, Tenant shall be deemed to have
released Landlord to commence construction of the Tenant Improvements
as set forth in Section 4 below.
<TABLE>
<CAPTION>
Responsible
-----------
Reference Date Due Party
--------- -------- -----
<S> <C> <C>
(a) "Preliminary Plan Completion" Five (5) business days after full Tenant and Landlord
execution of lease
Preliminary Plan Approval Five (5) business days from Tenant
Preliminary Plan Completion
(b) "Working Drawings Twenty one (21) days after Landlord
Completion" Preliminary Plan Approval
(c) "Working Drawings Review" Five (5 ) days after Landlord Submits Tenant
the Working Drawings to Tenant
(d) Working Drawings Revision Five (5) days after Tenant returns Landlord
the Working Drawings to Landlord
(e) "Final Approval Date" Five (5) days after Landlord submits
the revised Working Drawings to Tenant
Tenant
</TABLE>
3. BUILDING PERMIT
After the Final Approval Date has occurred, Landlord shall, if Landlord has
not already done so, submit the Working Drawings to the appropriate
governmental body or bodies for final plan checking and a building permit.
Landlord, with Tenant's cooperation, shall cause to be made any change in
the Working Drawings necessary to obtain the building permit; provided,
however, after the Final Approval Date, no changes shall be made to the
Working Drawings without the prior written approval of both Landlord and
Tenant, and then only after agreement by Tenant to pay any excess costs
resulting from such changes.
4. CONSTRUCTION OF TENANT IMPROVEMENTS
After the Final Approval Date has occurred and a building permit for the
work has been issued, Landlord shall, through a guaranteed maximum cost or
fixed price (at Landlord's sole option) obtain a construction contract
("Construction Contract") with a reputable, licensed contractor selected by
Landlord ("Contractor"), cause the construction of the Tenant Improvements
to be carried out in substantial conformance with the Working Drawings in a
good and workman like manner using first-class materials. The costs
associated with the construction of the Tenant Improvements shall be paid as
set forth in Section 5 and 6 of this Work Letter. Landlord shall see that
the construction complies with all applicable building, fire, health, and
sanitary codes and regulations, the satisfaction of which shall be evidenced
by a certificate of occupancy for the Premises.
5. TENANT IMPROVEMENT ALLOWANCE
Landlord shall provide Tenant with a Tenant Improvement Allowance of Four
Hundred Fifty Thousand Dollars ($450,000.00) for approximately 18,000 square
feet of office space and an additional allowance of
<PAGE>
$1.25 per square foot for the remaining warehouse space towards the cost of
the design, purchase and construction of the Tenant Improvements, including
without limitation design, engineering and consulting fees (collectively,
the "Tenant Improvement Costs"):
(i) Preparation by Landlord's Architect of the Preliminary Plans and the
Working Drawings as provided in Section 2 of the Work Letter,
including without limitation all fees charged by the City (including
without limitation fees for building permits and plan checks)
exclusively in connection with the Tenant Improvements work in the
Premises;
(ii) Construction work for completion of the Tenant improvements as
reflected in the Construction Contract;
(iii) All contractors' charges, general condition, performance bond
premiums and construction fees; and
(iv) Tenant Improvements as shown on the approved Working Drawings. If
Tenant does seek to modify, change or alter the Tenant Improvements
from the Working Drawings, or does cause a Tenant Delay, Tenant shall
pay to Landlord any excess costs resulting therefrom in accordance
with Section 6 of the Work Letter.
6. COSTS IN EXCESS OF TENANT IMPROVEMENT ALLOWANCE AT TENANT'S EXPENSE
(a) Cost Approval. Tenant shall pay the excess of the Tenant Improvement
Costs over the amount of the Tenant Improvement Allowance available to
defray such costs. Concurrent with the plan checking referred to in
Section 3 of the Work Letter, Landlord and Contractor shall prepare and
submit to Tenant a written estimate of the amount of the remaining
Tenant Improvement Costs and the cost of the Tenant Improvement
Allowance still available to defray such costs (after preparation of
the Preliminary Plans and Working Drawings. Tenant shall approve or
disapprove any such estimate by written notice to Landlord within five
(5) business days after receipt thereof. If Tenant fails to notify
Landlord of its disapproval within such five (5) day period, Tenant
shall be deemed to have approved such estimate. If such estimate
exceeds the Tenant Improvement Allowance then still available and
Tenant approves such estimate, Tenant's notice of approval shall
include payment to Landlord for the full amount of such excess. If
Tenant disapproves such estimate within the five (5) day period, Tenant
shall be required to direct Landlord and Landlord's Architect to amend
the Working Drawings in a manner reasonably satisfactory to both
parties so as to reduce the estimated costs to an amount acceptable to
Tenant, and any excess estimated costs remaining after such amendment
if any shall be paid by Tenant in the manner described in the preceding
sentence. Tenant shall additionally pay any costs resulting from such
amendment and Tenant shall be liable for the delay in completing the
Tenant Improvements and the increased costs, if any, resulting from
such delay. If Tenant is unwilling or unable to amend the Working
Drawings, in a manner acceptable to Landlord, then Tenant shall be
deemed to have approved of the estimate for the Working Drawings as
prepared, and shall pay in full the amount of any excess estimated
costs together with any costs arising from delay as a result of
Tenant's actions hereunder, in the manner hereinabove provided.
(b) Final Costs. Within sixty (60) days after completion by Landlord of the
Tenant Improvements, Landlord shall determine the actual final Tenant
Improvements Costs and shall submit a written statement of such amount
to Tenant. If any estimate previously paid by Tenant exceeds the amount
due hereunder from Tenant for such work, such excess shall be refunded
to Tenant. If any amount is still due from Tenant for such work, then
Tenant shall pay such amount in full within ten (10) days of receipt of
Landlord's statement.
7. CHANGE ORDERS
<PAGE>
Tenant may from time to time request and obtain change orders during the
course of construction provided that: (i) each such request shall be
reasonable, shall be in writing and signed by or on behalf of Tenant, and
shall not result in any structural change in the Building, as reasonably
determined by Landlord, (ii) all additional charges and costs, including
without limitation architectural and engineering costs, construction and
material costs, and processing costs of any governmental entity shall be the
sole and exclusive obligation of Tenant, and (iii) any resulting delay in
the completion of the Tenant Improvements shall be deemed a Tenant Delay and
in no event shall extend the Commencement Date of the Lease. Upon Tenant's
request for a change order, Landlord shall as soon as reasonably possible
submit to Tenant a written estimate of the increased or decreased cost and
anticipated delay, if any, attributable to such requested change. Within
three (3) business days of the date such estimated cost adjustment and delay
are delivered to Tenant, Tenant shall advise Landlord whether it wishes to
proceed with the change order, and if Tenant elects to proceed with the
change order, Tenant shall remit, concurrently with Tenant's notice to
proceed, the amount of the increased cost, if any, attributable to such
change order. Unless Tenant includes in its initial change order request
that the work in process at the time such request is made be halted pending
approval and execution of a change order, Landlord shall not be obligated to
stop construction of the Tenant Improvements, whether or not the change
order relates to the work then in process or about to be started.
8. TENANT DELAYS
In no event shall the Commencement Date of the Lease be extended or delayed
due or attributable to delays due to the fault of Tenant ("Tenant Delays").
Tenant Delays shall include, but are not limited to delays caused by or
resulting from any one or more of the following:
(a) Tenant's failure to timely review and reasonably approve the Working
Drawings or to promptly cooperate with Landlord's Architect and furnish
information to Landlord for the preparation of the Preliminary Plans
and Working Drawings;
<PAGE>
(b) Tenant's request for or use of special materials, finishes or
installations which are not included in the Working Drawings, provided
that Landlord shall notify Tenant in writing that the particular
material, finish, or installation is not readily available promptly
upon Landlord's discovery of same;
(c) Change orders requested by Tenant;
(d) Interference by Tenant or by Tenant's Agents with Landlord's
construction activities;
(e) Tenant's failure to approve any other item or perform any other
obligation in accordance with and by the dates specified herein or in
the Construction Contract;
(f) Tenant's requested changes in the Preliminary Plans, Working Drawings
or any other plans and specification after the approval thereof by
Tenant or submission thereof by Tenant to Landlord;
(g) Tenant's failure to approve written estimates of costs in accordance
with this Work Letter; and
(h) Tenant's obtaining or failure to obtain any necessary governmental
approvals or permits for Tenant's intended use of the Premise.
If the Commencement Date of the Lease is delayed by any Tenant Delays, then
the Commencement Date of the Lease and the payment of Rent shall be
accelerated by the number of days of such delay. Landlord shall give Tenant
written notice within a reasonable time of any circumstance that Landlord
believes constitutes a Tenant Delay.
9. TRADE FIXTURES AND EQUIPMENT
Tenant acknowledges and agrees that Tenant is solely responsible for
obtaining, delivering and installing in the Premises all necessary and
desired furniture, trade fixtures, equipment and other similar items and
that Landlord shall have no responsibility whatsoever with regard thereto.
Tenant further acknowledges and agrees that neither the Commencement Date of
the lease nor the payment of Rent shall be delayed for any period of time
whatsoever due to any delay in the furnishing of the Premises with such
items.
10. FAILURE OF TENANT TO COMPLY
Any failure of Tenant to comply with any of the provisions contained in this
Work Letter within the times for compliance herein set forth shall be deemed
a default under the Lease. In addition to the remedies provided to Landlord
in this Work Letter upon the occurrence of such a default by Tenant,
Landlord shall have all remedies available at law or equity to a Landlord
against a defaulting Tenant pursuant to a written lease, including but not
limited to those set forth in the Lease.
<PAGE>
EXHIBIT D
COMMENCEMENT DATE MEMORANDUM
1. Parties
This Exhibit is attached to and made a part of that certain Standard Form
Lease dated July 11, 1997, by and between AmberJack, Ltd., an Arizona
Corporation, as "Landlord," and United Natural Foods, Inc., a Delaware
Corporation, as "Tenant," for the Premises known as 15965 East 32nd Avenue,
Suite A, Aurora, Colorado 80011.
2. Recitals
Landlord and Tenant entered into that certain Lease dated July 11, 1997,
(the "Lease") for those certain premises (the "Premises") located in the
building commonly known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011 (as defined in the City of Aurora). The "Term" (as defined in the
Lease) commences on the date the Premises are tendered to Tenant ready for
occupancy or such earlier date as Tenant takes possession or commences use
of the Premises for any purpose other than construction (the "Lease
Commencement Date").
The Lease Commencement Date has now been determined by Landlord and Tenant
as well as the date of the expiration of the Term (the "Expiration Date").
The purpose is to set forth such dates and to provide for Tenant's
acceptance of the Premises.
3. Dates
In accordance with Article 1. 8 of the Lease, Landlord and Tenant agree that
the Term of the Lease has commenced and shall expire on the following dates:
Lease Commencement Date:
----------------------------
Expiration Date:
----------------------------
4. Acceptance of Premises
Except with respect to those items listed on the punch list, if any, timely
submitted by Tenant to Landlord pursuant to Article 3.6 of the Lease, Tenant
accepts the Premises in the condition existing as of the Lease Commencement
Date and acknowledges and agrees that all work required to be performed by
Landlord pursuant to the "Work Letter" attached to the Lease as Exhibit C
has been completed by Landlord in full compliance with Exhibit C and to the
satisfaction of Tenant.
5. Miscellaneous
A. Effect:
Except to the extent this Lease has been modified by this Exhibit D to
the Lease, the remaining terms and conditions of the Lease shall remain
unmodified and in full force and effect.
B. Defined Terms:
The defined terms used in this Exhibit D to the Lease, as indicated by
the first letter of a word being capitalized, shall have the same
meaning in this Exhibit D as such terms and provisions have in the
Lease.
<PAGE>
6. Execution
This Exhibit has been executed and shall be deemed effective as of the date
first written above.
<TABLE>
<CAPTION>
LANDLORD: TENANT:
<S> <C>
AmberJack, Ltd., an Arizona United Natural Foods, Inc., a Delaware
Corporation Corporation
Birtcher Property Services,
as Manager
By: By: /s/ Norman Cloutier
--------------------------------- ---------------------------------
Name: Name: Norman Cloutier
--------------------------------- ---------------------------------
Title: Title: CEO
--------------------------------- ---------------------------------
Date: Date: 7/25/97
---------------------------- --------------------------------
By: By: /s/ Steven Townsend
---------------------------- --------------------------------
Name: Name: Steven Townsend
---------------------------- --------------------------------
Title: Title: CFO
---------------------------- --------------------------------
Date: Date: 7/24/97
---------------------------- --------------------------------
</TABLE>
<PAGE>
EXHIBIT E
ADJUSTMENTS TO MONTHLY RENT
180.800 Square Feet
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
The capitalized terms used and not otherwise defined in this Exhibit shall have
the same definitions a set forth in the Lease. The provisions of this Exhibit
shall supersede any inconsistent or conflicting provisions of the Lease.
The Monthly Rent shall be adjusted, as of the commencement of the dates set
forth below, in accordance with the following schedule:
<TABLE>
<CAPTION>
Months During Term Monthly Rent Rent/Sq.Ft/Year
------------------ ------------ ---------------
<S> <C> <C>
1-60 $52,733.33 $3.50
61-120 $60,266.67 $4.00
121-180 $67,800.00 $4.50
</TABLE>
Total Lease Consideration = $10,848,000.00
<PAGE>
EXHIBIT F
RULES AND REGULATIONS
(Industrial)
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
This Exhibit sets forth the rules and regulations governing Tenant's use of the
Common Area and the Premises leased to Tenant pursuant to the terms, covenants
and conditions of the Lease to which this Exhibit is attached and therein made
part thereof. Unless otherwise defined, capitalized terms used herein shall
have the same meanings as set forth in the lease. In the event of any conflict
or inconsistency between this Exhibit and the Lease, the Lease shall control.
1. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall, which may appear unsightly
from outside the Premises.
2. The walls, walkways, sidewalks, entrance passages, courts and vestibules
shall not be obstructed or used for any purpose other than ingress and
egress of pedestrian travel to and from the Premises, and shall not be used
for loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. The walkways, entrance
passageways, courts, vestibules and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence in the judgment of the
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities. No tenant or employee or
invitee of any tenant shall be permitted upon the roof of the Building.
3. No awnings or other projection shall be attached to the outside walls of
the Building. No security bars or gates, curtains, blinds, shades or
screens shall be attached to or hung in, or used in connection with, any
window or door of the Premises without the prior written consent of
Landlord. Neither the interior nor exterior of any windows shall be coated
or otherwise sunscreened without the express written consent of Landlord.
4. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord in writing. The
expense of repairing any damage resulting from a violation of this rule or
removal of any floor covering shall be borne by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant.
6. Landlord shall direct electricians as to the manner and location of any
future telephone wiring. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The locations of the telephone, call
boxes and other office equipment affixed to the Premises shall be subject
to the prior written approval of Landlord.
7. The Premises shall not be used for manufacturing, offices or the storage of
merchandise except as the same may be incidental to the permitted use of
the Premises. No exterior storage shall be allowed at any time
<PAGE>
without the prior written approval of Landlord. The Premises shall not be
used for cooking or washing clothes without the prior written consent of
Landlord, or for lodging or sleeping of for any immoral or illegal
purposes.
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use
of any musical instrument, radio, phonograph, machinery, or otherwise.
Tenant shall not use, keep or permit to be used, or kept, any foul or
obnoxious gas or substance in the premises or permit or suffer the Premises
to be used or occupied in any manner offensive or objectionable to Landlord
or other occupants of this or neighboring buildings or premises by reason
of any odors, fumes or gases.
9. Neither Tenant nor any of Tenant's Agents shall at any time bring or keep
upon the Premises any toxic, hazardous, inflammable, combustible or
explosive fluid, chemical or substance without the prior written consent of
Landlord.
10. No animals shall be permitted at any time within the Premises.
11. Tenant shall not use the name of the Building or the Project in connections
with or in promoting or advertising the Business of Tenant, except as
Tenant's address, without the prior written consent of Landlord. Landlord
shall have the right to prohibit any advertising by Tenant which, in
Landlord's reasonable opinion, tends to impair the reputation of the
Project or its desirability for its intended uses, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
12. Canvassing, soliciting, peddling, parading, picketing, demonstrating or
otherwise engaging in any conduct that unreasonably impairs the value or
use of the Premises or the Project are prohibited and Tenant shall
cooperate to prevent the same.
13. All equipment of any electrical or mechanical nature shall be placed by
Tenant on the Premises, in settings approved by Landlord in writing, in
such a way as to best minimize, absorb and prevent any vibration, noise or
annoyance. No equipment of any type shall be placed on the Premises which
in Landlord's opinion exceeds the load limits of the floor or otherwise
threatens the soundness of the structure or improvements of the Building.
14. Any truck traffic in or out of the Building shall not impair vehicular and
pedestrian circulation in the Common Area. Landlord will not be responsible
for loss or damage to any furniture, equipment, or other personal property
of Tenant from any cause.
15. No air conditioning unit or other similar apparatus shall be installed or
used by Tenant without the prior written consent of Landlord
16. No aerial antenna shall be erected on the roof or exterior walls of the
premises, or on the grounds, without in each instance the prior written
consent of Landlord. Any aerial or antenna so installed by or on behalf of
Tenant without such written consent shall be subject to removal by Landlord
at any time without prior notice at the expense of Tenant, and Tenant shall
upon Landlord's demand pay a removal fee to Landlord of not less than
$200.00.
17. The entire Premises, including vestibules, entrances, doors, fixtures,
windows and plate glass, shall at all times be maintained in a safe, neat
and clean condition by Tenant. All trash, refuse and waste materials shall
be regularly removed from the Premises by Tenant and placed in the
containers at the locations designated by Landlord for refuse collection.
All cardboard boxes must be "broken down" prior to being placed in the
trash containers. All styrofoam chips must be bagged or otherwise contained
prior to placement in the trash containers, so as not to constitute a
nuisance. Pallets may not be disposed of in the trash containers or
enclosures. The burning of trash, refuse or waste material is prohibited.
<PAGE>
18. Tenant shall use at Tenant's cost such pest extermination contractor as
Landlord may direct and at such intervals as Landlord may require.
19. All keys for the Premises shall be provided to Tenant by Landlord and
Tenant shall return to Landlord any of such keys so provided upon the
termination of the Lease. Tenant shall not change locks or install other
locks on doors of the Premises, without the prior written consent of
Landlord. In the event of loss of any keys furnished by Landlord for
Tenant, Tenant shall pay to Landlord the costs thereof.
20. No person shall enter or remain within the Project while intoxicated or
under the influence of liquor or drugs. Landlord shall have the right to
exclude or expel from the Project any person who, in the absolute
discretion of Landlord, is under the influence of liquor or drugs.
21. Tenant agrees to comply with all such Rules and Regulations. Should Tenant
not abide by these Rules and Regulations, Landlord or any "Operator,"
"Association" or "Declarant" under any Restrictions may serve a three (3)
day notice to correct the deficiencies. If Tenant has not corrected the
deficiencies by the end of the notice period, Tenant will be in default of
the Lease, and Landlord and/or its designee shall have the right, without
further notice, to cure the violation at Tenant's expense.
22. Landlord reserves the right to amend or supplement the foregoing Rules and
Regulations and to adopt and promulgate additional rules and regulations
applicable to the Premises so long as Landlord does not limit Tenant's use
or quiet enjoyment of the Premises and Common Areas. Notice of such rules
and regulations and amendments and supplements thereto, if any, shall be
given to the Tenant.
23. Neither Landlord nor Landlord's Group or any other person or entity shall
be responsible to Tenant or to any other person for the ignorance or
violation of these Rules and Regulations by any other tenant or other
person. Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition precedent, waivable only by
Landlord, to Tenant's occupancy of the Premises.
<PAGE>
EXHIBIT G
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of hazardous
substances on the Premises. Prospective tenants should answer the questions in
light of their proposed operation on the premises. Existing tenants should
answer the questions as they relate to on-going operations on the premises and
should update any information previously submitted. If additional space is
needed to answer the questions, you may attach separate sheets of paper to this
form.
1. GENERAL INFORMATION
Name of Responding Company: Rainbow Natural Foods, Inc.
---------
Check the Applicable Status: Prospective Tenant [xx] Existing Tenant [_]
Mailing Address: 1596 S. East 32 Avenue, Suite A
Aurora, Colorado 80011
-----------------------------------------
-----------------------------------------
Contact Person: -----------------------------------------
Title: General Manager
- ---------------------------------------------------------
Telephone Number: (303 ________ ) 373-1144
- ---------------------------------------------------------
Address of Leased Premises: 15965 East 32nd Avenue, Suite A,
Aurora, Colorado 80011
Length of Lease Term: Fifteen (15) Years and
Zero (0) Months
Describe the proposed operation to take place on the property,
including principal products manufactured or services to be conducted.
Existing Tenants should describe any proposed changes to on-going
operations.
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes: Yes [_] No x
Chemical Products: Yes [_] No x
2.2 Attach the list of any hazardous materials to be used or
stored, the quantities that will be on-site at any given time,
and the location and method of storage (e.g. 55 gallon drums
on concrete pad).
3. STORAGE TANKS & SUMPS
<PAGE>
3.1 Is any above or below ground storage of gasoline, diesel, or
other hazardous substances in tanks or sumps proposed or
currently conducted on the premises?
Yes [_] No x
If yes, describe the materials to be stored, and the type,
size and construction of the sump or tank. Attach copies of
any permits obtained for the storage of such substances.
-------------------------------------------------------------
-------------------------------------------------------------
3.2 Have any of the tanks or sumps been inspected or tested for
leakage?
Yes [_] No [_]
If so, attach the results.
<PAGE>
3.3 Have any spills or leaks occurred from such tanks or sumps?
Yes [_] No [_]
If so, describe:
-------------------------------------------------------------
-------------------------------------------------------------
3.4 Were any regulatory agencies notified of the spill or leak?
Yes [_] No [_]
If so, attach copies of any spill reports filed, any clearance
letters or other correspondence from regulatory agencies
relating to the spill or leak.
3.5 Have any underground storage tanks or sumps been taken out of
service or removed?
Yes [_] No [_]
If yes, attach copies of any closure permits and clearance
obtained from regulatory agencies relating to closure and
removal of such tanks.
4. SPILLS
4.1 During the past year, have any spills occurred on the
premises?
Yes [_] No [X]
If so, please describe the spill and attach the results of any
testing conducted to determine the extent of such spills?
-------------------------------------------------------------
-------------------------------------------------------------
4.2 Were any agencies notified in connection with such spills?
Yes [_] No [_]
If so, attach copies of any spill reports or other
correspondence with regulatory agencies.
4.3 Were any clean-up actions undertaken in connection the spills?
Yes [_] No [_]
If so, briefly describe the actions taken. Attach copies of
any clearance letters obtained from any regulatory agencies
involved and the results of any final soil or groundwater
sampling done upon completion of the clean-up work.
-------------------------------------------------------------
<PAGE>
-------------------------------------------------------------
WASTE MANAGEMENT
5.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number?
Yes [_] No x
5.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes [_] No x
If so, attach a copy of the most recent report filed.
<PAGE>
5.3 Attach the list of the hazardous waste, if any, generated or
to be generated at the premises, its hazard class and the
quantity generated on a monthly basis.
5.4 Describe the method(s) of disposal for each waste. Indicate
where and how often disposal will take place.
-------------------------------------------------------------
-------------------------------------------------------------
5.5 Indicate the name of the person(s) responsible for maintaining
copies of hazardous waste manifests completed for off-site
shipments of hazardous waste.
-------------------------------------------------------------
5.6 Is any treatment or processing of hazardous wastes currently
conducted or proposed to be conducted at the premises:
Yes [_] No [_]
If yes, please describe any existing or proposed treatment
methods.
-------------------------------------------------------------
-------------------------------------------------------------
5.7 Attach copies of any hazardous waste permits or licenses
issued to your company with respect to its operations on the
premises.
6. WASTEWATER TREATMENT/DISCHARGE
6.1 Do you discharge wastewater to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no industrial discharge
6.2 Is your wastewater treated before discharge?
Yes [_] No [_]
If yes, describe the type of treatment conducted.
-------------------------------------------------------------
6.3 Attach copies of any wastewater discharge permits issued to
your company with respect to its operations on the premises.
7. AIR DISCHARGES
7.1 Do you have any air filtration systems or stacks that
discharge into the air?
Yes [_] No x
<PAGE>
7.2 Do you operate any of the following types of equipment, or any
other equipment requiring an air emissions permit?
_____ Spray booth
_____ Dip tank
_____ Drying oven
_____ Incinerator
_____ Other (Please Describe)
_____ No Equipment Requiring Air Permits
<PAGE>
7.3 Are air emissions from your operations monitored?
Yes [_] No [_]
If so, indicate the frequency of monitoring and a description
of the monitoring results.
-------------------------------------------------------------
7.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
8. HAZARDOUS MATERIALS DISCLOSURES
8.1 Does your company handle hazardous materials in a quantity
equal to or exceeding an aggregate of 500 pounds, 55 gallon,
or 200 cubic feet?
Yes [_] No x
8.2 Has your company prepared a hazardous materials management
plan ("business plan") pursuant to local County/City Fire
Department requirements?
Yes [_] No [_]
If so, attach a copy of the business plan.
8.3 Describe the procedures followed to comply with OSHA Hazard
Communication Standard requirements.
-------------------------------------------------------------
-------------------------------------------------------------
9. ENFORCEMENT ACTIONS, COMPLAINTS
9.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees?
Yes [_] No x
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions?
9.2 Has your company ever received requests for information,
notice or demand letters, or any other inquiries regarding its
operations?
Yes [_] No x
9.3 Have there ever been, or are there now pending, any lawsuits
against the company regarding any environmental or health and
safety concerns?
Yes [_] No x
9.4 Has an environmental audit ever been conducted at your
company's current facility?
<PAGE>
Yes [_] No [_]
If so, discuss the results of the audit.
-------------------------------------------------------------
-------------------------------------------------------------
<PAGE>
9.5 Have there been any problems or complaints from neighbors at
the company's current facility?
Yes [_] No [_]
TENANT:
United Natural Foods, Inc.,
a Delaware Corporation
By By: /s/ Norman Cloutier
---------------------------------- -------------------------------
Name: Name: Norman Cloutier
------------------------------ ---------------------------
Title: Title: CEO
------------------------------ ---------------------------
Date: Date 7/25/97
------------------------------ ---------------------------
<PAGE>
EXHIBIT H
SIGN CRITERIA
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
<PAGE>
LEASE RIDER NO. 1
OPTION TO EXTEND TERM
(Fair Market Value Adjustment)
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
The capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Lease Rider
shall supersede any inconsistent or conflicting provisions of the Lease.
1. Option to Extend Term
(a) Provided that Tenant is not in monetary default or material non-
monetary default under any provision of this Lease beyond the
applicable cure period at the time of exercise of the extension right
granted herein, Tenant shall have one (1) option to extend the Term
of this Lease for sixty (60) months ("Extension Option"). Tenant
shall exercise its Extension Option by delivering to Landlord, not
less than one hundred eighty (180) days prior to the expiration date
of the Term, Tenant's written notice of its election to extend (the
"Election Notice"). The rent and other economic terms payable under
the Lease during the extension of the Term shall be at the "fair
market rental rate" for comparable space within the marketplace. As
used herein, the "fair market rental rate" may include (as determined
by the appraisers appointed by Landlord and Tenant) the annual amount
per rentable square foot, projected during the relevant period, that
a willing, comparable, tenant would pay, and a willing, comparable
tenant would pay, and a willing, landlord of a comparable industrial
building located in the Aurora area would accept, at arm's length
(what Landlord is accepting in current transactions for the Building
may be considered), for space of comparable size, quality and floor
height as the leased area at issue taking into account the age,
quality and layout of the existing improvements in the leased area at
issue and taking into account items that professional real estate
brokers customarily consider, including, but not limited to, rental
rates, space availability, tenant size, tenant improvement
allowances, operating expenses and allowance, parking charges, free
rent, reduced rent, free parking, reduced parking, and any other
lease concessions, if any, then being charged or granted by Landlord
or the lessors of such similar industrial buildings.
(b) As to the extension, if the parties are not able to agree on the fair
market rental rate for the Premises within one hundred twenty (120)
days prior to the expiration date of the Term (the "Outside Agreement
Date"), Tenant shall have the right to elect, by written notice to
Landlord, to either (i) revoke its exercise of the Extension Option,
or (ii) cause the fair market rental rate for the premises to be
determined by appraisal as follows:
2. Landlord and Tenant will each appoint one (1) independent appraiser who by
profession must be a real estate broker who has been active over the five
(5) year period ending on the date of such appointment in the leasing of
commercial industrial properties located in the Aurora marketplace. The
determination of the appraisers will be limited solely to the issue of
whether Landlord's or Tenant's submitted Fair Market Rental Rate for the
leased area at issue is the closest to the actual Fair Market Rental Rate
for such area as determined by the appraisers, taking into account the
requirements specified above. Each such appraiser will be appointed within
fifteen (15) days after the Outside Agreement Date.
3. The two (2) appraisers so appointed will fifteen (15) days of the date of
the appointment of the last appointed appraiser agree upon and appoint a
third appraiser who shall be qualified under the same criteria set forth
hereinabove for qualification of the initial two (2) appraisers.
<PAGE>
4. The three (3) appraisers will within thirty (30) days of the appointment of
the third appraiser reach a decision as to whether the parties will use
Landlord's or Tenant's submitted fair market rental rate, and will notify
Landlord and Tenant thereof.
5. The decision of the majority of the three (3) appraisers will be binding
upon Landlord and Tenant. If either landlord or Tenant fails to appoint an
appraiser within the time period specified in Subparagraph (i) hereinabove,
the appraiser appointed by one of them will, within thirty (30) days
following the date on which the party failing to appoint an appraiser could
have last appointed such appraiser, reach a decision based upon the
procedures set forth above (i.e., by selecting either Landlord's or
Tenant's submitted Fair Market Rental Rate) and notify Landlord and Tenant
thereof, and such appraiser's decision will be binding upon Landlord and
Tenant.
6. If the two (2) appraisers fail to agree upon and timely appoint a third
appraiser, both appraisers will be dismissed and the matter to be decided
will be forthwith submitted to arbitration under the provisions of the
American Arbitration Association based upon the procedures set forth above
(i.e., by selecting either Landlord's or Tenant's submitted fair market
rental rate).
The cost of appraisal (and, if necessary, arbitration) will be shared.
<PAGE>
LEASE RIDER NO. 2
RIGHT OF FIRST OPPORTUNITY TO
LEASE ADDITIONAL VACANT SPACE
This Lease Riders is attached to and made a part of that certain Standard Form
Lease dated July 11, 1997, by and between AmberJack, Ltd., and Arizona
Corporation, as "Landlord", and United Natural Foods, Inc., a Delaware
Corporation, as "Tenant", for the Premises known as 15965 East 32nd Avenue,
Suite A, Aurora, Colorado 80011.
The capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Lease Rider shall
supersede any inconsistent or conflicting provisions of the Lease.
Provided no Event of Default has occurred and is continuing, Tenant shall have
an ongoing right of first opportunity ("Right of First Opportunity") during the
Term of the Lease to Lease any additional unleased space located within the
Building which becomes available for leasing by other than the existing
tenant(s) ("Additional Vacant Space"), upon the terms and conditions as
follows: (i) Should Tenant exercise its Right of First Opportunity no later than
twelve (12) months from the Commencement Date of the Lease, Tenant shall be able
to lease the Additional Vacant Space upon the same terms and conditions of the
Lease including Monthly Rent, Term and Tenant Improvement Allowance ($2.44 per
square foot) or (ii) should Tenant exercise said Right of First Opportunity
anytime after the expiration of month (12) of the Term, Tenant shall have the
right to Lease the Additional Vacant Space at a Monthly Rent of ninety-five
percent (95%) of "fair market rental rate" which shall be offered in an "As Is"
condition; provided, however, the term for the Additional Vacant Space
("Expansion Term") shall be no less than three (3) years. As used herein, the
"fair market rental rate" may include the annual amount per rentable square
foot, projected during the relevant period, that a willing, comparable tenant
would pay, and a willing Landlord of a comparable industrial building located in
the Aurora area would accept, at arms length (what Landlord is accepting in
current transactions for the Building may be considered), for space of
comparable size, quality and floor height as the leased area at issue taking
into account the age, quality and layout of the existing improvements in the
leased area at issue and taking into account items that professional real estate
brokers customarily consider, including, but not limited to, rental rates, space
availability, tenant size, tenant improvement allowances, and operating expenses
, if any, then being charged by Landlord or the Lessors of such similar
industrial buildings. If at any time during the term of the Lease any Additional
Vacant Space becomes available, Landlord shall, prior to making the Additional
Vacant Space available to other third parties, first deliver written notice of
such availability to Tenant incorporating the said terms an conditions
("Landlord's Notice"). For a period of ten (10) days following Tenant's receipt
of Landlord's Notice, Tenant shall have the first opportunity to Lease the
Additional Vacant Space upon the terms and conditions set forth in Landlord's
Notice by delivering to Landlord within said ten (10) day period written notice
("Election Notice") of its election to exercise its Right of First Opportunity.
Notwithstanding anything contained herein, if Tenant fails or elects not to
exercise its Right of First Opportunity granted pursuant to Landlord's Notice
within said ten (10) day period, the Right of First Opportunity shall
automatically terminate without further action of the parties, and Landlord
shall be free to Lease the Additional Vacant Space to any third party upon such
terms and conditions as Landlord desires. If Tenant timely and properly
exercises its Right of First Opportunity as hereinabove provided, Tenant shall,
within five (5) days after receipt from Landlord, enter into an amendment to the
Lease (the "Amendment") with Landlord which shall incorporate the terms set
forth in Landlord's Notice with respect to the Additional Vacant Space. If
Tenant fails to execute and deliver such new Amendment within said five (5) day
period, the Right for First Opportunity shall automatically terminate without
further action of the parties, and Landlord shall thereafter be free to Lease
the Additional Vacant Space to any third party upon such terms and conditions as
Landlord desires.
Tenant's Right of First Opportunity shall be subject to any rights which may
have been granted by Landlord prior to the execution of the Lease to other
tenants of the Project, including without limitation, rights of first
opportunity, options and/or rights of first offer or refusal with respect to the
Additional Vacant Space. Tenant's Right of First Opportunity is personal to
United Natural Foods and may not be exercised by or assigned to any person or
entity other than United Natural Foods, and shall terminate and be of no further
force or effect upon any assignment of the Lease or subletting of the Premises.
<PAGE>
Lease Rider No. 3
Assignment of Warranties
This Lease Rider is attached to and made a part of that certain Standard Form
Lease dated July 11, 1997, by and between AmberJack, Ltd., an Arizona
Corporation, ("Landlord"), and United Natural Food, Inc., a Delaware
Corporation, "Tenant"), for the Premises known as 15965 East 32nd Avenue, Suite
A, Aurora, Colorado 80011.
The capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Lease Rider shall
supersede any inconsistent or conflicting provisions of the Lease.
Landlord hereby assigns, conveys, transfers and sets over unto Tenant, on a non-
exclusive basis for as long as the Lease shall be in effect, and without
warranty of any kind from Landlord or recourse against Landlord, Landlord's
interest in and to any guaranties, warranties and agreements from suppliers,
contractors and subcontractors for which they have an obligation to repair
regarding their performance quality of workmanship and quality of materials
supplied in connection with any and all improvements to the Premises, including
without limitation the Tenant Improvements. This assignment shall expire,
revert back to Landlord and be of no further force or effect upon the expiration
or termination of the Lease for any cause whatsoever.
<PAGE>
EXHIBIT I
PARKING
This Exhibit is attached to and made a part of that certain Standard Form Lease
dated July 11, 1997, by and between AmberJack, Ltd., an Arizona Corporation, as
"Landlord," and United Natural Foods, Inc., a Delaware Corporation, as "Tenant,"
for the Premises known as 15965 East 32nd Avenue, Suite A, Aurora, Colorado
80011.
<PAGE>
EXHIBIT 11
UNITED NATURAL
FOODS, INC. AND
SUBSIDIARIES
COMPUTATION OF
EARNINGS PER SHARE
<TABLE>
<CAPTION>
THREE MONTHS ENDED TWELVE MONTHS ENDED
JULY 31, JULY 31,
------- -------
1996 1997 1996 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Primary:
Weighted average shares outstanding 8,702,898 12,378,425 8,710,549 11,388,833
Net effect of dilutive stock options and stock warrants
based upon the treasury stock method using the
initial public offering price for 1996 periods
and average stock price for 1997 periods 1,435,274 370,308 1,435,274 308,754
----------- ----------- ----------- -----------
Total 10,138,172 12,748,733 10,145,823 11,697,587
=========== =========== =========== ===========
Net Income $ 1,364,212 $ 2,802,775 $ 3,394,768 $ 8,322,303
=========== =========== =========== ===========
Per share amount $ 0.13 $ 0.22 $ 0.33 $ 0.71
=========== =========== =========== ===========
Fully diluted:
Weighted average shares outstanding 8,702,898 12,378,425 8,710,549 11,388,833
Net effect of dilutive stock options and stock warrants
based upon the treasury stock method using the
initial public offering price for 1996 periods
and period end stock price if higher than average
stock price for 1997 periods 1,435,274 432,400 1,435,274 432,400
----------- ----------- ----------- -----------
Total 10,138,172 12,810,825 10,145,823 11,821,233
=========== =========== =========== ===========
Net Income $ 1,364,212 $ 2,802,775 $ 3,394,768 $ 8,322,303
=========== =========== =========== ===========
Per share amount $ 0.13 $ 0.22 $ 0.33 $ 0.71
=========== =========== =========== ===========
</TABLE>
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
STATE OF
NAME INCORPORATION
- ---- -------------
Cheese & Stuff, Inc. Connecticut
Food For Thought Natural Foods Market, Inc. Connecticut
The Health Hut, Inc. New York
Mountain People's Warehouse Incorporated California
Natural Retail Group, Inc. Delaware
NATUREWORKS, Inc. Florida
Nutrasource, Inc. Washington
Rainbow Natural Foods, Inc. Colorado
GEM Acquistion Corporation Delaware
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
United Natural Foods, Inc.
We consent to incorporation by reference in the Registration Statements (Nos.
333-19945, 333-19947, and 333-19949) on Form S-8 of United Natural Foods, Inc.
of our reports dated September 5, 1997, relating to the consolidated balance
sheets of United Natural Foods, Inc. and Subsidiaries as of July 31, 1996 and
1997, and the related consolidated statements of income, stockholders' equity
and cash flows for the year ended October 31, 1995, for the nine months ended
July 31, 1996, and for the year ended July 31, 1997, and the related schedule,
which reports appear in the July 31, 1997 annual report on Form 10-K of United
Natural Foods, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Providence, Rhode Island
October 27, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED STATEMENTS OF INCOME FOR THE TWELVE MONTHS ENDED JULY 31, 1997
AND THE CONSOLIDATED BALANCE SHEET AS OF JULY 31, 1997 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JUL-31-1997
<PERIOD-END> JUL-31-1997
<CASH> 16,477
<SECURITIES> 0
<RECEIVABLES> 32,169,184
<ALLOWANCES> 2,149,628
<INVENTORY> 45,030,476
<CURRENT-ASSETS> 80,460,821
<PP&E> 32,251,144
<DEPRECIATION> 11,871,817
<TOTAL-ASSETS> 110,985,354
<CURRENT-LIABILITIES> 31,578,140
<BONDS> 16,553,097
0
0
<COMMON> 123,988
<OTHER-SE> 62,052,569
<TOTAL-LIABILITY-AND-EQUITY> 110,985,354
<SALES> 421,697,941
<TOTAL-REVENUES> 421,697,941
<CGS> 334,583,617
<TOTAL-COSTS> 334,583,617
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 2,112,015
<INTEREST-EXPENSE> 3,081,440
<INCOME-PRETAX> 15,671,302
<INCOME-TAX> 6,416,070
<INCOME-CONTINUING> 8,322,303
<DISCONTINUED> 0
<EXTRAORDINARY> 932,929
<CHANGES> 0
<NET-INCOME> 8,322,303
<EPS-PRIMARY> 0.71
<EPS-DILUTED> 0.71
</TABLE>
