Colorado-Boulder-Basemar Shopping Center Shopping Center Lease - Skunk Creek Investors and Wild Oats Markets Inc.
SHOPPING CENTER LEASE
THIS LEASE, Made and entered into this 8th day of August, A.D. 1995 between
SKUNK CREEK INVESTORS, hereinafter called the "Landlord," and WILD OATS
MARKETS, INC., hereinafter called the "Tenant,"
WITNESSETH:
Premises: That, in consideration of the payment of the rent hereinafter
provided and the keeping and performance of each of the covenants and
agreements of Tenant hereinafter set forth, Landlord does hereby lease unto
Tenant the following described premises (herein referred to as the "demised
premises"), located in the Basemar Shopping Center (herein referred to as the
"Shopping Center"), situate in the City of Boulder and the County of Boulder,
in the State of Colorado, to-wit:
Space of approximately 21,539 square feet located in Basemar Shopping Center,
more commonly known and numbered as 2584- 2590-2592-2598 Baseline Road, and
645-649 27th Street, Boulder, Colorado 80303, as shown on attached Exhibit "C".
Unit 2584 = 7,311 square feet;
Unit 2594 = 1,315 square feet;
Units 2590 - 2592 = 3,251 square feet;
Unit 2598 = 2,504 square feet;
Units 645 - 649 27th Street = 4,827 square feet;
Mezzanine = 2,331 square feet.
1. TERM: To have and to hold the same with all the appurtenances unto
Tenant from twelve o'clock noon on the 1st day of April A.D. 1997, to twelve
o'clock noon on the 1st day of April A.D. 2012.
2. MINIMUM RENT: Tenant shall pay Landlord a minimum rental for the full
term aforesaid of (See Rider, Paragraph 1) payable in monthly installments of
(See Rider, Paragraph 1), in advance, on or before twelve o'clock noon on the
first day in each calendar month during the said term at the office of Rose
Realty & Management Co., Agent, or at such other place as Landlord may
designate from time to time in writing. In the event that rent due under this
Lease shall commence on any day other than the first day of a calendar month,
then the rental payments shall be adjusted to the first day of the first full
month at the beginning of the term of this Lease.
3. SECURITY DEPOSIT: (Omitted)
4. PERCENTAGE RENT: (Partially Omitted)
Late Charge: The Landlord may make a collection service charge in the
minimum amount of Twenty-five and no/100 Dollars ($25.00) or Three per cent
(3%) monthly, whichever is greater, of any rent installment, or other payment
provided herein which is delinquent 10 days or more. Tenant shall also pay a
$25.00 charge for any check written to Landlord that is returned due to
insufficient funds. In the event a check from Tenant is returned for
insufficient funds, Landlord may thereafter require that payments shall be made
in cash or certified funds.
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5. ADDITIONAL RENT: Tenant shall pay as additional rent any money or
other charges required to be paid by the Tenant under this Lease, whether or
not the same is designated "additional rent."
(Remainder of section omitted)
6. WARRANTY OF TITLE: Landlord warrants that he is well seized of the
premises herein demised and has a full and legal right to execute this Lease in
the form and manner hereinabove set forth.
7. LANDLORD NOT A PARTNER: Nothing herein contained shall be deemed,
held or construed as creating Landlord as a partner, agent, associate of, or in
a joint venture with Tenant in the conduct of the business, nor as rendering
Landlord liable for any debts, liabilities or obligations incurred by Tenant in
the conduct of said business, it being expressly understood and agreed that the
relationship between the parties hereto is and shall at all times remain that
of Landlord and Tenant.
8. REPAIRS: Landlord shall make at Landlord's sole expense, all
necessary repairs to the roof, to the structural portion of the building, and
to the exterior walls of the demised premises (excluding windows, doors and
window and door hardware), except where such repairs are made necessary by an
act or acts of Tenant, or by Tenant's negligence, its agents, employees,
licensees or any party working at or under the Tenant's direction. The
Landlord shall not be responsible to make any plumbing, electrical or
mechanical repairs or replacement or other improvements or repairs of any kind
whatsoever the demised premises, except as to those which are specifically set
forth in the Lease.
9. REPLACEMENT OF BUILDING: Landlord shall keep the building of which
the demised premises are a part insured against loss or damage by fire. If the
demised premises are damaged or destroyed by fire at any time after the date of
this Lease, or if, after such date, said premises are damaged or destroyed
through any cause not directly attributable to the negligence of Tenant,
Landlord shall proceed with due diligence to repair or restore the same to the
same condition as existed before such damage or destruction, and as soon as
possible thereafter will give possession to the Tenant of the premises herein
demised without diminution or change of location. Provided, however, that in
case of total destruction of the demised improvements by fire, or in case the
improvements are so badly damaged that, in the opinion of the Landlord, it is
not feasible to repair or rebuild the same, then, and in that event, Landlord
shall have the right to terminate this Lease instead of rebuilding the
improvements; provided, however, that Landlord shall give Tenant written notice
of Landlord's intention to terminate, said notice to be served not later than
thirty (30) days ofter the occurrence of the damage to the property. If,
because of fire or other casualty, the premises are rendered temporarily
untenantable, minimum rent shall cease until the premises are restored to their
former condition. It is further agreed, however, that the replacement or
repair of any portion of the demised premises damaged in connection with any
burglary or other forcible entry into the premises or damage directly
attributable to the negligence of the Tenant, other than damage caused by fire,
shall be at the sole expense of Tenant.
10. TENANT'S OBLIGATIONS: Tenant agrees: to pay the rent for said
premises as hereinabove provided promptly when due and payable; to pay all
charges
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for water, sewer charges, and for heating, air conditioning and lighting said
premises; to repair and maintain all the improvements upon said premises as
needed, including all sewer lines, hot water heaters, plumbing, plumbing
fixtures, heating and air-conditionaing appliances and ducting, electrical
equipment and systems, glass, screens, doors and door hardware, window and door
frames, windows and floor covering at the expense of said Tenant; to hold
Landlord harmless and free of any liability resulting from any personal injury
or property damage which may result from any failure by plumbing, sewers, water
damage from any source whatsoever, provided the same has not been caused by
Landlord's negligence in failure to make repairs to any basic structural
portion of the building; to pay the cost of any replacement or repair of any
portion of the demised premises damaged in connection with any burglary or
forcible entry into the premises; to order no repairs or improvements to the
demised premises at the expense of Landlord, and, at the expiration of this
Lease, to surrender and deliver up said premises in as good order and condition
as when the same were entered upon, loss by fire, inevitable accident or
ordinary wear and tear excepted; to use said premises for no purpose prohibited
by the laws of the United States, the State of Colorado, and applicable
ordinances or regulations now in force or hereafter enacted, and for no
improper or questionable purpose whatsoever; to maintain no coin-operated
devices outside the leased premises; to keep the sidewalks in front of and
around said premises free from ice and snow and free from all litter, dirt,
debris, and obstructions; to keep said premises clean and in the sanitary
condition required by the laws of the State of Colorado, and all applicable
ordinances or regulations; to neither permit nor suffer any disorderly conduct,
noise, odors, or nuisance whatsoever about said premises having a tendency to
annoy or disturb any persons occupying adjacent premises; to keep no animals on
the premises nor use the premises for living quarters; to neither hold nor
attempt to hold the Landlord lable for any injury or damage either proximate or
remote occurring through or caused by any repairs, alterations, injury or
accident to the above demised premises, to adjacent premises or other parts of
the above premises not herein demised, or by reason of the negligence or
default of the owners or occupants thereof or any other person, nor liable for
any injury or damage occasioned by defective electric wiring, or the breaking
or stoppage of plumbing resulting from freezing or otherwise unless said injury
or damage results from the negligence of the Landlord; to neither permit nor
suffer said premises, or the walls or floors thereof to be endangered by
overloading; to permit the Landlord to place a "For Rent" sign upon said
premises at any time thirty (30) days before the end of this Lease; to permit
Landlord at any reasonable hour of the day, to enter into or upon and go
through and view said premises; to surrender and deliver up the possission of
said premises promptly at the termination or expiration of this Lease.
11. USE OF PREMISES: Tenant shall operate and maintain in said demised
premises for the term of this Lease, a business which is primarily a grocery
store and maket in Units 2584 through 2598 and secondarily a bakery and
commissary for preparation of delicatessen foods, and general warehouse area
and meeting room area in Units 645-649 27th Street. Which shall include the
sale and offering for sale of all of the goods, wares and merchandise and the
performance of such services as are usually incident to said business, but to
refrain from the sale of merchandise not usually
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incident to said business. The operation of any other business on the demised
premises is expressly prohibited. Tenant shall not place on the premises,
under any circumstances, any pinball machine, slot machine, electric game or
amusement device, pool table, or other recreation of entertainment device for
use by persons on the demised premises. Tenant shall keep said store open for
business during normal business hours of all business days applicable to such
business. Nothing in the lease shall be construed as granting Tenant an
exclusive right to the sale of any merchandise or service, except as follows:
during the term of this Lease or any extensions thereof, Landlord agrees not to
lease space in Basemar Shopping Center to any business whose primary product
would be directly competitive with Tenant's sale of fresh produce and
groceries, health foods, and vitamins. See Rider, Paragraph 4.
Continued Use: Tenant agrees to, and it is the essence of this Lease
that the Tenant shall continueously and uninterruptedly during the term of this
Lease occupy and use the premises for the purpose hereinabove specified except
while the premises are untenantable by reason of fire or unavoidable casualty.
12. FIXTURES: It is agreed that the Tenant will use only first class
fixtures and equipment in the demised premises. Reconditioned fixtures are
acceptable to Landlord.
13. ALTERATIONS: Tenant shall make no alterations, changes, additions or
improvements costing more than $3,000.00 to the premises without the Landlord's
prior written consent. No such alteration, change, addition of improvement,
when consented to by the Landlord, shall be done so as to lessen or materially
or disadvantageously affect the value of the premises or the shopping complex
of which the premises are a part. (Remainder of section omitted)
14. SIGNS: Tenant shall not erect or install any exterior or interior
window (See Rider, Paragraph 5) or door signs or advertising media or window or
door lettering or placards without previous written consent of Landlord.
Tenant agrees to install not later than thirty (30) days after occupancy, an
exterior sign, attached to the canopy fascia, or other approved location on the
demised premises. All exterior signs shall be electrically illuminated and
shall be installed and used only after the written approval of Landlord.
Tenant shall maintain such sign, decoration, lettering, advertising matter or
other thing as may be approved in good condition and repair at all times.
Tenant agrees not to use any advertising media that shall be deemed
objectionable to Landlord or to the other tenants, such as loud speakers,
phonographs, or radio broadcasts in a manner to be heard outside the demised
premises.
15. PARKING CARS: Throughout the term of this Lease, Landlord shall
provide a reasonable hard-surfaced area for off-street parking for use of
customers of Tenant in common with customers of occupants of other portions of
the Shopping Center. Tenant shall park all vehicles of whatever type used by
Tenant in the carrying on of the Tenant's business in only those areas which
are designated by Landlord from time to time for this purpose. Tenant accepts
the responsibility of seeing that Tenant's employees park any and all vehicles
brought to the Shopping Center by them in only those areas designated by
Landlord for this purpose during all times when the employee is on duty in
Tenant's business. Tenant shall, within five (5) days after
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receipt or written notice form Landlord, furnish Landlord the automobile
license numbers of his car and of the cars assigned or belonging to his
employees.
16. RECEIVING AND DELIVERY: Tenant agrees that all receiving and
delivery of goods and merchandise and all removal or garbage and refuse, shall
be made only by way of the rear store door to other service door provided by
Landlord. In the event that the demised premises has no such door, then these
matters shall be handled in a manner satisfactory to Landlord.
17. COMMON AREA MAINTENANCE: Tenant agrees to participate in the expense
of services required in connection with the operation, maintenance and repair
of the parking lot and all common areas (including landscaped areas),
including, but not limited to lighting, snow removal, and salary of attendants,
and the cost of maintenance and lighting a common shopping center sign, an
administrative fee to Landlord equal to ten per cent (10%) of the total costs
for common area maintenance , and such expenses shall be prorated to Tenant in
the same proportion that the gross floor area of the demised premises bears to
the total gross floor are of the Shopping Center.
18. AWNINGS: No awnings shall be installed or replaced at or on the
demised premises without the written consent of Landlord being first obtained.
19. LIGHTING: Tenant hereby agrees to keep the interior of the demised
premises lighted to a reasonable extent of full lighting intensity and the
exterior neon and/or other electric signs in operation during the hours from
dusk to 10:00 P.M. on each and every day of the year during the term hereof.
20. HOLDOVER: In the event Tenant remains in possession of the demised
premises after the expiration of this Lease, Tenant shall be deemed to be
occupying said premises as a Tenant from month to month at a monthly rental
equal to the monthly base rental, and otherwise subject to all of the
conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy.
21. REMOVAL OF FIXTURES: Tenant, if he shall not be in default under any
of the terms and provisions of this Lease, may, at the expiration of the term
hereof, remove any store and light fixtures installed and paid for by him,
provided that Tenant shall at his own expense, immediately repair any and all
damage to the premises occasioned by said removal and restore the demised
premises to as good condition as when received by Tenant, ordinary wear and
tear excepted.
22. MERCHANTS ASSOCIATION: Tenant shall become and remain during the
entire term of this Lease, an active member of the Merchants Association, a
non-profit corporation established by the Merchants doing business in the
Shopping Center for the purpose of arranging for and carrying our center-wide
advertising and promotional campaigns; establishment of common night opening
dates and hours; lending assistance to Landlord in the enforcement of parking
regulations and regulations concerning other "common areas" in said Center; and
all other such activities as may from time to time be determined by the
Association as worthy of community interest and control, all such matters to
be subject to the approval of Landlord. Tenant agrees to abide by the
provisions of the Constitution of Articles of Incorporation and By-Laws duly
enacted by a majority vote of the membership of the Merchants Association and
to pay monthly dues to said Association in an amount which has been approved by
a majority
<PAGE> 6
vote of the members of the Merchants Association at a regular or a special
meeting duly called and with a quorum present, and provided that the consent of
the Landlord shall have been obtained. A violation of the provisions of this
paragraph shall constitute a material breach of this Lease and the provisions
of this paragraph shall run to the benefit of and be enorceable by Landlord and
by the Merchants Association or by either one of them.
23. ADVERTISING: (Omitted)
24. RULES AND REGULATIONS: Landlord reserves the right to adopt and
promulgate rules and regulations applicable to the demised premises and the
Shopping Center and from time to time to amend or supplement said Rules and
Regulations. Notice of such Rules and Regulations, and amendments and
supplements shall be given to the Tenant and Tenant agrees to comply with and
observe such rules and regulations and amendments thereto and supplements
thereof; provided, the same shall apply uniformly to all tenants of the
Shopping Center.
25. SUBORDINATION: This Lease is subject and subordinate to all present
mortgages or Deeds of Trust covering the demised premises and shall, without
execution of any further instrument, be subordinated to all renewals or
extensions thereof, and to any Deed of Trust or mortgages, which may hereafter,
from time to time, be executed affecting the same, and Tenant agrees to execute
any and all documents necessary or appropriate or as may be requested by a
lender or lenders.
26. DEFAULT, BANKRUPTCY AND WAIVER: Tenant shall be in default of this
Lease if any of the following events occur:
A. If default shall be made in the payment of any rent, taxes, insurance
premiums or other sums required to be paid by Tenant under this Lease, and such
default shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant;
B. If default shall be made in the performance of any of the terms or
conditions of this Lease other than those referred to in the foregoing
Paragraph A, and such default shall continue for a period of thirty (30) days
after written notice thereof from Landlord to Tenant;
C. If Tenant shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file a petition or application
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief for itself under any present or
future federal, state or other statutes, laws or regulations, or if Tenant
shall seek or consent to or acquiesce in the appointment of any Trustee,
receiver, or liquidator of Tenant or of all or any substantial part of its
properties or the leased premises;
D. If a petition shall be filed against Tenant seeking a bankruptcy,
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal, state or
other statute, laws or regulations and shall remain undismissed for an
aggregate of ninety (90) days, or if any Trustee, receiver, or liquidator of
Tenant of all or a substantial part of its property or the demised premises
shall be appointed without the consent or acquiescence of Tenant and such
appointment shall remain unvacated for an aggregate on ninety (90) days;
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If tenant is in default as provided in Paragraph A, B, C, or D above,
Landlord shall have the option, without further notice to Tenant or further
demand for performance:
(1) To institute a suit against Tenant to collect each installment of
rent or other sum(s) as may become due or to enforce any other obligations
under this Lease; or
(2) As a matter of right to procure the appointment of a receiver by any
Court of competent jurisdiction upon ex parte application and without notice,
notice being hereby waived. All rent, issues and profits, income and revenue
from the demised premises shall be applied by such receiver to payment of rent,
together with any other obligations of Tenant under this Lease; or
(3) To re-enter and take possession of the demised rpemises and to remove
Tenant and Tenant's agents and employees therefrom, and either:
(a) Terminate this Lease and sue Tenant for damages occurring prior
to the date of such termination, for breach of the obligations of tenant under
this Lease; or
(b) Without terminating this Lease, relet, assign or sublet the
demised premises for the account of Tenant in the name of Landlord or
otherwise, upon the best terms and conditions Landlord may make with the new
Tenant for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this Lease)
and upon such terms and conditions as Landlord, in his uncontrolled discretion,
may determine, and collect and receive the rents therefor, provided Landlord
shall in no way be responsible or liable for any failure to relet the demised
premises or any part thereof, or for any failure to collect any rent due upon
such reletting. In this event the rents received on such reletting shall be
applied first to the expenses of reletting and collection, including without
limitation all repossession costs, reasonable attorneys' fees and any real
estate commission paid, alteration costs and expenses of the preparation of
said demised premises for reletting and thereafter toward payment of the rental
and any other amounts payable by Tenant under this Lease. If the sum realized
shall not be sufficient to pay such rent and other charges, within five (5)
days after demand, Tenant shall pay Landlord any such deficiency as it accrues.
Landlord may sue Tenant therefor as each deficiency shall arise if Tenant shall
not pay such deficiency within the time limit.
In the event Landlord elects to re-enter or take possession of the
demised premises, Landlord may enter upon and re-enter the demised premises, by
force, summary proceedings, ejectment or otherwise, and dispossess Tenant and
remove Tenant, and may have, hold and enjoy the demised premises and the rights
to receive all rental income of and from the same.
No such re-entry or taking possession by Landlord shall be construed as
an election on Landlord's part to terminate and surrender this Lease unless a
written notice of such intention is served upon Tenant.
In the event of default by Tenant, tenant shall pay to Landlord all of
Landlord's attorneys' fees, expert witness fees and court costs incurred in
connection with the default.
In the event Landlord elects not to pursue any of the foregoing remedies,
Landlord shall not thereby be precluded from pursuing aany other remedy now or
hereafter existing at law or in equity.
<PAGE> 8
27. NOTICES: All notices required by law or by this Lease to be directed
by Landlord to Tenant shall be deemed to have been given when mailed by
Certified Mail, Return Receipt Requested, to Tenant at the following address:
Michael C. Gilliland
Elizabeth C. Cook
Wild Oats Market
1668 Valtec Lane
Boulder, Colorado 80301
Likewise, all notices required to be directed by Tenant to Landlord shall be
deemed to have been given when mailed by Certified Mail, Return Receipt
Requested, to Landlord at the following address:
Rose Realty & Management Co.
P.O. Box 720
Denver, Colorado
28. WAIVER: One or more waivers of any covenant or condition by either
party shall not be construed as a waiver of a subsequent breach of the same
covenant or condition, and a consent or approval to or any act requiring
consent or approval shall not be deemed to waive or render unnecessary such
consent or approval to or of any subsequent similar act.
29. PARTIAL INVALIDITY: If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease or the application of
such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and shall be
enforced to the fullest extent permitted by law.
30. RECORDING: Tenant shall not record this Lease without the written
consent of Landlord; however, upon the request of either party hereto the other
party shall join in the execution of a memorandum or "short form" of this Lease
for the purposes of recordation. Said memorandum or short form of this Lease
shall describe the parties, the demised premises and the term of this Lease and
shall incorporate this Lease by reference.
31. ASSIGNMENT AND SUBLEASE: Tenant shall not sublet any part of the
demised premises or assign this Lease or any interest therein, without the
written consent, which consent shall not be unreasonably witheld, of the
Landlord first being obtained and Tenant shall remain liable for the
performance of this Lease and the payment of rent hereunder after this Lease
has been so assigned or sublet. In the event the Landlord consents to an
assignment of sublease of the within Lease at a rental in excess of the rental
provided for in Paragraph 2 of the within Lease, the Landlord would receive
such excess rent. In the event the landlord consents to an assignment of the
within Lease upon the same terms as now provided in said Lease, or modified, or
executes a new lease for the purchaser of Tenant's business carried on in
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the demised premises, Tenant agrees to pay to the Agent of Landlord upon the
execution of said instrument of Assignment of Lease, as compensation to the
Agent for services rendered in connection therwith, a fee of one thousand
dollars.
32. CANCELLATION: (Omitted)
33. REPRESENTATIONS: Tenant hereby declares that in entering into this
Lease he relied solely upon the statements contained in this Lease and fully
understands that no agent so r representatives of Landlord have authority to in
any manner change, add to or detract from the terms of this Lease.
34. LEASE BINDING: All of the covenants and agreements in this Lease
contained shall be binding upon and inure to the benefit of the heirs, assigns,
successors, and legal representatives of the parties hereto or any person
claiming by, through or under either of them.
35. LIENS: Tenant agrees to keep all of the demised premises and every
part thereof and all buildings and other improvements theron free and clear of
and from any and all mechanics', materialmen's and other liens for work or
labor done, services performed, materials, appliances, transportation or power
contributed, used or furnished to be used in or about the demised premises to
or on the order of Tenant, and at all times Tenant shall promptly and fully pay
and discharge any and all claims upon which any such lien may or could be
based; and Tenant shall save and hold Landlord and all of the demised premises
and all buildings and improvements theron free and harmless of and from any and
all such liens and claims of liens and suits or other proceedings arising out
of materials or services furnished to or on the order to Tenant. Tenant agrees
to give Landlord written notice not less than ten (10) days in advance of the
commencement of any construcion, alteration, addition, improvement, or
installation in excess of $3,000.00 in order that Landlord may post appropriate
notices of Landlord's non-liability. No mechanics' or materialmen's liens or
mortgages, deeds of trust, or other liens of any character whatsoever created
or suffered by Tenant shall in any way, or to any extent, affect the interest
or rights of Landlord in any buildings or other improvements on the demised
premises, or attach to or affect Landlord's title to or rights in the demised
premises. Tenant further agrees that prior to making any payment to a
contractor, subcontractor, materialman or any other person or entity furnishing
materials or rendering services or labor benefitting the demised premises, the
Tenant shall obtain a lien waiver from the person or entity so paid. Where by
the terms of this lease agreement or any Rider or Addendum thereto the Landlord
has agreed to pay to or on the account of Tenant, money to be used in the
alteration or improvement of the demised premises, the Landlord shall,
likewise, require lien waivers prior to making any such payment to or on the
account of the Tenant. The requirements of this paragraph shall be reflected
in all contracts pertaining to the alteration of improvement of the demised
premises. Failure to comply with any of the provisions of this paragraph may,
at the option of the Landlord, be deemed a breach of lease.
36. INSURANCE: Tenant agrees to pay additional rent equal to any
increase in fire insurance premiums that may be charged during the term of this
Lease on the amount of insurance carried by Landlord on said total premises
where such increase results from the business carried on by Tenant on the
demised premises, whether or not Landlord has consented to the same. Tenant
shall not install any electrical
<PAGE> 10
equipment that overloads the wiring, panels, etc., in the demised premises.
Tenant shall make at his own expense whatever changes are necessary and to
comply with the requirements of the Insurance Underwriters or the governmental
authorities having jurisdiction. Tenant agrees to carry comprehensive general
liability insurance and the Landlord shall be so named as an additional insured
in any such policies with a combined single limit of ONE MILLION AND NO/100
Dollars ($1,000,000.00). If the tenant uses in the demised premises any kind
of steam or other high pressure boiler which presents any possibility of damage
to the demised premises or adjoining premises or the life or limb of persons
within such premises, Tenant agrees further to carry appropriate boiler
insurance in an amount not less than $ (N/A) to indemnify both Tenant and
Landlord against loss resulting from any explosion or other damage of
liability. Tenant shall supply to Landlord certificates of insurance showing
the liability insurance coverage, and throughout the term hereof, certificates
of renewals of such policies. Said certificate shall provide that the insuror
shall give to Landlord ten (10) days written notice prior to cancellation of
said policy. In the event Tenant fails to secure such insurance or to give
evidence to Landlord of such insurance by depositing with Landlord certificates
as above provided, Landlord may purchase such insurance in Tenant's name and
charge Tenant the premiums therefor. Tenant shall carry insurance to cover all
plate glass in the demised premises, insuring the same against breakage or
other damage from any cause whatsoever and shall supply the Landlord with a
Certificate of said insurance including all renewals thereof curing the term
hereof. However, Landlord may insure, and keep insured, at Tenant's expense,
all plate and other glass in the demised premises for and in the name of
Landlord. Bills for the premiums therefor shall be rendered by Landlord to
Tenant at such times as Loanlord may elect, and shall be due from, payable by,
Tenant when rendered, and the amount therof shall be deemed to be, and to be
paid as, additional rent.
37. REAL ESTATE AND PROPERTY INSURANCE: In addition to the Minimum Rent
provided in Paragraph 2 above, and commencing at the same time as any rental
commences under this Lease Tenant shall pay to Landlord the following items:
A. All real estate taxes and insurance premiums on the Premises,
including land, building, and improvement thereon. Said real estate taxes
shall include all real extate taxes and assessments that are levied upon and/or
assessed against the Premises, including any taxes which may be levied on
rents. Said insurance shall include all insurance premiums for fire, extended
coverage, liability, and any other insurance that Landlord deems reasonably
necessary on the Premises. Said taxes and insurance premiums for purpose of
this provision shall be apportioned in accordance with the gross floor area of
the premises as it relates to the total gross floor area of the Shopping
Center, provided, however, that if any tenants in said building or buildings
pay taxes directly to any taxing authority or carry their own insurance, as may
be provided in their leases, their square footage shall not be deemed a part of
the floor area.
B. Upon commencement of rental Landlord shall submit to Tenant a
statement of the anticipated monthly charges and Tenant shall pay these charges
on a monthly basis concurrently with the payment of the rent. Tenant shall
continue to make said monthly payments until notified by Landlord of a change
thereof. Each year Landlord
<PAGE> 11
shall give Tenant a statement showing the total charges for the Shopping Center
for the prior accounting year and Tenant's allocable share thereof. In the
event the total of the monthly payments which Tenant has made for the prior
accounting year be less than the Tenant's actual share of such charges, then
the monthly charges then coming due shall be Increased accordingly. Any
overpayment by Tenant shall be credited toward the monthly charges next coming
due. The actual charges for the prior year shall be used for purposes of
calculating the anticipated monthly charges for the then current year with
actual determination of such sharges after each accountaing year as above
provided. Even though the term has expired and Tenant has vacated the
premises, when the final determination is made of Tenant's share of said
charges for the year in which this Lease terminates, Tenant shall immediately
pay any increase due over the estimated charges previously paid and,
conversely, any overpayment made shall be immediately rebated by Landlord to
timely Tenant. Failure of Landlord to submit timely statements as called for
herein shall not be deemed to be a waiver of Tenant's requirement to pay sums
as herein provided.
38. RIDER: A rider consisting of 3 pages, with Paragraphs numbered
consecutively 1 through 14 is attached hereto and made a part hereof.
This document has been prepared for submission to the parties and their
attorneys for their approval. No representation or recommendation is made by
the Agent as to the legal sufficiency, legal effect or tax consequences of this
document or the transaction relating thereto.
39. This lease form is submitted by the agent of the Owner of the subject
premises and the parties and their attorneys for their review and is not to be
considered as an offer to lease. Lessee's execution and return of this lease
form within ten (10) days shall constitute an offer to lease, which shall not
be deemed accepted until approved and executed by the Owner.
IN WITNESS WHEREOF, the parties hereto have executed this lease.
LANDLORD: SKUNK CREEK INVESTORS
Document shows signature of James A. Swanson, dated October 2, 1995
TENANT: WILD OATS MARKETS, INC.
Document shows signature of Michael C. Gilliland, President, dated November 2,
1995, and of Elizabeth C. Cook, Vice- President, dated October 2, 1995
<PAGE> 12
RIDER
TO THE LEASE DATED AUGUST 8, 1995 BY AND BETWEEN SKUNK CREEK INVESTORS,
LANDLORD, AND WILD OATS MARKETS, INC., TENANT, FOR PREMISES LOCATED IN
BASEMAR SHOPPING CENTER, MORE COMMONLY KNOWN AND NUMBERED AS 2584-
2590-2592-2598 BASELINE ROAD AND 645-649 27TH STREET, BOULDER, COLORADO
80303.
1. Minimum Rent. Minimum rent for the term of the above-mentioned Lease,
based on 21,539 square feet, shall be paid as follows:
a) April 1, 1997 to April 1, 1999 (Years 1 and 2)
$ 180,927.60 per year
15,077.30 per month
8.40 per square foot
b) April 1, 1999 to April 1, 2001 (Years 3 and 4)
$ 199,235.75 per year
16,602.98 per month
9.25 per square foot
c) April 1, 2001 to April 1, 2003 (Years 5 and 6)
$ 218,620.85 per year
18,218.41 per month
10.15 per square foot
d) April 1, 2003 to April 1, 2005 (Years 7 and 8)
$ 241,236.80 per year
20,103.07 per month
11.20 per square foot
e) April 1, 2005 to April 1, 2007 (Years 9 and 10)
$ 264,929.70 per year
22,077.48 per month
12.30 per square foot
f) April 1, 2007 to April 1, 2009 (Years 11 and 12)
$ 290,776.50 per year
24,231.38 per month
13.50 per square foot
g) April 1, 2009 to April 1, 2011 (Years 13 and 14)
$ 319,854.15 per year
<PAGE> 13
26,654.52 per month
14.85 per square foot
h) April 1, 2011 to April 1, 2012 (Year 15)
$ 352,162.65 per year
29,346.89 per month
16.35 per square foot
2. Tenant accepts Units 2594 and 2598 in absolutely "as-is" condition.
Any and all reconstruction and/or remodelling shall require Landlord's
prior written approval of plans and specifications and shall be done
at Tenant's sole expense and shall be in strict conformance with all
applicable building codes and regulations.
3. Tenant shall place all utilities for Units 2594 and 2598 in its name
and shall bebin paying all utility charges for said units effective
April 1, 1997. In the event Tenant exercises its option to lease Unit
651 27th Street, Tenant shall place all utilities for Unit 651 in its
name and begin paying all utility charges effective September 1, 1998.
4. Reference is made to Paragraph 11. Use of Premises to the
above-mentioned Lease. Tenant shall use a maximum of fifty square
feet for the display and sale of fresh and/or frozen meats and
poultry.
5. Reference is made to Paragraph 14. Signs of the above-mentioned
Lease. Landlord agreed that Tenant may install interior window signs
without seeking Landlord's approval in each instance. However,
Landlord retains the right of final approval in the event Landlord
deems said signage overdone or objectionable.
6. Landlord agrees that Tenant may utilize the sidewalk in front of the
demised Premises for merchandise display without seeking Landlord's
approval in each instance. However, Landlord retains the right of
final approval in the event Landlord deems said display overdone or
objectionable. Tenant shall insure that said merchandise and/or any
other use shall not prevent a reasonable and easy flow of pedestrian
traffic across the front of the store. Tenant shall be responsible
for keeping the merchandise area free from trash, debris, and
obstacles that may endanger the public. Tenant shall assume all
liability and shall provide Landlord with documentation of liability
insurance for the merchandise display area in front of the demised
Premises.
Tenant may utilize the patterned concrete area between the sidewalk
and the parking lot in front if its Premises for tables and chairs for
customers. Tenant shall keep, at all times, this area neat, clean,
and free from all trash and debris. Tenant shall assume all liability
and shall provide Landlord with documentation of liability insurance
for the area utilized for said tables and chairs. If, at any time,
Landlord
<PAGE> 14
deems the tables and chairs to be unsightly of unkempt, Landlord shall
have the right to cancel the use of the area for tables and chairs.
7. Tenant shall maintain the alley between the primary store and the 27th
street store in neat and clean condition at all times and shall comply
with sanitary standards.
8. Tenant shall maintain the outside of the 27th Street building, both
front and rear, in a clean, neat, and sanitary manner and shall have
nothing stacked or stored on the sidewalks or in the drive areas or in
parking spaces.
9. At no time shall Tenant's trucks block ingress or egress through the
front drive of the 27th Street building. Should such blocking occur
and any customer or other tenant of the shopping center request that
trucks be moved, they will be moved immediately. In no case shall the
loading or unloading operation take more than thirty minutes at a
time.
10. All fumes from the warehouse, commissary, and bakery areas shall be
vented so as to cause no problems with any other tenant. Should
anyone complain about fumes or odors, Tenant shall immediately correct
the situation by preoper venting.
11. All garbage from the commissary, bakery, and warehouse areas shall be
placed in bound-up plastic bags inside a covered container. Said
garbage shall be emptied daily.
12. Tenant shall have a one-time option to lease Unit 651 27th Street
(presently Pizza Street) of approximately 1,225 square feet. The
Pizza Street lease expires September 1, 1998. In order to give Pizza
Street sufficient time to relocate, Tenant shall exercise its option
to lease sufficient time to relocate, Tenant shall exercise its option
to lease Unit 651 27th Street by no later than September 1, 1997. In
the event Tenant does not notify Landlord, in writing by September 1,
1997, of its intent to lease Unit 651, then this one-time option shall
be null void, and of no effect.
In the event Tenant leases 651, the lease shall commence September 1,
1998 and shall expire April 1, 2012. Throughout the term of the lease
for Unit 651, minimum rent shall be at the per-square-foot rates
charged in Paragraph 1 of this Rider.
13. It is understood that there is presently in force a lease dated June
18, 1991 for Units 2584-2590-2592 and a lease dated June 16, 1993 for
Units 645-649 27th Street, by and between Skunk Creek Investors,
Landlord, and Wild Oats Markets, Inc., Tenant. Effective April 1,
1997, the above-mentioned leases shall be cancelled and simultaneously
this Lease, dated July 21, 1995, shall be in full force and effect.
14. Landlord shall be responsible for the replacement of existing heating
and air-conditionaing units which become unrepairable in Unit 2594 and
in Unit 2598, provided that Tenant has had a preventive maintenance
contract covering this
<PAGE> 15
equipment throughout the term of this Lease with a qualified heating
and air-conditioning contractor and provided contractor has made
quarterly inspections of the equipment, which quarterly inspections
are documented. In the event Tenant does not have said preventive
maintenance contract, then Tenant shall be fully responsible for all
replacement of said equipment which becomes unrepairable.
Responsibility of Landlord for replacement of said equipment shall
apply only when it becomes necessary to replace an entire heating
and/or air-conditionaing unit and not individual parts of units.
Landlord warrants the heating and air-conditioning equipment in Units
2594 and 2598 to be in good condition at commencement of this Lease.
<PAGE> 16
EXHIBIT "A"
Exhibit "A" shows a map of Basmar Shopping Center, extending from Broadway to
27th Street along Baseline Road, including the Premises described above and
adjacent Premises and parking areas.
<PAGE> 17
EXHIBIT "B"
TO THE LEASE DATED AUGUST 8, 1995, BY AND BETWEEN SKUNK CREEK INVESTORS,
LANDLORD, AND WILD OATS MARKET, INC., TENANT, FOR PREMISES LOCATED IN
BASEMAR SHIPPING CENTER, MORE COMMONLY KNOWN AND NUMBERED AS
2584-2590-2592-2594- 2598 BASELINE ROAD AND 645-649 27TH STREET, BOULDER,
COLORADO
Sign Criteria for Basemar Center, Boulder
Type and Color
Individual letters and logo emblems shall consist of individual pan channel
letters mounted on raceway, internal illumination with white plexiglass face or
pale yellow plexiglass face for all buildings. Bronze edge trim, sides, and
raceway color to match anodized aluminum fascia backgrounds. Trademank colors
or logos other than white or yellow will be subject to prior approval by the
owner or designated representative.
Location of Signs
All signs shall be mounted on the dark brown anodized aluminum band located
along the buildings fascia or parapet above the space leased. Letters,
emblems, or logos may not extend above or below the fascia band.
Non-illuminated suspeded signs no larger than five (5) sq. ft. per side may
be located along walkways where wall signs cannot be viewed by pedestrians.
Such signs shall provice 8'-0" headroom.
Window signs will be allowed as per the City of Bulder Sign Code.
Length and Areas of Signs
Maximum wall sign height will not exceed thirty (30) inches for a single or
multiple line of copy.
Maximum length of coverage shall not exceed the linear frontage of the leased
space.
Maximum area of wall signage shall not exceed 1.5 sq. ft. per lineal foot of
frontrage of the leased area.
Approval Process
<PAGE> 18
All signs must be approved by the authorized representative of the owner. All
signs must be installed to City of Boulder Sign Code standards and installed by
a licensed sign contractor. All fees, fabrication costs, and erection costs
shall be paid by the lessee. All signs requiring a permit issued by the City
of Boulder shall have same prior to installation.
SKUNK CREEK INVESTORS
Document shows signature of James A. Swanson, Owner and Partner, dated June 21,
1984
<PAGE> 19
EXHIBIT "C"
Exhibit "C" is a three page exhibit showing floorplans of premises to be
leased. Page one shows 2584-2590-2592 Baseline Road, ground floor, page two
shows the second floor above the same ground area, and page three shows 645-649
27th Street.
<PAGE> 20
GUARANTEE OF LEASE
In consideration of the approval by the Landlord of that certain Shopping Center
Lease dated August 8, 1995 by and between Skunk Creek Investors, as Landlord,
and Wild Oats Markets, Inc., as Tenant, for certain premises of approximately
21,539 square feet, located at 2584-2590-2592-2594-2598 Baseline Road and
645-649 27th Street, Boulder, Colorado, in Basemar Shopping Center, the
undersigned individual (hereinafter called "Guarantor") individually guarantees
the timely payment of all rent due from Tenant to Landlord and the timely and
proper performance of all other obligations of Tenant to Landlord. The
guarantee shall apply until April 1, 2001, or until the annual sales volume of
Wild Oats Market, Inc. shall reach $250,000,000 per year verified by an outside
audit. Guarantor waives notice of default by Tenant and agrees that Guarantor
shall be responsible for ascertaining whether Tenant is performing its
obligations. Guarantor consents to any extension or extensions of rent or
performance of other obligations of Tenant and consents to reductions in the
rent due or other obligations due from Tenant. In the event of default by
Tenant, Landlord may, at its option, without terminating the obligation of the
Guarantor, re-enter the premises and re-let the premises, and Guarantor shall be
liable for any deficiency of the rent received from such re-letting from the
rent and other obligations due from Tenant according to the terms of the Lease.
In the event of default by Tenant, Landlord shall have no obligation whatsoever
to attempt to re-let the premises; and may leave the premises vacant and
continue to collect the rent and other obligations due. Guarantor consents to
any change in the character of the use of the premises and to any sublease or
assignment of the Lease by Tenant; and to any assignments of the rents by
Landlord or sale of the Landlord's interest in the premises, and agrees to be
bound to Landlord's successors or assignees. In the event of default by Tenant,
Landlord need not first exhaust Landlord's remedies against Tenant, but may
proceed directly against Guarantor. Guarantor will pay Landlord's attorneys'
fees, expert witness fees, and court costs incurred in the enforcement of
Landlord's rights against Guarantor, together with all such fees and court costs
incurred on account of any default by Tenant.
EXECUTED THIS 2nd DAY OF OCTOBER, 1995.
Document shows the signature as Guarantor of Elizabeth C. Cook
<PAGE> 21
GUARANTEE OF LEASE
In consideration of the approval by the Landlord of that certain Shopping Center
Lease dated August 8, 1995 by and between Skunk Creek Investors, as Landlord,
and Wild Oats Markets, Inc., as Tenant, for certain premises of approximately
21,539 square feet, located at 2584-2590-2592-2594-2598 Baseline Road and
645-649 27th Street, Boulder, Colorado, in Basemar Shopping Center, the
undersigned individual (hereinafter called "Guarantor") individually guarantees
the timely payment of all rent due from Tenant to Landlord and the timely and
proper performance of all other obligations of Tenant to Landlord. The
guarantee shall apply until April 1, 2001, or until the annual sales volume of
Wild Oats Market, Inc. shall reach $250,000,000 per year verified by an outside
audit. Guarantor waives notice of default by Tenant and agrees that Guarantor
shall be responsible for ascertaining whether Tenant is performing its
obligations. Guarantor consents to any extension or extensions of rent or
performance of other obligations of Tenant and consents to reductions in the
rent due or other obligations due from Tenant. In the event of default by
Tenant, Landlord may, at its option, without terminating the obligation of the
Guarantor, re-enter the premises and re-let the premises, and Guarantor shall be
liable for any deficiency of the rent received from such re-letting from the
rent and other obligations due from Tenant according to the terms of the Lease.
In the event of default by Tenant, Landlord shall have no obligation whatsoever
to attempt to re-let the premises; and may leave the premises vacant and
continue to collect the rent and other obligations due. Guarantor consents to
any change in the character of the use of the premises and to any sublease or
assignment of the Lease by Tenant; and to any assignments of the rents by
Landlord or sale of the Landlord's interest in the premises, and agrees to be
bound to Landlord's successors or assignees. In the event of default by Tenant,
Landlord need not first exhaust Landlord's remedies against Tenant, but may
proceed directly against Guarantor. Guarantor will pay Landlord's attorneys'
fees, expert witness fees, and court costs incurred in the enforcement of
Landlord's rights against Guarantor, together with all such fees and court costs
incurred on account of any default by Tenant.
EXECUTED THIS 2nd DAY OF OCTOBER, 1995.
Document shows the signature as Guarantor of Michael C. Gilliland