FIXTURE AND EQUIPMENT SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT entered into this 25th day of June, 1991, by and
between United Resources, Inc., an Oregon corporation, hereinafter designated as
Sublessor, and Xxxxxx X. Xxxx, Xxxxx Xxxx, Xxxx X. Xxxxx and Xxxxxx X. Xxxxx, an
Oregon partnership, DBA Wilsonville Thriftway, hereinafter designated as
Sublessee:
W I T N E S S E T H :
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WHEREAS, Sublessor intends to enter into an Equipment Lease (as amended
from time to time, the "Prime Lease"), with Metlife Capital Corporation (the
"Prime Lessor") for equipment and "fixtures" installed at a supermarket located
in Wilsonville, Oregon, commencing on the date set forth in the equipment lease,
in substantially the form which is attached hereto as Exhibit A and is hereby
incorporated by reference.
WHEREAS, Sublessee desires to sublet said equipment and fixtures,
Sublessor is willing to so sublet, in accordance with the terms and conditions
hereinafter set forth; now, therefore,
IT IS HEREBY AGREED as follows:
1. Term. Sublessor hereby sublets unto Sublessee the fixtures and
equipment described in the Prime Lease for a term of thirty-six months
commencing July 1, 1991 and ending June 1, 1994. Sublessee may, for so long as
Sublessee is not in default under the terms of this Sublease, cause Sublessor to
renew or extend the Prime Lease, or Sublessee may exercise the right of
Sublessor to purchase equipment under the Prime Lease, by giving
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Sublessor 15 days' notice prior to the date that such renewal, extension or
purchase must be exercised.
2. Performance of Prime Lease Obligations. Sublessee shall make monthly
payments to Sublessor pursuant to the formula set forth on Exhibit A-1, which is
attached hereto and by this reference incorporated herein, as indicated therein.
Sublessee covenants and agrees to pay for the whole of said term the same
rental, except as modified pursuant to Exhibit A-1, together with all
affirmative covenants pertaining to taxes, assessments, insurance and all of the
covenants and obligations to be performed by Sublessor and to make such payments
and provide such performance when due by the terms of the Prime Lease and any
amendments thereto. Sublessor covenants and agrees to render all payments to the
Prime Lessor under the Prime Lease in a timely manner and to take no action to
cause a default under the Prime Lease. In the event that Sublessor fails to
render any such payment when due, or if Sublessor causes any default under the
Prime Lease, Sublessee shall have the right, but not the obligation, to cure
such default and to set off any amounts paid to cure such default against any
future obligation owed by Sublessee to Sublessor.
3. Security Deposits. Sublessee shall, upon execution hereof, pay any and
all security deposits, as required pursuant to the terms and conditions of the
Prime Lease.
4. Defau1t. The following shall constitute a default under this Sublease:
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a. Any failure by Sublessee to pay when due rent or any other amount
due under the Prize Lease or to perform when due any other obligation of
Sublessor under the Prime Lease or any other default under the Prime Lease which
continues for up to 75 percent of the cure period provided with respect thereto
in the Prime Lease; Sublessor covenants and agrees that upon receipt from the
Prime Lessor of any notice of default or alleged defaults to promptly supply
Sublessee with a copy of such notice;
b. Any failure by Sublessee to pay when due rent or any other amount
due under this Sublease or, within 30 days of notice of a default in any other
obligation hereunder, to perform when due any other obligation of Sublessee
hereunder;
c. If any warranty, representation or statement made or furnished to
Sublessor by or on behalf of the Sublessee is false in any material respect when
made or furnished;
d. Any default under any document securing or guarantying the
obligations of Sublessee under this Sublease;
e. Any failure by Sublessee to pay when due and/or satisfy any other
present or hereinafter incurred indebtedness or obligation of Sublessee to
Sublessor, including but not limited to those arising from Sublessee's purchases
of goods and services from Sublessor, any other loans or leases Sublessee may
have or enter into with Sublessor, and Sublessee's obligations under the Bylaws
of Sublessor and its application for membership in Sublessor;
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f. If Sublessee makes an assignment for the benefit of creditors, or
if, with or without Sublessee's acquiescence, a petition in bankruptcy is filed
against Sublessee, or Sublesee is adjudicated a bankrupt or insolvent, or a
trustee, receiver or liquidator is appointed for all or part of Sublessee's
assets, or a petition or answer is filed by or against Sublensee seeking or
acquiescing in any reorganization, liquidation or similar relief under any
federal, state or local law relating to bankruptcy, insolvency or other relief
for debtors; and
g. If Sublessee sells or otherwise disposes of all or any substantial
portion of the assets of Sublessee located at or associated with the store,
other than inventory sold at retail in the ordinary course of business (i.e., at
the full retail price customarily charged therefor or at a reduced price
pursuant to a retail sale in which the price reduction and sale duration are
typical of sales of other retail grocery businesses similarly situated).
5. Remedies. In the event of any default under this Sublease:
a. Sublessor shall have the right, at its election then or at any time
thereafter, upon notice to Sublessee, to terminate this Sublease or to terminate
Sublessee's rights of possession of the equipment without terminating this
Sublease;
b. Sublessor shall have the immediate right, whether or not the
Sublease shall have been terminated pursuant to Section 5.a to re-enter and
repossess the equipment or any part
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thereof by force, summary proceedings or any other legal or equitable process,
all without any liability on Sublessor's part for such entry, repossession or
removal;
c. Sublessor may, whether or not this Sublease shall have been
terminated pursuant to Section 5.a resublet the equipment, or any part thereof,
in the name of Sublessee, Sublessor or otherwise, without notice to Sublessee,
for such term or terms and for such uses as Sublessor, in its absolute
discretion, may determine and may collect and receive rents payable by reason of
such resubletting (without any liability for any failure to collect such rents);
notwithstanding the foregoing, Sublessor shall be subject to such common law
duties of mitigation of damages, if any, as are imposed by law on the Prime
Lessor;
d. Sublessor may (but shall be under no obligation to) procure any
insurance, pay any rentals, taxes or liens, make any repairs, pay any sums
required to be paid, and to do and perform such other acts as may be required of
Sublessee hereunder, and any payments so made shall bear interest at the rate of
12 percent per annum, but not in excess of maximum legal rate, from the time of
such payment until repaid; and
e. Sublessor may exercise any and all other rights and remedies
afforded to the Lessor upon default under the Prime Lease and any and all other
rights and remedies Sublessor may have pursuant to the laws of the state of
Oregon. In addition to the other remedies provided above, Sublessor shall be, to
the
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extent permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any of the provisions of
this Sublease, or to a decree compelling performance of this Sublease.
f. No expiration or termination of this Sublease, repossession of the
equipment or any part thereof, or resubletting of the equipment or any part
thereof, whether pursuant to the above paragraph or by operation of law or
otherwise, shall relieve Sublessee of their liabilities and obligations under
this Sublease, all of which shall survive such expiration, termination,
repossession or resubletting.
6. Rights Cumulative, Nonwaiver. No right or remedy herein conferred upon
or reserved to Sublessor is intended to be exclusive of any other right or
remedy, including without limitation the rights and remedies provided in the
Prime Lease, and each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity or by statute. The failure of Sublessor to insist
at any time upon the strict performance of any covenant or agreement or to
exercise any option, right, power or remedy contained in this Sublease shall not
be construed as a waiver or relinquishment thereof for the future. No waiver by
Sublessor of any provision of this Sublease shall be deemed to have been made
whether due to the receipt of rent or otherwise, unless expressed in writing and
signed by Sublessor.
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7. Assignment and Subletting. Sublessee acknowledges that provisions for
extension options and assignment and subletting in the Prime Lease are
applicable to the Prime Lessor and Sublessor only. Sublessee will not assign
this Sublease or sublet the premises without the prior written consent of
Sublessor which consent shall not be unreasonably withheld, provided that
Sublessee is not in default of this Sublease or a material provisions of any
agreement with Sublessor.
8. Covenants, Representations and Warranties.
a. Sublessee agree to maintain or cause to be maintained the
membership of the store in good standing in Sublessor, in accordance with the
Bylaws of Sublessor, as long as this Sublease remains in effect.
b. Sublessee represents and warrants that there are no brokers,
finders or other persons entitled to any fee, commission or other compensation
in connection with this Sublease, and agrees to hold Sublessor harmless from any
claims for such fees, commissions and/or compensation.
c. Sublessee hereby represents and warrants to Sublessor that the
financial statements, appraisals and other documents submitted to Sublessor in
connection herewith or pursuant hereto are and shall be true, correct, complete
and accurate in every respect and said financial statements fairly and
accurately present the assets, liabilities, financial condition and results of
operations reflected herein.
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9. Attorneys' Fees. In the event of the institution of any suit or
action to terminate this Sublease, or to interpret or enforce the terms or
provisions hereto, the nonprevailing party shall and does hereby agree to pay to
the prevailing party, in addition to the costs and disbursements provided by
statute, reasonable attorneys, fees in such proceedings or on any appeal from
any judgment or decree entered therein.
10. Notices. Any notice or demand required or permitted to be given
under this Sublease shall be deemed to have been properly given when, and only
when, the same is in writing and has been deposited in the United States Mail,
with postage prepaid, to be forwarded by registered or certified mail and
addressed to the party to be notified at the address appearing below its
signature. Such addresses may be changed from time to time by serving of notice
as above provided.
11. Substitution of Exhibit. The parties agree that at such time as
Sublessor and the Prime Lessor have executed an Equipment Lease in substantially
the form as is attached hereto as Exhibit A, such executed Equipment Lease shall
supersede Exhibit A and shall become a part of this Sublease as Exhibit A,
provided that such executed Equipment Lease is in substantially the form as the
form attached as Exhibit A upon execution of this Sublease and does not in any
way materially vary from such form.
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IN WITNESS WHEREOF, the parties have executed the foregoing Sublease
Agreement the day and year first above written.
SUBLESSOR UNITED RESOURCES INC., an Oregon
Corporation
By /s/ [illegible], Pres.
Title
0000 XX Xxxx Xxxx
P. 0. Box 22187
Xxxxxxxx, Xxxxxx 00000
SUBLESSEE an Oregon Partnership
By /s/ [illegible]
/s/ [illegible]
/s/ [illegible]
/s/ [illegible]
Individually
/s/ [illegible]
/s/ [illegible]
/s/ [illegible]
/s/ [illegible]
page 9 - FIXTURE AND EQUIPMENT SUBLEASE AGREEMENT
