EXHIBIT 10.G
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT entered into this 15th day of March, 1994,
by and between UNITED GROCERS, INC., an Oregon corporation, hereinafter
designated as Sublessor, and Xx Xxxxxxxxx Grocery Markets, Inc, a California
Corporation, and Xxxx Xxxxx Xxxxxxxxx and Xxxxxx X. and Xxx X. Xxxxxxxxx,
husband and wife, hereinafter jointly and severally designated as Sublessee;
WITNESSETH
WHEREAS, the Sublessor has entered into a Lease dated March 14,
1994, with United Grocers Inc., and/or its Assigns or Successors, for a
supermarket located at 00000 Xxxxxxxxx Xxxxxx, Magalia, CA., commencing on the
date set forth in the attached Exhibit "A," a copy of which is hereby
incorporated by reference, as fully as if its terms and conditions were herein
set forth.
WHEREAS, Sublessee desires to sublet said premises for a period of
20 years, commencing November 1, 1993, to and including October 31, 2013, and
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) Sublessor hereby sublets unto Sublessee those premises
described in said Exhibit "A," for the term of 20 years.
1.1 The Sublessees, so long as they are not in default
hereunder, shall be granted the right to exercise the renewal options
contained in Exhibit "A," as set forth in paragraphs 3 and 7 of said Exhibit,
upon the condition that Sublessees are not in default. It is acknowledged by
Sublessee that such option may require lease guaranty insurance for the
renewal term. Said insurance shall be in form and substance acceptable to
Sublessor and shall designate Sublessor as the insured thereunder.
(2) Sublessee covenants and agrees to pay for the whole of said
term the same rental, together with all affirmative covenants including,
without limitation, those pertaining to basic rent, percentage of gross sales,
taxes, assessments, insurance and all of the covenants and obligations to be
performed by Sublessees, as set forth in said Exhibit "A," and to make such
payments and provide such performance when due by the terms of the lease and
amendments thereto.
(3) Sublessee shall, upon execution hereof, pay any and all
rental, or security deposits, as required pursuant to the terms and conditions
of said Exhibits "A."
(4) Sublessee shall be bound by the same responsibilities,
rights, privileges and duties as Sublessor, as enumerated in Exhibit "A",
except for provisions of paragraph 46, which rights are retained by Sublessor,
and covenants and agrees to fully indemnify and hold Sublessor harmless from
any and all responsibility and/or liability which Sublessor may incur by
virtue of said Exhibit "A," and/or Sublessee's occupancy of the premises.
Furthermore, Sublessees shall be bound by any subsequent amendment, revision,
supplement or addition to the prime lease between Sublessor and the prime
Lessor except any amendment, revision, supplement or addition which would
materially and adversely affect the financial obligations of Sublessee
pursuant to this lease, and to keep the Sublessor indemnified against all
actions, claims and demands whatsoever in respect to said exhibit "A," and
Sublessee's use of the demised premises.
4.1 Assignment and Subletting. Sublessee acknowledges that
provisions for extension options and assignment and subletting in the Lease
are applicable to the prime Lessor and Sublessor only, subject to the
conditions expressed in paragraph 1.1 hereof. Sublessees will not assign this
Sublease or sublet the premises without the prior written consent of Sublessor
which may be granted or withheld in its absolute discretion. A direct or
indirect transfer of ownership and control of a majority of the voting stock
of a corporate Sublessee, by whatever demands, shall be deemed an assignment
of this Sublease for the purposes of this paragraph. Provided however, that
Sublessor agrees to not withhold consent unreasonably if such subletting is
intended for third party concessionaires operating inside of the building as a
supplement to the normal grocery store activity, and no more than a total of
seven (7) percent of the total area of the store shall be sublet.
Notwithstanding the foregoing, if Sublessee's desire to transfer by
sale, gift, or as a result of death, its interest herein to its lawful issue
or immediate family member, the Sublessor shall not unreasonably withhold
consent to such a transfer, provided, such transferee agrees that it holds
such interest subject to the restrictions and conditions contained in this
sublease agreement.
4.2 Covenants, Representations and Warranties.
(a) Membership in United Grocers, Inc. Upon execution and
during the term hereof, Sublessee agrees to maintain or cause to be maintained
the membership of the store in good standing in United Grocers, in accordance
with the Bylaws of United Grocers, as long as this Sublease remains in effect.
(b) Purchases from Sublessor. Sublessee agrees that
throughout the term of the Sublease and any extensions or renewals thereof,
except as hereinafter provided, Sublessee will purchase from Sublessor not
less than fifty-eight percent (58%) of its retail sales of all goods and
merchandise required by it for resale on the premises to the extent that
Sublessor shall now or hereafter be able to supply such goods and merchandise
to the Sublessee, and Sublessor will supply all of Sublessee's requirements at
such prices and on such terms as are reasonably comparable to those offered by
Sublessor to other purchasers from Sublessor carrying on businesses similar to
that of the Sublessees in the Magalia/Chico area of northern California. If,
at any time, the Sublessee contends that Sublessor is not able to supply
particular goods or merchandise customarily stocked by retail supermarkets in
the Magalia/Chico area of northern California, or that the terms offered by
Sublessor are not reasonably comparable to those offered by Sublessor to other
purchasers described above, the Sublessee shall so advise Sublessor in
writing, specifying such contention with particularity. If, within 30 days
after receipt of such notice, Sublessor does not offer to supply goods or
merchandise so specified or does not advise Sublessees that the terms and
conditions offered are reasonably comparable to those offered to such other
purchasers, Sublessee shall be free to secure such specified goods and
merchandise from any source which it desires. If Sublessor demonstrates that
it is offering reasonably comparable terms, and Sublessee nonetheless
purchases from another source, such purchase or purchases shall not be an
exception from the 58% requirement specified above. If the above percentage
requirements are not complied with, it shall constitute a default hereunder.
In the event of a breach of this purchase covenant, Sublessor may terminate
this sublease and, in addition to the remedies hereinafter offered Sublessor,
Sublessee agrees to pay Sublessor, as liquidated damages, and not as a penalty
or forfeiture, a sum computed as follows:
1. The average weekly purchases from the date of the
agreement to the date of the breach shall be determined;
2. The average weekly purchases so determined shall
then be multiplied by the number of weeks from the date of the breach to the
end of the term of the purchase agreement; and
3. The computed sum shall be multiplied by two and
one-quarter percent (2-1/4 %) to determine the liquidated damages due and
owing Sublessor by reason of Sublessee's default. Said sum shall become
immediately due and owing within 15 days from date of written notice of the
liquidated damages.
(c) Sublessee covenants that as long as this Sublease
remains in effect, and for an additional period of six (6) months thereafter,
Sublessee shall not directly or indirectly sell or permit the sale of the
store and the owners of Sublessee shall not directly or indirectly sell
controlling interests in Sublessee (whether in one or a series of related
transactions) without first offering to sell said store or controlling
interest, as the case may be, to Sublessor upon the same terms and conditions
as the Sublessees or their owners, as the case may be, are prepared to accept
from a third party. Prior to such sale by the Sublessees or their owners, the
Sublessees shall first notify Sublessor of the desire to sell the store or
controlling interest in the Sublessees and of all the terms and conditions of
such sale and shall provide to Sublessor all documents, instruments,
agreements, offers, acceptances, appraisals, inventories, equipment lists,
leases, financial statements and such other material and information in
Sublessee's possession as Sublessor may reasonably request to aid in its
decision to exercise or decline its right to purchase as hereinafter provided.
Within 30 days following receipt of such notice of desire to sell and all
materials and information reasonably requested by Sublessor, Sublessor shall
advise Sublessee whether Sublessor elects to purchase or declines to purchase
the store or such controlling interest upon the offered terms and conditions.
If Sublessor shall elect to purchase, Sublessor shall purchase and the
Sublessees or their owners shall sell, such retail grocery business or such
controlling interest, as the case may be, all on the terms set forth in the
offer. If Sublessor declines the purchase, the Sublessees or their owners
shall be free to sell the store or controlling interest, as the case may be,
upon (and only upon) the terms and conditions offered as aforesaid to
Sublessor; provided that such sale is consummated within 120 days following
the date Sublessor declined the purchase, and if such sale is not consummated
in accordance with the offered terms and conditions within said 120-day
period, the provisions of this paragraph shall apply again and no subsequent
sale of any portion of the offered store or controlling interest may be
effected without again offering the same to Sublessor as provided herein.
Sublessor may waive its rights under this section provided such waiver is in
writing. The foregoing provisions shall not apply to transfers of assets or
interests by sale, gift or as a result of death to the lawful issue or
immediate family members of Sublessees, or transfers of assets to a
corporation or partnership or transfers of a controlling interest to a trust
as long as such corporation, partnership or trust is controlled by the
transferor; provided such transferee agrees that it holds such assets or
controlling interest subject to the restrictions contained in this paragraph.
(d) Sublessees represent and warrant that there are no
brokers, finders or other persons entitled to any fee, commission or other
compensation in connection with this Sublease, and agree to hold Sublessor
harmless from any claims for such fees, commissions and/or compensation.
(e) Sublessees hereby represent and warrant 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.
(5) Security Agreement.
5.1 Grant, Collateral and Obligations. Sublessees and
Sublessor agree that this Sublease shall constitute a security agreement
within the meaning of the California Uniform Commercial Code (hereinafter
referred to as the "Code") with respect to:
(a) required cash deposits (as defined in the Bylaws
of Sublessor) presently or hereafter held by or deposited with Sublessor by
Sublessees;
(b) any and all patronage rebates and rebate notes
representing patronage rebates (as defined in the Bylaws of Sublessor) earned
or hereafter earned by reason of patronage of Sublessor by Sublessees;
(c) subject to liens securing purchase money
financing therefor as described in Exhibit "X," all trade, store and other
fixtures and all leasehold improvements and all equipment and other personal
property of Sublessee used or useful in the operation of the store in or on
the premises, whether now owned or hereafter acquired including, without
limitation, the property described in Exhibit "Y", attached hereto, if any;
and
(d) all replacements of substitutions for, and
additions to the foregoing, and the proceeds thereof (all of said personal
property and the replacements, substitutions and additions thereto and the
proceeds thereof being sometimes hereinafter collectively referred to as the
"Collateral"), and that a security interest in and to the Collateral is hereby
granted to the Sublessor, and the Collateral and all of the Sublessee's right,
title and interest therein are hereby assigned to the Sublessor, all to secure
all presently existing or hereafter incurred direct, indirect, absolute or
contingent indebtedness, liabilities and other obligations of Sublessee to
Sublessor (referred to as "the Obligations" herein) including, but not limited
to, the payment of all rent and other sums and the performance of all other
obligations of Sublessee under this Sublease, all renewals and extensions
thereof, the price of goods, services and merchandise purchased by Sublessees
from Sublessor from time to time, and all costs of collection, legal expenses
and attorneys' fees paid or incurred by Sublessor in enforcing any rights in
respect to the Obligations or in connection with assembling, collecting,
selling or otherwise dealing with or realizing upon the Collateral.
5.2 Security Agreement Warranties. In addition to and without
limiting the force or effect of any other covenants, representations and
warranties of Sublessee contained in this Sublease, Sublessee hereby covenant,
represent and warrant to and with Sublessor as follows:
(a) Sublessees are the owners of the Collateral free and
clear of liens, security interests and encumbrances of every kind and
description, except liens, security interests and encumbrances securing
indebtedness to Sublessor and liens described on Exhibit "X," hereto to which
Secured Party has consented ("Permitted Liens").
(b) Sublessees will not sell, dispose of, encumber or
permit any other security interest, lien or encumbrance, other than security
interests, liens or encumbrances junior to Sublessor's security interest to
attach to the Collateral except the security interest of Sublessor and the
Permitted Liens.
(c) All tangible Collateral shall be kept at Sublessee's
place(s) of business located on the premises, and Sublessee shall not permit
the same to be removed therefrom without the prior written consent of
Sublessor, except sales in the ordinary course of grocery business.
(d) Sublessee shall keep the tangible Collateral at all
times insured against risks of loss or damage by fire (including so-called
extended coverage), theft and such other casualties as Sublessor may
reasonably require, all in such amounts, under such forms of policies, upon
such terms, for such periods and written by such companies or underwriters as
Sublessor may approve. All such policies of insurance shall name Sublessor as
loss payee thereon as its interest may appear and shall provide for at least
30 days' prior written notice of modification or cancellation to Sublessor.
Sublessee shall furnish Sublessor with certificates of such insurance or other
evidence satisfactory to Sublessor as to compliance with the provisions of
this paragraph. Sublessor may act as attorney-in-fact for Sublessee in
making, adjusting and settling claims under and canceling such insurance and
endorsing Sublessee's name on any drafts drawn by insurers of the Collateral.
(e) Sublessee will keep the Collateral in good order and
repair. shall not waste or destroy the Collateral or any part thereof, and
shall not use the Collateral in violation of any statute, ordinance or policy
of insurance thereon. Sublessor may examine and inspect the Collateral at any
reasonable time or times, wherever located.
(f) Sublessee will pay promptly when due all taxes and
assessments upon the Collateral or for its use or operation or upon this
Sublease or upon any instruments evidencing the Obligations.
(g) Sublessee will pay promptly when due all indebtedness secured
by any lien or other security interest in the Collateral, whether superior or
junior to the security interest established hereby.
5.3 Additional Remedies. Upon any default hereunder and at any
time thereafter (such default not having previously been cured), Sublessor at
its option may declare all Obligations immediately due and payable and shall
have the remedies of a secured party under the Uniform Commercial Code of
California (the "Code"), including without limitation the right to take
immediate and exclusive possession of the Collateral.
5.4 Financing Statements. Sublessees will at their own cost and
expense, upon demand, furnish to Sublessor such financing statements and other
documents in form satisfactory to Sublessor and will do all such acts and
things as Sublessor may at any time or from time to time request or as may be
necessary or appropriate to establish and maintain a perfected security
interest in the Collateral.
5.5 Attorneys' Fees. In the event of the institution of any suit
or action to terminate this Sublease, or to enforce the terms or provisions
hereto, Sublessees shall and do hereby agree to pay, 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.
(6) Default. The following shall constitute a default under this
Sublease:
6.1 Any failure by Sublessee to pay, when due, rent or any other
amount due under the Lease or to perform any other obligation of Sublessor
under the Lease or any other default under the Lease which continues for up to
one-half of the cure period as defined in the Lease, provided with respect
thereto in the Lease;
6.2 Any failure by Sublessee to pay when due rent or any other
amount due under this Sublease or to perform when due any other obligation of
Sublessee hereunder;
6.3 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;
6.4 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
Sublessees may have or enter into with Sublessor, and Sublessees' obligations
under the Bylaws of Sublessor and its application for membership in Sublessor;
6.5 If Sublessee vacates or abandon the premises or allow the
premises to remain vacant or unoccupied;
6.6 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 Sublessee 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
Sublessee 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
6.7 If Sublessee sells or otherwise dispose of all or any
substantial portion of the assets of Sublessee located at or associated with
the store, other than inventory sold at retail or assets sold in the ordinary
course of the business of the grocery store.
6.8 Provided, that Sublessee shall not be in default pursuant to
paragraph 6.2 or 6.4 unless and until Sublessor has given written notice of
the exact nature of Sublessee's breech and Sublessee thereafter fails to cure
said breach within a ten (10) day period, as long as Sublessee commences to
cure said breech within said ten (10) day period and thereafter diligently
prosecutes said cure to completion. Further provided that if the terms of
default of the main lease are in conflict with this provision, and Sublessee
has not cured under those terms, Sublessor may declare this sublease in
default and exercise such remedies as defined by this Sublease.
(7) Remedies. In the event of any default under this Sublease:
7.1 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 in the premises without
terminating this Sublease;
7.2 Sublessor shall have the immediate right, whether or not the
Sublease shall have been terminated pursuant to paragraph 7.1, to re-enter and
repossess the premises or any part thereof by force, summary proceedings,
ejectment or any other legal or equitable process, all without any liability
on Sublessor's part for such entry, repossession or removal;
7.3 Sublessor may (but shall be under no obligation to), whether
or not this Sublease shall have been terminated pursuant to paragraph 7.1,
resublet the premises, 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);
7.4 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 from the time of such payment until repaid; and
7.5 Sublessor may exercise any and all other rights and remedies
afforded to the prime Lessor upon default under the Lease and any and all
other rights and remedies Sublessor may have as provided herein, pursuant to
the laws of the State of California. In addition to the other remedies
provided above, Sublessor shall be entitled to current damages and final
damages as provided in paragraph (8) below, and, to the 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.
7.6 No expiration or termination of this Sublease, repossession
of the premises or any part thereof, or resubletting of the premises or any
part thereof, whether pursuant to the above paragraph or by operation of law
or otherwise, shall relieve Sublessees of their liabilities and obligations
under this Sublease, all of which shall survive such expiration, termination,
repossession or resubletting.
(8) Damages.
8.1 Current Damages. In the event of any expiration or
termination of this Sublease or repossession of the premises or any part
thereof by reason of the occurrence of an event of default, Sublessee will pay
to Sublessor the rent and other sums required to be paid by Sublessee for the
period to and including the date of such expiration, termination or
repossession; and, thereafter, until the end of what would have been the term
in the absence of such expiration, termination or repossession, and whether or
not the premises or any part thereof shall have been resublet, Sublessees
shall be liable to Sublessor for, and shall pay to Sublessor, as liquidated
and agreed current damages the rent and other sums which would be payable
under this Sublease by Sublessee in the absence of such expiration,
termination or repossession, less the net proceeds, if any, of any
resubletting effected for the account of Sublessee, after deducting from such
proceeds all of Sublessor's expenses reasonably incurred in connection with
such resubletting (including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorney's fees, employee expenses,
alteration costs and expenses of preparation for such resubletting).
Sublessee will pay such current damages on the days on which rent would have
been payable under this Sublease in the absence of such expiration,
termination or repossession, and Sublessor shall be entitled to recover the
same from Sublessees on each such day.
8.2 Final Damages. At any time after any such expiration or
termination of this Sublease or repossession of the premises or any part
thereof by reason of the occurrence of an event of default, whether or not
Sublessor shall have collected any current damages pursuant to paragraph 8.1,
Sublessor shall be entitled to recover from Sublessees, and Sublessees will
pay to Sublessor on demand, as and for liquidated and agreed final damages for
Sublessees' default and in lieu of all current damages beyond the date of such
demand (it being agreed that it would be impracticable or extremely difficult
to fix the actual damages), an amount equal to the excess, if any, of (a) the
rent and other sums which would be payable under this Sublease from the date
of such demand (or, if it be earlier, the date to which Sublessee shall have
satisfied in full their obligations under paragraph 8.1 to pay current
damages) for what would be the then unexpired term in the absence of such
expiration, termination or repossession, discounted to present value at an
assumed interest rate of seven percent (7%) per annum, over (b) the then net
rental value of the premises discounted to present value at an assumed
interest rate of seven percent (7%) per annum for the same period. Rental
value shall be established by reference to the terms and conditions upon which
Sublessor resublets the premises if such resubletting is accomplished within a
reasonable period of time after such expiration, termination or repossession,
and otherwise established on the basis of Sublessor's estimates and
assumptions of fact regarding market and other relevant circumstances, which
shall govern unless shown to be erroneous. If any statute or rule of law
shall validly limit the amount of such liquidated final damages to less than
the amount above agreed upon, Sublessor shall be entitled to the maximum
amount allowable under such statute or rule of law.
(9) 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, 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 in the receipt of rent or otherwise,
unless expressed in writing and signed by Sublessor.
(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) Right of Refusal: If, during the term of this sublease, or
any extension hereof, Sublessee or any successor to Sublessee shall receive a
bona fide offer to purchase the business being operated under this sublease,
i.e., goodwill, fixtures and/or equipment and inventory or the property of
which the premises are a part, which offer is acceptable to Sublessee,
Sublessor shall have the right to purchase the business (or the property) upon
the same terms and conditions. Sublessee agrees to immediately, upon receipt
of such offer, to give Sublessor written notice of the terms and conditions
thereof, and the Sublessor shall have the right, for thirty (30) days after
receipt of such notice, to exercise its option to purchase under the identical
terms and conditions of such offer. Sublessor's exercise of its option shall
be given in writing, within said thirty-day period.
IN WITNESS WHEREOF, the parties have executed the foregoing
Sublease Agreement the day and year first above written.
SUBLESSOR: United Grocers, Inc., an Oregon Corporation
0000 XX Xxxx Xxxx
XX Xxx 00000
Xxxxxxxx, Xxxxxx 00000
by: /s/ Xxxx Xxxxx
SUBLESSEE: Xx Xxxxxxxxx Grocery Markets, Inc.
Xxx Mansacola, President
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
by: /s/ Xxxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxx X. Mancascola
Xxx X. Xxxxxxxxx
