EXHIBIT 10S
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LEASEHOLD ASSIGNMENT
AGREEMENT
between
REAL ESTATE PROPERTIES LIMITED PARTNERSHIP
Assignor
AND
FRED MEYER, INC.
Assignee
Concerning the Assignor's leasehold interests in the
Hazel Dell Fred Meyer Development in Vancouver, Washington,
the Hawthorne Fred Meyer Development in Portland, Oregon, and
the Raleigh Hills Fred Meyer Development
in Washington County, Oregon
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TABLE OF CONTENTS
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Page
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1. SALE AND ASSIGNMENT OF THE LEASEHOLD INTERESTS . . . . . . . .1
2. CONSIDERATION. . . . . . . . . . . . . . . . . . . . . . . . .2
3. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . .2
4. PRECONDITIONS TO ASSIGNEE'S OBLIGATIONS. . . . . . . . . . . .2
4.1 Investigations and Contingency Period . . . . . . . . . .2
4.2 Conveyance; Title Review. . . . . . . . . . . . . . . . .2
4.3 Hazardous or Toxic Materials. . . . . . . . . . . . . . .3
4.4 No Material Changes . . . . . . . . . . . . . . . . . . .4
5. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . .4
6. [RESERVED] . . . . . . . . . . . . . . . . . . . . . . . . . .4
7. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . .4
7.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . .4
7.2 Manner and Place of Closing . . . . . . . . . . . . . . .4
7.3 Prorations. . . . . . . . . . . . . . . . . . . . . . . .5
7.4 Conveyance of Leasehold Interests . . . . . . . . . . . .5
7.5 FIRPTA. . . . . . . . . . . . . . . . . . . . . . . . . .5
7.6 Events of Closing . . . . . . . . . . . . . . . . . . . .5
7.7 Title Insurance . . . . . . . . . . . . . . . . . . . . .6
7.8 Lease . . . . . . . . . . . . . . . . . . . . . . . . . .6
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . .6
8.1 Assignor's Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . . . . . .6
8.2 Assignee's Representations and Warranties . . . . . . . .7
9. CONDUCT UNTIL CLOSING; ASSIGNOR'S COOPERATION;
DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . .7
10. FAILURE TO CLOSE . . . . . . . . . . . . . . . . . . . . . . .8
10.1 Assignor's Remedies . . . . . . . . . . . . . . . . . . .8
10.2 Assignee's Remedies . . . . . . . . . . . . . . . . . . .8
11. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . .8
11.1 Binding Effect; Assignment. . . . . . . . . . . . . . . .8
11.2 Time of Essence . . . . . . . . . . . . . . . . . . . . .8
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . .8
11.4 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . .9
11.5 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . .9
11.6 Prior Agreements. . . . . . . . . . . . . . . . . . . . .9
11.7 Applicable Law. . . . . . . . . . . . . . . . . . . . . .9
11.8 Brokers . . . . . . . . . . . . . . . . . . . . . . . . .9
11.9 Changes in Writing. . . . . . . . . . . . . . . . . . . .9
11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . .9
11.12 Survival . . . . . . . . . . . . . . . . . . . . . . . .9
11.13 Effect of Extensions and Modifications;
Backup Offers. . . . . . . . . . . . . . . . . . . . . .9
11.14 Disclaimer; Duty to Disclose . . . . . . . . . . . . . 10
11.15 Representations; Condition of Properties . . . . . . . 10
11.16 Related Agreement. . . . . . . . . . . . . . . . . . . 10
11.17 Certain Obligations. . . . . . . . . . . . . . . . . . 10
11.18 Indemnity. . . . . . . . . . . . . . . . . . . . . . . 10
12. APPROVAL BY ASSIGNOR . . . . . . . . . . . . . . . . . . . . 11
EXHIBIT A-1 Legal Description of Hawthorne Property
EXHIBIT A-2 Legal Description of Hazel Dell Property
EXHIBIT A-3 Legal Description of Raleigh Hills Property
EXHIBIT B- Reports
EXHIBIT C- Form of Lease Assignment
LEASEHOLD ASSIGNMENT AGREEMENT
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(Hawthorne, Hazel Dell and Raleigh Hills)
This LEASEHOLD ASSIGNMENT AGREEMENT (this "Agreement"),
dated as of March 10, 1995, between REAL ESTATE PROPERTIES
LIMITED PARTNERSHIP, an Oregon limited partnership ("Assignor"),
and FRED MEYER, INC., a Delaware corporation, or its assign
("Assignee"), recites and provides as follows:
RECITALS
A. Assignor currently leases the real property located in
Portland, Multnomah County, Oregon, described in the attached
Exhibit A-1 (the "Hawthorne Property") from REC Resolution
Company, Inc., an Oregon corporation ("REC"), pursuant to a lease
agreement dated as of February 5, 1963 (the "Hawthorne Master
Lease"). Assignor subleases the Hawthorne Property to Fred
Meyer, Inc., a Delaware corporation, pursuant to a lease
agreement dated as of October 22, 1986 (the "Hawthorne
Sublease").
B. Assignor currently leases the real property located in
Vancouver, Clark County, Washington, described in the attached
Exhibit A-2 (the "Hazel Dell Property") from REC, pursuant to two
lease agreements dated as of October 2, 1962, and March 1, 1978
(collectively, the "Hazel Dell Master Lease"). Assignor
subleases the Hazel Dell Property to Roundup Co., a Washington
corporation, pursuant to a lease agreement dated as of October 22,
1986 (the "Hazel Dell Sublease").
C Assignor currently leases the real property located in
Washington County, Oregon, described in the attached Exhibit A-3
(the "Raleigh Hills Property") from REC, pursuant to a lease
agreement dated as of March 3, 1966 (the "Raleigh Hills Master
Lease"). Assignor subleases the Hawthorne Property to Fred
Meyer, Inc., a Delaware corporation, pursuant to a lease
agreement dated as of October 22, 1986 (the "Raleigh Hills
Sublease").
D. The Hawthorne Property, the Hazel Dell Property, and
the Raleigh Hills Property, together with all buildings and other
improvements located thereon and all rights and appurtenances
belonging thereto or in any way appertaining thereto and all
right, title and interest of Assignor in and to any and all
roads, streets, alleys and ways, bounding such property are
collectively referred to herein as the "Properties." The
Hawthorne Master Lease, the Hazel Dell Master Lease and the
Raleigh Hills Master Lease are sometimes collectively referred to
as the "Master Leases." The Hawthorne Sublease, the Hazel Dell
Sublease and the Raleigh Hills Sublease are sometimes
collectively referred to as the "Subleases."
E. Assignor desires to sell and assign to Assignee the
Assignor's interests under the Master Leases and the Subleases to
Assignee, and Assignee desires to purchase and assume such
interests from Assignor, on the terms and conditions set forth in
this Agreement.
Agreements
NOW, THEREFORE, for value received and in consideration
of the mutual promises set forth in this Agreement, the parties
agree as follows:
1. SALE AND ASSIGNMENT OF THE LEASEHOLD INTERESTS.
Assignor agrees to sell and assign to Assignee, and Assignee
agrees to purchase and assume from Assignor, the interests of
Assignor as lessee under the Master Leases and the interests of
Assignor as sublessor under the Subleases, on the terms and
conditions set forth in this Agreement. The interests to be sold
and assigned pursuant to this Agreement are referred to below as
the "Leasehold Interests".
2. CONSIDERATION. The total cash consideration to be paid
by Assignee for the assignment of the Leasehold Interests is NINE
MILLION ONE HUNDRED THOUSAND DOLLARS ($9,100,000). The
consideration is allocated among the various portions of the
Leasehold Interests as follows:
Land Improvements Total
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Hazel Dell Property $1,133,600.00 $1,866,400.00 $3,000,000.00
Hawthorne Property $783,712.00 $1,316,288.00 $2,100,000.00
Raleigh Hills Property $1,235,480.00 $2,764,520.00 $4,000,000.00
3. EFFECTIVE DATE. The "Effective Date" for purposes of
this Agreement is the date that this Agreement is mutually
executed and delivered.
4. PRECONDITIONS TO ASSIGNEE'S OBLIGATIONS. The close of
escrow and Assignee's obligation to purchase and assume the
Leasehold Interests are subject to the satisfaction, not later
than the Closing Date (unless otherwise provided), of the
following conditions, and the obligations of the parties with
respect to such conditions are as set forth in this Section 4.
The conditions set forth in this Section 4 are solely for the
benefit of Assignee and may be waived only by Assignee. Assignee
shall at all times have the right to waive any condition. Such
waiver or waivers shall be in writing to Assignor.
4.1 Investigations and Contingency Period. Assignee
shall be satisfied, in its sole and absolute judgment, that the
Leasehold Interests suit its needs and that the acquisition of
the Leasehold Interests can be financed in a manner acceptable to
Assignee, and Assignee shall have obtained such senior management
and board of director approvals of this transaction as Assignee
may deem necessary or desirable. Assignee shall have until the
date 90 days after the Effective Date (or until such earlier date
as Assignee may elect in writing by waiving the right to
terminate under this Section) (the "Contingency Period") to
determine whether the conditions precedent set forth in this
Section 4.1 have been satisfied or waived. If Assignee fails to
notify Assignor within the Contingency Period that such
conditions are waived or satisfied, then this Agreement shall
terminate and neither party shall have any further obligations
hereunder.
4.2 Conveyance; Title Review. At closing Assignor
shall assign and convey the Leasehold Interests to Assignee
pursuant to lease assignments in the form attached as Exhibit C.
(a) Title Report, Survey, Etc. Assignee shall
within 10 days after the Effective Date obtain current
preliminary title reports on the Leasehold Interests, from First
American Title Insurance Company ("Title Company"). Assignee
shall also, as promptly as possible and in any event within 45
days after the Effective Date, obtain current ALTA surveys of the
Properties meeting Assignee's survey requirements. The cost of
the surveyor's work will be paid by Assignee.
(b) Title Approval Procedure.
(1) Within 20 days after receipt of all of
the title reports and surveys, Assignee will review such
materials and notify Assignor in writing of Assignee's approval
(or disapproval) of any exceptions shown in the title reports,
other than an exception for current property taxes, and of such
surveys. Failure to notify Assignor than an item is approved
shall be deemed to be disapproval of such item. In the event of
such disapproval: (i) Assignor shall be obligated to remove (or
commit to remove) any disapproved lien or other financial
encumbrance (a "Lien"), at or prior to closing; and (ii) Assignor
agrees to exert its best efforts to remove any other disapproved
matter (but Assignor is not absolutely obligated to remove a
disapproved matter other than a Lien).
(2) Assignor shall have 20 days from the
date that items are disapproved or deemed disapproved to
eliminate any disapproved title exceptions or survey matters (or
as to any Liens, to commit in writing to eliminate such Liens at
or prior to closing). If Assignor is unable to eliminate a
disapproved title exception or survey matter within such
twenty-day period, despite Assignor's best efforts to do so,
either party may elect to rescind this Agreement by notice to the
other party within ten days after the expiration of the
twenty-day period. In such event, all obligations of the parties
under this Agreement shall thereafter cease. Assignee may
preserve this Agreement, however, if Assignee notifies Assignor
within twenty days after delivery of a notice of termination by
Assignor, that either: (a) Assignee waives its objection to the
relevant encumbrance(s); or (b) as to encumbrances that can be
removed by the payment of money, Assignee intends at closing to
pay the amount necessary to remove such encumbrances. If
Assignee so preserves this Agreement, this Agreement shall remain
in full force and effect, and Assignee will receive a credit at
closing in the amount of any sum paid by Assignee to remove such
encumbrances on title.
(3) As to any exceptions to title placed
of record or first identified after issuance of the preliminary
title report or revealed by any supplemental report, there shall
be a 10-day period for Assignee to review and approve or
disapprove such exceptions on the same basis as provided above.
(4) With respect to the Raleigh Hills
Property, the parties are aware that boundary line questions in
three locations have been identified on a preliminary survey.
Assignor shall use its best efforts to resolve such questions to
the satisfaction of Assignee and the title company, such that the
title company will issue extended coverage title insurance
insuring the surveyed border of the Property without exception
for boundary line matters or encroachments. Assignee shall
cooperate in such efforts. Final resolution of such matters to
Assignee's satisfaction is a condition to Assignee's obligation
to close.
(c) Master Leases. Within 10 days after the
Effective Date, Assignor shall deliver to Assignee true and
complete copies of the Master Leases together with all
amendments, supplements or addenda thereto. Assignee shall
review the Master Leases as part of its due diligence review
during the Contingency Period.
4.3 Hazardous or Toxic Materials. Exhibit B sets
forth a complete list of all written soils, environmental or
other reports or studies in Assignor's possession concerning any
hazardous waste or hazardous substances (as defined in Section
8.1) on, in or under the Properties or any underground storage
tanks on the Properties (collectively, the "Reports"). In
addition, Assignor has made available to Assignee for inspection
other documents ("Environmental Documents") relating to hazardous
substances on, in or under the Property as further described in
Exhibit B. Assignor has provided or will promptly provide
complete copies of the Reports and any other such reports
discovered by Assignor after the date hereof. During the
Contingency Period, Assignee will cause to be conducted such
investigations or audits of the environmental condition of the
Properties as Assignee deems prudent. Assignee will on request
provide to Assignor copies of any reports prepared by third
parties in connection with such investigations or audits. In the
event that, prior to the Closing Date, any hazardous substances
in amounts or of kinds that violate or could give rise to
liability under environmental laws (as defined in Section 8.1)
are discovered on, in, or under any of the Properties, or any
underground storage tanks are discovered on any of the
Properties, Assignee may elect, within ten days after learning of
the discovery of such matter, to terminate this Agreement by
notice to the Assignor; provided, however, that Assignor may
preserve this Agreement by notifying Assignee (within 10 days
after receipt of the Assignee's termination notice) that Assignor
commits at its expense to perform any remediation necessary to
correct the problem to the satisfaction of Assignee (in
Assignee's discretion) and any governmental agency with
jurisdiction over the Properties, and the parties thereafter
document such remediation commitment in a manner acceptable to
Assignee. If this Agreement is so terminated, the parties shall
thereafter have no further obligations under this Agreement.
4.4 No Material Changes. At the Closing Date, there
shall have been no material adverse changes in the condition of
or legal requirements applicable to the Properties (provided that
the condemnation activities affecting the Hazel Dell Property
referenced in Section 5.2 of this Agreement shall not be deemed a
material adverse change).
5. CONDEMNATION.
5.1 Subject to Section 5.2, if, prior to closing, any
part of the Property is condemned or appropriated by public
authority or any party exercising the right of eminent domain, or
is threatened thereby, then this Agreement shall, at the election
of the Assignee, become null and void. In the event the Assignee
elects not to terminate this Agreement, the consideration to be
paid by Assignor shall not be affected, but Assignee shall be
entitled to all proceeds of such award attributable to the
Leasehold Interests (or, if the award is made prior to closing,
Assignor shall receive such proceeds but Assignee shall receive a
credit against the consideration to be paid in the net amount of
such proceeds). Assignor will promptly notify Assignee as to the
commencement of any such action or any communication from a
condemning authority that a condemnation or appropriation is
contemplated, and will cooperate with Assignee in the response to
or defense of such actions, and permit Assignee to participate
fully in, and approve any settlement of, any such proceedings.
5.2 Assignee acknowledges that proposals exist (1) to
close the access to the Hazel Dell Property from 78th Street, and
(2) to condemn a portion of the Hazel Dell Property in connection
with the construction of light rail facilities. Such
condemnation actions shall not constitute grounds to terminate
this Agreement. Assignee and Assignor agree to cooperate and
exert their best efforts to avoid closure of such access,
including, if Assignee deems it appropriate, institution of legal
proceedings; provided, Assignor shall not be required to incur
out of pocket costs in connection with such efforts. Assignee
shall have the right to direct such efforts and proceedings, and
legal proceedings so instituted shall be at Assignee's expense.
Proceeds from any such condemnation or access closure shall be
handled as provided in Section 5.1.
6. [RESERVED]
7. CLOSING.
7.1 Closing Date. This transaction will be closed
(the "Closing") on a date to be selected by Assignee and
reasonably acceptable to Assignor, but not later than 15 days
after expiration of the Contingency Period and not earlier than
March 1, 1995 (the "Closing Date").
7.2 Manner and Place of Closing. This transaction
will be closed by an escrow officer of First American Title
Insurance Company (or other Title Company selected pursuant to
Section 4.2) (the "Escrow Officer") at its office in Portland,
Oregon, or at such other place as the parties may mutually
select. Closing shall take place in the manner and in accordance
with the provisions set forth in this Agreement.
7.3 Prorations. There shall be no prorations of taxes
or expenses, as Assignee or Assignee's subsidiary is under the
Subleases responsible for taxes and expenses, and is entitled to
all income derived from, the Properties other than rent owing
under the Master Leases and the Subleases. Rent owing under the
Master Leases and the Subleases shall be prorated as of 12:01
a.m. on the Closing Date, with Assignor entitled to the rents
under the Subleases and obligated with respect to the rents under
the Master Leases through such time, and with Assignee obligated
with respect to the rents under the Subleases through such time.
7.4 Conveyance of Leasehold Interests. Conveyance of
the Leasehold Interests shall be by delivery of lease assignment
agreements in the form attached as exhibit C. All municipal,
county, state and federal transfer and documentary stamp taxes,
if any, shall be paid by Assignor at the time of closing. The
assignment shall be free of encumbrances of any kind, without
exceptions, unless otherwise specified herein or approved
pursuant to Section 4.2, and except for the lien of real estate
taxes not yet payable, so as to convey to Assignee good and
marketable title to the Leasehold Interests. The conveyance will
be free of all tenancies other than (1) the occupancy of Fred
Meyer, Inc., or Roundup Co., pursuant to the Subleases; and (2)
subleases, rental agreements or licenses in which Fred Meyer,
Inc., or its subsidiary is the sublessor, landlord or licensor.
7.5 FIRPTA. Assignor shall deliver to Assignee at
closing an affidavit that Assignor is not a "foreign person"
under FIRPTA, in form satisfactory to Assignee.
7.6 Events of Closing. Provided the Escrow Officer
has received the sums and is in a position to cause the title
insurance policy to be issued as described below, this
transaction will be closed on the Closing Date as follows:
(a) Assignee shall pay the total cash
consideration for the Leasehold Interests in immediately
available funds, adjusted for the charges and credits set forth
in this section.
(b) Any liens or other encumbrances on title
required by this Agreement to be paid or removed by Assignor at
closing shall be paid and satisfied or removed of record at
Assignor's expense.
(c) Assignor and Assignee shall execute and
deliver the lease assignment agreements contemplated by Section
7.4.
(d) Title Company will commit to issue the policy
described in Section 7.7, upon recordation of the closing
documents.
(e) The parties will execute any additional
documentation required with respect to the matters described in
Sections 7.4 and 7.5.
(f) The Escrow Officer will record the lease
assignment agreement(s).
(g) The escrow fee shall be paid equally by the
parties. Any real estate excise or transfer tax will be paid by
Assignor. The recording fees for the lease assignment agreements
will be paid by Assignee. Assignor shall be charged with the
premium (including any sales or excise tax) for the title
insurance policies to be delivered to Assignee, except that
Assignee shall be responsible for the portion of the premium
(including any sales or excise tax) attributable to extended
coverage if Assignee elects to obtain it, and for the cost of any
endorsements requested by Assignee.
(h) There are no brokerage fees.
(i) If any other closing costs not specifically
provided for herein are due at closing of this transaction, each
party shall pay such closing costs as are normally and
customarily the responsibility of such party. In addition to any
other items required to be paid by either party pursuant to this
Agreement, each party shall pay its own attorneys' fees.
7.7 Title Insurance. As soon as possible after the
Closing Date, Assignor shall cause the Title Company to furnish
Assignee with a standard policy of title insurance in the amount
of the total cash consideration for each Leasehold Interest, in
form acceptable to Assignee, subject only to exceptions for the
matters accepted by Assignee pursuant to Section 4.2. At
Assignee's option, such policies shall be in ALTA extended
coverage form (full or partial), in which case Assignor and
Assignee will execute such affidavits as may be necessary to
obtain the extended coverage. Extra title premiums attributable
to extended coverage shall be Assignee's expense.
7.8 Lease. If Assignee elects to assign this
Agreement and the right to purchase the Leasehold Interests to a
third party that will lease the Properties to Assignor, the
parties will execute any additional documentation necessary to
implement such assignment and lease, provided that Assignor shall
not be required to incur any additional expense or any material
risk in connection therewith.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1 Assignor's Representations, Warranties and
Covenants. Assignor represents and warrants to Assignee that:
(a) To the Assignor's actual knowledge and
without independent investigation, and except as disclosed on the
Reports: (1) there are no hazardous substances (as defined
below) on, within, under or upon the Properties, in amounts or of
kinds that in their current condition pose a threat to human
health or the environment or pose a risk of liability under
environmental laws (provided, however, that due to the age of the
improvements on the Properties, there may be asbestos containing
materials used in the construction of such improvements); and (2)
there are no underground storage tanks within the Properties.
Assignor does hereby assign to Assignee (effective at and as of
the Closing Date) any and all environmental warranties,
indemnification agreements and rights of action Assignor may have
against third parties (if any) relating to the presence of any
such hazardous substances or underground tanks. As used in this
Agreement, the term "environmental laws" includes any and all
state, federal and local statutes, regulations, and ordinances to
which the Properties are subject and relating to the protection
of human health and the environment, as well as any judgments,
orders, injunctions, awards, decrees, covenants, conditions, or
other restrictions or standards relating to same; and the term
"hazardous substances" includes all hazardous and toxic
substances, wastes, or materials, including without limitation
all substances, wastes, and materials containing either
petroleum, including crude oil or any fraction thereof, or any of
the substances referenced in Section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601(14), and similar or comparable state or local laws.
(b) Except as disclosed to Assignee in writing
(and other than the potential condemnation affecting the Hazel
Dell Property referenced in Section 5.2 above), Assignor has
received no written notice of any condemnation, environmental,
zoning or other land-use regulation proceedings which would
detrimentally affect the use and operation of the Properties or
the value of the Properties nor has Assignor received notice of
any special assessment proceedings affecting the Properties.
(c) There is no litigation pending or to the
Assignor's actual knowledge threatened against Assignor that
arises out of the ownership of the Leasehold Interests and would
be binding on the Assignee or might detrimentally affect the use
or operation of the Properties for their intended purpose or the
value of the Leasehold Interests or adversely affect the ability
of Assignor to perform its obligations under this Agreement.
(d) The persons who have executed this Agreement
have been duly authorized to do so by Assignor. All documents
delivered at closing will be executed by a duly authorized
person. Assignor has a good and legal right to enter into this
Agreement and to perform all covenants of Assignor contained in
this Agreement in accordance with its terms.
(e) The copies of the Master Leases provided to
Assignee by Assignor have been and/or will be true and complete.
There are no liabilities or obligations binding on holder of the
Leasehold Interests that are not reflected in the copies of the
Master Leases to be provided by Assignor. As of Closing,
Assignor's interest in the Master Leases, the Subleases and the
rentals due or to become due thereunder will be free of any
assignments, encumbrances or liens, except for encumbrances
accepted by Assignee pursuant to Section 4.2. No leasing or
brokerage fees or commissions of any nature whatsoever are
currently or shall become due or owing at or after Closing to any
person, firm, corporation, or entity with respect to the Master
Leases, the Subleases, or the Leasehold Interests.
8.2 Assignee's Representations and Warranties.
Assignee represents and warrants to Assignor that the persons who
have executed this Agreement have been duly authorized to do so
by Assignee (subject to the provisions of Section 4.1 and 12).
All documents delivered at closing will be executed by a duly
authorized person. Assignee has a good and legal right to enter
into this Agreement and to perform all covenants of Assignee
contained in this Agreement in accordance with its terms.
9. CONDUCT UNTIL CLOSING; ASSIGNOR'S COOPERATION;
DISCLAIMER. From the date of this Agreement until the Closing
Date, Assignor shall cause all liens on the Leasehold Interests
incurred by Assignor to be paid current, and will not further
mortgage or encumber the Leasehold Interests or increase the
amount of any current indebtedness on the Leasehold Interests.
No provision of this Agreement or previous (or subsequent)
conduct or activities of the parties will be construed: (i) as
making either party an agent, principal, partner or joint
venturer with the other party, (ii) as creating any express or
implied obligation for Assignee to operate the Properties as a
Fred Meyer retail facility or otherwise, or (iii) as making
either party responsible for payment or reimbursement of any
costs incurred by the other, whether or not such development
occurs (except as may be expressly set forth herein or in its
attached exhibits). WHETHER AND HOW ASSIGNEE MAY DEVELOP,
REDEVELOP OR OPERATE THE PROPERTIES POST-CLOSING IS AT ASSIGNEE'S
DISCRETION. ASSIGNOR WILL NOT HAVE ANY CLAIM AGAINST (OR RIGHT
TO RECOVER ANY DAMAGES OR COSTS FROM) ASSIGNEE IN THE EVENT
ASSIGNEE DOES NOT DEVELOP, REDEVELOP OR CONTINUE TO OPERATE THE
PROPERTIES.
10. FAILURE TO CLOSE.
10.1 Assignor's Remedies. In the event that this
transaction fails to close on account of Assignee's fault or
inability to close, and Assignee has not exercised any right to
terminate or rescind this Agreement as provided herein, Assignee
shall pay to Assignor the sum of $25,000 as full liquidated
damages. SUCH AMOUNT HAS BEEN AGREED BY THE PARTIES TO BE
REASONABLE COMPENSATION AND THE EXCLUSIVE REMEDY FOR Assignee'S
DEFAULT, SINCE THE PRECISE AMOUNT OF SUCH COMPENSATION WOULD BE
DIFFICULT TO DETERMINE. Assignor hereby waives any right to
specific enforcement of this Agreement, and any right to sue for
damages (including lost profits or consequential damages) other
than the liquidated damages provided for in this Section. The
parties are initialing this Section for purposes of acknowledging
and agreeing to such exclusive remedy and liquidated damages
provision.
Initials of: Assignor _____ Assignee _____
10.2 Assignee's Remedies. In the event that the
transaction fails to close on account of Assignor's fault or
Assignor's inability to deliver title acceptable to Assignee
pursuant to Section 4.2, Assignee shall be entitled to such
remedies for breach of contract as may be available under
applicable law, including (without limitation) the remedy of
specific performance, collection of damages, recovery of costs
and attorneys' fees.
11. GENERAL PROVISIONS.
11.1 Binding Effect; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties, and
their respective heirs, personal representatives, successors, and
assigns. Assignee reserves the right to assign the right to
purchase the Leasehold Interests to any third party at closing.
Assignee also reserves the right to assign the Agreement at or
prior to closing to an entity that will lease the Leasehold
Interests to Assignee. Unless otherwise agreed, however, no such
assignment shall release Assignee from its obligations under this
Agreement, or increase Assignor's obligations in any respect.
11.2 Time of Essence. Time is of the essence of each
and every provision of this Agreement.
11.3 Notices. All demands or notices required or
permitted to be given under this Agreement shall be in writing.
Notices may be served by certified or registered mail, postage
paid with return receipt requested; by facsimile, or other
telecommunication device capable of transmitting or creating a
written record (provided that a copy is also sent by U.S. Mail,
first class); or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Telex
or telecommunicated notices shall be deemed delivered when
receipt is either confirmed by confirming transmission equipment
or acknowledged by the addressee or its office. Personal
delivery shall be effective when accomplished. Unless a party
changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the
following addresses:
Assignor: REAL ESTATE PROPERTIES LIMITED PARTNERSHIP
Suite 200
15115 SW Sequoia Parkway
Portland, OR 97224
Attn: Dave Ramus
Facsimile No. (503) 624-7755
Assignee: Fred Meyer, Inc.
P.O. Box 42121
Portland, Oregon 97242-0121
(Street Address - 3800 S.E. 22nd Avenue,
Portland, Oregon 97202)
Attn: Scott L. Wippel
Facsimile No.: (503) 797-3539
11.4 Waiver. Failure of either party at any time to
require performance of any provision of this Agreement shall not
limit the party's right to enforce the provision. Waiver of any
breach of any provision shall not be a waiver of any succeeding
breach of the provision or a waiver of the provision itself or
any other provision.
11.5 Attorneys' Fees. In the event suit or action is
instituted to interpret or enforce the terms of this Agreement or
to rescind this Agreement, the prevailing party shall be entitled
to recover from the other party such sum as the court may adjudge
reasonable as attorneys' fees at trial, on any appeal, and on any
petition for review, in addition to all other sums provided by
law.
11.6 Prior Agreements. This Agreement supersedes and
replaces all written and oral agreements previously made or
existing between the parties (including, without limitation, all
previous letters of intent and addenda thereto and all verbal
agreements and understandings).
11.7 Applicable Law. This Agreement shall be
construed, applied and enforced in accordance with the laws of
the State of Oregon (provided, as to the equitable remedies of
Assignee with respect to the Hazel Dell Property, Washington law
shall apply).
11.8 Brokers. Each party will defend, indemnify, and
hold the other party harmless from any claim, loss, or liability
made or imposed by any other party claiming a commission or fee
in connection with this transaction and arising out of its own
conduct.
11.9 Changes in Writing. This Agreement and any of its
terms may only be changed, waived, discharged or terminated by a
written instrument signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
11.10 Counterparts. This Agreement may be executed
simultaneously or in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and
the same Agreement.
11.11 Invalidity of Provisions. In the event any
provision of this Agreement is declared invalid or is
unenforceable for any reason, such provision shall be deleted
from such document and shall not invalidate any other provision
contained in the document.
11.12 Survival. All representations, warranties
and obligations of the parties in this Agreement shall survive
the Closing Date and delivery of the lease assignment agreements
contemplated in this Agreement and be fully enforceable
thereafter.
11.13 Effect of Extensions and Modifications;
Backup Offers. Any amendment to this agreement (including any
extension of time for waiver of conditions or closing) shall be
deemed to be a modification of the continuing existing agreement,
rather than a rescission or termination of such agreement.
Assignor will not accept any "backup", "standby" or other
additional offers to purchase the Leasehold Interests without
Assignee's written consent. In any event, any such additional
offer shall be subordinate to this Agreement as it may be
extended or modified.
11.14 Disclaimer; Duty to Disclose. As to any
reports or other materials provided by one party to the other
party herein, the party providing such reports or materials is
not warranting (and will not be liable or responsible for) the
accuracy, fitness or usability of such reports or materials or
any recommendations or conclusions stated therein. All
representations and warranties of the parties in this Agreement
are limited to the best of the party's actual knowledge, without
independent investigation or examination. If either party
obtains actual knowledge prior to the Closing Date of a fact
which would make any of the representations and warranties in
this Agreement false, such party will notify the other party of
such fact. A party will not be deemed in breach of a
representation or warranty in this Agreement or liable to the
other party for any claimed misrepresentation in this Agreement
after the Closing Date unless the party had actual knowledge on
the Closing Date that the representation or warranty was false
and failed to disclose to the other party the fact known to the
party which made the representation or warranty false.
11.15 Representations; Condition of Properties.
Assignee or Assignee's affiliate has heretofore operated and
occupied the Properties and has thoroughly and completely
examined and is fully aware of the physical condition of the
Properties as well as any governmental permits or approvals
required in connection with Assignee's use of the Properties, the
suitability of the Properties for Assignee's intended use, the
availability of utilities and services, the applicable zoning,
building, housing and other ordinances, restrictions, laws, and
regulations affecting the Properties or other matters. Except as
otherwise specifically set forth in this Agreement or in any
instrument delivered at Closing, Assignee accepts the land and
property and all other aspects of the Properties in their present
condition, AS IS, without any representations or warranties by
Assignor, expressed or implied. Assignee acknowledges that
Assignee has ascertained for itself the value and condition of
the Properties and Assignee is not relying on, nor has Assignee
been influenced by, any representation of Assignor regarding the
value or condition of the Properties.
11.16 Related Agreement. Assignee is party to a
Real Estate Purchase and Sale Agreement, dated on or about the
date hereof, pursuant to which Assignee intends to acquire the
fee interest of REC in the Properties (the "Related Agreement"),
which the parties thereto intend to close simultaneously with
closing under this Agreement. Assignee's obligation to close
under this Agreement is subject to the performance by REC of
REC's obligations under the Related Agreement, such that a
simultaneous closing may occur. Assignor's obligation to close
under this Agreement is subject to the performance by Assignee of
Assignee's obligations under the Related Agreement, such that a
simultaneous closing may occur.
11.17 Certain Obligations. Under the terms of the
Subleases, Assignee is obligated to (i) maintain the Properties
(Paragraph 9.1) and (ii) cause the Properties to comply with all
legal requirements (Paragraph 6.2). In addition to Assignnee's
acknowledgment that it is accepting the Properties AS IS,
Assignee hereby waives, releases, acquits and forever discharges
Assignor and its officers, directors, partners, employees,
agents, and any other person acting on behalf of Assignor, from
any and all claims, actions, causes of action, demands, rights,
damages expenses or compensation whatsoever, arising from any
defects in the Properties, to the extent such defects would have
been Assignee's responsibility to remedy under the Subleases.
11.18 Indemnity. Paragraph 12.2 of each Sublease
requires Assignee to indemnify Assignor against claims for
injury to persons and damage to property occurring on the
Properties. The parties acknowledge that Assignee's indemnity
obligation to Assignor under Paragraph 12.2 of the Subleases
shall survive the assignment or termiantion of the Subleases or
both, and furhter agrees that such obligation shall extend to
REC, as if REC were the landlord under the Subleases.
12. APPROVAL BY ASSIGNOR.
Assignor will have until 5 p.m. (Pacific Time) on
March 21, 1995 in which to execute and return to Assignee a fully
signed counterpart of this Agreement. Neither the delivery of
this Agreement to Assignor for execution nor the delivery of any
signed Agreement to Assignee will create a binding contract, or
contract by estoppel or otherwise, between the parties. Assignee
will have 10 days after receipt of this Agreement signed by
Assignor to execute and deliver or transmit (by facsimile or
otherwise) to Assignor at its address hereunder a fully executed
counterpart of this Agreement, and if not executed and delivered
within such time period, this Agreement will be null and void and
neither party will thereafter have any obligation or liability to
the other party pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this
instrument to be duly executed as of the date set forth above.
Assignor: REAL ESTATE PROPERTIES LIMITED PARTNERSHIP,
an Oregon limited partnership, by FMGP
Associates, an Oregon limited partnership,
its general partner, by FMGP Incorporated,
a Delaware corporation, its general partner
By: DAVID W. RAMUS
----------------------------------------
Title: David W. Ramus
-------------------------------------
Date Executed: 3/13/95
-----------------------------
Assignee: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
----------------------------------------
Scott L. Wippel, Senior Vice President
----------------------------------------
Date Executed: 3/14/95
-----------------------------
EXHIBIT A-1
-----------
Legal Description - Hawthorne Property
PARCEL I:
- --------
Lots 1-16, inclusive, Block 1, SUNNYSIDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon. TOGETHER WITH
that portion vacated of SE Madison Street which inured thereto by
reason of Ordinance vacating SE Madison Street recorded
December 4, 1970 in Book 762, page 1551.
PARCEL II:
- ---------
Lots 1-16, inclusive, Block 2, SUNNYSIDE ADDITION, in the City of
Portland, County of Multnomah and State of Oregon.
EXCEPT the East 12 feet of Lots 8 and 9 of said Block 2, described
in deeds to the City of Portland, recorded October 16, 1962 in
Book 2139, page 424 and Book 2139, page 428.
TOGETHER WITH that portion of vacated SE Madison Street which
inured thereto by reason of Ordinance vacating SE Madison Street
recorded December 4, 1970 in Book 762, page 1551.
EXHIBIT A-2
-----------
Legal Description - Hazel Dell Property
PARCEL I
- --------
BEGINNING at an iron pipe set at the Northeast corner of Lot 20,
Alexander Tracts in the Northeast quarter of Section 10, Township
2 North, Range 1 East, Willamette Meridian; thence South 5 degrees
59'15" West along the East line of said Lot 20 a distance of
111.00 feet to a railroad spike marking the Southeast corner
thereof; thence South 88 degrees 17'00" West along the South
line of said Lot 20, a distance of 292.01 feet to the East right
of way line of SR 5; thence North 1 degree 43'00" West along
the East right of way line of said SR 5 a distance of 110.00 feet
to the North line of said Lot 20; thence North 88 degrees 17'00"
East along the North line of said Lot 20 a distance of 306.90 feet
to the point of beginning.
PARCEL II
- ---------
That portion of the Northeast quarter of the Northeast quarter of
Section 10, Township 2 North, Range 1 East of the Willamette
Meridian, in Clark County, Washington, described as follows:
BEGINNING at a point that is South 89 degrees 05' West 71.35 feet
and South 5 degrees 59'15" West 284.33 feet fron the Northeast
corner of said Section 10, said point of beginning also being
on the Westerly line of N.E. Highway 99; thence continuing South
5 degrees 59'l5" West along the Westerly line of said N.E.
Highway 99, a distance of 823.54 feet to the Northeast corner of
the Alexander Tract, according to the plat thereof, recorded in
Volume "E" of Plats, page 1 records of said County; thence South
88 degrees 17'00" West along the North line of said Alexander
tracts, a distance of 306.90 feet to the Easterly right of way
line of Primary State Highway No. 1 as conveyed to the State of
Washington by deed recorded under Auditor's File No. G 200257;
thence North 3 degrees 45' East along said Easterly right of way
line to an inner corner in said Easterly line; thence North 88
degrees 27'15" East 11.10 feet to the West line of that tract
conveyed to Vanoak Corporation by deed recorded under Auditor's
File No. G 628799; thence South 12 degrees 42'15" East along the
West line of said Vanoak tract, a distance of 76.72 feet to
the Southwest corner thereof; thence North 89 degrees 04' East
along the South line of said Vanoak tract, 134.36 feet to the
Southeast corner thereof; thence South 5 degrees 59'l5" West
along the Southerly extension of the East line of said Vanoak
tract, 126.76 feet; thence South 84 degrees 00'45" East 180.00
feet to the point of beginning.
PARCEL III
- ----------
That certain portion of the Northeast quarter of the Northeast
quarter of Section 10, Township 2 North, Range 1 East, Willamette
Meridian in the County of Clark and State of Washington, more
particularly described as follows:
BEGINNING at a point that is South 46.88 feet and West 422.41
feet fron the Northeast corner of said Section 10, said point
being the intersection of the Southerly line of N.E. 78th Street
and the Easterly line of Primary State Highway No. 1 and running
thence South 12 degrees 42'15" East 96.71 feet; thence North
89 degrees 05' East 134.36 feet; thence North 5 degrees 59' East
98.26 feet to the Southerly line of N.E. 78th Street; thence
South 88 degrees 05'15" West, along said Street, 165.96 feet to
the point of beginning.
EXCEPTING from the above described Parcel III the North 10 feet
thereof conveyed to Clark County, Washington, a municipal
corporation by deed recorded June 17, 1985, as Auditor's File
No. 8506170112.
EXHIBIT A-3
-----------
Legal Description - Raleigh Hills Property
A tract of land located in Section 13, Township 1 South, Range 1
West of the Willamette Meridian, in the County of Washington and
State of Oregon, and more particularly described as follows:
Commencing at the intersection of the Southerly line of the
Beaverton Hillsdale Highway (County Road No. 669) and the West
line of the Northeast quarter of the said Section 13, which
intersection is on the Westerly line of that tract of land
conveyed to Harry M. Baker and wife by deed recorded in Deed Book
288, page 103, Washington County Deed Records; thence South
01 degrees 24'40" West along the Westerly line of the said Baker
tract a distance of 204.68 feet to the Southeast corner of that
tract of land conveyed to Portland Federal Savings and Loan
Association by that Warranty Deed recorded in Deed Book 459,
page 264, Washington County Deed Records, and the true point of
beginning of this description; thence South 01 degrees 24'40"
West along the West line of the said Baker tract a distance of
63.32 feet to the Southwest corner thereof; thence South 01
degrees 24'40" West along the West line of that tract of land
conveyed to George Krueger and wife by deed recorded in
Book 229, page 651, Washington County Deed Records, a distance
of 184.60 feet to an angle point therein and to the most
Easterly Southeast corner of that tract of land leased to
United States National Bank of Oregon, as described in that
Memorandum of Lease recorded in Book 646, page 295, Washington
County Deed Records; thence South 27 degrees 04'50" West along
the Southerly line thereof, a distance of 66.70 feet to the most
Southerly Southeast corner thereof; thence South 75 degrees 43'50"
West a distance of 60.00 feet to the Southwest corner thereof;
thence 155.22 feet along the arc of a 1,145.92 foot radius circular
curve to the left (long chord is 153.11 feet and bears South
41 degrees 50'43" East) to a point of compound curve; thence
168.03 feet along the arc of a 174.50 foot radius circular
curve to the left (long chord is 161.98 feet and bears South
72 degrees 32'32" East) to a point in the Northwesterly line
of SW Scholls Ferry Road, said point being South 56 degrees
16'30" West a distance of 23.33 feet from the Southwesterly line
of the said Krueger tract; thence Southwesterly along the
Northwesterly line of SW Scholls Ferry Road, South 56 degrees
16'30" West a distance of 74.38 feet to the most Easterly corner
of that tract of land conveyed to the State of Oregon by deed
recorded in Book 430, page 45, of the Washington County Deed
Records; thence South 61 degrees 21'30" West along the
Northwesterly line of the said State of Oregon tract a distance
of 293.40 feet to an angle point therein; thence North 77 degrees
08'30" West along the Northerly line, thereof, a distance of
64.00 feet to an angle point therein; thence South 56 degrees
16'30" West along the Northwesterly line thereof, a distance
of 40.00 feet to an angle point therein; thence South 04 degrees
41'30" West along the West line, thereof, a distance of 16.09 feet
to the most Easterly corner of that tract of land leased to the
Union Oil Company of California as described in that lease
recorded in Book 502, page 456, of the Washington County Deed
Records; thence North 33 degrees 43'30" West along the Northeasterly
line, thereof, a distance of 44.63 feet to the most Northerly
corner thereof; thence South 55 degrees 16'30" West along the
Northwesterly line thereof, a distance of 153.50 feet to the
most Westerly corner thereof; thence South 33 degrees 43'30"
East along the Southwesterly line, thereof, a distance of
5.84 feet to the most Easterly Northeast corner of that tract
of land conveyed to CAY, Incorporated, an Oregon corporation,
as described in Book 511, page 494 of the Washington County
Deed Records; thence along the Northeast line of the said
CAY, Incorporated tract 100.21 feet along the arc of a
100.00 foot radius circular curve to the right (long chord
is 96.07 feet and bears North 66 degrees 51'10" West) to a
point of tangency; thence North 38 degrees 08'40" West along
the East line of the said CAY, Incorporated tract, a distance of
394.78 feet to an angle point therein; thence North 88 degrees
39'20" West along the North line, thereof, a distance of
87.05 feet to a point on the West line of that tract of land
conveyed to Hollywood Company as described in Book 439,
page 706 of the Washington County Deed Records; thence
North 01 degrees 41'20" East along the West line of the said
Hollywood Company tract a distance of 618.03 feet to the South
line of the said Beaverton Hillsdale Highway; thence South
88 degrees 32'40" East along said South line a distance of
710.00 feet to a point that is 100.00 feet West of the West line
of the Northeast quarter of the said Section 13; thence South
01 degrees 24'40" West parallel to and 100.00 feet West of
said Baker Westerly line a distance of 204.88 feet to the
Southwest corner of the said Portland Federal Savings and Loan
Association tract; thence South 88 degrees 32'40" East along the South
line of the said Portland Federal Savings and Loan Association
tract a distance of 100.00 feet to the true point of beginning of
this description.
EXCEPTING THEREFROM that portion as described in deed to
Washington County, a political subdivision of the State of
Oregon, recorded August 27, 1990 as Fee No. 90-46313.
EXHIBIT B
---------
RALEIGH HILLS FLYING A SERVICE STATION
7550 SW Beaverton-Hillsdale Highway
Portland, Oregon
1. A Report on Underground Storage Tank Decommissioning and
Soil Cleanup, dated March 1, 1993.
2. A Report on Third Quarter Groundwater Monitoring, dated
March 22, 1993.
3. A Report on Additional Subsurface Investigation, dated
January 21, 1994.
RALEIGH HILLS UNOCAL SERVICE STATION
l. Report of Remedial Action dated December 22, 1989.
2. Site Contamination Study dated November 9, 1990.
3. Drywell Removal Report dated July 15, 1992.
4. Results of Quarterly Ground Water Monitoring dated October
1992, February 1994, April 1994, and August 1994.
EXHIBIT C - LEASE ASSIGNMENT FORM
---------------------------------
RECORDING REQUESTED |
BY AND WHEN RECORDED |
RETURN TO: |
|
_______________________ |
P.O. Box 42121 |
Portland, Oregon 97242 |
Attn: RTC MO/CLD |
LEASE ASSIGNMENT AGREEMENT
This Lease Assignment Agreement (this "Agreement"), dated as
of _______________, between REAL ESTATE PROPERTIES LIMITED PARTNERSHIP,
an Oregon corporation whose address is Suite 200, 15115 SW Sequoia
Parkway, Portland, OR 97224 ("Assignor"), and ______________________,
a Delaware corporation, whose address is ___________________________
("Assignee"), recites and provides as follows:
FOR good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby
sells, assigns, transfers, conveys and delivers to Assignee all
of Assignor's right, title and interest in and to each of the
lease agreements referenced on Exhibit A hereto (the "Lease
Agreements"). The rights conveyed hereby are referred to herein
as the "Leasehold Interests".
Assignee hereby accepts the foregoing assignment. Assignee
agrees to assume Assignor's obligations under the Lease
Agreements, provided, however, that Assignee does not assume, and
Assignor shall remain fully responsible for, and agrees to
discharge, any obligations or liabilities under such Lease
Agreements that either (i) are not disclosed on the face of the
copies of such Lease Agreements provided by Assignor to Assignee,
or (ii) accrued or arose from or out of a set of facts existing
prior to the date hereof ("Assignor's Liabilities"). Assignee
will indemnify, defend and hold harmless Assignor from and
against liabilities, costs, expenses and damages, including
attorneys' fees, arising from Assignee's failure to perform its
obligations hereunder, except for liabilities that arise from
Assignor's failure to perform its obligations hereunder or to
discharge Assignor's Liabilities. Assignee assumes no
liabilities or obligations of Assignor of any nature whatsoever,
whether or not accrued or affixed, absolute or contingent, known
or unknown, determined or determinable, or incurred prior to, on
or after the Closing Date.
Assignor represents, warrants and covenants to and with
Assignee that: (1) Assignor has good and indefeasible title to
the Leasehold Interests, subject to no encumbrances created or
suffered by Assignor other than the matters identified on Exhibit
B hereto; (2) Assignor has the full right, power and authority to
assign the Leasehold Interests to Assignee in accordance
herewith; and (3) Assignor will defend Assignee's right, title
and interest in and to the Leasehold Interests from and against
any claim by, through or under Assignor.
This Agreement shall bind and inure to the benefit of, and
be enforceable by, the parties hereto and their respective
successors, heirs, and permitted assigns. This Agreement may be
executed in any number of counterparts, all of which taken
together shall constitute one agreement binding on all the
parties. Each party agrees, at the request of the other party,
at any time and from time to time after the date hereof, to
execute and deliver all such further documents, and to take and
forbear from all such action, as may be reasonably necessary or
appropriate in order more effectively to perfect the transfers of
rights contemplated herein or otherwise to confirm or carry out
the provisions of this Agreement.
EXECUTED effective the date first written above.
[signature and acknowledgment forms]