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REAL ESTATE PURCHASE AND
SALE AGREEMENT
between
REC RESOLUTION COMPANY
SELLER
AND
FRED MEYER, INC.
PURCHASER
Concerning Seven Portland-Area Fred Meyer Properties
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April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE OF THE PROPERTIES.....................................2
2. TOTAL PURCHASE PRICE....................................................2
3. EFFECTIVE DATE..........................................................2
4. PRECONDITIONS TO PURCHASER'S OBLIGATIONS................................3
4.1 Certain Transactions..............................................3
4.2 Title.............................................................3
4.3 Hazardous or Toxic Materials......................................4
4.4 No Material Changes...............................................4
4.5 Board Approval....................................................4
5. CONDEMNATION............................................................4
6. LEGAL LOT; OUTPARCELS...................................................5
7. CLOSING.................................................................6
7.1 Closing Date......................................................6
7.2 Manner and Place of Closing.......................................6
7.3 Prorations. .....................................................6
7.4 Conveyance of Properties..........................................6
7.5 FIRPTA. ..........................................................6
7.6 Events of Closing.................................................6
7.7 Title Insurance...................................................7
7.8 Lease. ..........................................................7
8. REPRESENTATIONS, WARRANTIES AND COVENANTS...............................7
8.1 Seller's Representations, Warranties and Covenants................7
8.2 Purchaser's Representations and Warranties........................8
9. CONDUCT UNTIL CLOSING; SELLER'S COOPERATION; DISCLAIMER.................9
10. FAILURE TO CLOSE........................................................9
10.1 Seller's Remedies.................................................9
10.2 Purchaser's Remedies.............................................10
11. GENERAL PROVISIONS.....................................................10
11.1 Binding Effect; Assignment.......................................10
11.2 Time of Essence..................................................10
11.3 Notices..........................................................10
11.4 Waiver...........................................................11
11.5 Attorneys' Fees..................................................11
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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Page
11.6 Prior Agreements.................................................11
11.7 Applicable Law...................................................11
11.8 Brokers..........................................................11
11.9 Changes in Writing...............................................11
11.10 Counterparts.....................................................11
11.12 Survival.........................................................11
11.13 Effect of Extensions and Modifications; Backup Offers............11
11.14 Oregon Statutory Disclaimer......................................12
11.15 Disclaimer; Duty to Disclose. ..................................12
11.16 Representations; Condition of Properties.........................12
11.17 Related Agreement................................................12
11.18 Certain Obligations. ...........................................13
12. APPROVAL BY SELLER.....................................................13
EXHIBIT A-1 Legal Description of Burlingame Property
EXHIBIT A-2 Legal Description of Glisan Property
EXHIBIT A-3 Legal Description of Gresham Property
EXHIBIT A-4 Legal Description of Interstate Property
EXHIBIT A-5(a) Legal Description of Oak Grove Property
EXHIBIT A-5(b) Legal Description of Oak Grove PL Property
EXHIBIT A-6 Legal Description of Stadium Property
EXHIBIT A-7 Legal Description of Tigard Property
EXHIBIT B - Reports
EXHIBIT C - Form of Lease Assignment
EXHIBIT D - Site Plans (Depicting Pads)
EXHIBIT E - Use Restrictions
EXHIBIT F - Pad Agreement (Gateway)
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
ii
REAL ESTATE PURCHASE AND SALE AGREEMENT
(Seven Portland-Area Fred Meyer Properties)
This REAL ESTATE PURCHASE AND SALE AGREEMENT (this "Agreement"),
dated as of April 5, 1996, between REC RESOLUTION COMPANY, an Oregon
corporation ("Seller"), and FRED MEYER, INC., a Delaware corporation, or
its assign ("Purchaser"), recites and provides as follows:
RECITALS
A. Seller, as successor to Fifth Avenue Corporation, owns the real
property located in Portland, Multnomah County, Oregon, described in the
attached Exhibit A-1 (the "Burlingame Property"). The Burlingame Property
is currently leased by Seller to Purchaser, pursuant to a lease agreement
dated as of December 12, 1988 (the "Burlingame Lease"). For purposes of
this Agreement, the Burlingame Property will exclude the "Burger King
Building" as such term is defined in the Burlingame Lease; the parties
intend that Seller will retain ownership of the Burger King Building as
contemplated by Section 6.5 of this Agreement.
B. Seller, as successor to Union Central Company, owns the real
property located in Portland, Multnomah County, Oregon, described in the
attached Exhibit A-2 (the "Glisan Property"). The Glisan Property is
currently leased by Seller to REPL pursuant to two lease agreements dated
as of September 20, 1961 and October 7, 1983. REPL subleases the Glisan
Property to Purchaser pursuant to a lease agreement dated as of October 22,
1986.
C. Seller, as successor to EFEM Company, owns the real property
located in Gresham, Multnomah County, Oregon, described in the attached
Exhibit A-3 (the "Gresham Property"). The Gresham Property is currently
leased by Seller to REPL pursuant to a lease agreement dated as of July 1,
1974. REPL subleases the Gresham Property to Purchaser pursuant to a lease
agreement dated as of October 22, 1986.
D. Seller, as successor to Fourth Avenue Corporation, owns the real
property located in Portland, Multnomah County, Oregon, described in the
attached Exhibit A-4 (the "Interstate Property"). The Interstate Property
is currently leased by Seller to REPL pursuant to a lease agreement dated
as of January 7, 1966. REPL subleases the Interstate Property to Purchaser
pursuant to a lease agreement dated as of October 22, 1986.
E. Seller, as successor to Vanoak Corporation, owns the real property
located in Milwaukie, Clackamas County, Oregon, described in the attached
Exhibit A-5(a) (the "Oak Grove Store Property"). The Oak Grove Property is
currently leased by Seller to REPL pursuant to a lease agreement dated as
of April 28, 1960 REPL subleases the Oak Grove Property to Purchaser
pursuant to a lease agreement dated as of October 22, 1986. Seller, as
successor to Vanoak Corporation, owns the real property located in
Portland, Multnomah County, Oregon, described in the attached Exhibit
A-5(b) (the "Oak Grove PL Property"). The Oak Grove PL Property is
currently leased by Seller to Purchaser, pursuant to a lease agreement
dated as of December February 1, 1990 (the "Oak Grove PL Lease").
F. Seller, as successor to Fifth Avenue Corporation, owns the real
property located in Portland, Multnomah County, Oregon, described in the
attached Exhibit A-6 (the "Stadium Property", which includes the parking
lot located across a public street from the store). The Stadium Property is
currently leased by Seller to REPL pursuant to two lease agreements dated
as of February 14, 1968 and June 20, 1984. REPL subleases the Stadium
Property to Purchaser pursuant to a lease agreement dated as of October 22,
1986.
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
G. Seller, as successor to Duane Company, owns the real property
located in Tigard, Washington County, Oregon, described in the attached
Exhibit A-7 (the "Tigard Property"). The Tigard Property is currently
leased by Seller to REPL pursuant to a lease agreement dated as of February
14, 1967. REPL subleases the Tigard Property to Purchaser pursuant to a
lease agreement dated as of October 22, 1986.
H. The above-referenced properties, 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 Seller in and to any and all roads, streets, alleys and
ways, bounding such property are collectively referred to herein as the
"Properties." The above-referenced master leases (other than the Burlingame
Lease) are sometimes collectively referred to as the "Master Leases" or
individually as a "Master Lease." The above-referenced subleases are
sometimes collectively referred to as the "Subleases" or individually as a
"Sublease."
I. Seller desires to sell the Properties to Purchaser, and Purchaser
desires to purchase the Properties from Seller, on the terms and conditions
set forth in this Agreement.
AGREEMENTS
The parties agree as follows:
1. PURCHASE AND SALE OF THE PROPERTIES. Seller agrees to sell the
Properties to Purchaser, and Purchaser agrees to purchase the Properties
from Seller, on the terms and conditions set forth in this Agreement.
2. TOTAL PURCHASE PRICE. The total purchase price for the Properties
is TWENTY ONE MILLION ONE HUNDRED SEVENTY THREE HUNDRED THIRTY FIVE DOLLARS
($21,170,335). The purchase price is allocated among the various portions
of the Properties as follows:
PROPERTY LAND IMPROVEMENTS TOTAL
- -------- ---- ------------ -----
Burlingame Property $2,115,736.00 $2,115,736.00 $4,231,472.00
Glisan Property $1,980,848.00 $3,231,911.00 $5,212,759.00
Gresham Property $829,563.00 $1,055,808.00 $1,885,371.00
Interstate Property $1,434,161.00 $1,271,804.00 $2,705,965.00
Oak Grove Property $492,763.00 $1,332,287.00 $1,825,050.00
Stadium Property $1,429,591.00 $993,444.00 $2,423,035.00
Tigard Property $952,605.00 $1,934,078.00 $2,886,683.00
TOTAL $9,235,267.00 $11,935,068.00 $21,170,335.00
3. EFFECTIVE DATE. The "Effective Date" for purposes of this
Agreement is the date that this Agreement is mutually executed and
delivered.
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SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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4. PRECONDITIONS TO PURCHASER'S OBLIGATIONS. The close of escrow and
Purchaser's obligation to purchase the Properties 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
Purchaser and may be waived only by Purchaser. Purchaser shall at all times
have the right to waive any condition. Such waiver or waivers shall be in
writing to Seller.
4.1 CERTAIN TRANSACTIONS.
(a) Purchaser shall have completed and closed (1) a
sale-leaseback transaction of between nine and thirteen properties
currently owned by Purchaser or its subsidiaries, and (2) a purchase of
certain properties currently owned by Metropolitan Life Insurance Company
and leased by Purchaser or its subsidiaries. If either of these
transactions has not closed by December 31, 1996, then, unless Purchaser
waives this condition in writing on or before December 31, 1996, this
Agreement shall terminate.
(b) Each of the Properties shall have been accepted as
financeable by any institutional lender or equity investor providing
financing for this transaction. If this has not occurred by December 31,
1996, then, unless Purchaser waives this condition in writing delivered to
Seller on or before December 31, 1996, this Agreement shall terminate.
4.2 TITLE. At closing Seller shall convey fee simple title to the
Properties by special warranty deeds, subject to no encumbrances created or
suffered by Seller other than nondelinquent real property taxes, and other
matters which may be approved in writing by Purchaser in accordance with
this Section.
(a) TITLE REPORT, SURVEY, ETC. Purchaser shall within 10 days
after the Effective Date obtain current preliminary title reports on the
Properties, from First American Title Insurance Company ("Title Company").
Purchaser shall also, within 90 days after the Effective Date, obtain
current ALTA surveys of the Properties meeting Purchaser's survey
requirements. The cost of the surveyor's work will be paid by Purchaser.
Seller and Purchaser will each review the surveys and if necessary the
legal descriptions of the Properties will be adjusted based on such
surveys.
(b) TITLE APPROVAL PROCEDURE.
(1) Within 30 days after receipt of all of the title
reports and surveys, Purchaser will review such materials and notify Seller
in writing of Purchaser'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 Seller than an item is approved
shall be deemed to be disapproval of such item. In the event of such
disapproval: (i) Seller 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) Seller agrees to exert its best efforts to remove any
other disapproved matter (but Seller is not absolutely obligated to remove
a disapproved matter other than a Lien).
(2) Seller 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 Seller is unable to
eliminate a disapproved title exception or survey matter within such
twenty-day period, despite Seller's best efforts to do
April 5, 1996
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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. Purchaser may preserve this Agreement, however, if
Purchaser notifies Seller within twenty days after delivery of a notice of
termination by Seller, that either: (a) Purchaser waives its objection to
the relevant encumbrance(s); or (b) as to encumbrances that can be removed
by the payment of money, Purchaser intends at closing to pay the amount
necessary to remove such encumbrances. If Purchaser so preserves this
Agreement, this Agreement shall remain in full force and effect, and
Purchaser will receive a credit at closing in the amount of any sum paid by
Purchaser 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 Purchaser to
review and approve or disapprove such exceptions on the same basis as
provided above.
4.3 HAZARDOUS OR TOXIC MATERIALS. Exhibit B sets forth a complete
list of all written soils, environmental or other reports or studies
currently in Seller'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"). Seller has provided or will promptly provide
complete copies of the Reports and any other such reports discovered by
Seller after the date hereof. Purchaser will cause to be conducted such
investigations or audits of the environmental condition of the Properties
as Purchaser deems prudent. Purchaser will on request provide to Seller
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, Purchaser may elect,
within ten days after learning of the discovery of such matter, to
terminate this Agreement by notice to the Seller; provided, however, that
Seller may preserve this Agreement by notifying Purchaser (within 10 days
after receipt of the Purchaser's termination notice) that Seller commits at
its expense to perform any remediation necessary to correct the problem to
the satisfaction of Purchaser (in Purchaser's discretion) and any
governmental agency with jurisdiction over the Properties, and the parties
thereafter document such remediation commitment in a manner acceptable to
Purchaser. 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 physical condition of or legal
requirements applicable to the Properties.
4.5 BOARD APPROVAL. Purchaser's Board of Directors shall have
approved this transaction in its discretion. If this condition is not
satisfied by December 31, 1996, this Agreement shall terminate.
5. CONDEMNATION. If, prior to closing, any part of the Properties 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 Purchaser, become null and void. In the event
the Purchaser elects not to terminate this Agreement, the purchase price
shall not be affected, but Purchaser shall be entitled to all proceeds of
such award (or, if the award is made prior to closing, Seller shall receive
such proceeds but Purchaser shall receive a credit against the purchase
price in the net amount of such proceeds). Seller will promptly notify
Purchaser 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
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Purchaser in the response to or defense of such actions, and permit
Purchaser to participate fully in, and approve any settlement of, any such
proceedings.
6. LEGAL LOT; OUTPARCELS.
6.1 If any of the Properties is not currently a separate legal lot
or lots and tax parcel(s), Seller (with the cooperation of Purchaser) shall
complete and obtain final approval of any necessary plat, partition, lot
line adjustment or subdivision, so that as of closing the Property will be
a separate legal lot or lots and tax parcel or parcels. Any conditions
imposed in connection with such action must be acceptable to Purchaser. The
costs incurred will be paid by Seller.
6.2 The parties intend that the following "pad" outparcels, which
are depicted generally on the site plans attached as Exhibit "D" hereto,
are to be excluded from the purchase:
Property Pad(s) excluded
-------- ---------------
Gresham Newport Bay Restaurant
Tigard U.S. Bancorp
6.3 During the 60 days following the Effective Date, the parties
will negotiate in good faith a set of reciprocal easements and restrictions
with respect to these pads (the "REAs"). The REAs will prohibit use of the
pads as specified on Exhibit E hereto, and will contain customary
reciprocal access and utility easements on terms acceptable to each of the
parties. The REAs will include cross parking easements, as well as a
requirement for maintenance of adequate parking on the pads (consistent
with law and customary retail development parking standards)
notwithstanding such cross parking easements.
6.4 Seller, as successor to Duane Company, is the owner of the
Gateway shopping center development, in which Purchaser is a tenant. The
parties will, at closing, execute and deliver an Agreement Regarding Pad
Development in the form attached hereto as Exhibit F,
6.5 During the 60 days following the Effective Date, the parties
will negotiate in good faith a condominium agreement and related
documentation, or other legal arrangements acceptable to the parties and
their counsel, so as to separate fee ownership of the Burger King Building
from the remainder of the Burlingame Property. Seller will retain ownership
of the Burger King Building under the terms of such documents, which will
contain customary and mutually acceptable terms and conditions relating to
common area maintenance, taxes and similar matters. The terms of such
documents will include use restrictions prohibiting use of the Burger King
Building as specified on Exhibit E hereto, and will provide to the Burger
King Building nonexclusive parking rights in the common areas of the
development consistent with those stated in the Burlingame Lease. The
documents will also include an "exclusive use" provision to the effect that
no portion of the Burlingame Property will be developed as a fast food
hamburger restaurant, subject to the following: the restriction will not
apply to or limit in any manner any business operation within the Fred
Meyer anchor store building; and the restriction shall terminate if the
occupant of the Burger King Building ceases to operate a fast food
hamburger restaurant therein for a period of more than one year for reasons
other than remodeling, reconstruction or "force majeure" causes such as
strikes, lockouts, fire or other casualty, or acts of God. Such documents
will also permit the owner of the Burlingame Property to redevelop the
Burlingame Property from time to time provided that the physical support,
access, visibility and parking rights
April 5, 1996
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afforded to the Burger King Building are not materially adversely affected.
It is a mutual condition to closing that the parties reach final agreement
on the terms of such documents.
7. CLOSING.
7.1 CLOSING DATE. This transaction will be closed (the
"Closing") on a date to be selected by Purchaser and reasonably acceptable
to Seller, but not later than 30 days after satisfaction or written waiver
of the conditions specified in Section 4 of this Agreement, and in any
event not later than January 30, 1997 (the "Closing Date"). Purchaser will
give Seller at least 30 days notice to close.
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 Purchaser or Purchaser'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, the
Oak Grove PL Lease and the Burlingame Lease. Rent owing under the Master
Leases, the Oak Grove PL Lease and the Burlingame Lease shall be prorated
as of 12:01 a.m. on the Closing Date, with Seller entitled to such rents
through such time and Purchaser entitled to such rents commencing on the
Closing Date and thereafter.
7.4 CONVEYANCE OF PROPERTIES. Conveyance of the Properties shall
be by statutory special warranty deeds. All municipal, county, state and
federal transfer and documentary stamp taxes shall be paid by Seller at the
time of closing. The conveyance shall be free from all liens and
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 Purchaser good and
marketable title to all the Properties. The conveyance will be free of all
tenancies other than (1) the rights of REPL pursuant to the Master Leases,
and the occupancy of Fred Meyer, Inc. pursuant to the Subleases, the Oak
Grove PL Lease and the Burlingame Lease; and (2) subleases, rental
agreements or licenses in which Fred Meyer, Inc., or its subsidiary is the
sublessor, landlord or licensor. Seller shall also assign to Purchaser its
interest as lessor under the Master Leases and the Burlingame Lease,
pursuant to a lease assignment in the form of Exhibit C.
7.5 FIRPTA. Seller shall deliver to Purchaser at closing an
affidavit that Seller is not a "foreign person" under FIRPTA, in form
satisfactory to Purchaser.
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) Purchaser shall pay the total purchase price for the
Properties 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 Seller at closing shall be paid and
satisfied or removed of record at Seller's expense.
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(c) Seller shall convey the real property to Purchaser by
special warranty deed(s), subject to no encumbrances created or suffered by
Seller other than the encumbrances accepted pursuant to Section 4.2 and the
lien for real estate taxes not yet payable.
(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 the documents contemplated by
Section 6 and any additional documentation required with respect to the
matters described in Sections 7.4 and 7.5.
(f) The Escrow Officer will record the deeds, the lease
termination agreements, if any, and the REAs and the recordable documents
contemplated by Section 6.
(g) The escrow fee and the recording fees for the REAs shall
be paid equally by the parties. Any real estate excise or transfer tax will
be paid by Seller. The recording fees for the deeds will be paid by
Purchaser. Seller shall be charged with the premium (including any sales or
excise tax) for the title insurance policies to be delivered to Purchaser,
except that Purchaser shall be responsible for the portion of the premium
(including any sales or excise tax) attributable to extended coverage if
Purchaser elects to obtain it, and for the cost of any endorsements
requested by Purchaser.
(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,
Seller shall cause the Title Company to furnish Purchaser with a standard
policy of title insurance in the amount of the total purchase price for
each property, in form acceptable to Purchaser, subject only to exceptions
for the matters accepted by Purchaser pursuant to Section 4.2 or referenced
in Section 7.4. At Purchaser's option, such policies shall be in ALTA
extended coverage form (full or partial), in which case Seller and
Purchaser will execute such affidavits as may be necessary to obtain the
extended coverage. Extra title premiums attributable to extended coverage
shall be Purchaser's expense.
7.8 LEASE. If Purchaser elects to assign this Agreement and the
right to purchase the Properties to a third party that will lease the
Properties to Seller, the parties will execute any additional documentation
necessary to implement such assignment and lease, provided that Seller
shall not be required to incur any additional expense or any material risk
in connection therewith.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1 SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller
represents and warrants to Purchaser that:
(a) To the Seller's actual knowledge and without independent
investigation, and except as disclosed on the Reports or in other reports
in Buyer's possession: (1) there are no hazardous
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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. Seller does hereby assign to Purchaser
(effective at and as of the Closing Date) any and all environmental
warranties, indemnification agreements and rights of action Seller 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.
As tenant under the Subleases, Purchaser is presently responsible for
asbestos auditing to the extent required by applicable law, and is not
looking to Seller to provide any such audits.
(b) Except as disclosed to Purchaser in writing, Seller 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
Seller received written notice of any special assessment proceedings
affecting the Properties.
(c) There is no litigation pending or to the Seller's actual
knowledge threatened against Seller that arises out of the ownership of the
Properties and would be binding on the Purchaser or might detrimentally
affect the use or operation of the Properties for their intended purpose or
the value of the Properties or adversely affect the ability of Seller to
perform its obligations under this Agreement.
(d) The persons who have executed this Agreement have been
duly authorized to do so by Seller. All documents delivered at closing will
be executed by a duly authorized person. Seller has a good and legal right
to enter into this Agreement and to perform all covenants of Seller
contained in this Agreement in accordance with its terms.
(e) This Agreement and all documents required by it to be
executed by Seller are and shall be valid, legally binding obligations of,
and enforceable against, the Seller in accordance with their terms.
(f) Neither the execution and delivery of this Agreement and
the documents referred to herein, nor the incurring of the obligations set
forth herein, nor the consummation of the transactions contemplated hereby,
nor compliance with the terms of this Agreement and the documents referred
to herein, conflicts with or results in the material breach of any terms,
conditions or provisions of or constitute a default under, any bond, note
or other evidence of debt, or any contract, indenture, mortgage, deed of
trust or other agreement to which Seller is a party.
8.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser
represents and warrants to Seller that:
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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(a) The persons who have executed this Agreement have been
duly authorized to do so by Purchaser, and all requisite corporate action
has been taken by Purchaser in connection with the entering into of this
Agreement and the consummation of the transaction contemplated hereby
(subject to the provisions of Section 4.5, which references the fact that
board of directors approval has not been obtained as yet, and 12).
(b) All documents delivered at closing will be executed by a
duly authorized person. Purchaser has a good and legal right to enter into
this Agreement and to perform all covenants of Purchaser contained in this
Agreement in accordance with its terms.
(c) This Agreement and all documents required by it to be
executed by Purchaser are and shall be valid, legally binding obligations
of, and enforceable against, Purchaser in accordance with their terms.
(d) Neither the execution and delivery of this Agreement and
the documents referred to herein, nor the incurring of the obligations set
forth herein, nor the consummation of the transactions contemplated hereby,
nor compliance with the terms of this Agreement and the documents referred
to herein, conflicts with or results in the material breach of any terms,
conditions or provisions of or constitute a default under, any bond, note
or other evidence of debt, or any contract, indenture, mortgage, deed of
trust or other agreement to which Purchaser is a party.
9. CONDUCT UNTIL CLOSING; SELLER'S COOPERATION; DISCLAIMER. From the
date of this Agreement until the Closing Date, Seller shall cause all liens
on the Properties incurred by Seller to be paid current, and will not
further mortgage or encumber the Properties or increase the amount of any
current indebtedness on the Properties. 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 Purchaser 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 PURCHASER MAY DEVELOP, REDEVELOP OR
OPERATE THE PROPERTIES POST-CLOSING IS AT PURCHASER'S DISCRETION. SELLER
WILL NOT HAVE ANY CLAIM AGAINST (OR RIGHT TO RECOVER ANY DAMAGES OR COSTS
FROM) PURCHASER IN THE EVENT PURCHASER DOES NOT DEVELOP, REDEVELOP OR
CONTINUE TO OPERATE THE PROPERTIES.
10. FAILURE TO CLOSE.
10.1 SELLER'S REMEDIES. In the event that this transaction fails
to close on account of Purchaser's fault or inability to close, and
Purchaser has not exercised any right to terminate or rescind this
Agreement as provided herein, Purchaser shall pay to Seller 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
PURCHASER'S DEFAULT, SINCE THE PRECISE AMOUNT OF SUCH COMPENSATION WOULD BE
DIFFICULT TO DETERMINE. Seller 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
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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initialing this Section for purposes of acknowledging and agreeing to such
exclusive remedy and liquidated damages provision.
INITIALS OF: SELLER DWR PURCHASER SCOTT
----- -------
10.2 PURCHASER'S REMEDIES. In the event that the transaction
fails to close on account of Seller's fault or Seller's inability to
deliver title acceptable to Purchaser pursuant to Section 4.2, Purchaser
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 (provided such damages will
not exceed $25,000), 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. Purchaser reserves the
right to assign the right to purchase the Properties to any third party at
closing. Purchaser also reserves the right to assign the Agreement at or
prior to closing to an entity that will lease the Properties to Purchaser.
Unless otherwise agreed, however, no such assignment shall release
Purchaser from its obligations under this Agreement, or increase Seller's
obligations in any respect. Any such assignment must include assignment of
the Related Agreement referenced in Section 11.17. After assignment, the
purchasing party will be imputed with Purchaser's knowledge regarding the
matters set forth in Section 11.16, and will be bound by the waiver set
forth in Section 11.18, for all defects that would have been Purchaser's
obligation to remedy under the Subleases.
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:
Seller: REC RESOLUTION COMPANY
Suite 200
15115 SW Sequoia Parkway
Portland, OR 97224
Attn: Dave Ramus
Facsimile No. (503) 624-7755
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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Purchaser: 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.
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 deed contemplated in this Agreement and be fully
enforceable thereafter (provided, survival of representations and
warranties other than deed title warranties shall be limited to a period of
two years).
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
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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modification of the continuing existing agreement, rather than a rescission
or termination of such agreement. Seller will not accept any "backup",
"standby" or other additional offers to purchase the Properties without
Purchaser'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 OREGON STATUTORY DISCLAIMER. THE PROPERTY DESCRIBED IN
THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING
STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS,
WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING A
RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS
DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK
WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
11.15 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.
11.16 REPRESENTATIONS; CONDITION OF PROPERTIES. Purchaser or
Purchaser'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 Purchaser's use of the Properties,
the suitability of the Properties for Purchaser'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, Purchaser
accepts the land and property and all other aspects of the Properties in
their present condition, AS IS, without any representations or warranties
by Seller, expressed or implied. Purchaser acknowledges that Purchaser has
ascertained for itself the value and condition of the Properties and
Purchaser is not relying on, nor has Purchaser been influenced by, any
representation of Seller regarding the value or condition of the
Properties.
11.17 RELATED AGREEMENT. Purchaser is party to a Leasehold
Assignment Agreement, dated on or about the date hereof, pursuant to which
Purchaser intends to acquire the leasehold interest of REPL in the
Properties (the "Related Agreement"), which the parties thereto intend to
close simultaneously with closing under this Agreement. Purchaser's
obligation to close under this Agreement is subject to the performance by
REPL of REPL's obligations under the Related Agreement, such that a
simultaneous closing may occur. Seller's obligation to close under this
Agreement is subject to the performance by Purchaser of Purchaser's
obligations under the Related Agreement, such that a simultaneous closing
may occur.
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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11.18 CERTAIN OBLIGATIONS. Under the terms of the Subleases,
Purchaser 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 Purchaser's acknowledgment that it is accepting the
Properties AS IS, Purchaser hereby waives, releases, acquits and forever
discharges Seller and its officers, directors, partners, employees, agents,
and any other person acting on behalf of Seller, 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 Purchaser's responsibility to remedy
under the Subleases.
12. APPROVAL BY SELLER.
Seller will have until 5 p.m. (Pacific Time) on April 5, 1996,
in which to execute and return to Purchaser a fully signed counterpart of
this Agreement. Neither the delivery of this Agreement to Seller for
execution nor the delivery of any signed Agreement to Purchaser will create
a binding contract, or contract by estoppel or otherwise, between the
parties. Purchaser will have 10 days after receipt of this Agreement signed
by Seller to execute and deliver or transmit (by facsimile or otherwise) to
Seller 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.
SELLER: REC RESOLUTION COMPANY, AN OREGON CORPORATION
By: DAVID W. RAMUS
-----------------------------------------
Title: VP
--------------------------------------
Date Executed: 4/5/96
------------------------------
PURCHASER: FRED MEYER, INC., A DELAWARE CORPORATION
By: SCOTT L. WIPPEL
-----------------------------------------
Scott L. Wippel, Senior Vice President
Date Executed: 4-8-96
------------------------------
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
13
EXHIBIT A-1
A tract of land in Section 21, Township 1 South, Range 1 East of the
Willamette Meridian, in the City of Portland, County of Multnomah and State
of Oregon, described as follows:
Beginning at the intersection of the North line of S.W. Custer Street with
the East line of S.W. 13th Avenue as these streets are now laid out and
established; thence Northerly along the East line of S.W. 13th Avenue to
the intersection of the East line of S.W. 13th Avenue with the South line
of South Bertha Boulevard, as now laid out and established; thence in a
Northeasterly by Easterly direction along the South line of S.W. Bertha
Boulevard to the intersection of the South line of S.W. Bertha Boulevard
with the Westerly corner of that tract conveyed to the City of Portland for
street purposes recorded October 16, 1952 in Book 1564, page 53, Deed
Records; thence following the Southwesterly line of said street tract along
a curve right the central angle of which is 89 degrees 29' and a radius of
14 feet, a distance of 21.86 feet to a point in the West line of S.W. 10th
Avenue as now laid out and established; thence South to the intersection of
the West line of S.W. 10th Avenue with the Northerly line of S.W. Barbur
Boulevard as now laid out and established; thence in a Southwesterly
direction along the Northerly line of S.W. Barbur Boulevard to the
intersection of the Northerly line of S.W. Barbur Boulevard with the North
line of S.W. Custer Street as now laid out and established; thence Westerly
along the North line of S.W. Custer Street to the point of beginning.
BURLINGAME PROPERTY PAGE 1
EXHIBIT A-2
A tract of land in the Northwest 1/4 of Section 32, Township 1 North, Range
2 East of the Willamette Meridian, in the City of Portland, County of
Multnomah and State of Oregon, being Blocks 16 and 17 and all of Blocks 15
and 18 of North Mt. Tabor and adjacent portions of vacated Country Road No.
534, Liberty Street and N. E. 66th Avenue; also a portion of Block 9,
Marchmont Addition, recorded plats, in the County of Multnomah and State of
Oregon; described as follows:
PARCEL NO. I
Beginning at the intersection of the North line of N. E. Glisan Street and
the West line of N. E. 67th Avenue; thence Northerly along said West line
of N. E. 67th Avenue 572.32 feet, more or less, to the intersection with
the South line of N. E. Oregon Street; thence Westerly along the South line
of N.E. Oregon 634 feet, more or less, to the intersection with the center
line of vacated Country Road No. 534; thence Southerly along the center
line of said Country Road #534, 572 feet, more or less, to the intersection
with the North line of N. E. Glisan Street; thence Easterly along said
North line of N. E. Glisan Street 15 feet to a point; thence Northerly
parallel to said center line of said Country Road No. 534, 100 feet to a
point; thence Easterly parallel to the North line of N. E. Glisan Street
100 feet to a point; thence Southerly parallel to the center line of said
County Road No. 534, 100 feet to the North line of N. E. Glisan Street;
thence Easterly along said North line of N. E. Glisan Street 519 feet, more
or less, to the point of beginning.
PARCEL NO. II
Lots 8, 9, 10 and that portion of Lots 11, 12, 13, 14 and 15, lying
Easterly of the East line of a deeded street, recorded December 1, 1960, in
Book 2039, page 256, Multnomah County, Oregon, all in said Marchmont
Addition.
PARCEL NO. III
A perpetual easement for ingress and egress over the following tract of
land in Section 32, Township 1 North, Range 2 East of the Willamette
Meridian: Beginning at the center line of vacated County Road #534 (N. E.
65th Avenue) and the North line of N. E. Glisan Street; thence South 89
degrees 48' West 15.00 feet; thence North 0 degrees 01' 30" West 215.69;
thence North 89 degrees 48' East, 15 feet; thence South 0 degrees 01' 30"
East 215.69 feet to the point of beginning, in the City of Portland, County
of Multnomah and State of Oregon.
SUBJECT TO:
1. A perpetual easement over the West 15 feet of the South 215.69 feet, for
the purpose of ingress, egress and regress as set forth in agreement
between Gibbons and Reed Company, a Utah corporation,
GLISAN PROPERTY PAGE 1
and Union Central Co., an Oregon corporation, dated September 5, 1961,
recorded October 3, 1961 in PS Deed book 2084, page 1.
2. Easement for ingress and egress from Union Central Company to Humble Oil
and Refining Company for the benefit of adjoining property disclosed in an
unrecorded lease dated July 5, 1961, amended by letter dated September 12,
1961, and by instrument dated October 20, 1961, described as follows: A
tract of land in the Northwest 1/4 of Section 32, Township 1, North, Range
2 East, Willamette Meridian, Multnomah County, Oregon, more particularly
described as follows: Beginning at the center line of County Road No. 534
(N.E. 65th Avenue), now vacated and the north line of N. E. Glisan Street;
thence North 89 degrees 48' East 115.00 feet along said north line to the
true point of beginning; thence North 89 degrees 48' East 24.00 feet along
said north line; thence North 45 degrees 10' 30" West 33.94 feet; thence
South 0 degrees 01' 30" East 24.00 feet to the true point of beginning.
3. Easement for ingress and egress from Union Central Company to Humble Oil
and Refining Company for the benefit of adjoining property disclosed in an
unrecorded lease dated July 5, 1961, amended by letter dated September 12,
1961, and by instrument dated October 20, 1961, described as follows: A
tract of land in the Northwest 1/4 of Section 32, Township 1 North, Range 2
East, Willamette Meridian, Multnomah County, Oregon more particularly
described as follows: Beginning at the intersection of the center line of
County Road No. 534 (N. E. 65th Avenue), now vacated, and the north line of
N. E. Glisan Street; thence North 89 degrees 48' East 15.0 feet to the true
point of beginning; thence North 0 degrees 01' 30" West 30.0 feet; thence
Southwesterly to a point on the north line of N. E. Glisan Street which is
30 feet west of the true point of beginning; thence along the north line of
N. E. Glisan Street 30.0 feet to the true point of beginning.
GLISAN PROPERTY PAGE 2
(Former gas station parcel)
A tract of land in the northwest 1/4 of Section 32, Township 1
North, Range 2 East, W.M., Multnomah County, Oregon, more
particularly described as follows:
Beginning at the center line of County Road No. 534 (N.E. 65th
Avenue), now vacated, and the north line of the N. E. Glisan
Street; thence North 89 degrees 48' East, 15.0 feet to the true
point of beginning; thence North 89 degrees 48' East, 100.00 feet
along said north street line; thence North 0 degrees 01' 30" West,
100.00 feet; thence South 89 degrees 48' 00" West, 100.00 feet;
thence South 0 degrees 01' 30" East, 100.00 feet to the true point
of beginning.
together with the joint use in common of an easement over the following
described real property:
A tract of land in the northwest 1/4 of Section 32, Township 1
North, Range 2 East, W.M., Multnomah County, Oregon, more
particularly described as follows:
Beginning at the center line of County Road No. 534 (N.E. 65th
Avenue), now vacated and the north line of N. E. Glisan Street,
thence North 89 degrees 48' East, 115.00 feet along said north
line to the true point of beginning; thence North 89 degrees 48'
East, 24.00 feet along said north line; thence North 45 degrees
10' 30" West, 33.94 feet; thence South 0 degrees 01' 30" East,
24.00 feet to the true point of beginning.
Commonly known as 6515 N.E. Glisan, Portland, Oregon
GLISAN PROPERTY PAGE 3
EXHIBIT A-3
A tract of land in Section 11, Township 1 South, Range 3 East of the
Willamette Meridian, in the City of Gresham, County of Multnomah and State
of Oregon described as follows:
Beginning at a point on the westerly line of that tract of land described
in Book 2191, page 341, Multnomah County Record of Deeds, 5.00 feet
southerly from the southerly right-of-way line of Bull Run Road, said point
bears South 2 degrees 44' 22" West 14.47 feet and South 87 degrees 15' 38"
East 252.33 feet and South 89 degrees 38' 02" East 434.96 feet from the
Northeast corner of the J.H. Lambert Donation Land Claim, Township 1 South,
Range 3 East, Willamette Meridian, Multnomah County, Oregon:
Thence South 0 degrees 30' 55" East 185.19 feet to the southwesterly corner
of that tract of land described in Book 2191, page 341, Multnomah County
Record of Deeds; Thence South 89 degrees 38' 35" East 404.95 feet to a
point situated North 89 degrees 38' 35" West 20.00 feet from the East line
of that tract of land described in PS Miscellaneous Book 188, page 511,
Multnomah County Record of Deeds; thence South 0 degrees 27' 56" East
190.00 feet to a point; thence South 21 degrees 30' 03" East 334.70 feet to
a point; thence South 32 degrees 04' 14" East 220.83 feet to a 1-inch iron
pipe on the westerly boundary of that tract of land described in PS Deed
Book 990, page 130; thence South 0 degrees 28' 16" East 661.58 feet along
said boundary line to the Northeast corner of that tract of land described
in Volume 1106, page 283, Multnomah County Book of Deed Records; thence
North 71 degrees 51' 12" West, coincident with the northerly line of the
aforementioned described tract, 122.03 feet to a point; thence North 0
degrees 28' 31" West 427.13 feet to a point; thence South 89 degrees 29'
30" West 252.94 feet to a point; thence South 60 degrees 57' 27" West
235.66 feet to the easterly right-of-way line of S.E. Burnside Road; thence
northwesterly along said right-of-way as follows: North 39 degrees 07' 34"
West 299.29 feet along the Northeast boundary of that parcel of land
described in Book 1701, page 3, Deed Records, and North 28 degrees 49' 10"
West 116.95 feet and northwesterly along the arc of a 5,809.58-foot radius
curve left, of which the long chord bears North 29 degrees 50' 21" West
226.35 feet and North 58 degrees 59' 11" East 10.00 feet and northwesterly
along the arc of a 5,819.58-foot radius curve left, of which the long chord
bears North 32 degrees 47' 02" West 371.74 feet to the intersection of the
easterly right-of-way line of East Burnside Road and the southerly
right-of-way line of Third Street; thence northeasterly along the southerly
right-of-way line of Third Street as follows: Northeasterly along the arc
of a 1,732.77-foot radius curve left, the long chord bears North 48 degrees
06' East 246.87 feet; North 44 degrees 00' 53" East 163.77 feet,
northeasterly along the arc of a 211.00-foot radius curve right of which
the long chord bears North 60 degrees 56' 29" East 122.86 feet, South 89
degrees 38' 02" East 70.65 feet to the point of beginning.
GRESHAM PROPERTY PAGE 1
EXHIBIT A-4
Property Description August 12, 1974
Tract A Fred Meyer, Inc.
A tract of land located in the northwest quarter of Section 15, Township 1
North, Range 1 East, Willamette Meridian, City of Portland, Multnomah
County, Oregon, more particularly described as follows:
Beginning at a point on the north line of Lot 1, Block 1, Kenmore, said
point bears North 87 degrees 54' 00" East, 20.61 feet from the northwest
corner thereof; thence North 87 degrees 54 ` 00" East, 432.02 feet to a
point on the north line of Lot 2, Block 1, Van Buren's Addition, said point
bears South 87 degrees 54' 00" West, 32.97 feet from the northeast corner
thereof; thence on a 22.00 foot radius curve to the right, which chord
bears South 45 degrees 52' 30" East, 31.77 feet, an arc length of 35.50
feet to a point 10.00 feet westerly from, when measured at right angles,
the east line of said Block 1, Van Buren's Addition; thence South 00
degrees 21' 00" West, parallel with the said east line of Block 1, 462.94
feet to a point 10.00 feet westerly from, when measured at right angles,
the east line of Block 4, said Van Buren's Addition; thence on a 199.01
foot radius curve to the left, which chord bears South 13 degrees 28' 00"
East, 95.05 feet, an arc length of 95.98 feet; thence on a 129.01 foot
radius curve to the right, which chord bears South 20 degrees 48' 30" East,
29.09 feet, an arc length of 29.15 feet to a point 10.00 feet westerly
from, when measured on a radial line to said curve, the said east line of
Block 4, Van Buren's Addition; thence on a 23.00 foot radius curve to the
right, which chord bears South 18 degrees 45' 57" West, 25.12 feet, an arc
length of 26.57 feet to a point 10.00 northerly from, when measured at
right angles, the south line of Lot 8, Block 4, said Van Buren's Addition;
thence North 89 degrees 38' 20" West, parallel with the said south line of
Block 4, 500.19 feet to a point on the west line of Lot 1, Block 1,
Northview, said point bears North 00 degrees 18' 49" East, 10.00 feet from
the southwest corner thereof; thence North 00 degrees 19' 40" East, along
the west line of Block 1, Northview, and the west line of Blocks 1 and 2
said Kenmore, 588.13 feet to a point that bears South 00 degrees 19' 40"
West, 20.61 feet from the said northwest corner of Lot 1, Block 1, Kenmore;
thence on a 21.50 foot radius curve to the right, which chord bears North
44 degrees 06' 50" East, 29.75 feet, an arc length of 32.86 feet to the
point of beginning.
The above described tract of land contains 296,036.34 square feet or 6.7960
acres, more or less.
PETTIJOHN ENGINEERING COMPANY, INC.
74-99
INTERSTATE PROPERTY PAGE 1
Property Description August 12, 1974
Tract B Fred Meyer, Inc.
A tract of land located in the northwest quarter of Section 15, Township 1
North, Range 1 East, Willamette Meridian, City of Portland, Multnomah
County, Oregon, more particularly described as follows:
Beginning at a point on the west line of Lot 1, Block 2, Van Buren's
Addition, said point bears South 00 degrees 21' 00" West, 28.33 feet from
the northwest corner thereof, said point also located at the intersection
of the westerly right-of-way line of the Minnesota Freeway and the east
right-of-way line of North Montana Avenue; thence tracing the said westerly
freeway right-of-way line the following courses: South 60 degrees 42' 04"
East, 122.73 feet, South 25 degrees 49' 30" East, 56.67 feet; South 00
degrees 21' 00" West, 45.00 feet; South 15 degrees 11' 48" East, 55.96
feet; South 00 degrees 21' 00" West, 100.00 feet; South 00 degrees 51' 11"
East, 100.01 feet; South 00 degrees 36' 51" West, 50.00 feet; South 04
degrees 56' 08" East, 77.41 feet to a point on the south line of Lot 13,
Block 1, Shannon Tract; thence North 89 degrees 38' 20" West, 24.00 feet to
the southwest corner of said Lot 13; thence leaving said freeway
right-of-way line and continuing North 89 degrees 38' 20" West, 50.00 feet
to the southwest corner of Lot 11, said Block 1, Shannon Tract, said point
also located on the east line of Lot 2, Block 5, Van Buren's Addition;
thence North 00 degrees 21' 00" East, 21.90 feet to the northeast corner of
said Lot 2; thence North 89 degrees 58' 00" West, 71.23 feet to the
northwest corner of said Lot 2, said point also located on the easterly
right-of-way line of North Montana Avenue; thence along the said easterly
right-of-way line on a 139.01 foot radius curve to the right, which chord
bears North 11 degrees 12' 49" West, 55.73 feet, an arc length of 56.11
feet; thence North 00 degrees 21' 00" East, 460.14 feet to the point of
beginning.
The above described tract of land contains 69,634.68 square feet or 1.5986
acres, more or less.
PETTIJOHN ENGINEERING COMPANY, INC.
74-99
INTERSTATE PROPERTY PAGE 2
EXHIBIT A-5(A)
Property Description FRED MEYER, INC. September 17, 1974
Parcel A
A parcel of land in Section 12, Township 2 South, Range 1 East,
Willamette Meridian, Clackamas County, Oregon, more particularly described
as follows:
Beginning at the northeast corner of the intersection of S. E.
McLoughlin Boulevard and S. E. Oak Grove Boulevard; thence in a
northwesterly direction along the east line of said S. E. McLoughlin
Boulevard on a 2805.00 foot radius curve to the right, which chord bears
North 20 degrees 02' 48" West, 606.46 feet, an arc length of 607.65 feet to
the north line of a tract of land conveyed to Robert M. Taylor and Imal O.
Taylor by C. R. Moe, single man, in P S Deed Book 466, page 555, dated
March 12, 1953 and recorded on March 17, 1953, records of Clackamas County;
thence North 88 degrees 34' 30" East along said north line 163.52 feet to
the west line of Lot 5, Camplan Addition, a duly recorded plat in Clackamas
County; thence North 1 degrees 21' 40" West along the said west line of Lot
5, 31.00 feet to a point 25.00' Southerly from the northwest corner
thereof; thence North 88 degrees 34' 30" East, parallel with the north line
of said Lot 5, 189.97 feet to the intersection of said line with the
northwesterly right of way line of the re-located 30.00 foot radius
cul-de-sac at the south terminus of Camplan Court; thence along said
cul-de-sac on a 30.00 foot radius curve to the left, which chord bears
North 88 degrees 36' 00" East, 50.02 feet, an arc length of 129.35 feet to
a point on the west line of Lot 8, said Camplan Addition, 70.03 feet
southerly from the northwest corner thereof; thence North 1 degrees 21' 40"
West along the west line of said Lot 8, 0.03 feet; thence North 88 degrees
34' 30" East, parallel with the north line thereof, 100.00 feet; thence
South 1 degrees 21' 40" East, 5.00 feet; thence North 88 degrees 34' 30"
East, 20.00 feet; thence South 46 degrees 25' 30" East, 35.36 feet; thence
North 88 degrees 34' 30" East, 147.28 feet; thence South 36 degrees 10' 10"
East, 225.24 feet to the said northerly right of way line of S. E. Oak
Grove Boulevard; thence South 47 degrees 35' 40" West along said northerly
line 595.02 feet to an angle point in said line; thence South 88 degrees
26' 40" West, 181.35 feet to the point of beginning.
The above described parcel of land contains 7.6734 acres more or less.
PETTIJOHN ENGINEERING COMPANY, INC.
Job No. 74-121
OAK GROVE PROPERTY PAGE 1
Property Description FRED MEYER, INC. September 17, 1974
Parcel B
A parcel of land in Sections 1 and 12, Township 2 South, Range 1 East,
Willamette Meridian, Clackamas County, Oregon, more particularly described
as follows:
Beginning at the northwest corner of Lot 8, Camplan Addition, a duly
recorded plat in Clackamas County, said point also being on the East right
of way line of Camplan Court; thence North 88 degrees 34' 30" East along
the north line of said Lot 8 and its easterly extension thereof, 377.99
feet; thence North 1 degrees 13' 38" W, 200.00 feet to a point on the south
right of way line of Maple Street; thence North 88 degrees 34' 30" East
along said line, 114.89 feet to the intersection of said line with the
westerly right of way line of Oatfield Road; thence South 25 degrees 19'
30" East along said westerly line, 198.43 feet to an angle point in said
line; thence South 36 degrees 10' 10" East, 129.43 feet to the intersection
of said line with the northerly right of way line of Oak Grove Boulevard;
thence South 47 degrees 35' 40" West along said northerly line, 300.89
feet; thence leaving said line and running North 36 degrees 10' 10" West,
225.24 feet; thence South 88 degrees 34' 30" West, 147.28 feet; thence
North 46 degrees 25' 30" West, 35.36 feet; thence South 88 degrees 34' 30"
West, 20.00 feet; thence North 1 degrees 21' 40" West, 5.00 feet to a point
70.00 feet south of, when measured at right angles, the said north line of
Lot 8, Camplan Addition; thence South 88 degrees 34' 30" West, parallel
with said line, 100.00 feet to a point on the east right of way line of
said Camplan Court; thence North 1 degrees 21' 40" West, 70.00 feet to the
point of beginning.
The above described parcel of land contains 2.7953 acres more or less.
PETTIJOHN ENGINEERING COMPANY, INC.
Job No. 74-121
OAK GROVE PROPERTY PAGE 2
PARCEL C
A parcel of land in Section 12, Township 2 South, Range 1 East,
Willamette Meridian, Clackamas County, Oregon, more particularly described
as follows:
The Westerly 90 feet of the following described parcel: The South 55
feet of Lot 4 and the North 25 feet of Lot 5, Camplan Addition, according
to the duly recorded plat thereof, in Clackamas County, Oregon; and
Parts of Tracts "M" and "J" of Kuehl's Acres, described as: Beginning
on the east line of the East Portland-Oregon City Highway, known as the
Super Highway, 164 feet Northerly from the south line of Tract "K", Kuehl's
Acres; thence Northerly along the East line of said Super Highway 100 feet;
thence East parallel with Maple Avenue 184.80 feet, more or less, to the
east boundary of Tract "J", Kuehl's Acres; thence South along the east
boundary of said Tract "J", 100 feet, more or less, to a point East of the
point of beginning; thence West parallel with Maple Avenue 164.20 feet,
more or less, to the point of beginning. Situate in Clackamas County,
Oregon.
OAK GROVE PROPERTY PAGE 3
EXHIBIT A-5
Order No. C53078
Page No. 2
DESCRIPTION
The East 100 feet of the South 55 feet of Lot 4 and the East 100 feet of
the North 25 feet of Lot 5, all to be cut off by lines parallel with the
line between Lots 4 and 5, and the South line of Lot 4, in CAMPLAN
ADDITION, in Clackamas County, Oregon.
OAK GROVE PARKING LOT PAGE 1
EXHIBIT A-6
STADIUM
(Parking Lot)
1. Part of Block 30 in King's Second Addition to the City of Portland, in
the City of Portland, County of Multnomah and State of Oregon:
Commencing at a point where the West line of N. W. 20th Place,
formerly Ella Street, would intersect the North line of N. W. Davis
Street, formerly "D" Street if extended; running thence Northerly on
the West line of N. W. 20th Place, 55 feet; thence Westerly and
parallel to the North line of N. E. Davis Street, formerly "D" Street,
if extended 100 feet; thence Southerly parallel to N. W. 20th Place,
55 feet to the North line of N. W. Davis Street, if extended; thence
East 100 feet to the place of beginning.
Beginning on the West boundary line of N. W. 20th Place at a point 50
feet Southerly from the intersection of the South line of N. W.
Everett Street with the West line of said N. W. 20th Place; running
thence Southerly along the West line of N. W. 20th Place, 50 feet;
thence running Westerly parallel with the South boundary line of N. W.
Everett Street, 100 feet; thence running Northerly parallel with the
West line of N. W. 20th Place, 50 feet; thence running Easterly
parallel with the South line of N. W. Everett Street, 100 feet to the
point of beginning; also described as South 50 feet of the North 100
feet of the East 100 feet of Block 30, King's Second Addition to the
City of Portland.
Part of Block Thirty (30) King's Second Addition, described as
follows: Commencing at a point where the West line of N. W. 20th
Place, formerly Ella Street, would intersect the North line of N. W.
Davis Street, formerly "D" Street, if extended; and running thence
Northerly on the West line of N.W. 20th Place, 55 feet to the true
place of beginning of the tract herein to be described; thence
Westerly and parallel to the North line of N. W. Davis Street,
formerly "D" Street, if extended, 100 feet; thence Northerly and
parallel with the West line of N. W. 20th Place, 45 feet; thence
Easterly and parallel to the North line of N. W. Davis Street,
formerly "D" Street, if extended, 100 feet to the West line of N. W.
20th Place; thence Southerly along the West line of N. W. 20th Place,
45 feet to the true place of beginning.
STADIUM PROPERTY PAGE 1
(Store)
2. A part of Block 29, King's 2nd Addition to the City of Portland, in
the City of Portland, County of Multnomah, and State of Oregon, more
particularly described as follows:
Beginning at a point in the West line of Northwest 20th Avenue, which
is 60 feet South of the South lineof Northwest Everett Street; thence
West along a line parallel with the South line of Northwest Everett
Street, 112.5 feet; thence South along a line parallel with the West
line of Northwest 20th Avenue, 40 feet to a point; thence West along a
line parallel with the South line of Northwest Everett Street, 87.5
feet to a point in the East line of Northwest 20th Place, which is 100
feet South of the South line of Northwest Everett Street; thence South
along the East line of Northwest 20th Place, 472.64 feet to a point in
the North lineof West Burnside Street; thence Easterly along the
Northerly line of West Burnside Street, 200.92 feet to an intersection
with the East line of Northwest 20th Avenue; thence North along the
West line of Northwest 20th Avenue 532.22 feet to the point of
beginning.
STADIUM PROPERTY PAGE 2
EXHIBIT A-7
A tract of land in Section 36, Township 1 South, Range 1 West,
Willamette Meridian, Washington County, Oregon, more particularly described
as follows:
Beginning at the intersection of the south line of the Thomas Stott
D.L.C. No. 53 with the west line of S.W. 71st Avenue as established by
County Road survey No. 2042; thence southerly along said road on a 316.18
foot radius curve to the left, which chord bears South 16 degrees 47' 32"
East, 129.06 feet, an arc length of 129.97 feet; thence continuing along
said road South 28 degrees 32' 12" East, 23.25 feet to the top edge of a
rock bank; thence leaving said road and running southwesterly along said
rock bank the following courses: South 33 degrees 28' 10" West, 51.81 feet;
South 35 degrees 54' 20" West, 44.87 feet; South 40 degrees 09' 50" West,
40.34 feet, South 34 degrees 33' 00" West, 16.51 feet; thence leaving said
rock bank and running South 36 degrees 12' 40" East, 64.59 feet to the
northwesterly line of S. W. Pacific Highway West; thence southwesterly
along said highway the following courses: South 53 degrees 47' 20" West,
567.15 feet, South 36 degrees 12' 40" East, 10.00 feet; South 53 degrees
47' 20" West, 222.13 feet; thence leaving said highway and running North 36
degrees 12' 40" West, 98.29 feet; thence North 89 degrees 48' 00" West,
78.47 feet; thence North 0 degrees 12' 00" East, 265.24 feet; thence South
89 degrees 10' 00" East, 20.60 feet; thence North 0 degrees 12' 00" East,
452.00 feet to the said south line of Thomas Stott D.L.C. No. 53, thence
South 89 degrees 00' 00" East along said D.L.C. line 328.10 feet; thence
leaving said D.L.C. line and running North 0 degrees 15' 00" West, 131.94
feet to the south line of S. W. Spruce Street; thence North 89 degrees 52'
00" East along said street 419.95 feet to the intersection of said street
with the said west line of S. W. 71st Avenue; thence South 0 degrees 18'
54" West, 99.89 feet; thence on a 316.18 foot radius curve to the left,
which chord bears South 2 degrees 21' 02" East, 29.41 feet, an arm length
of 29.62 feet to the point of beginning.
The above described tract of land contains 11.40 acres more or less.
TIGARD PROPERTY PAGE 1
The following is the description of a portion of Lot B Metzger Acre tracts.
Beginning at a 3/4-inch iron pipe marking the northeasterly corner of Lot B
Metzger Acre tracts, Township 1 South, Range 1 West of the Willamette
Meridian, Washington County, Oregon, as recorded in Volume 2, Page 41 in
the Plat Books of said county, said northeasterly corner is recorded as
bearing North 45 degrees 10' East 875.3 feet and North 00 degrees 11' West
1784.5 feet and South 89 degrees 03' East 3688.5 feet and North 00 degrees
05' West 138.5 feet and North 89 degrees 48' West 447.2 feet from the most
southerly southwest corner of the Thomas Scott Donation.
Land Claim No. 53, Township 1 South, Range 1 West of the Willamette
Meridian, Washington County, Oregon, and running thence;
North 89 degrees 48' West 200.00 feet along the southerly right-of-way line
of Spruce Street to an iron rod;
thence southerly 127.75 feet paralle to the easterly boundary line of said
Lot B to a 5/8-inch iron rod with an aluminum cap on the southerly boundary
line of Metzger Acre tracts;
thence South 89 degrees 03' East 200.11 feet along said southerly boundary
line to the southeasterly corner of said Lot B;
thence northerly along said easterly boundary line of Lot B 131.07 feet to
the point of beginning and containing 0.6 acres of land, more or less.
TIGARD PROPERTY PAGE 2
All of Block "B" METZGER ACRE TRACTS, EXCEPT the East 200 feet thereof, in
the County of Washington and State of Oregon. Known as Tax Lot 3700.
TIGARD PROPERTY PAGE 3
EXHIBIT B
Environmental Reports
None.
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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 REC RESOLUTION COMPANY, 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.
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
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]
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
2
[graphic map depicting existing Fred Meyer Shopping Center setting out
US Bank Pad]
EXHIBIT D
[graphic map depicting Gresham Retail Store setting out Newport Bay Pad]
EXHIBIT E - USE RESTRICTIONS
----------------------------
1. Restrictions on Certain Parcels. No Parcel other than the [FRED
MEYER PARCEL] will be leased, subleased, operated or otherwise used for:
(i) any jewelry store; (ii) any supermarket (which for purposes of this
Declaration means any store, department or area within a store, containing
at least 5,000 square feet of gross floor area, including aisle space and
storage, primarily devoted to the retail sale of food for off-premises
consumption); (iii) any bakery or delicatessen (provided, this shall not be
deemed to prohibit bakery or delicatessen operations that are ancillary to
another primary use such as a submarine or bagel sandwich restaurant); (iv)
the sale of fresh or frozen meat, fish, poultry or produce for off-premises
consumption; (v) any convenience store (except that a convenience store
being operated in conjunction with a gasoline product service station
approved in writing by Declarant and which contains not more than 1,500
square feet of gross floor area for product display, or such greater area
as Declarant may approve from time to time, will not be a prohibited use);
or (vi) the sale of any pharmaceutical products requiring the services of a
registered pharmacist. The restriction in clause (i) above shall terminate
if the occupant of the Fred Meyer Parcel ceases to operate a jewelry store
on the Fred Meyer Parcel for a period of more than one year for reasons
other than remodeling, reconstruction or "force majeure" causes such as
strikes, lockouts, fire or other casualty, or acts of God. The restrictions
in clauses (ii), (iii), (iv), and (v) above shall terminate if the occupant
of the Fred Meyer Parcel ceases to operate a supermarket on the Fred Meyer
Parcel for a period of more than one year for reasons other than
remodeling, reconstruction or "force majeure" causes. The restriction in
clause (vi) above shall terminate if the occupant of the Fred Meyer Parcel
ceases to operate a pharmacy on the Fred Meyer Parcel for a period of more
than one year for reasons other than remodeling, reconstruction or "force
majeure" causes.
2. General Restrictions on Use. The Parcels shall not in any event be
leased, subleased, operated or otherwise used for: (i) the display,
distribution or sale of any "adult" books, "adult" films, "adult"
periodicals or "adult" entertainment; (ii) the establishment or maintenance
of a massage parlor, gambling operation, "adult" theater, "adult"
bookstore, "sex" shop, "peep show" or bawdy house or brothel, or any use in
violation of applicable zoning and other governmental laws and regulations;
(iii) any use which emits an obnoxious odor, noise or sound which can be
heard or smelled outside of any building in the Development, or which is a
public or private nuisance, or which, in Declarant's judgment, is likely to
generate public protests or controversy interfering with the operation of
the Development as a retail center; (iv) any distilling, refining,
smelting, agricultural, animal raising or boarding (other than consumer pet
shops), or mining operation; (v) any short or long-term residential use;
(vi) any primary use as a warehousing, assembling, manufacturing, waste
processing or other industrial operation; (vii) any motor vehicle, truck,
trailer, recreational vehicle or boat sales, leasing or display; or (viii)
any place for public assembly (such as a church, mortuary or meeting hall).
April 5, 1996
SITE PURCHASE AGREEMENT - FM Form A-3 Rev. 3/94
1
EXHIBIT F
AGREEMENT REGARDING PAD DEVELOPMENT
THIS AGREEMENT REGARDING PAD DEVELOPMENT (this "Agreement") is made
and entered into this __________ day of _____________, 1996, by and between
REC RESOLUTION COMPANY, an Oregon corporation ("Landlord"), and FRED MEYER,
INC., a Delaware corporation ("Tenant").
R E C I T A L S
This Agreement is made with reference to the following facts and
objectives:
A. Landlord is the fee owner of certain property in Portland, Oregon,
which is a part of the Gateway Shopping Center in Portland, Oregon (the
"Shopping Center").
B. Pursuant to a lease dated February 19, 1987 and amended by
agreements dated December 28, 1987 and February 22, 1991 (as amended, the
"Lease") Landlord leased to Tenant a portion of the Shopping Center (the
"Premises"), which is more particularly described in the Lease.
C. On or about January 23, 1991, Landlord and Mervyn's, Inc.
("Mervyn's") entered into a Reciprocal Easement Agreement (the "REA") for
the common development, use and operation of the Shopping Center. Tenant
subordinated the Lease to the REA as part of the February 22, 1991
amendment.
D. On or about December 20, 1994, Landlord and Mervyn's entered into
an amendment to the REA (the "REA Amendment") to incorporate additional
property consisting of approximately six thousand four hundred (6,400)
square feet at the corner of 102nd Avenue and Pacific Avenue (the
"Additional Property") into the Shopping Center and allow the development
of an additional pad area ("Pad Area 4") in the Shopping Center.
E. Landlord and Tenant have reached an agreement whereby Tenant will
subordinate the Lease to the terms of the REA Amendment and consent to the
development of Pad Area 4 upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing facts and for good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Subordination to the REA Amendment. Subject to the terms of this
Agreement, Tenant hereby consents to and agrees to subordinate the Lease to
the terms of the REA Amendment.
Facility No. 200-01/GY-1
04/05/1996 Portland, OR
Page 1 of 4
2. Development of Pad Area 4. Tenant consents to the development of
Pad Area 4 as permitted under the REA and the REA Amendment subject to the
following:
2.1 Prohibition of Certain Retail Uses. During the term of the
Lease, Pad Area 4 will under no circumstances be sold, leased, subleased,
operated or otherwise used for: (i) any jewelry store; (ii) any supermarket
(which for purposes of this Agreement means any store, department or area
within a store, containing at least five thousand (5,000) square feet of
gross floor area, including aisle space and storage, primarily devoted to
the retail sale of food for off-premises consumption); (iii) any bakery or
delicatessen (provided this shall not be deemed to prohibit bakery or
delicatessen operations that are ancillary to another primary use such as a
submarine or bagel sandwich restaurant); (iv) the sale of fresh or frozen
meat, fish, poultry or produce for off-premises consumption; (v) any
convenience store (except that a convenience store being operated in
conjunction with a gasoline product service station and which contains not
more than one thousand five hundred (1,500) square feet of gross floor area
for product display, or such greater area as Tenant may approve from time
to time, will not be a prohibited use; or (vi) the sale of any
pharmaceutical products requiring the services of a registered pharmacist.
The restriction in clause (i) above shall terminate if the
occupant of the Premises ceases to operate a jewelry store on the Premises
for a period of more than one year for reasons other than remodeling,
reconstruction or "force majeure" causes such as strikes, lockouts, fire or
other casualty, or acts of God. The restrictions in clauses (ii), (iii),
(iv) and (v) above shall terminate if the occupant of the Premises ceases
to operate a supermarket on the Premises for a period of more than one year
for reasons other than remodeling, reconstruction or "force majeure"
causes. The restriction in clause (vi) above shall terminate if the
occupant of the Premises ceases to operate a pharmacy on the Premises for a
period of more than one year for reasons other than remodeling,
reconstruction or "force majeure" causes.
3. Site Plan Approval. Tenant shall have the right to reasonably
approve the site plan for the development of Pad Area 4 to ensure that the
development of Pad Area 4 does not materially adversely impact the parking
and circulation of the common area adjacent to the Premises. In addition,
Landlord's development of Pad Area 4 shall not cause the parking ratio on
the Fred Meyer Parcel (as defined in the REA) to fall below 4.1 per 1,000
square feet of Allowed Gross Floor Area (as defined in the REA).
Facility No. 200-01/GY-1
04/05/1996 Portland, OR
Page 2 of 4
4. Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto. There are no promises, terms, conditions or obligations
other than those contained herein. This Agreement supersedes all prior
communications, representations or agreements, verbal or written, between
the parties hereto and shall not be amended except in writing subscribed to
by the parties hereto.
5. Successors and Assigns. Each and all of the covenants, terms,
agreements and obligations of this Agreement shall extend to and bind and
inure to the benefit of the successors and/or assigns of said parties
hereto.
6. Ratification. Except as herein expressly modified all the terms and
conditions of the Lease shall remain in full force and effect.
7. Time of Essence. Time is of the essence with respect to the
performance of every provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the respective dates set opposite their signatures below, but this
Agreement on behalf of such party shall be deemed to have been dated as of
the date first above written.
LANDLORD:
REC RESOLUTION COMPANY,
an Oregon corporation,
Dated: ______________, 1996 By
--------------------------------
David W. Ramus
--------------------------------
(typed or printed name)
Its Vice President
----------------------------
TENANT:
FRED MEYER, INC.,
a Delaware corporation
Dated: ______________, 1996 By
--------------------------------
--------------------------------
(typed or printed name)
Its
----------------------------
(ACKNOWLEDGMENTS ON FOLLOWING PAGE)
Facility No. 200-01/GY-1
04/05/1996 Portland, OR
Page 3 of 4
(ACKNOWLEDGMENT FOR LANDLORD)
STATE OF OREGON )
) ss.
County of Washington )
This instrument was acknowledged before me on this ___________ day of
________________, 1996 by David W. Ramus as Vice President of REC
RESOLUTION COMPANY, an Oregon corporation.
------------------------------------------
Notary Public for Oregon
My Commission Expires: ___________________
(ACKNOWLEDGMENT FOR TENANT)
STATE OF OREGON )
) ss.
County of ______________ )
This instrument was acknowledged before me on this __________ day of
________________, 1996 by _____________________________________________ as
_______________________________ of FRED MEYER, INC., a Delaware
corporation.
------------------------------------------
Notary Public for Oregon
My Commission Expires: ___________________
Facility No. 200-01/GY-1
04/05/1996 Portland, OR
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