EXHIBIT 10(W)
ASSIGNMENT OF LEASE AND CANCELLATION OF SUBLEASE
THIS ASSIGNMENT OF LEASE (the "Agreement") is made as of
this 12th day of April, 1993, between REAL ESTATE PROPERTIES
LIMITED PARTNERSHIP, an Oregon limited partnership ("Assignor"),
and FRED MEYER, INC., a Delaware corporation ("Assignee").
R E C I T A L S
A. As of October 20, 1966, Southeast Company, an Oregon
corporation ("Southeast"), as lessor, and Fred Meyer, Inc., as
original lessee, entered into a lease (the "Lease") for the real
property located at 5253 SE 82nd Avenue, Portland, Oregon, and
more particularly described in Exhibit A attached hereto and
incorporated by reference (the "Premises"). Assignor is the
successor to Fred Meyer, Inc., as lessee under the Lease.
B. By a certain sublease dated October 22, 1986 (the
"Sublease"), Assignee subleased the Premises to Assignor.
C. Southeast and Assignor have entered into a Lease
Modification Agreement (the "Amendment") of even date herewith.
The Amendment will be effective only upon the assignment of the
Lease to Assignee as provided for herein.
D. The parties have agreed to the assignment of the Lease
and termination of the Sublease upon the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, conditions and agreements contained herein, the
parties agree as follows:
1. Assignment.
----------
Assignor hereby transfers, sets over and
assigns to Assignee, effective as of February 1, 1993 (the
"Effective Date"), all right, title and interest of Assignor as
lessee under the Lease, TO HAVE AND TO HOLD the same to Assignee,
its successors and assigns forever; SUBJECT, HOWEVER, to each and
every provision of the Lease.
2. Acceptance of Assignment.
------------------------
As of the Effective Date, Assignee accepts the within
assignment and assumes and agrees to perform and discharge all
of the covenants, terms, conditions and provisions to be kept,
observed and performed by Assignor as lessee under the Lease
from and after the Effective Date.
3. Assignor's Indemnity of Assignee.
--------------------------------
Assignor hereby agrees to defend and indemnify
Assignee, its partners, directors, officers, employees, agents,
representatives, successors and assigns, and each of them,
from and against any and all claims, suits, demands, causes
of action, actions, liabilities, losses, damages, costs and
expenses (including attorneys' fees) arising out of or
resulting from Assignor's failure to perform any of lessee's
obligations under the Lease that were not assumed by or
passed through to Assignee as sublessee under the Sublease and
which occurred prior to the Effective Date.
4. Assignee's Indemnity of Assignor.
--------------------------------
Assignee hereby agrees to defend and indemnify
Assignor and its respective directors, officers, employees,
agents, representatives, successors and assigns, and each
of them, from and against any and all claims, suits, demands,
causes of action, actions, liabilities, losses, damages,
costs and expenses (including attorneys' fees) arising out
of or resulting from (i) the failure by Assignee, its
successors and assigns, to fully perform all of the lessee's
obligations under the Lease after the Effective Date; or
(ii) the failure by Assignee to fully perform all of
sublessee's obligations as sublessee under the Sublease
which accrued prior to the Effective Date.
5. Termination of Sublease.
-----------------------
The Sublease shall terminate and shall be of no
further force or effect whatsoever as of the Effective Date.
From and after the Effective Date, and except as expressly
provided herein, the parties shall have no further rights
or obligations under the Sublease.
6. Attorneys' Fees.
---------------
If either party hereto brings an action at law
or in equity to enforce, interpret or seek redress for the
breach of this Agreement, then the prevailing party in
such action shall be entitled to recover all court costs and
witness fees and reasonable attorneys' fees, (at trial or on
appeal) in addition to all other appropriate relief.
7. Successors and Assigns.
----------------------
This Agreement and every provision hereof shall
bind and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors
and assigns.
8. Counterparts.
------------
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same document.
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 parties shall be
deemed to have been dated as of the date first above written.
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
---------------------------------
Name David W. Ramus
-------------------------------
Title Vice President
------------------------------
ASSIGNEE: FRED MEYER, INC.,
a Delaware corporation
By SCOTT L. WIPPEL
--------------------------------------
Name Scott L. Wippel
------------------------------------
Title Senior Vice President
-----------------------------------
CONSENT TO ASSIGNMENT AND RELEASE OF ASSIGNOR
Southeast Company, an Oregon Corporation, as lessor under the
Lease, hereby consents to the assignment of the Lease to Assignee
and the assumption of the Lease by Assignee and further agrees
that upon the assumption of the lease by Assignee, Assignor shall
be fully and unconditionally released and discharged from all
liability accruing under the Lease arising from conditions
occurring after the Effective Date.
SOUTHEAST COMPANY
an Oregon corporation
By EARLE M. CHILES
-----------------------------
Name Earle M. Chiles
---------------------------
Title President
--------------------------
STATE OF OREGON )
) ss.
County of Washington )
On April 12, 1993, before me, the undersigned, a
Notary Public in and for said State, personally appeared
David W. Ramus, personally known to me to be the person whose
name is subscribed to the within instrument as Vice President of
FMGP INCORPORATED, a Delaware corporation, the corporation that
executed the within instrument as the general partner of FMGP
ASSOCIATES, an Oregon limited partnership, itself the limited
partnership that executed the within instrument as a general
partner of REAL ESTATE LIMITED PROPERTIES LIMITED PARTNERSHIP, an
Oregon limited partnership, and acknowledged to me that he
subscribed his name thereto as such officer of said corporation
and that said corporation executed the same, pursuant to its
bylaws or a resolution of its board of directors, as the general
partner of said limited partnership, and that said limited
partnership executed the same as a general partner of said
partnership, and that said partnership executed the same.
WITNESS my hand and official seal.
MANON B. RUDDICK
-------------------------------
[SEAL] Notary Public in and for said
County and State
My commission expires: 2/27/96
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STATE OF OREGON )
) ss.
County of Multnomah )
On April 14, 1993, before me, the undersigned, a
Notary Public in and for said State, personally appeared
SCOTT L. WIPPEL, personally known to me to be the
person whose name is subscribed to the within instrument as
Vice President of FRED MEYER, INC., a Delaware corporation,
the corporation that executed the within instrument and
acknowledged to me that he subscribed his name thereto as such
officer of said corporation and that said corporation executed
the same pursuant to its bylaws or a resolution of its board of
directors.
WITNESS my hand and official seal.
CARLA J. BANGERT
------------------------------
Notary Public in and for said
County and State
My commission expires: 11-13-93
--------
STATE OF OREGON )
) ss.
County of )
On April 12, 1993, before me, the undersigned, a
Notary Public in and for said State, personally appeared
Earle M. Chiles, personally known to me to be the person
whose name is subscribed to the within instrument as
President of SOUTHEAST COMPANY, an Oregon corporation,
the corporation that executed the within instrument and
acknowledged to me that he subscribed his name thereto as such
officer of said corporation and that said corporation executed
the same pursuant to its bylaws or a resolution of its board of
directors.
WITNESS my hand and official seal.
LINDA H. BARNWELL
-------------------------------
[SEAL] Notary Public in and for said
County and State
My commission expires: 10/21/94
--------
EXHIBIT A
A tract of land in Section 17, Township 1 South,
Range 2 East of the Willamette Meridian, in the City
of Portland, Multnomah County, Oregon; being portions
of Lot 24, Marysville; Blocks 1, 2 and 3, Avondale;
Block 1 Cahills Subdivision; Block 1, extended plat
of Wedgewood Park and S. E. Steele Street, S. E.
Steele Court, S. E. 81st Avenue, as vacated by City
of Portland Ordinance No. 121530, described as
follows:
PARCEL I:
All that portion of Lot 24, Marysville described as
follows: Beginning at the southeasterly corner of
Block 4, Cahills Subdivision; thence Easterly along
the Easterly extension of the southerly line of said
Block 4, 285.00 feet to a point in a line 45 feet
Westerly from and parallel to the center line of
S. E. 82nd Avenue; thence North along said parallel
line, 100.00 feet; thence Westerly, 285.65 feet to
the northeast corner of Lot 1, said Block 4, Cahills
Subdivision; thence South along the east line of said
lot, 100.00 feet to the point of beginning, EXCEPTING
THEREFROM the Southeast corner thereof, being a
triangular portion measuring 5 feet along S. E. 82nd
Avenue and 5 feet along S. E. Mitchell Street;
PARCEL II:
Beginning at a point on the West line of S. E. 82nd
Avenue (as now established, 45.00 feet from the
center line) that is North 0 degrees 37' East, 193.48
feet from the Northerly boundary line of S. E. Foster
Road extended Southeasterly; said point being the
Northeast corner of the parcel conveyed to Gulf Oil
Corporation by deed recorded September 27, 1966 in
Deed Book 528 page 224; thence West along the North
line of said Gulf Oil parcel, 115.69 feet; thence
South 29 degrees 09' 30" West along the Northwesterly
line of said Gulf Oil parcel, 115.69 feet to the
Northerly line of S. E. Foster Road; thence North 61
degrees 27' 30" West along said Northerly line of said
road, 346.01 feet to the intersection with the Easterly
line of S. E. 80th Avenue (60 feet wide); thence
North 28 degrees 29' East along the Easterly line of
S. E. 80th Avenue, 127.63 feet, to the intersection of
a line drawn 10.00 feet Easterly of the parallel to the
Westerly line of Block 1, Cahills Subdivision
extended Southerly; thence North 0 degrees 37' East along
said line, 406.74 feet to a point in a line 60.00
feet Southerly from the South line of Block 4,
Cahills Subdivision, said point being 60.00 feet
Easterly from the East line of Block 2, Cahills
Subdivision; thence North 89 degrees 51' East 417.20 feet,
more or less, to the point in the Westerly line of
S. E. 82nd Avenue as now established, that is 60.00
feet South of the Easterly extension of the Southerly
line of Block 4, Cahills Subdivision; thence South
0 degrees 37' West along a line drawn 45.00 feet West
of and parallel to the center line of S. E. 82nd Avenue,
584.29 feet, to the point of beginning.
EXCEPTING THEREFROM the Northeast corner and the
Northwest corner thereof, being triangular portions,
measuring respectively 5 feet along S. E. 82nd Avenue
and 5 feet along S. E. Mitchell Street and 5 feet
along S.E. 80th Avenue and 5 feet along S. E.
Mitchell Street;
PARCEL III:
A parcel of land in Lot 24, MARYSVILLE, within the
corporate limits of the City of Portland, County of
Multnomah and State of Oregon, described as:
Beginning at a point in the East line of Section 17,
Township 1 South, Range 2 East of the Willamette
Meridian, 915.0 feet, North from the one-quarter
section corner in East line of said Section 17;
thence North along said East line 98.0 feet; thence
West 330.0 feet to West line of Lot 24, MARYSVILLE;
thence South along said West line 98.0 feet; thence
East 330.0 feet to beginning, EXCEPT THAT PART OF
PREMISES INCLUDED IN S. E. 82nd Avenue as now widened
and established. EXCEPT that part conveyed to the
City of Portland by deed recorded December 19, 1968
in Book 655, page 1476, Film Records.
LEASE MODIFICATION AGREEMENT
THIS LEASE MODIFICATION AGREEMENT (the "Agreement") is made
and entered into this 12th day of April, 1993, by and
between SOUTHEAST COMPANY, an Oregon corporation ("Landlord"),
and REAL ESTATE PROPERTIES LIMITED PARTNERSHIP, an Oregon limited
partnership ("Tenant").
R E C I T A L S
This Agreement is made with reference to the following facts
and objectives:
A. On or about October 20, 1966, Landlord and Fred Meyer,
Inc., an Oregon corporation, as original tenant entered into a
lease for those certain premises (the "leased premises") located
at 5253 SE 82nd Avenue, Portland, Oregon, and more particularly
described on Exhibit A attached hereto and incorporated by
reference. The lease was modified by an Agreement Amending Lease
dated November 12, 1966, an Addendum to Lease dated August 9,
1969, and a Release of Real Property From Lease dated April 21,
1992. The lease, as modified, is hereinafter referred to as the
"Lease."
B. Tenant is the current lessee under the Lease. The
current term of the Lease, as extended, expires on October 31,
1996.
C. Landlord and Tenant have agreed to certain
modifications of the Lease as 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 amend
and modify the Lease as follows:
1. Term.
----
Paragraph 2 of the Lease shall be amended to
extend the term of the Lease an additional twenty (20) years so
that it will end on October 31, 2016.
2. Base Rent; Percentage Rent.
--------------------------
Paragraph 3 of the Lease is amended by changing
the rental for the leased premises as follows:
"3.1 Base Rent.
---------
The monthly minimum base rent for
the leased premises, commencing as
of February 1, 1993, shall be as follows:
PERIOD MONTHLY RENT
------ ------------
02/01/1993 - 10/31/1996 $25,000.00
11/01/1996 - 10/31/2001 $40,000.00
11/01/2001 - 10/31/2006 $45,000.00
11/01/2006 - 10/31/2011 $50,000.00
11/01/2011 - 10/31/2016 $55,000.00
"3.2 Percentage Rent.
---------------
In addition to base rent, Tenant
shall pay percentage rent in the amount,
if any, by which one and 37.5/100th
percent (1.375%) of Gross Sales in each of
Tenant's fiscal years (or partial fiscal
year) during the lease term commencing after
October 31, 1996, exceeds the monthly minimum
base rent specified in Paragraph 3.1 above
paid by Tenant to Landlord for such fiscal
year (or partial fiscal year).
"3.3 Definition of Gross Sales.
-------------------------
As used in this Lease, "Gross Sales"
will mean the total amount actually
received for all sales of merchandise
and services from the leased premises
by Tenant or any successor permitted
occupant, subtenant or concessionaire,
whether for cash or credit, including all
gift and merchandise certificates, all credit
charges and all other receipts from business
conducted in or from the leased premises, but
deducting and excluding therefrom (i) sales
of tobacco products, (ii) any sales taxes or
other taxes collected by the seller of goods
for payment to the taxing authority, (iii)
sales of goods to employees at discounts, and
(iv) merchandise exchanges, returns, rebates
and/or refunds to customers, lottery tickets,
sales of Tenant's furniture, fixtures,
equipment and other property which is not
stock in trade, any sales which are "bulk
transfer" sales of inventory as established
by Oregon law, or any sale or transfer of all
or a substantial portion of Tenant's
inventory to a single buyer or successor of
Tenant's business. With respect to the
income received form leased vending machines
or amusement machines or income received from
temporary mall events (such as flower stalls
and independent vendors), only the amount of
location rentals or other payments received
by Tenant (or subtenants) from the machine
owner, mall event operator or vendor shall be
included in Gross Sales. With respect to
sales of tickets, fishing licenses or like
transactions where Tenant or subtenants act
as sales agent and are paid a fee or
commission for assisting with the sale, only
the amount of such fee or commission rentals
shall be
included in Gross Sales. If any
portion of the leased premises is subleased
to third-party tenants on a basis which does
not permit the calculation of an amount to be
included in Gross Sales as described above
(e.g., a sublease of space for a branch
savings and loan association office or an in-
store sublease of space for insurance sales),
an appropriate adjustment or increase in the
Gross Sales amount will be made, to include
in Gross Sales for the space so leased an
amount equal to the average Gross Sales per
square foot from the retail operation of the
store (based on the total Gross Sales from
the retail operation divided by the gross
building area).
"3.4 Calculation and Time of Payment.
-------------------------------
The minimum base rent will be paid in
advance on the first day of each month.
Percentage rent will be calculated at the
end of each fiscal year of Tenant, which
will be the reporting year for purposes
of calculating and paying percentage rent,
and will be paid by Tenant within sixty
(60) days thereafter.
"3.5 Records.
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Tenant shall keep reasonably
complete and accurate records showing Gross
Sales from the leased premises. Such records
shall be preserved for a period of three (3)
years and shall be available for inspection
by Landlord following reasonable advance
notice.
"3.6 Reporting.
---------
Tenant shall submit to Landlord
an annual statement of Gross Sales for
each reporting year and any partial year
during the lease term, within sixty (60) days
after the end of each reporting year. The
statement will be certified by an officer of
Tenant and will show Gross Sales during the
prior reporting year or partial year.
Landlord agrees to hold in confidence all
information obtained from the records of
Tenant, except that Landlord may furnish
copies on a confidential basis to any party
providing financing to Landlord or purchasing
the leased premises.
"3.7 Landlord's Right to Audit.
-------------------------
Landlord may cause the percentage rent
computation and the record of Gross Sales
of Tenant to be examined at any time by an
accountant selected by Landlord. If such
examination discloses that the percentage rent
was understated, Tenant shall immediately pay
the percentage rent to Landlord, together with
interest on the deficiency in percentage rent
at a rate equal to two percent (2%) per annum
above the publicly announced prime rate of
the
United States National Bank of Oregon in
effect on the date of the billing from the
date payment is due pursuant to paragraph 3.4
above until payment in full. If percentage
rent was understated by more than two percent
(2%), Tenant shall pay the cost of the audit.
If the accountant's examination reveals that
percentage rent was not so understated,
Landlord will pay the cost of the audit. If
there is a misstatement of rent by ten
percent (10%) or more, Landlord may impose an
additional late charge equal to five percent
(5%) of the amount that percentage rent was
understated, in addition to the interest on
such understated rent as provided above.
"3.8 Additional Rent.
---------------
All payments required to be paid by
Tenant under this Lease, other than
base rent and percentage rent, will
constitute additional rent.
"3.9 No Representations as to Sales.
------------------------------
Landlord is not relying on any projections
or representations by Tenant as to sales
anticipated to be made from the leased
premises, and there is, and shall be, no
express or implied covenant regarding the
sales by Tenant."
3. Related Provisions.
------------------
In connection with the foregoing
changes to Paragraph 3 of the Lease, the following clarifications
are added to Paragraph 7 of the Lease:
"There is, and shall be, no express or
implied covenant to operate business on the
leased premises; provided, that in the event
operation of business from sixty percent
(60%) or more of the gross building area of
the improvements on the leased premises is to
be discontinued for a continuous period of at
least one (1) year for any reason other than
(a) strikes, lockouts or other labor
difficulties, acts of God, the requirements
of any local, state or federal law, rule or
regulation, fire or other casualty,
condemnation, war, riot, insurrection or any
other reason beyond Tenant's reasonable
control, or (b) temporary closure due to the
restoration, reconstruction, expansion,
alteration, modification or remodeling of any
improvements located on the leased premises,
then Tenant shall, at least thirty (30) days
prior to discontinuing such operations, but
not more than six (6) months prior to
discontinuing such operations, provide
written notice to Landlord that Tenant
intends to discontinue operation of business
from sixty percent (60%) or more of the gross
building area of the improvements on the
leased premises (the "Notice of
Election").
The Notice of Election will include the
anticipated date on which Tenant intends to
discontinue operation of business. Landlord
shall have the right to terminate this Lease
by written notice to Tenant, such notice to
be delivered to Tenant within one hundred
eighty (180) days after Landlord's receipt of
the Notice of Election ("Landlord's
Termination Notice"). Landlord's Termination
Notice will not be effective until Tenant
actually discontinues operation of business
from sixty percent (60%) or more of the gross
building area of the improvements on the
leased premises and the expiration of at
least thirty (30) days from and after the
delivery of Landlord's Termination Notice to
Tenant. Upon the effective date of such
termination, neither party will have any
further obligation to the other under the
Lease (other than obligations accrued through
the effective date of termination of the
Lease). If Landlord does not give a
Landlord's Termination Notice within such one
hundred eighty (180)-day period, then the
procedures for Landlord to have a termination
right under the foregoing "go dark" proviso
and the restrictions on assignment and
subletting and procedures for Landlord to
have a termination right under
Paragraph 7(a), as revised in Section 5
(Assignment) below, are waived and terminated
and will have no further force or effect.
Notwithstanding the foregoing, during the
period starting on the date hereof and ending
on October 31, 1996, if Tenant gives a Notice
of Election and if Landlord does not give a
Landlord's Termination Notice as provided
above, then the procedures for Landlord to
have a termination right under the foregoing
"go dark" proviso and the restrictions on
assignment and subletting and procedures for
Landlord to have a termination right under
Paragraph 7(a), as revised below, will be
deemed waived and terminated only if Tenant,
within one (1) year of its Notice of
Election, causes operation of business from
sixty percent (60%) or more of the gross
building area of the improvements on the
leased premises to be discontinued and such
discontinuance continues for at least one (1)
year or if Tenant, within one (1) year of its
Notice of Election, assigns this Lease or
sublets more than twenty-five percent (25%)
of the gross building area.
Paragraph 7(d) of the Lease is applicable only after
and during the continuance of a default by Tenant and is subject
to Landlord's compliance with the provisions of the Lease and
applicable law concerning Landlord's re-entry and regaining
possession of the leased premises.
4. Casualty.
--------
Paragraph 7(g)(4) of the Lease shall be deleted
in its entirety and the following language is substituted
therefor:
"In the event of a casualty to any building
located on the leased premises, and Tenant
restores such building or constructs a new
building on the leased premises, the
insurance proceeds under the policies of
insurance maintained by Tenant shall be paid
to Tenant to the extent necessary to so
restore or reconstruct, and any unused
balance shall be paid to Landlord or its
Lender. In the event of a casualty after
which Tenant chooses not to restore or
reconstruct, or in the event of a casualty to
the leased premises that would allow Tenant
to elect to terminate the Lease and Tenant so
elects to terminate the Lease then the
insurance proceeds, together with any self-
insured retention or deductible amount (which
shall be paid by Tenant) shall be paid to
Landlord or its Lender."
5. Assignment.
----------
Paragraph 7(a) of the Lease, as previously
amended, shall be deleted in its entirety and the following
language is substituted therefor:
"Tenant shall not, without the prior written
consent of Landlord, or compliance with the
procedures set forth in the following
paragraph, assign this lease or sublease all
or any part of the leased premises, except as
otherwise set forth below. Any consent to
any such transfer shall apply only to the
specific act authorized and shall not be
construed as a waiver of the restriction on
transfer contained in this Lease. However,
notwithstanding any other provision of this
Lease, Tenant may: (i) assign or transfer its
interest as lessee under the Lease without
Landlord's consent or compliance with the
procedures set forth below in connection with
the consolidation, merger, acquisition, or
sale of Tenant, or substantially all of the
assets of Tenant, or to a wholly owned
subsidiary of Tenant, or in connection with a
sale-leaseback transaction; and/or (ii)
sublease twenty-five percent (25%) or less of
the gross building area of the improvements
on the leased premises from time to time.
"In the event Tenant desires to assign this
Lease or sublet more than twenty-five percent
(25%) of the gross building area of the
improvements on the leased premises, and if
Landlord's consent is required under the
terms of the foregoing paragraph, the parties
will follow the following procedures:
" (a) Tenant will notify Landlord in
writing that Tenant intends to assign this
Lease or sublet more than twenty-five percent
(25%) of the gross building area of the
improvements on the leased premises
("Tenant's Notice").
" (b) Landlord will have the right,
within one hundred eighty (180) days after
receipt of Tenant's Notice, to cancel this
Lease by written notice of cancellation to
Tenant, in which event the Lease will
terminate eighty (80) days after receipt of
such notice unless Tenant, within such eighty
(80)-day period discontinues its plan to
assign the Lease or sublet more than twenty-
five percent (25%) of the gross building area
of the improvements on the leased premises.
" (c) If Landlord does not notify Tenant
of its election to cancel the Lease within
such one hundred eighty (180) day period, as
referenced in subparagraph (b) above, then
the restrictions on assignment and subletting
and procedures to have a termination right
under the foregoing paragraphs and the
procedures for Landlord to have a termination
right under the "go dark" proviso in
Section 3 (Related Provisions) above are
waived and terminated and will have no
further force or effect. Notwithstanding the
foregoing, during the period starting on the
date hereof and ending on October 31, 1996,
if Tenant gives a Tenant's Notice and if
Landlord does not notify Tenant of its
election to cancel the Lease within the one
hundred eighty (180)-day period provided
above, the restrictions on assignment and
subletting and procedures to have a
termination right under the foregoing
paragraphs and the procedures for Landlord to
have a termination right under the "go dark"
proviso in Section 3 (Related Provisions)
above will be deemed waived and terminated
only if Tenant assigns this Lease or sublets
more than twenty-five percent (25%) of the
gross building area within one (1) year of
the Tenant's Notice.
" (d) In the case of an assignment, the
transferee will assume the obligations under
this Lease accruing from and after the date
of transfer, and Tenant will not be released
by Landlord from its liability under the
Lease (except as otherwise specifically
approved in writing by Landlord)."
6. Subordination to Mortgages.
--------------------------
The following new Paragraph 10 is added to the Lease:
"10. Subordination to Mortgages.
--------------------------
This Lease, at Landlord's option,
shall be subordinate to the lien of any trust
deed or mortgage subsequently placed upon
the leased premises, and to any and all
advances made on the security thereof,
and to all renewals, modifications,
consolidations, replacements and extensions
thereof; provided, however, that this
provision shall apply only if the
lender who receives the benefit of the
subordination enters into an written non-
disturbance agreement stating that Tenant's
right to quiet possession of the leased
premises shall not be disturbed and that
condemnation and insurance proceeds shall be
used for the purposes set forth in the Lease,
so long as Tenant pays the rent and observes
and performs all of the provisions of this
Lease."
Landlord shall endeavor to obtain a similar non-disturbance
agreement with any lender whose trust deed or mortgage encumbers
the leased premises as of the date of this Agreement.
7. Insurance.
---------
The following new Paragraph 11 is added to
the Lease:
"11. Self-Insurance.
--------------
Tenant may satisfy the insurance
requirements of this Lease by self-insurance
to an extent which is reasonable in relation
to its financial worth. Landlord has approved
Tenant's current coverages, deductibles and
self-insurance arrangements as set forth in
documents previously delivered to Landlord."
8. Cooperation by Landlord.
-----------------------
The following new Paragraph 12 is added to the Lease:
"12. Landlord hereby approves (and agrees not
to remonstrate against) any actions or
applications by Tenant, at Tenant's cost, to
obtain a vacation of the portion of the public
street which is situated between the home
improvement center parcel and the main
building parcel on the leased premises. Any
vacated street area that accrues to such
parcels upon vacation will be deemed
automatically added to and incorporated into
the Lease (without change to the rent to be
paid). Upon reasonable request from time to
time, Landlord shall join with Tenant in any
application, consent, grant of easement or
license or other instrument as shall be
reasonably necessary or
convenient to allow
development or use of the leased premises by
Tenant, so long as the use or value of the
leased premises is not thereby adversely
affected."
9. Condition Precedent.
-------------------
Effectiveness of this Agreement shall be conditioned
upon completion of the assignment of the Lease from Tenant to
Fred Meyer, Inc., a Delaware corporation.
10. Ratification.
------------
Except as herein modified the Lease is hereby ratified
and confirmed and shall remain in full force and effect.
11. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
LANDLORD:
SOUTHEAST COMPANY
an Oregon corporation
Dated: April 12, 1993 By EARLE M. CHILES
----------------------------
Earle M. Chiles
-------------------------------
(typed or printed name)
Its President
---------------------------
TENANT:
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
Dated: April 12, 1993 By DAVID W. RAMUS
-------------------------------
David W. Ramus
----------------------------------
(typed or printed name)
Its Vice President
------------------------------
EXHIBIT A
A tract of land in Section 17, Township 1 South,
Range 2 East of the Willamette Meridian, in the City
of Portland, Multnomah County, Oregon; being portions
of Lot 24, Marysville; Blocks 1, 2 and 3, Avondale;
Block 1 Cahills Subdivision; Block 1, extended plat
of Wedgewood Park and S. E. Steele Street, S. E.
Steele Court, S. E. 81st Avenue, as vacated by City
of Portland Ordinance No. 121530, described as
follows:
PARCEL I:
All that portion of Lot 24, Marysville described as
follows: Beginning at the southeasterly corner of
Block 4, Cahills Subdivision; thence Easterly along
the Easterly extension of the southerly line of said
Block 4, 285.00 feet to a point in a line 45 feet
Westerly from and parallel to the center line of
S. E. 82nd Avenue; thence North along said parallel
line, 100.00 feet; thence Westerly, 285.65 feet to
the northeast corner of Lot 1, said Block 4, Cahills
Subdivision; thence South along the east line of said
lot, 100.00 feet to the point of beginning, EXCEPTING
THEREFROM the Southeast corner thereof, being a
triangular portion measuring 5 feet along S. E. 82nd
Avenue and 5 feet along S. E. Mitchell Street;
PARCEL II:
Beginning at a point on the West line of S. E. 82nd
Avenue (as now established, 45.00 feet from the
center line) that is North 0 degrees 37' East, 193.48
feet from the Northerly boundary line of S. E. Foster
Road extended Southeasterly; said point being the
Northeast corner of the parcel conveyed to Gulf Oil
Corporation by deed recorded September 27, 1966 in
Deed Book 528 page 224; thence West along the North
line of said Gulf Oil parcel, 115.69 feet; thence
South 29 degrees 09' 30" West along the Northwesterly
line of said Gulf Oil parcel, 115.69 feet to the
Northerly line of S. E. Foster Road; thence North 61
degrees 27' 30" West along said Northerly line of said
road, 346.01 feet to the intersection with the Easterly
line of S. E. 80th Avenue (60 feet wide); thence
North 28 degrees 29' East along the Easterly line of
S. E. 80th Avenue, 127.63 feet, to the intersection of
a line drawn 10.00 feet Easterly of the parallel to the
Westerly line of Block 1, Cahills Subdivision
extended Southerly; thence North 0 degrees 37' East along
said line, 406.74 feet to a point in a line 60.00
feet Southerly from the South line of Block 4,
Cahills Subdivision, said point being 60.00 feet
Easterly from the East line of Block 2, Cahills
Subdivision; thence North 89 degrees 51' East 417.20 feet,
more or less, to the point in the Westerly line of
S. E. 82nd Avenue as now established, that is 60.00
feet South of the Easterly extension of the Southerly
line of Block 4, Cahills Subdivision; thence South
0 degrees 37' West along a line drawn 45.00 feet West
of and parallel to the center line of S. E. 82nd Avenue,
584.29 feet, to the point of beginning.
EXCEPTING THEREFROM the Northeast corner and the
Northwest corner thereof, being triangular portions,
measuring respectively 5 feet along S. E. 82nd Avenue
and 5 feet along S. E. Mitchell Street and 5 feet
along S.E. 80th Avenue and 5 feet along S. E.
Mitchell Street;
PARCEL III:
A parcel of land in Lot 24, MARYSVILLE, within the
corporate limits of the City of Portland, County of
Multnomah and State of Oregon, described as:
Beginning at a point in the East line of Section 17,
Township 1 South, Range 2 East of the Willamette
Meridian, 915.0 feet, North from the one-quarter
section corner in East line of said Section 17;
thence North along said East line 98.0 feet; thence
West 330.0 feet to West line of Lot 24, MARYSVILLE;
thence South along said West line 98.0 feet; thence
East 330.0 feet to beginning, EXCEPT THAT PART OF
PREMISES INCLUDED IN S. E. 82nd Avenue as now widened
and established. EXCEPT that part conveyed to the
City of Portland by deed recorded December 19, 1968
in Book 655, page 1476, Film Records.