EXHIBIT 10I
Standard form of Lease Agreement, dated October 22, 1986 between Xxxx
Xxxxx, Inc., as Lessee (Company) (or a wholly owned subsidiary) and Xxxx Xxxxx
Real Estate Properties, Ltd., as Lessor, (FMREP) under which 36 stores and other
locations (Premises) were subleased to the Company (or a wholly owned
subsidiary); an Assignment of Master Lease wherein FMREP assigned its interests
in the Premises to Metropolitan Life Insurance Company, a New York corporation
(MET) was entered into on November 25, 1986; a Collateral Matters Agreement and
an Indemnification Agreement each dated November 25, 1986 between the Company
and the MET; and a First Amendment to Lease Agreement dated November 25, 1986
for the Premises; Modification to Master Lease Agreement entered into as of
February 4, 1997 between the MET, as Landlord and the Company, as Tenant/lessee
relating to 29 leases and Termination of Master Lease entered into as of
February 4, 1997 with respect to six Premises and one distribution center. See
Appendices described below and attached hereto.
Appendix of
Nonstandard
No. Location Provisions
--- -------- ----------
1 (Dimond) Anchorage, AK Appendix 10I (1)
2 Juneau, AK Appendix 10I (2) (T)
3 (Glenwood) Boise, ID Appendix 10I (3)
4 Nampa, ID Appendix 10I (4)
5 Columbia Falls, MT Appendix 10I (5) (T)
6 Kalispell, MT Appendix 10I (6) (T)
7 Albany, OR Appendix 10I (7)
8 Beaverton, OR Appendix 10I (8)
9 Coos Bay, OR Appendix 10I (9)
10 Corvallis, OR Appendix 10I (10)
11 (Division St) - Portland, OR Appendix 10I (11)
12 (East) Salem, OR Appendix 10I (12)
13 Medford, OR Appendix 10I (13)
14 (North) Salem, OR Appendix 10I (14)
15 Oregon City, OR Appendix 10I (15)
16 (New) Roseburg, OR Appendix 10I (16)
17 Roseburg (#2), OR Appendix 10I (17) (T)
18 (Santa Xxxxx), Eugene, OR Appendix 10I (18)
19 Springfield, OR Appendix 10I (19)
20 (South) Salem, OR Appendix 10I (20)
21 The Dalles, OR Appendix 10I (21)
Appendix of
Nonstandard
No. Location Provisions
--- -------- ----------
22 Tualatin, OR Appendix 10I (22)
23 (West) Eugene, OR Appendix 10I (23)
24 Aurora, WA Appendix 10I (24)
25 Bellingham, WA Appendix 10I (25)
00 Xxxxxxx, XX Appendix 10I (26)
27 (Fourth Plain) Vancouver, WA Appendix 10I (27) (T)
00 (Xxxxxxxx) Xxxxxxx, XX Appendix 10I (28)
29 Longview, WA Appendix 10I (29)
00 (Xxxx Xxxxx) Xxxxxxxxx, XX Appendix 10I (30)
31 Puyallup, WA Appendix 10I (31)
32 Richland, WA Appendix 10I (32)
33 (Tacoma) Lakewood, WA Appendix 10I (33) (T)
34 (Tacoma) Pacific, WA Appendix 10I (34)
35 (Tacoma) Xxxxxxx, WA Appendix 10I (35)
36 (Distribution Center) Clackamas, OR Appendix 10I (36) (T)
Appendix 10I (1)
(Dimond) Anchorage, AK
MODIFICATION TO MASTER LEASE
((Dimond) Anchorage, AK)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX OF ALASKA, INC., an Alaska corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
1. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease). Either party may require that a "short form" lease or modification
instrument be recorded to evidence the terms of this Modification, provided that
the document to be recorded will not state the rental amounts specified in
paragraph 3 above.
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate
Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Asst. V.P.
---------------------------------
TENANT: XXXX XXXXX OF ALASKA, INC., an Alaska
corporation
By: XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: V.P.
---------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V. P. of XXXX XXXXX OF ALASKA, INC., an Alaska
corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
DIAMOND, AK
Description of the Real Estate
PARCEL NO. 1:
------------
Tract A-Two B (A-2B), LAKEVIEW TERRACE TRACTS, according to Plat 84-353, filed
in the Anchorage Recording District, Third Judicial District, State of Alaska,
EXCEPT that portion described in Declaration of Taking recorded May 6, 1985 in
Book 1261 at pages 944-965.
PARCEL NO. 2:
------------
An easement for ingress and egress and incidental purposes across the common
boundary line between Tracts A-2-B and A-2-C according to Plat 84-353, with
no specific location defined, as set forth by instrument recorded January 16,
1984 in Book 1033 at page 270.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $1,120,996.55 per annum. From December 9, 2011 through
December 8, 2016, the Fixed Rent will be $932,465.31 per annum. From December 9,
2016 through December 8, 2021, the Fixed Rent will be $891,701.80 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (2)(T)
Juneau, AK
Recordation Requested by
and
After recordation return to:
Stoel Rives LLP
Attention: Xxxxx X. Xxxxx
950 Port of Portland Building
700 NE Multnomah
Xxxxxxxx, XX 00000 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(Juneau, Alaska)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation, Real Estate Investments, 000 Xxxxxxx Xxxxxx
Xxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Landlord"), as landlord/lessor (by assignment) under the Master Lease described
below, and XXXX XXXXX OF ALASKA, INC., an Alaska corporation, c/o Xxxx Xxxxx,
Inc., 0000 XX 00xx Xxxxxx, XX Xxx 00000, Xxxxxxxx, Xxxxxx 97242-0121(hereinafter
referred to as "Tenant"), as tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, XXXX
XXXXX REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as lessee of XXXX XXXXX REAL ESTATE PROPERTIES, LTD. pursuant to a
Lease Agreement dated October 22, 1986 and recorded on December 9, 1986 in the
Official Records of Juneau Recording District, Alaska, in Book 280 at page 149,
holds the lessor's interest under and to existing leases affecting portions of
the Premises (for purposes
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Xxxx Xxxxx, Inc., 0000 XX 00xx Xxxxxx, XX Xxx 00000, Xxxxxxxx,
Xxxxxx 00000-0000
Property tax account No.: 5B1501000020
-------------------------------------------------------------------------------
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
1
hereof, the "Subleases"). Tenant's interest in such Subleases was then assigned,
for collateral purposes, to Landlord at the closing of Landlord's purchase of
the Premises, pursuant to the terms of an Assignment of Leases and/or Rents (the
"Assignment"), by Tenant as assignor in favor of Landlord as assignee, which is
more particularly described on the attached Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant, as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
2
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: XXXX XXXXX OF ALASKA, INC., an Alaska
corporation
By: XXXXX X. XXXXXX
------------------------------------
Title: Vice President
---------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Ass't. V.P.
---------------------------------
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Vice President of XXXX XXXXX OF ALASKA, INC., an Alaska
corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
3
STATE OF OREGON
ss. [NOTARY SEAL]
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by
Xxxxxx X. Xxxxx, as Asst. Vice President of METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation.
XX XXXXXXXX
--------------------------------------------
Notary Public for Oregon
My commission expires 9/20/97
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
4
EXHIBIT A
(Juneau, Alaska)
A tract of land in U.S. Surveys 1195, 1852, and 3800 including accretion
thereto, Juneau Recording District, First Judicial District, State of Alaska,
described as:
BEGIN at the Northwest corner (corner 5) of U.S. Survey 1852, run thence North
82(degree) 57' 30" East, on the North line of U.S. Survey 1852, a distance of
293.76 feet to the Westerly line of the access road conveyed by deed recorded
June 6, 1972 in Book 101 at Page 164, thence South 8(degree) 55' 43" West, on
said Westerly line, 537.19 feet to the Northerly line of Xxxx Expressway; thence
South 89(degree) 10' 09" West, on said Northerly line, 210.48 feet; thence on a
1,814.61 foot radius curve to the right 858.17 feet, the chord of which bears
North 77(degree) 16' 57" West 850.19 feet; thence North 13(degree) 39' 42" East
360.04 feet to the Southerly line of Glacier Highway; thence Easterly on said
highway line on a 1,973.73 foot radius curve to the left, 585.35 feet, the chord
of which bears South 84(degree) 50' 04" East 583.21 feet; thence North
85(degree) 33' 05" East 100.69 feet to the Westerly line of U.S. Survey 3800;
thence North 85(degree) 16' 51" East 65.59 feet to the point of beginning,
EXCEPT THEREFROM that part conveyed to the State of Alaska by deed recorded May
20, 1986 in Book 270 at Page 895.
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
5
Exhibit B - List of Matters of Record to be Terminated
(Juneau, Alaska)
1. Lease, including terms and provisions thereof:
Lessor: Xxxx Xxxxx Real Estate Properties, Ltd.
Lessee: Xxxx Xxxxx of Alaska, Inc.
Term: Primary term for 20 years
Dated: October 22, 1986
Recorded: December 9, 1986
Book: 280 Page: 149
Lessor's interest has been assigned and is now held of record by
Metropolitan Life Insurance Company, a New York corporation, by
instrument recorded December 2, 1986, in Book 280 at Page 243.
As modified by Memorandum of First Amendment to Lease Agreement
recorded December 9, 1986, in book 280 at Page 248
2. Lease, including terms and provisions thereof:
Lessor: Xxxx Xxxxx Real Estate Properties, Ltd.
Lessee: Xxxx Xxxxx of Alaska, Inc.
Term: Up to 7 renewal terms of 5 years each or up to 35 years
Dated: November 25, 1986
Recorded: December 9, 1986
Book: 280 Page: 145
Lessor's interest has been assigned and is now held of record by
Metropolitan Life Insurance Company, a New York corporation, by
instrument recorded December 2, 1986, in Book 280 at Page 243.
As modified by Memorandum of First Amendment to Lease Agreement
recorded December 9, 1986, in book 280 at Page 248
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
6
Appendix 10I (3)
(Glenwood) Boise, ID
MODIFICATION TO MASTER LEASE
((Glenwood) Boise, ID)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
3. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
--------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
IDAHO - GLENWOOD, ID
LEGAL DESCRIPTION
A Tract of Ground lcoated in the Northeast quarter of the Northeast quarter and
Northwest quarter, Northeast quarter Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxxx-Xxxxxxxx, and the Southeast quarter, Southeast quarter and southwest
quarter, Southeast quarter Section 25, Township 4 North, Range 1 East,
Boise-Meridian, Ada County, Idaho, more particularly described below:
Beginning at the Southeast corner of the Northeast quarter, Northeast quarter
Section 36, Township 4 North, Range 1 East, Boise Meridian, Ada County, Idaho,
thence South 89(degree)26'35" West 965.35 feet along the South boundary of said
Northeast quarter of the Northeast quarter of Section 36 to a point on the
Easterly right-of-way of Glenwood Street, thence Northerly along said right of
way the following bearings and distances: North 10(degree)36'55" West 159.72
feet North 7(degree)07'40" East 219.91 feet, North 1(degree)55'56" West 51.43
feet, North 3(degree)44'14" West 117.76 feet, North 11(degree)50'04" West 73.82
feet, North 29(degree)33'52" West 371.18 feet, North 32(degree)09'52" West
159.81 feet, North 57(degree)47'36" East 17.00 feet, North 33(degree)39'55" West
76.00 feet, thence leaving said right-of-way of Xxxxxxxx Xxxxxx Xxxxx
00(xxxxxx)00'00" Xxxx 47.31 feet, thence North 62(degree)01'08" West 20.00 feet,
thence South 28(degree)10'03" West 36.61 feet, thence continuing along said
Xxxxxxxx Xxxxxxxx right-of-way North 33(degree)18'36" West 34.60 feet North
26(degree)59'37" West 151.24 feet North 1(degree)16'29" East 25.72 feet North
70(degree)18'03" East 43.74 feet, thence South 54(degree)56'28" East 1,642.91
feet along the Southerly right-of-way of Xxxxxxx Xxxxxxxxx, xxxxxx Xxxxx
0(xxxxxx)00'00" Xxxx 416.62 feet along the East boundary of said Northeast
quarter, Northeast quarter Section 36, Township 4 North, Range 1 East,
Boise-Meridian, Ada County, Idaho to The Point of Beginning.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $539,276.38 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $448,579.89 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $428,969.84 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (4)
Nampa, ID
MODIFICATION TO MASTER LEASE
(Nampa, ID)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
4. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
NAMPA, ID
The land referred to is situated in the State of Idaho,
County of Canyon and is described as follows:
A parcel of land in the Northwest one quarter of the Northwest one quarter of
Section 22 and the Northeast one quarter of Section 21 all in Township 3 North,
Range 2 West, Boise Meridian Canyon County, Idaho described as follows:
Commencing at a brass cap monument marking the Northeast corner of said Xxxxxxx
00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxxx Meridian; thence South along the
Section Line common to Sections 21 and 22 a distance of 589.56 feet (shown of
record to be South 0(degree)33'59" West) to a steel pin that is 175.0 feet
Southwesterly from the centerline of the mainline tracts of the Oregon Shortline
Railroad Company and The True Point of Beginning; thence South 46(degree)33'36"
East (shown of record to be South 46(degree)16'10" East) 131.77 feet parallel
with said mainline tracts a steel pin; thence South 6(degree)03'02" West (shown
of record to be South 6(degree)20'29" West) 216.06 feet to a steel pin, thence
South 0(degree)33'10" West 208.75 feet (shown of record to be South 0(degree)
50'37" West) to a steel pin; thence along a curve to the right 188.76 feet, said
curve having a radius of 1,362.39 feet, a central angle of 7(degree)56' 18" and
a long chord bearing South 10(degree)01'05" West 188.61 feet to a steel pin on
the Westerly right-of-way boundary of State of Idaho Highway No. 30 Spur,
Project No.U-UG-3281(9) and the Northerly boundary of Xxxxxxx Canal; thence
along the Northerly boundary of Xxxxxxx Canal North 71(degree)10'15" West (shown
of record to be North 71(degree)16' West) 40.24 feet to a steel pin that is
North 49.95 feet from the Southwest corner of the Northwest Quarter of the
Northwest Quarter of said Section 22; thence continuing along the Northerly
right-of-way of Xxxxxxx Canal North 71(degree)10'15" West 1,134.04 feet (shown
of record to be North 71(degree)16' West 1,130.7 feet) to a steel pin; thence
South 63(degree)30'53" West (shown of record to be South 63(degree)11' West
along the Northerly right-of-way of Xxxxxxx Canal 17.61 feet to a steel pin on
the Northeasterly right-of-way of U.S. Xxxxxxx Xx. 00 Project No. STS-3281(537)
said steel pin also being the most Easterly corner of that parcel described in
Instrument Xx. 000000 Xxxxxx xx Xxxxxx Xxxxxx; thence along said right-of-way
boundary along a 950.53 foot radius curve to the right 137.45 feet, said curve
having a central angle of 8(degree)17'06" and a chord bearing North 51(degree)
21'18" West (shown of record to be North 50(degree)25'01" West 137
feet) 137.33 feet to a steel pin; thence continuing along said Highway
right-of-way North 45(degree)57'02" West (shown of record to be North 46(degree)
16'42" West) 13.28 feet to a steel pin; thence continuing along said Highway
right-of-way North 46(degree)33'36" West (shown of record to be North
45(degree)40'08" West) 127.00 feet to a steel pin, said steel pin being North
45(degree)04'17" East 6.00 feet from a steel pin marking The Real Point of
Beginning for that parcel described in Instrument No. 654426, Records of Canyon
County, Idaho, thence North 45(degree)04'17" East (shown of record to be North
44(degree)50' East) 374.19 feet to a steel pin that is 800.0 feet Southwesterly
from the centerline of the Oregon Shortline Railroad mainline tracks; thence
Southeasterly along a 113.33 feet radius curve to the right 108.16 feet, said
curve having a central angle of 54(degree)40' 46" and a long chord bearing South
88(degree)05' 23" East 104.10 feet (shown of record to have a central angle of
55(degree)32', a radius of 111.0 feet and a chord bearing South 88(degree) 31'
East 104.0 feet) to a steel pin; thence South 60(degree)45'00" East 127.70 feet
to a steel pin; thence East 612.70 feet (shown of record to be East 612.70 feet
to a steel pin); thence South 44(degree)19'06" East (shown of record to be South
44(degree)18'35" East) 293.47 feet to a steel pin on the Section Line common to
said Sections 21 and 22, Township 3 North, Range 2 West, Boise Meridian; thence
North 158.04 feet to The True Point of Beginning.
ALSO
A parcel of land in the Northeast Quarter of Section 21, Township 3 North, Range
2 West, Boise Meridian, Canyon County, Idaho described as follows:
Beginning at the Northeast corner of the Southeast Quarter of the Northeast
Quarter of Section 21, Township 3 North, Range 2 West, Boise Meridian, Canyon
County, Idaho, which point is The True Point of Beginning, thence South along
the East boundary line of said Section 21 a distance of 102.91 feet to a steel
pin on the Northerly boundary line of 0xx Xxxxxx Xxxxx Xxxxxxxxx Survey, Project
No. STS-3281(537) Highway Survey; thence Northwesterly along a 64.00 foot radius
curve right 24.51 feet, the long chord of which bears North 57(degree)46'33"
West 24.36 feet (shown of record to be North 57(degree)31'32" West 24.92) to a
Highway right-of-way monument; thence continuing along said right-of-way North
46(degree)19'26" West 18.37 feet (shown of record to be North 46(degree)17'24"
West 18.49 feet to a Highway right-of-way monument; thence continuing along said
right-of-way Northwesterly along a 1,008.93 foot radius curve left 179.07 feet,
the long chord of which bears North 53(degree)55'17" West 178.84 feet (shown of
record to be North 53(degree)39'14" West 180.41 feet) to a steel pin; thence
leaving said right-of-way North 43(degree)09'32" East 32.72 feet (shown of
record to be North 43(degree)11' East 32.72 feet) to a steel pin on the
Southerly boundary line of Xxxxxxx Canal; thence along the Southerly boundary
line of Xxxxxxx Canal South 71(degree)35'14" East 164.47 feet (shown of record
to be South 71(degree)16' East 165.40 feet To The True Point of Beginning.
Together with an EASEMENT AGREEMENT dated July 1, 1985, between XxXxxxxx'x
Corporation, a Delaware corporation and Xxxx Xxxxx Real Estate Properties, LTD.,
an Oregon Limited Partnership, recorded November 25, 1985 as Document No.
____________ records of ______________________________.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $353,322.00 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $293.899.67 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $281,051.59 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (5)(T)
Columbia Falls, MT
Recordation Requested by
and
After recordation return to:
Stoel Rives LLP
Attention: Xxxxx X. Xxxxx
950 Port of Portland Building
700 NE Multnomah
Xxxxxxxx, XX 00000 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(Columbia Falls, Montana)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and B &
B STORES, INC., a Montana corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, XXXX
XXXXX REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as assignee of XXXX XXXXX REAL ESTATE PROPERTIES, LTD. pursuant to
an Assignment of Leases and Rents dated October 22, 1986 and recorded on
December 9, 1986 in the Official Records of Flathead County, Montana as Document
No. 00-000-00000 holds the lessor's interest under and to existing leases
affecting portions of the Premises (for purposes hereof, the "Subleases").
Tenant's interest in such Subleases was then assigned, for collateral purposes,
to Landlord at
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Xxxx Xxxxx, Inc., 0000 XX 00xx Xxxxxx, XX Xxx 00000, Xxxxxxxx,
Xxxxxx 00000-0000
Property tax account No.: 7605923000, 760748700, 760748750
-------------------------------------------------------------------------------
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
1
the closing of Landlord's purchase of the Premises, pursuant to the terms of an
Assignment of Leases and/or Rents (the "Assignment"), by Tenant as assignor in
favor of Landlord as assignee, which is more particularly described on the
attached Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant, as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: B & B STORES, INC.,
a Montana corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Ass't V.P.
--------------------------------------
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by
Xxxxx X. Xxxxxx, as Vice President of B & B STORES, INC., a Montana
corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My commission expires: 6/8/99
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
3
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Xxxxxx
X. Xxxxx, as Asst. Vice President of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XX XXXXXXXX
--------------------------------------------
Notary Public for Oregon
My commission expires 9/20/97
[NOTARY SEAL]
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
4
EXHIBIT A
(Columbia Falls, Montana)
PARCEL 1:
Lots 1 through 15 inclusive in Block 29 of Columbia Falls Townsite, according to
the map or plat thereof on file and of record in the office of the Clerk and
Recorder of Flathead County, Montana.
AND
That portion of vacated alley running through said Block 29 of Columbia Falls
Townsite affixing to the above described property.
AND
Xxxx 0, 00 xxx 00 xx Xxxxx 20 of Columbia Falls Townsite, according to the map
or plat thereof on file and of record in the office of the Clerk and Recorder of
Flathead County, Montana.
AND
Xxx 00 xx Xxxxx 00 xx Xxxxxxxx Xxxxx Xxxxxxxx, according to the map or plat
thereof on file and of record in the office of the Clerk and Recorder of
Flathead County, Montana.
PARCEL 2:
Lots 1 and 2 in Block 36 of Columbia Falls Townsite, according to the map or
plat thereof on file and of record in the office of the Clerk and Recorder of
Flathead County, Montana.
PARCEL 3:
That portion of Fifth Street East vacated between Nucleus Avenue and First
Avenue East, and further described as being between Block 29 and 36 of Columbia
Falls Townsite, according to the map or plat thereof on file and of record in
the office of the Clerk and Recorder of Flathead County, Montana.
Exhibit B - List of Matters of Record to be Terminated
(Columbia Falls, Montana)
1. Memorandum of Lease upon the terms, conditions and covenants contained in
the lease:
RECORDED: August 10, 1966 in Book 482, Page 503, as Doc. No. 5553,
records of Flathead County, Montana.
LESSOR: Roundup Properties, Inc.
LESSEE: B & B Food Markets, Inc.
AFFECTS: Parcel 1
2. Assignment of the Lease interest under said lease:
RECORDED: February 8, 1982, in Book 732, Page 616, as Doc. No. 1555,
records of Flathead County, Montana.
ASSIGNOR: Xxxx Xxxxx Properties, Inc., formerly Roundup Properties,
Inc.
ASSIGNEE: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership.
AFFECTS: Parcel 1
3. Assignment of the Lease interest under said lease:
RECORDED: February 8, 1982, in Book 732, Page 619, as Doc. No. 1556,
records of Flathead County, Montana.
ASSIGNOR: Roundup Co., successor by merger to B & B Stores, Inc.,
formerly B & B Food Markets, Inc.
ASSIGNEE: B & B Acquisition Corporation, a Montana corporation
AFFECTS: Parcel 1
4. Said lease was restated and amended by Unrecorded Restated and Amended
Lease disclosed by:
Memorandum of Lease upon the terms, conditions and covenants contained
in the lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
LESSOR: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership
LESSEE: B & B Stores, Inc., a Montana corporation, (formerly known
as B & B Acquisition Corporation).
AFFECTS: Parcels 1, 2 & 3
5. Assignment of the Lessors interest under said lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, Records of
Flathead County, Montana.
ASSIGNOR: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership
ASSIGNEE: B & B Stores, Inc., a Montana corporation
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
6
AFFECTS: Parcels 1, 2 & 3
6. Assignment of the Master Lease interest under said lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, As Doc. No. 00-000-00000, records of
Flathead County, Montana.
ASSIGNOR: Xxxx Xxxxx Real Estate Properties, Ld., an Oregon limited
partnership
ASSIGNEE: Metropolitan Life Insurance Company, a New York corporation
AFFECTS: Parcels 1, 2 & 3
7. Said Restated and Amended Lease was further amended by an unrecorded First
Amendment to Restated and Amended Lease disclosed by:
Memorandum of First Amendment to Restated and Amended Lease by and between
the parties therein, upon the terms, conditions and covenants contained in
the lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
LESSOR: Metropolitan Life Insurance Company, a New York corporation
LESSEE: B & B Stores, Inc., a Montana corporation
AFFECTS: Parcels 1, 2 & 3
8. An Option and Right of First Opportunity to negotiate for the purchase of
said land, by and between the parties thereto, pursuant to the terms,
covenants and conditions provided therein interest under said lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
DISCLOSED BY: Memorandum of First Amendment to Restated and Amended
Lease
EXECUTED BY: Metropolitan Life Insurance Company, a New York
corporation
IN FAVOR OF: B & B Stores, Inc., a Montana corporation
AFFECTS: Parcels 1, 2 & 3
9. Assignment of the lessors interest under said lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
ASSIGNOR: B & B Stores, Inc., a Montana corporation
ASSIGNEE: Metropolitan Life Insurance Company, a New York corporation
AFFECTS: Parcels 1, 2 & 3
Return to:
Stoel Rives LLP STATE OF MONTANA )
ATTN: Xxxxx X. Xxxxx County of Flathead ) SS
950 Port of Portland Building
700 NE Multnomah Recorded at the request of CTE this 5
Xxxxxxxx, XX 00000 day of Feb 1997 at 3:04 o'clock PM
and recorded in the records of Flathead
County, State of Montana.
Fee $42 Pd. XXXXX X. XXXXXXXXXX
---------------------------
Flathead County Clerk and
Recorder
XXXXXXXX X. XXXXXX
---------------------------
Deputy
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
7
Appendix 10I (6)(T)
Kalispell, MT
Recordation Requested by
and
After recordation return to:
Stoel Rives LLP
Attention: Xxxxx X. Xxxxx
950 Port of Portland Building
700 NE Multnomah
Xxxxxxxx, XX 00000 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(Kalispell, Montana)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and B &
B STORES, INC., a Montana corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, XXXX
XXXXX REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as assignee of XXXX XXXXX REAL ESTATE PROPERTIES, LTD. pursuant to
an Assignment of Leases and Rents dated October 22, 1986 and recorded on
December 9, 1986 in the Official Records of Flathead County, Montana as Document
Recording No. 00-000-00000 holds the lessor's interest under and to existing
leases affecting portions of the Premises (for purposes hereof, the
"Subleases"). Tenant's interest in such Subleases was then assigned, for
collateral purposes, to Landlord at the closing of Landlord's purchase of the
Premises, pursuant to the terms of an Assignment of
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Xxxx Xxxxx, Inc., 0000 XX 00xx Xxxxxx, XX Xxx 00000, Xxxxxxxx,
Xxxxxx 00000-0000
Property tax account No.: 75 0000000, 75 0211515, 75 0748602, 75 0748650
-------------------------------------------------------------------------------
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
Leases and/or Rents (the "Assignment"), by Tenant as assignor in favor of
Landlord as assignee, which is more particularly described on the attached
Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant, as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: B & B STORES, INC.,
a Montana corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by
Xxxxx X. Xxxxxx, as V.P. of B & B STORES, INC., a Montana corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My commission expires: 6/8/99
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Xxxxxx
X. Xxxxx, as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation.
XXXXXXX XXXXX
--------------------------------------------
Notary Public for Oregon
My commission expires 9/1/98
[NOTARY SEAL]
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
EXHIBIT A
(Kalispell, Montana)
PARCEL 1:
Lots 1 through 8 inclusive and the Southerly 35 feet of Xxx 0 xx Xxxxx 00 xx
Xxxxxxxxx, according to the map or plat thereof on file and of record in the
office of the Clerk and Recorder of Flathead County, Montana.
EXCEPTING THEREFROM the Northerly 4 feet of said Xxx 0, Xxxxx 00 xx Xxxxxxxxx.
AND
Lots 1 through 5 inclusive and Lots 8 through 12 inclusive in Block 22 of
Kalispell, according to the map or plat thereof on file and of record in the
office of the Clerk and Recorder of Flathead County, Montana.
AND
That portion of vacated alley running through said Block 19 and 22 of Kalispell
affixing to the above described property and that portion of vacated Montana
Street running between said Block 19 and 22 of Kalispell.
PARCEL 2:
Xxx 0 xx Xxxxx 00 xx Xxxxxxxxx, according to the map or plat thereof on file and
of record in the office of the Clerk and Recorder of Flathead County, Montana.
PARCEL 3:
Lots 10, 11 and 12 and the Northerly 15 feet of Xxx 0 xx Xxxxx 00 xx Xxxxxxxxx,
according to the map or plat thereof on file and of record in the office of the
Clerk and Recorder of Flathead County, Montana.
EXCEPTING THEREFROM the Northerly 4 feet of said Xxx 00, Xxxxx 00 xx Xxxxxxxxx.
AND
That portion of vacated alley running through said Block 19 of Kalispell
affixing to the above described property.
PARCEL 4:
Xxxx 0, 00, 00 xxx 00 xx Xxxxx 20 of Kalispell, according to the map or plat
thereof on file and of record in the office of the Clerk and Recorder of
Flathead County, Montana.
EXCEPTING THEREFROM the North 4 feet of said Xxx 00, Xxxxx 00 xx Xxxxxxxxx.
Xxxx Xxxxx - Xxxxxxxxxxxx
Termination of Lease and Recorded Interests
February 3, 1997
PARCEL 5:
A tract of land situate, lying and being in the Northeast Quarter of the
Southeast Quarter of Section 7, Township 28 North, Range 21 West, P.M.M.,
Flathead County, Montana, and more particularly described as follows:
Beginning at the Southwest corner of Xxx 00 xx Xxxxx 00 xx Xxxxxxxxx, Xxxxxxx,
according to the map or plat thereof on file and of record in the office of the
County Clerk and Recorder of Flathead County, Montana; thence
Westerly and parallel to the South boundary extended of said Lot 12 a distance
of 6 inches; thence
Northerly parallel to the West boundary of said Lot 12 a distance of 36 feet 2
inches; thence
Easterly parallel to the South boundary of said Lot 12 a distance of 6 inches
more of less to the Westerly boundary of said Lot 12; thence
Southerly along said Westerly boundary of said Lot 12 to the Point of Beginning.
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
Exhibit B - List of Matters of Record to be Terminated
(Kalispell, Montana)
1. Memorandum of Lease upon the terms, conditions and covenants contained in
the lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
LESSOR: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership
LESSEE: B & B Stores, Inc., a Montana corporation (formerly known as
B & B Acquisition Corporation).
2. Assignment of the Lessors Interest under said lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
ASSIGNOR: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership
ASSIGNEE: B & B Stores, Inc., a Montana corporation
3. Assignment of the Master Lease interest under said lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
ASSIGNOR: Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited
partnership
4. Said Restated and Amended Lease was further amended by an unrecorded First
Amendment to Restated and Amended Lease disclosed by:
Memorandum of First Amendment to Restated and Amended Lease by and between
the parties therein, upon the terms, conditions and covenants contained in
the lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
LESSOR: Metropolitan Life Insurance Company, a New York corporation
LESSEE: B & B Stores, Inc., a Montana corporation
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
5. An Option and Right of First Opportunity to negotiate for the purchase of
said land, by and between the parties thereto, pursuant to the terms,
covenants and conditions provided therein interest under said lease:
DATED: November 25, 1986
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
DISCLOSED BY: Metropolitan Life Insurance Company, a New York
corporation
IN FAVOR OF: B & B Stores, Inc., a Montana corporation
6. Assignment of the lessors interest under said lease:
RECORDED: December 9, 1986, as Doc. No. 00-000-00000, records of
Flathead County, Montana.
ASSIGNOR: B & B Stores, Inc., a Montana corporation
ASSIGNEE: Metropolitan Life Insurance Company, a New York corporation
STATE OF MONTANA )
County of Flathead ) SS
Recorded at the request of CTE this 5 day of Feb 1997 at 3:02 o'clock PM and
recorded in the records of Flathead County, State of Montana.
Fee $48 Pd. XXXXX X. XXXXXXXXXX
--------------------------------------------
Flathead County Clerk and Recorder
DOCUMENT NO. 1997036/5020 XXXXXXXX X. XXXXXX
--------------------------------------------
Deputy
Return to:
Stoel Rives LLP
ATTN: Xxxxx X. Xxxxx
950 Port of Portland Building
700 NE Multnomah
Xxxxxxxx, XX 00000
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 0000
Xxxxxxxx 10I (7)
Albany, OR
MODIFICATION TO MASTER LEASE
(Albany, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
5. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
ALBANY, OR
The following described real property situated in the County of Linn and State
of Oregon, to-wit:
Beginning at a tack in lead on the Westerly right-of-way line of Waverly Drive,
marking the Northeast corner of that tract of land conveyed to General American
Theaters, Inc.; a recorded in Microfilm Volume 243, page 850, Deed Records for
Linn County, Oregon, which point is recorded as being North 01(degree)24'02"
West 3432.00 feet and North 89(degree)00'47" West 50.05 feet and North
01(degree)24'02" West 415.75 feet from the Southeast corner of the Xxxxxxx X.
Xxxxxxxx Donation Land Claim No. 50 in Township 11 South, Range 3 West of the
Willamette Meridian in Linn County, Oregon; thence South 88(degree)40'52" West
along the North line of said General American Theater Tract and the Westerly
extension thereof, a distance of 542.12 feet to an iron rod; thence South
01(degree) 35'10" East 358.99 feet to an iron road on the Northerly right-of-way
line of 00xx Xxxxxx; thence North 89(degree)01'18" West along said right-of-way
line, 60.13 feet to an iron rod marking the Southeast corner of that tract of
land as described in Microfilm Volume 217, page 230, Deed Records for Linn
County, Oregon; thence North 01(degree)31'00" West along the East line of said
Tract, a distance of 620.91 feet to an iron rod marking the Northeast corner
thereof; thence South 88(degree)37'24" West along the North line of said Tract,
a distance of 364.88 feet to an iron rod on the East right-of-way line of Clay
Street; thence North 01(degree)29'51" West along said right-of-way line, a
distance of 238.44 feet to an iron rod marking an angle point therein; thence
South 85(degree)15'54" West 5.01 feet to a brass screw in lead marking an angle
point in said right-of-way line; thence North 01(degree)29'51" West along said
right-of-way line, a distance of 391.63 feet to an iron rod marking the
Southwest corner of that tract of land described in Volume 317, page 658, Deed
of Records for Linn County, Oregon; thence North 88(degree)30'09" East along the
South line of said Tract, a distance of 164.22 feet to an iron rod marking the
Southeast corner thereof; thence North 01(degree)29'51" West along the East line
of said Tract, a distance of 149.55 feet to an iron rod on the Southerly
right-of-way line of the South Santiam Highway (U.S. 20); thence South
76(degree) 34'51" East along the Southerly right-of-way line of said highway, a
distance of 302.72 feet to an iron rod opposite Engineer's Station 87+45.00;
thence South 39(degree)00'45" East continuing along said right-of-way line, a
distance of 82.01 feet to an iron rod opposite Engineer's Station 88+10.00;
thence North 55(degree)24'23" East along said right-of-way line, a distance of
67.27 feet to an iron rod opposite Engineer's Station 88+55.00; thence South
76(degree) 34'51" East along said right-of-way line, a distance of 253.74 feet
to an iron rod opposite Engineer's Station P.S. 91+08.74; thence Southeasterly
along said right-of-way line on the arc of a spiral curve to the right (the
chord of which bears South 76(degree)11'00" East 153.56 feet) a distance of
153.56 feet, more or less, to a point marking the most Westerly corner of that
tract of land conveyed to the City of Albany for Roadway purposes as described
in Volume 78, page 74, Microfilm
Records; thence South 59(degree), 47' 36" East along the Southwesterly boundary
line of said City of Albany Tract, 15.06 feet to an angle point therein; thence
South 16(degree)46'49" East continuing along said Boundary line; 15.00 feet to
a point on the West line of said Waverly Drive; thence South 01(degree)24'02"
East along said right-of-way line, a distance of 811.83 feet to the point of
beginning.
And also reciprocal easements for ingress, egress and parking as reserved in
agreement recorded JUNE 1, 1978 in Volume 201, page 462 of Microfilm Records.
And also reciprocal easements for ingress, egress and parking as reserved in
agreement recorded SEPTEMBER 14, 1979, in Volume 243, page 852 of Microfilm
Records.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $624,525.81 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $519,491.93 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $496,781.90 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (8)
Beaverton, OR
MODIFICATION TO MASTER LEASE
(Beaverton, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
6. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
BEAVERTON, OR
The land referred to is described as
PARCEL I:
A tract of land situated in the Northwest quarter of Section 15, Township 1
South, Range 1 West of the Willamette Meridian, in the County of Washington,
State of Oregon, more particularly described as follows:
Commencing at a 5/8 inch iron rod set at the Southwest corner of the Xxxxxxx
Xxxxxxxxx Donation Land Claim as shown in County Survey No. 6984; thence along
the centerline of X.X. Xxxxxxx Avenue, North 0(degree)40' 08" West, 203.64
feet; thence South 81(degree)39' 05" East, 221.40 feet to the intersection of
the Northerly right-of-way (40.00 feet from centerline) of S.W. Beaverton
Hillsdale Highway and the Easterly line of that certain tract of land described
in Deed to Xxxxxxxx X. Xxxxxxx as Parcel III, recorded in Book 733, page 269 on
February 14, 1969, Washington County Deed Records, said point being the point of
beginning of the tract herein to be described; thence along the Easterly line of
said Xxxxxxx Tract, North 8(degree), 20' 55" East, 190.12 feet to an iron pipe
at the Northeasterly corner
thereof; thence along the Northerly line of said Xxxxxxx Tract the following
bearings and distances:
North 81(degree)30' 52" West, 99.99 feet, North 7(degree)36' 05" East, 1.26
feet, South 89(degree)14' 36" West, 120.46 feet to the East line of X.X. Xxxxxxx
Avenue (30.00 feet from the centerline); thence along said East line, North
0(degree)40' 08" West, 149.10 feet to the South line of that certain tract of
land described in Deed to Xxxxxx Realty, Inc., recorded in Book 417, page 475 on
May 14, 1959, Washington County Deed Records; thence along the South line of
said Xxxxxx Realty Tract, North 89(degree)14' 55" East, 116.10 feet to the
Southeast corner thereof; thence along the Easterly line of said Xxxxxx Realty
Tract, North 2(degree)12' 31" West, 25.07 feet to an angle point; thence
continuing along said Easterly line, North 11(degree)11' 10" West, 45.05 feet to
the Southwesterly corner of that certain tract of land described in Deed to
Xxxxx Xxxxxxx Xxxxxxx, recorded in Book 1074, page 364, on March 19, 1976,
Washington County Deed Records; thence along the Southerly line of said Cameron
Tract, North 57(degree)36' 15" East, 74.99 feet to the Southeasterly corner
thereof; thence along Easterly line of said Cameron Tract, North 24(degree)47'
49" West, 88.79 feet to a set 5/8 inch iron rod; thence North 57(degree)33' 45"
East, a distance of 182.01 feet to a point of curvature; thence continuing along
said Southerly line on the arc of a 148.61 foot radius curve to the right,
through a central angle of 31(degree)11' 25" an arc distance of 80.90 feet (the
chord bears North 73(degree)09' 28" East, 79.90 feet) to a point of tangency;
thence continuing along said Southerly line, North 88(degree)45' 10" East,
136.15 feet to a point of curvature; thence continuing along said Southerly line
on the arc of a 235.00 foot radius curve to the left, through a central angle of
82(degree)16' 33", an arc distance of 337.46 feet to the Southerly line of S.W.
Canyon Road; thence along said Southerly line, North 64(degree)40' 33" East,
93.88 feet to the Northwest corner of that certain tract of land described in
Deed to Xxxx Xxxxx Properties, Inc., recorded under Film No. 80003624 on January
31, 1980, Washington County, Deed Records; thence along the West line of said
Xxxx Xxxxx Tract, South 1(degree) 01' 56" East, 1001.76 feet to the Northerly
line of the S.W. Beaverton-Hillsdale Highway; thence along said Northerly line
on the arc of a 1722.95 foot radius curve to the right, through a central angle
of 2(degree)59' 30" an arc distance of 89.96 feet (the chord bears North
85(degree) 15' 32" West, 89.95 feet) to a point opposite Engineers Centerline
Station L3 138+05.71 P.C.S.; thence continuing along said Northerly line on the
arc of a spiral whose chord bears North 82(degree)21' 09" West, 128.52 feet to a
point opposite Engineers Centerline Station L3 139+35.71 P.T.; thence continuing
along said Northerly line, North 81(degree)39' 05" West, 424.11 feet to the
point of beginning.
PARCEL II:
A tract of land situated in Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 1 West,
Willamette Meridian, Washington County, Oregon. Said tract of land being
described as follows:
Beginning at a 5/8 inch iron rod with an aluminum cap, said iron rod being North
84.82 feet and East 892.66 feet from the Southwest corner of the Xxxxxxx
Xxxxxxxxx D.L.C. No. 45, said iron rod also being the point of change from
spiral to a 1,722.95 foot radius circular curve to the right on the North right
of way line at Engineer's centerline Station 136+74.12 on the
Beaverton-Hillsdale Highway; thence continuing Westerly along the arc of said
circular curve 38.51 feet (chord equal 38.51 feet and chord bearing equals North
87(degree)53' 28" West); thence North 1(degree) 08' 22" West, 1002.39 feet to
the South right of way line of S.W. Canyon Road; thence North 64(degree)40' 33"
East, 46.17 feet; thence North 70(degree)40' 16" East, 224.49 feet to a point
marking the point of a cusp of a 50.00 foot radius curve, said point being the
most Northerly Northwest corner of that tract of land described in CF 1927,
Washington County Deed Records and Xxxxxx Xxxxxx Xx. 00000, Xxxxxxxxxx Xxxxxx
Survey Records; thence Southwesterly along the arc of said curve to a found 5/8
inch iron rod at the point of tangency, the long chord bears South 13(degree)
29' 53" West, 52.01 feet; thence South 17(degree)54' 39" East, 78.14 feet to a
found 5/8 inch iron rod marking the most Southerly Southwest corner of said
tract of land; thence North 89(degree)05' 15" East, 154.13 feet to a found 5/8
inch iron rod marking the Southeast corner of said tract of land; thence North
0(degree) 51' 31" West coincident with the Easterly boundary of said tract of
land, 67.945 feet to a found 5/8 inch iron rod; thence North 89(degree)04' 22"
East, 324.84 feet to a found 5/8 inch iron rod on the West line of a 50 foot
ingress and egress easement to Shell Oil, and others recorded in Book 929, and
page 561 of Washington County Deed Records; thence North 0(degree)52' 36" West,
220.43 feet to a found 5/8 inch iron rod on the Southerly right of way line of
Canyon Road; thence continuing along said right of way, North 70(degree)40' 16"
East, 55.55 feet to a 5/8 inch iron rod marking the Northeast corner of that
tract of land described in Book 929, page 561, Washington County Deed Records;
thence along the boundaries of said tract as follows:
South 00(degree)56' 44" East, 286.96 feet to a 5/8 inch iron rod, North 89
(degree) 06' 24" East, 142.00 feet to a found 5/8 inch iron rod and North 00
(degree) 56' 44" West, 309.51 feet to a found 5/8 inch iron rod with aluminum
cap; thence South 53(degree)41' 06" East, 39.39 feet to a found 5/8 inch iron
rod with aluminum cap marking an angle point on the Westerly right-of-way line
of the Beaverton-Tigard Highway at Engineer's centerline Station 174+10; thence
coincident with said Westerly right of way as follows:
South 04(degree)46' 46" East, 286.86 feet to a found 5/8 inch iron rod with
aluminum cap marking the point of curve of a 2,231.83 foot radius curve right at
Engineer's centerline Station 177+00,
Southwesterly along the arc of said curve right, 584.8 feet to a 5/8 inch iron
rod with aluminum cap marking the point of tangency of Engineer's centerline
Station 183+00 (the long chord bears South 07(degree)00' 58" West, 582.51
feet); South 14(degree)55' 04" West, 224.42 feet to a found 5/8 inch iron rod
with aluminum cap at Engineer's centerline Station 185+30.21; South 20(degree)
17' 08" West, 60.81 feet to a found 5/8 inch iron rod with aluminum cap denoted
as marking the point of curve of a 459.26 foot radius curve left at Engineer's
centerline Station 185+91.04 P.C., and Southwesterly along the arc of said curve
left (the chord bears South 12(degree)40' 42" West, 121.85 feet) to a found 5/8
inch iron rod with aluminum cap at Engineer's centerline Station 187+00, said
monument marks the point of intersection of the Westerly right of way line of
the Beaverton-Tigard Highway and the Northerly right of way of the Beaverton-
Hillsdale Highway; thence along the Northerly right of way line of the
Beaverton-Hillsdale Highway as follows:
South 83(degree)21' 50" West, 187.50 feet to a found 5/8 inch iron rod with
aluminum cap on the West line of Lot 72, STEEL'S ADDITION TO BEAVERTON, 50.00
feet Northerly from the centerline of the Beaverton-Hillsdale Highway; South 89
(degree) 43' 38" West parallel with said centerline, 45.49 feet to a found 5/8
inch iron rod with aluminum cap at Engineer's centerline Station, 131+50; South
86(degree)55' 51" West along said Northerly right of way line, 200.25 feet to a
point at right angles from and 40.00 feet Northerly of said highway centerline
at Engineer's centerline Station 133+50; South 89(degree)47' 36" West parallel
with said highway centerline, 194.12 feet to a point of spiral curve right at
Engineer's centerline Station 135+44.12, said spiral curve defined at highway
centerline as 130.00 feet in length of arc, an "A" value of 2.5 and a central
angle of 2(degree)06' 42" along the arc of said spiral curve right (the long
chord bears North 89(degree)30' 24" West, 128.52 feet) to a found 5/8 inch iron
rod with aluminum cap marking the point of beginning.
PARCEL III:
Being a part of Lot 72 of STEEL'S ADDITION TO BEAVERTON as shown on the duly
recorded plat thereof on file in the office of the Recorder of Conveyances for
Washington County, Oregon, and being more particularly described as follows:
Beginning at an iron pipe at the intersection of the West line of said Lot 72 of
the said STEEL'S ADDITION and the Southerly boundary of the 80 foot wide new
Canyon Road Highway and running thence South 0(degree)52' East along the West
line of said Lot 72, a distance of 138.83 feet to an iron pipe; thence North 89
(degree) 08' East, 135.0 feet to an iron pipe; thence North 0(degree)52' West,
183.87 feet to an iron pipe on the South boundary of the said Canyon Road
Highway; thence along said highway boundary South 70(degree)42' West, 142.31
feet to the place of beginning, all situated in the County of Washington, State
of Oregon.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $1,771,711.55 per annum. From December 9, 2011 through
December 8, 2016, the Fixed Rent will be $1,473,741.88 per annum. From December
9, 2016 through December 8, 2021, the Fixed Rent will be $1,409,316.01 per
annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (9)
Coos Bay, OR
MODIFICATION TO MASTER LEASE
(Coos Bay, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
7. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
Coos Bay, OR
Description of the tract of land
PARCEL I: Beginning at the Northwest corner of Block 8, Railroad Addition to
Marshfield, Coos County, Oregon; thence East to the center of vacated Front
Street; thence North to the center of vacated Xxxxxxx Avenue; thence East along
the center of said vacated Xxxxxxx Avenue to the ordinary high water line of
Coal Bank Slough; thence Southerly along said ordinary high water line to its
intersection with the North line of the relocated U.S. Highway 101 as described
in Stipulated Final Judgment filed April 22, 1986, in Circuit Court Case No.
85-1991, Records of Coos County, Oregon, State of Oregon, by and through its
Department of Transportation vs. Xxxx Xxxxx Real Estate Properties, Ltd., an
Oregon limited partnership, et al.; thence Northwesterly along the State Highway
property to a point on the West boundary of said Block 8; thence North along
said West boundary to the point of beginning.
Together with the tidelands fronting and abutting vacated Xxxxx Xxxxxx,
Xxxxx 0, xxx X 0/0 xx Xxxxx 3, the N 1/2 of vacated Xxxxx Avenue the S 1/2
of vacated Xxxxxxx Avenue of Railroad Addition to Marshfield, Coos County,
Oregon. EXCEPT that portion of the tidelands fronting and abutting the N
1/2 of Block 3, Railroad Addition to Marshfield, Coos County, Oregon, lying
South of the property described in Stipulated Final Judgment filed April
22, 1986, in Circuit Court Case No. 85-1991, Records of Coos County,
Oregon, State of Oregon, by and through its Department of Transportation
vs. Xxxx Xxxxx Real Estate Properties, Ltd., an Oregon limited partnership,
et al.
TOGETHER WITH the easement over the N 1/2 of vacated Xxxxxxx Avenue lying
East of the East line of Front Street South and West of the low water line
of Coal Bank Slough, as set forth in instrument recorded May 24, 1983,
bearing Microfilm Reel No. 83-2-3255, Records of Coos County, Oregon.
EXCEPTING THEREFROM: Beginning at a point 70 feet East of the Northwest
corner of Block 1, Railroad Addition to Marshfield, Coos County, Oregon;
thence South 50 feet; thence East 40 feet; thence North 50 feet to a point
on the North line of said Block 1; thence West 40 feet along said North
line to the point of beginning.
PARCEL II: Lots 17 through 23, inclusive, the W 1/2 of Xxx 00, Xxxxx 0, Xxxxxxxx
Addition to Marshfield, Coos County, Oregon.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $212,651.16 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $176,887.10 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $169,154.33 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (10)
Corvallis, OR
MODIFICATION TO MASTER LEASE
(Corvallis, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
8. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
Corvallis, OR
The land referred to is described as being situated in the
County of Benton and State of Oregon, to-wit:
PARCEL I:
Beginning at the intersection of the North line of Taylor Street in Corvallis,
Oregon, with the East line of Kings Road; thence Northerly on said East line 550
feet to the South line of Buchanan Street; thence East on said South line 490
feet to the intersection of Buchanan Street with the West line of 19th Street;
thence Southerly on the West line of 19th Street 401.5 feet to the Northeast
corner of Block 31, Job's Addition to Corvallis; thence Southerly on the East
line of said Block 89.5 feet to the Northeasterly corner of Lot 4 in said Block;
thence West on the Northerly line of said Lot 4 a distance of 100 feet, more or
less, to the Northeasterly corner of Lot 9 in said Block; thence Southerly on
the Easterly lines of Lots 9, 10, 11 and 12, in said Block 200 feet to the
Southeasterly corner of said Lot 12 a point on the North line of Taylor Street;
thence Westerly on said North line 160 feet, more or less, to the point of
beginning.
EXCEPT that portion conveyed to the City of Corvallis, by deed recorded
September 30, 1969 as Instrument No. 99086, M-15680, Microfilm Records of Benton
County, Oregon.
PARCEL II:
Lot 4, Block 31, JOB'S ADDITION, to the City of Corvallis.
PARCEL III:
Lot 3, Block 31, JOB'S ADDITION, the City of Corvallis.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $335,276.10 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $278,888.76 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $266,696.90 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (11)
(Division St.) Portland, OR
MODIFICATION TO MASTER LEASE
((Division St.) Portland, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
9. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease. The
"Basic Amount" will not be adjusted for the option price of any pad/parcel which
Landlord conveys to Tenant pursuant to the Pad Agreement (as defined below).
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
DIVISION, OR
The land referred to is described as
A tract of land located in the Northwest quarter of Section 12, Township 1
South, Range 2 East of the Willamette Meridian, in the County of Multnomah and
State of Oregon, described as follows:
Commencing at the Northwest corner of said Section 12; thence South 89(degree)
46' 50" East along the North line of the said Section 12, a distance of 869.63
feet; thence South 00(degree)13' 10" West a distance of 45.00 feet to a point
on the South right of way line of SE Division Street said point being the true
point of beginning of this description; thence South 89(degree)46'50" East
along the South right of way line of SE Division Street, a distance of 718.93
feet to a point of circular curve; thence Southeasterly along the arc of a 28.00
foot radius circular curve to the right through a central angle of 82(degree)
39'35", an arc distance of 40.40 feet (long chord bears South 48(degree)27' 03"
East a distance of 36.98 feet) to a point on the Westerly right of way line of
SE 148th Avenue 40.00 feet Westerly of center line; thence South 07(degree)07'
15" East along the Westerly right of way line of SE 148th Avenue a distance of
63.46 feet to a point of circular curve; thence Southerly along the arc of a
2251.83 foot radius circular curve to the right through a central angle of 08
(degree) 41' 21", an arc distance of 341.50 feet (long chord bears South 02
(degree) 46' 43" East a distance of 341.17 feet) along the above said Westerly
right of way; thence South 01(degree) 34' 10" along the above Westerly right of
way a distance of 135.95 feet to a point of circular curve; thence Southwesterly
along the arc of a 20.00 foot radius circular curve to the right through a
central angle of 90(degree)01' 10", an arc distance of 31.42 feet (long chord
bears South 46(degree)34' 45" West a distance of 31.42 feet) to a point on the
North right of way line of SE Clinton Street 25.00 feet North of center line;
thence North 88(degree)24' 40" West along the North right of way line of SE
Clinton Street, a distance of 760.10 feet to a point of circular curve; thence
Northwesterly along the arc of a 20.00 foot radius circular curve to the right
through a central angle of 89(degree)46' 01", an arc distance of 31.34 feet
(long chord bears North 43(degree)31' 39" West a distance of 28.23 feet) to a
point on the East right of way line of SE 145th Avenue, 30 feet East of the
center line; thence North 01(degree) 21' 21" East along the East right of way
line of SE 145th Avenue a distance of 525.45 feet to a point of circular curve;
thence Northeasterly along the arc of a 20.00 foot radius circular curve to the
right through a central angle of 88(degree)51' 49", an arc distance of 31.02
feet (long chord bears North 45(degree)47' 15" East a distance of 28.00 feet)
to the true point of beginning of this description.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $814,323.60 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $677,369.18 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $647,757.41 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (12)
(East) Salem, OR
MODIFICATION TO MASTER LEASE
((East) Salem, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
10. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
(EAST) SALEM, OR
The land referred to is described as
TRACT I
Beginning at a point which is North 13.19 chains and South 89(degree) 20'
West 8.37 chains from the Northeast corner of the I. N. Baker Donation Land
Claim No. 81, in Township 7 South, Range 2 West of the Willamette Meridian
in Marion County, Oregon, said point of beginning being the Southwest
corner of that tract of land conveyed to Donald R. Wyant, Sr. and Charles
E. Wyant, Deed Records, Volume 693, page 344, Deed Records for Marion
County, Oregon; thence North 0(degree) 17' West along the Westerly line of
said Wyant tract 394.69 feet to the center line of said Market Street;
thence Easterly along said center line 221.89 feet to the Northeast corner
of that tract of land conveyed to said Donald R. and Charles E. Wyant, Deed
recorded in Volume 704, page 126, Deed Records for Marion County, Oregon;
thence South 0(degree)07' East 392.70 feet to the Southeast corner of said
Wyant tract in Volume 704, page 126, Deed Records; thence South
89(degree)20' West along the Southerly line of said Wyant tract 221.89 feet
to the point of beginning.
TRACT II
Beginning at a point in the center line of Lancaster Drive N.E., which is
13.19 chains North of the Northeast corner of the I. N. Baker Donation Land
Claim #81 in Township 7 South, Range 2 West of the Willamette Meridian, in
Marion County, Oregon, said point of beginning being the most Easterly
Southeast corner of that tract of land conveyed to H. W. Sneed deed
recorded in Volume 633, page 284, Deed Records for Marion County, Oregon;
thence South 89(degree)20' West along the South line of said Sneed property
330.05 feet to the Southwest corner thereof; thence North 0(degree)07' West
along the Westerly line of the said Sneed tract 391.38 feet to the center
line of Market Road No. 21 (Market St.); thence North 89(degree)20' East
along the said center line of Market Street 177.44 feet to the most
Northerly Northeast corner of said Sneed tract; thence South 0(degree)07'
East 180 feet to the Southwest corner of that tract of land conveyed to
Lewis B. Huff deed recorded in Volume 739, page 036, Deed Records for
Marion County, Oregon; thence North 89(degree)20' East along the Southerly
line of said Huff tract 155 feet to the Southeast corner thereof; said
point also lying on the center line of Market Road No. 93, (Lancaster Dr.
N.E.), thence South 0(degree)07' East along the center line of said
Lancaster Drive 208.05 feet, more or less, to the point of beginning.
TRACT III
The South one-half of the following described real property, to-wit:
Beginning at a point in the County Road and 8.39 chains North 0(degree)04'
East from the Northeast corner of the Donation Land Claim of Isaac Baker in
Township 7 South, Range 2 West of the Willamette Meridian in Marion County,
Oregon; thence South 89(degree)20' West 8.36 chains to the Northwest corner
of a 7.00 acre tract; and West line of Lutisha Wanless land as shown in
Volume 170, page 332, Deed Records for Marion County, Oregon; thence North
0(degree)07' West 4.80 chains, along the West line of said land, thence
North 89(degree)20' East 8.37 chains to the East line of Lutisha Wanless
land, and in the middle of the County Road; thence South 0(degree)04' West
4.80 chains to the place of beginning.
SAVE AND EXCEPT for road purposes a strip 30.0 feet in width off of the
East side of the above described tract of land.
ALSO SAVE AND EXCEPT that portion of the herein described premises taken by
Marion County Resolution No. 1466 for the improvement of Lancaster Drive,
N.E. to an 80.00 foot right of way width.
TRACT IV
Beginning at the Northeast corner of the Donation Land Claim of Isaac Baker
and wife in Township 7 South, Range 2 West of the Willamette Meridian in
Marion County, Oregon, and running thence South 89(degree)29' West 8.34 1/3
chains along the North line of the said Isaac Baker and wife Donation Land
Claim; thence North 0(degree)7' West 8.39 chains; thence North
89(degree)20' East 8.36 chains parallel with the North line of said
Donation Land Claim; thence South 8.39 chains to the place of beginning,
and situated in Marion County, State of Oregon.
SAVE AND EXCEPT therefrom the Southerly 1 1/2 acres of the above described
premises, which are more particularly described in that certain deed of
conveyance executed by Homer J. Conklin and Grace J. Conklin, husband and
wife, to Ralph Adams Jr. and Margaret Adams, husband and wife, dated the
16th day of DECEMBER 1958, and recorded on the 19th day of DECEMBER 1958 in
Volume 518, page 394, of the Deed Records for Marion County, Oregon.
ALSO SAVE AND EXCEPT: Beginning in the center of a County Road at a point
which is 446.24 feet North 0(degree)04' East from the Northeast corner of
the Isaac Baker Donation Land Claim in Township 7 South, Range 2 West of
the Willamette Meridian in Marion County, Oregon; thence North 0(degree)04'
East, along the center of the said County Road, a distance of 107.5 feet to
the Northeast corner of a tract of land conveyed to Homer J. Conklin and
Grace J. Conklin, by deed recorded in Volume 225, page 481, Deed Records
for Marion County, Oregon, thence South 89(degree)20' West along the North
line of said Conklin tract, a distance of 8.36 chains to the Northwest
corner thereof, thence Southerly, along the West line of the said Conklin
tract, a distance of 107.5 feet, thence East to the place of beginning.
ALSO SAVE AND EXCEPT: Beginning at a 1 inch iron rod marking the point of
intersection of the North line of the Isaac Baker Donation Land Claim No.
91, Township 7 South, Range 2 West, Willamette Meridian, Marion County,
Oregon, and the Westerly boundary line of that tract of land described in
Volume 749, page 779, Deed Records, said point bears South 89(degree)16'09"
West 549.67 feet and North 00(degree)17'17" West 117.90 feet from the
Northeast corner of said Donation Land Claim, and continuing thence North
00(degree)17'17" West 259.13 feet; thence North 89(degree)19'18" East
210.03 feet, more or less, to a point that is perpendicular to and 300.00
feet Westerly of the Westerly right of way line of Lancaster Drive; thence
South 00(degree)02'57" West, parallel with said Westerly right of way line,
259.13 feet to a point on the Westerly projection of the Northerly boundary
line of that tract of land described in Volume 772, page 679, Deed Records;
thence South 89(degree)20'14" West 210.33 feet to the place of beginning.
ALSO SAVE AND EXCEPT the following described tract: Beginning at a 5/8 inch
iron rod with an aluminum cap on the point of intersection of the Westerly
right of way line of Lancaster Drive and the Northerly boundary line of
that tract of land described in Volume 772, page 679, Deed Records, said
point of intersection bears North 00(degree)02'57" East 117.25 feet and
South 89(degree)20'14" West 40.00 feet from the Northeast corner of the
Isaac Baker Donation Land Claim No. 91, Township 7 South, Range 2 West,
Willamette Meridian in Marion County, Oregon, and continuing thence: South
89(degree)20'14" West 300.02 feet, coincident with said Northerly boundary;
thence North 00(degree)02'57" East, parallel with the Westerly right of way
line of Lancaster Drive, 259.13 feet to a point; thence North
89(degree)19'18" East 300.02 feet to the Westerly right of way line of
Lancaster Drive; thence South 00(degree)02'57" West, coincident with said
right of way line, 259.21 feet to the point of beginning.
TRACT V
That tract of land situated in the Southwest quarter of the Northwest
quarter of Section 19, Township 7 South, Range 2 West of the Willamette
Meridian in Marion County, Oregon, beginning at a 1/2 inch iron pipe in the
Northwest corner of the Zielesch property, recorded in Volume 298, page
554, Deed Records for Marion County, Oregon; thence 240 feet South
0(degree)08' East to the true point of beginning of the land to be
described; and running thence from the true point of beginning: South
0(degree)08' East, 328.43 feet; thence South 89(degree)52' West, a distance
of 52.00 feet; thence South 0(degree)08' East, a distance of 245.00 feet;
thence North 89(degree)52' East, a distance of 52.00 feet; thence South
0(degree)08' East, a distance of 456.45 feet; thence South 89(degree)20'45"
West, a distance of 172.26 feet; thence North 0(degree)08' West, a distance
of 1029.88 feet; thence North 89(degree)55' East, 172.26 feet to the true
point of beginning.
SAVE AND EXCEPT the Southerly 377.43 feet more particularly described in
deed to Ernest D. Fish, Inc., recorded DECEMBER 29, 1977, in Reel 107, page
1540, Marion County Records.
TRACT VI
Beginning at a point marking the Southwest corner of that tract of land
conveyed to Earl Lewis Langenberg, by deed recorded in Volume 353, page
399, Deed Records for Marion County, Oregon, which point is on the East
line of that tract of land conveyed to Landon Bergen, et ux, by deed
recorded in Volume 498, page 513, Deed Records for Marion County, Oregon,
thence South 0(degree)07'15" East, 712.45 feet along the Easterly line of
said Bergen tract to a 5/8 inch iron rod at the Southeast corner thereof;
thence South 89(degree)20'45" West, 345.18 feet along the Southerly
boundary of said Bergen tract and the Westerly extension thereof to the
Southeast corner of that tract of land conveyed to Kenneth D. Coomler,
Trustee, by deed recorded in Volume 635, page 38, Deed Records for Marion
County, Oregon; thence North 0(degree)08' West 456.45 feet along the
Easterly line of said Coomler tract, thence South 89(degree)55' West, a
distance of 52.00 feet; thence North 0(degree)08' West, a distance of
245.00 feet; thence North 89(degree)52' East, a distance of 52.00 feet;
thence North 0(degree)08' West 528.43 feet to a 1/2 inch iron pipe on the
Southerly right of way line of Market Street; thence North 89(degree)55'
East, 345.50 feet along said Southerly right of way line to a 5/8 inch iron
rod with an aluminum cap on the East line of the aforesaid Bergen property;
thence South 0(degree)07'15" East, 512.06 feet to the place of beginning.
SAVE AND EXCEPT the Southerly 377.43 feet more particularly described in
deed to Ernest D. Fish, Inc., recorded DECEMBER 29, 1977, in Reel 107, Page
1540, Marion County Records.
TRACT VII
That tract of land situated in the Southwest quarter of the Northwest
quarter, Section 19, Township 7 South, Range 2 West of the Willamette
Meridian in Marion County, Oregon, which is more particularly described as
follows:
Beginning at a point at the intersection of the Westerly right of way line
of Lancaster Drive and the Southerly boundary line of that parcel of land
conveyed to Earl L. Langenberg, by deed recorded in Volume 353, page 399,
Deed Records for Marion County, Oregon, said point being Northerly along
the center line of Lancaster Drive, 712.14 feet and Westerly 40.00 feet
from the Northeast corner of the Isaac Baker Donation Land Claim No. 91 in
Marion County, Oregon; and running thence from the true point of beginning
South 89(degree)30'24" West 512.09 feet along the Southerly boundary line
of said Langenberg parcel to the Southwesterly corner of same; thence North
0(degree)07'15" West, 158.36 feet along the Westerly boundary line of said
Langenberg parcel to a 3/4 inch iron pipe marking the Northwesterly corner
of same; thence North 89(degree)22'45" East 512.61 feet along the Northerly
boundary line of said Langenberg parcel to a point on the Westerly right of
way line of Lancaster Drive, a one-inch iron pipe bears South
89(degree)22'45" West, a distance of 0.06 feet; thence South
0(degree)03'45" West 159.50 feet along said Westerly right of way line to
the point of beginning, a one inch iron pipe bears North 89(degree)30'24"
East, a distance of 0.07 feet.
TRACT VIII
Beginning in the center of a County Road at a point which is 446.24 feet
North 0(degree)04' East from the Northeast corner of the Isaac Baker
Donation Land Claim in Township 7 South, Range 2 West of the Willamette
Meridian in Marion County, Oregon; thence North 0(degree)04' East, along
the center of said County Road, a distance of 107.5 feet to the Northeast
corner of a tract of land conveyed to Homer J. Conklin and Grace J.
Conklin, by deed recorded in Volume 225, page 481, Deed Records for Marion
County, Oregon; thence South 89(degree)20' West, along the North line of
said Conklin tract, a distance of 551.76 feet to the Northwest corner
thereof, thence Southerly along the West line of said Conklin tract, a
distance of 107.5 feet; thence East to the place of beginning.
SAVE AND EXCEPT for roadway purposes a strip 30.0 feet in width off of the
East side of the above described tract of land.
ALSO SAVE AND EXCEPT that portion of the herein described premises taken by
Marion County Resolution No. 1466 for the improvement of Lancaster Drive
N.E. to an 80.00 foot right of way.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $1,094,441.69 per annum. From December 9, 2011 through
December 8, 2016, the Fixed Rent will be $910,376.49 per annum. From December 9,
2016 through December 8, 2021, the Fixed Rent will be $870,578.61 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (13)
Medford, OR
MODIFICATION TO MASTER LEASE
(Medford, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
11. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
Medford, OR
The land referred to is described as follows:
Beginning at the southeast corner of Donation Land Claim No. 38 in Township
37 South, Range 1 West of the Willamette Meridian in Jackson County,
Oregon, said point being marked by a Jackson County Brass Cap; thence South
89(degree)53'58" East, along the south line extended of said Donation Land
Claim, a distance of 96.06 feet to a 5/8" iron pin on the westerly boundary
of that tract conveyed to the City of Medford by deed recorded as Document
No. 81-14783 of the Official Records of Jackson County, Oregon; thence,
along said westerly boundary and the arc of a 175.00 foot radius curve to
the right (the long chord to which bears South 04(degree)06'05" East 25.05
feet), a distance of 25.07 feet; thence South 0(degree)00'02" West 478.14
feet to a 5/8" iron pin; thence South 0(degree)00' 02" West 366.34 feet to
a 5/8" iron pin; thence North 89(degree)58'41" West 451.60 feet to a 5/8"
iron pin; thence North 89(degree)58'30" West 177.92 feet to a 5/8" iron
pin; thence North 18(degree)04'50" West 618.09 feet to the southerly right
of way boundary of State Highway No. 62 (Crater Lake Highway), said point
being marked by a P-K nail; thence North 50(degree)58'00" East, along said
right of way, 690.12 feet to a P-K nail with brass washer marked "LS 688"
located in outside edge of curb marking the westerly corner of real
property described in Volume 485 page 463, Jackson County, Oregon, Deed
Records; thence South 36(degree)18'12" East, along the southwesterly line
of said real property, 189.44 feet to a 5/8" iron pin; thence South 89
(degree)53'58" East 75.27 feet to the point of beginning.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $955,938.04 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $795,166.64 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $760,405.26 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (14)
(North) Salem, OR
MODIFICATION TO MASTER LEASE
((North) Salem, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
12. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
NORTH SALEM, OR
The land referred is described as
Beginning at a point on the Easterly line of Liberty Street which is 100.04 feet
North 1(degree) 09' West, 150.00 feet South 89(degree)16' East, 100.00 feet
North 4(degree)27' West and 150.00 feet North 89(degree)16' West from the
point of intersection of the Easterly line of said Liberty Street with the North
line of Mapleton Addition, to the City of Salem, Marion County, Oregon; thence
South 89(degree)16' East 150.00 feet; thence South 4(degree)27' East 100.00
feet; thence North 89(degree)16' West 50.00 feet; thence South 0(degree)44'
West 100.00 feet to a point on the North line of said Mapleton Addition; thence
South 89(degree)16' East along the North line of said Mapleton Addition, 676.93
feet to a point on the Westerly line of Broadway Street, said point being the
Northeast corner of Lot 1, Block 3, of said Mapleton Addition; thence North 0
(degree) 23' East along the East line of said Broadway Street 888.19 feet, more
or less, to the Southeast corner of the tract of land conveyed to Northwest
Natural Gas Company by deed recorded in Volume 602, Page 87, Deed Records,
Marion County, Oregon; thence South 89(degree)52' West along the South line of
said Northwest Natural Gas Company Tract 535.79 feet, more or less to the
Northeast corner of the tract of land conveyed to William H. Stovin, et ux, by
deed recorded in Volume 616, Page 570, Deed Records, Marion County, Oregon;
thence South 28(degree)00' West along the East line of said Stovin Tract 83.47
feet to the Southeast corner thereof; thence North 62(degree)00' West along the
South line of said tract 100.00 feet to a point on the Easterly line of North
River Road; thence Southerly along the Easterly line of North River Road and the
Easterly line of Liberty Street to the place of beginning.
ALSO: Beginning on the Easterly line of Liberty Street at a point which is
100.04 feet North 1(degree) 09' West from the point of intersection of the
Easterly line of said Liberty Street with the North line of Mapleton Addition to
the City of Salem, Marion County, Oregon; thence South 89(degree)16' East
parallel with the North line of said Mapleton Addition 150.00 feet; thence North
4(degree)27' West 100.00 feet; thence North 89(degree)16' West, parallel with
the North line of said Mapleton Addition 150.00 feet to a point on the Easterly
line of said Liberty Street; thence Southerly along the arc of a 1735.92 foot
radius curve to the right (the chord of which bears South 4(degree)27' East
100.00 feet) a distance of 100.02 feet to the point of beginning.
SAVE AND EXCEPT: A parcel of land situated in the Northeast quarter of the
Northeast quarter of Section 15, Township 7 South, Range 3 West of the
Willamettte Meridian, Marion County, Oregon, which is more particularly
described as follows:
Beginning at a point on the Westerly right of way line of Broadway,
said Westerly right of way line being also the Easterly boundary line of that
tract of land conveyed to Roundup Properties, Inc., by deed recorded in Volume
637, Page 301 Deed Records, Marion County, Oregon, said point bears South 0
(degree) 17' West 150.00 feet from the Northeasterly corner of said tract; and
running thence South 89(degree)53'45" West 160.00 feet parallel with the
Northerly boundary line of said tract; thence South 0(degree)06'15" East 125.00
feet perpendicular to said Northerly boundary line; thence North 89(degree)
53'45" East 155.14 feet parallel with said Northerly boundary line to a point on
said Westerly right of way line, as described in deed to the City of Salem,
recorded August 27, 1968, in Volume 652, Page 573, Deed Records for Marion
County, thence North 2(degree)37'33" East 118.91 feet along the Westerly right
of way line; thence continue along said Westerly right of way line North 0
(degree) 17' East 6.19 feet to the point of beginning.
North Salem, Oregon
ALSO SAVE AND EXCEPT: Beginning at a point which is South 0(degree)17' West 150
feet and South 89(degree)53'45" West 160 feet from the Northeasterly corner of
a tract of land conveyed to Roundup Properties, Inc., by deed recorded in Volume
637, Page 301, Deed Records for Marion County, Oregon; and running thence South
0(degree)06'15" East, a distance of 125 feet perpendicular to the Northerly
line of aforesaid tract of land thence South 89(degree)53'45" West, a distance
of 25 feet; thence North 0(degree)06'15"West, a distance of 125 feet to the
aforesaid tract of land; thence North 89(degree)53'45" East, a distance of 25
feet to the place of beginning.
ALSO SAVE AND EXCEPT: Beginning at a point on the Westerly line of Broadway
Street which is the Northeast corner of a tract of land conveyed to Roundup
Properties, Inc., by deed recorded in Volume 637, Page 301, Deed Records for
Marion County, Oregon; thence South 0(degree)17' West, along the Westerly line
of Broadway Street, 150.00 feet to the Northeast corner of a tract of land
conveyed to Landpower Inc., by deed recorded in Volume 670, Page 357, Deed
Records for Marion County, Oregon; thence South 89(degree)53'45" West, 160.00
feet to the Northwest corner of said Landpower Inc., tract; thence North 0
(degree) 17' East, parallel with the Westerly line of Broadway Street, 150.00
feet to a point on the North line of said Roundup Properties, Inc., tract;
thence North 89(degree)52' East, along said North line, 160.00 feet, more or
less, to the place of beginning.
SAVE AND EXCEPT that part conveyed to the City of Salem by Deeds recorded August
27, 1968 in Volume 652, Page 573 and March 12, 1982 in Reel 275, Page 1432,
Records for Marion County, Oregon.
TOGETHER WITH an easement in common with others as set forth in Reciprocal
Easement recorded November 21, 1968, in Volume 657, Page 115, Deed Records for
Marion County, Oregon over the following:
Beginning at a point on the Westerly right of way line of Broadway, said
Westerly right of way line being also the Easterly boundary line of that tract
of land conveyed to Roundup Properties, Inc., by deed recorded in Volume 637,
page 301, Deed Records, Marion County,
North Salem, Oregon
Oregon, said point bears South 0(degree)17' West 150.00 feet from the
Northeasterly corner of said tract; and running thence South 89(degree)53'45"
West 160.00 feet parallel with the Northerly boundary line of said tract; thence
South 0(degree)06'15" East 125.00 feet perpendicular to said Northerly boundary
line; thence North 89(degree)53'45" East 155.14 feet parallel with said
Northerly boundary line to a point on said Westerly right of way line, as
described in deed to the City of Salem, recorded August 27, 1968, in Volume 652,
page 573, Deed Records for Marion County, Oregon; thence North 2(degree)37'33"
East 118.91 feet along said Westerly right of way line; thence continuing said
Westerly right of way line North 0(degree)17' East 6.19 feet to the point of
beginning.
Beginning at a point which is South 0(degree)17' West 150 feet and South 89
(degree) 53'45" West 160 feet from the Northeasterly corner of a tract of land
conveyed to Roundup Properties, Inc., by deed recorded in Volume 637, Page 301,
Deed Records for Marion County, Oregon; and running thence South 0(degree)
06'15" East, a distance of 125 feet perpendicular to the Northerly line of
aforesaid tract of land; thence South 89(degree)53'45" West, a distance of 25
feet; thence North 0(degree)06'15" West, a distance of 125 feet to the
aforesaid tract of land; thence North 89(degree)53'45" East, a distance of 25
feet to the place of beginning.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $381,062.11 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $316,974.39 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $303,117.59 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (15)
Oregon City, OR
MODIFICATION TO MASTER LEASE
(Oregon City, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
13. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
OREGON CITY, OR
The land referred to is described as
IN THE COUNTY OF CLACKAMAS AND STATE OF OREGON
A tract of land located in the Samuel N. Vance D. L. C. No. 51, located in
Sections 5 and 8, Township 3 South, Range 2 East, of the W. M., being more
particularly described as:
Beginning at a stone marked with an "X" at the northwest corner of the
Washington Williams D. L. C. in Township 3 South, Range 2 East, of the W. M.;
thence South 14(degree)42' 45" West a distance of 190.13 feet to a 3/4 inch
iron pipe set at the beginning point of Parcel 2 of the Hi-Line Construction
Company tract described in that contract of sale recorded in Book 32, page 789,
Fee No. 5427, Miscellaneous Records; thence South 62(degree)07' 37" West along
the southeasterly line of the said Parcel 2 a distance of 922.99 feet to the
northeasterly right-of-way line of State Highway No. 213, said right-of-way line
being 30.00 feet Northeasterly of centerline; thence North 30(degree)47' 20"
West along said northeasterly right-of-way line a distance of 500.59 feet to a
point being 15.00 feet easterly of the northwesterly line of the Bonneville
Power Administration easement recorded June 10, 1942, in Book 294, at page 461,
Clackamas County Deed Records; thence North 44(degree)52' 15" East parallel to
said northwesterly line a distance of 744.62 feet to a point on the
southwesterly line of that tract of land conveyed to Patrick C. Whitmore and
others by that deed recorded in Fee No. 72 19202, Clackamas County Deed Records;
thence North 44(degree)30' 05" West along said southeasterly line a distance of
14.98 feet to the northwesterly line of said Bonneville Power Administration
easement; thence North 44(degree)52' 15" East along said northwesterly line a
distance of 309.05 feet to the south right-of-way line of Beaver Creek Road,
said right-of-way line being 30.00 feet south of centerline; thence South 81
(degree) 27' 54" East along said south right-of-way line a distance of 534.98
feet to a line between a stone marked with an "X" at the northeast corner of the
Vance D. L. C. and a stone marked with an "X" at the northwest corner of the
Washington Williams D. L. C.; thence South 16(degree)01' 30" West along said
line a distance of 512.57 feet to the point of beginning of this description.
EXCEPTING all portions lying within the limits of public roads.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $706,401.07 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $587,597.26 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $561,909.95 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (16)
(New) Roseburg, OR
MODIFICATION TO MASTER LEASE
((New) Roseburg, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
14. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
(NEW) ROSEBURG, OR
PARCEL 1
A parcel of land lying in Sections 11 and 14, Township 27 South, Range 6 West,
Willamette Meridian, Douglas County, Oregon, being more particularly described
as follows: Beginning at a point on the southerly line of Northwest Garden
Valley Boulevard, said point being the most easterly corner of that certain
easement as described in Volume 260, Page 447, Deed Records of Douglas County,
Oregon; thence South 63(degree)56' 06" East along said southerly line, 75.78
feet; thence South 26(degree)00' West 622.23 feet; thence North 75(degree)47'
52" West 254.27 feet to a point on the southeasterly line of the above said
easement; thence along the boundaries of said easement as follows: South 33
(degree) 11' West 149.82 feet, North 22(degree)34' 20" East 467.00 feet, North
63(degree)48' 41" West 27.23 feet, North 26(degree)00' East 356.97 feet to a
point on the above said southerly line of Garden Valley Boulevard; thence South
63(degree)56' 06" East along said southerly line, 247.00 feet to the point of
beginning.
PARCEL 2
Beginning at a brass cap on the southerly right of way line of Garden Valley
Boulevard, from which a brass cap marked Veterans Administration Boundary
Monument on the westerly line of Isaac Jones Donation Land Claim No. 65,
Township 27 South, Range 6 West, Willamette Meridian, bears North 65(degree)00'
West 1315.94 feet; thence South 64(degree)00' East 667.00 feet to a steel tube
with survey cap; thence South 26(degree)00' West 550.00 feet to a steel tube
with survey cap; thence North 75(degree)51' West 606.05 feet to a steel tube
with a survey cap; thence South 33(degree)17' West 149.82 feet to a steel tube
with survey cap; thence North 22(degree)37' East 467.00 feet to a steel tube
with survey cap; thence North 64(degree)00' West 27.35 feet to a brass cap;
thence North 26(degree)00' East 356.97 feet to the place of beginning, all
lying in Sections 11 and 14, Township 27 South, Range 6 West, Willamette
Meridian, Douglas County, Oregon.
EXCEPTING THEREFROM the following: A parcel of land lying in Sections 11 and 14,
Township 27 South, Range 6 West, Willamette Meridian, Douglas County, Oregon,
being more particularly described as follows: Beginning at a point on the
southerly line of Northwest Garden Valley Boulevard, said point being the most
easterly corner of that certain easement as described in Volume 260, Page 447,
Deed Records of Douglas County, Oregon; thence South 63(degree)56' 06" East
along said southerly line, 75.78 feet; thence South 26(degree)00' West 622.23
feet; thence North 75(degree)47' 52" West 254.27 feet to a point on the
southeasterly line of the above said easement; thence along the boundaries of
said easement as follows: South 33(degree)11' West 149.82 feet, North 22
(degree) 34' 20" East 467.00 feet, North 63(degree)48' 41" West 27.23 feet,
North 26(degree)00' East 356.97 feet to a point on the above said southerly
line of Garden Valley Boulevard; thence South 63(degree)56' 06" East along said
southerly line, 247.00 feet to the point of beginning.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $593,869.26 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $493,991.25 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $472,396.00 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (17)(T)
Roseburg (#2), OR
Recordation Requested by
and
After recordation return to:
Stoel Rives LLP
Attention: David W. Green
950 Port of Portland Building
700 NE Multnomah
Portland, OR 97232 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(Roseburg, Oregon)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the 4th day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and FRED
MEYER, INC., a Delaware corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, FRED
MEYER REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as assignee of FRED MEYER REAL ESTATE PROPERTIES, LTD. pursuant to
an Assignment of Master Lease dated November 25, 1986 and recorded on December
9, 1986 in the Official Records of Douglas County, Oregon in Book 968 at page
218, Recorder's No. 86-16629 holds the lessor's interest under and to existing
leases affecting portions of the Premises (for purposes hereof, the
"Subleases"). Tenant's interest in such Subleases was then assigned, for
collateral purposes, to Landlord at the closing of Landlord's
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Fred Meyer, Inc., 3800 SE 22nd Avenue, PO Box 42121, Portland,
Oregon 97242-0121
Property tax account No.: 47648.01
-------------------------------------------------------------------------------
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
1
purchase of the Premises, pursuant to the terms of an Assignment of Leases
and/or Rents (the "Assignment"), by Tenant as assignor in favor of Landlord as
assignee, which is more particularly described on the attached Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant, as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: FRED MEYER, INC.,
a Delaware corporation
By: SCOTT L. WIPPEL
------------------------------------
Title: Vice President
---------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: EDWARD J. HAYES
------------------------------------
Name: Edward J. Hayes
----------------------------------
Title: Ass't. V.P.
---------------------------------
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER OF ALASKA, INC., an Alaska
corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
3
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by
Edward J. Hayes, as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
--------------------------------------------
Notary Public for Oregon
My commission expires 9/20/97
[NOTARY PUBLIC]
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
4
EXHIBIT A
(Roseburg, Oregon)
All that portion of Lot 15, Fruitvale, as filed and recorded in Volume 2, Page
16, Plat Records of Douglas County, Oregon, described as: Beginning at a 5/8
inch iron rod set above a 3/4 inch iron rod in the North right of way line of
Garden Valley Boulevard, from which the Southeast corner of Lot 15 bears South
89(degree)46' 48" East 430.83 feet (a 1/2 inch iron pipe 30.00 feet South 00
(degree) 25' 07" West from the Southeast corner of Lot 15 bears South 85(degree)
47' 46" East 431.77 feet, said pipe being previously referred to as the
Southeast corner of Lot 15); thence along the Northerly right of way line of
Garden Valley Boulevard, North 89(degree)41' 30" West 412.14 feet to a 3/4 inch
iron rod; thence along the Easterly right of way line of Vine Street, North 00
(degree) 42' 48" West 230.60 feet to a 5/8 inch iron rod; thence North
89(degree) 39' 45" East 98.91 feet to a 3/4 inch iron rod; thence North
00(degree)42' 31" West 4.38 feet to a 5/8 inch iron rod on the South line of
J.M. Noyes property as described in Volume 111, Page 546, Deed Records of
Douglas County, Oregon; thence along the South property line of said Noyes
property, South 89(degree) 40' 31" East 312.90 feet to a 5/8 inch iron rod
marking the property line of F. Jenkins and R. G. Harper as described in Volume
313, Page 882, Deed Records of Douglas County, Oregon; thence along said Jenkins
and Harper property line, South 00(degree)47' 24" East 236.01 feet to the point
of beginning.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
5
Exhibit B - List of Matters of Record to be Terminated
(Roseburg, Oregon)
1. Memorandum of Restated and Amended Lease:
Dated: November 25, 1986
Lessor: Fred Meyer Real Estate Properties, Ltd., an Oregon Limited
Partnership
Lessee: Fred Meyer, Inc., a Delaware corporation
Recorded: December 9, 1986
Book: 968
Page: 203
Recorder's No: 86-16626, and rerecorded in Book 970, Page 760, Recorder's
No. 86-17777, records of Douglas County, Oregon.
2. The Lessor's interest in said lease has been assigned pursuant to an
"Assignment of Master Lease" dated November 25, 1986, by Fred Meyer Real
Estate Properties, Ltd., an Oregon Limited Partnership, to Metropolitan
Life Insurance Company, a New York corporation:
Recorded: December 9, 1986
Book: 968
Page: 218
Recorder's No: 86-16629, and rerecorded in Book 970, Page 775, Recorder's
No. 86-17780, records of Douglas County, Oregon.
3. Said unrecorded Restated and Amended Lease was further amended by an
unrecorded First Amendment to Restated and Amended Lease as disclosed
by a Memorandum of First Amendment to Restated and Amended Lease, by
and between the parties therein, upon the terms, covenants and
conditions contained therein:
Dated: November 25, 1986
Landlord: Metropolitan Life Insurance Company, a New York corporation
Tenant: Fred Meyer, Inc., a Delaware corporation
Recorded: December 9, 1986
Book: 968
Page: 223
Recorder's No: 86-16630, and rerecorded in Book 970, Page 780, Recorder's
No. 86-17781, records of Douglas County, Oregon.
4. An unrecorded Option and Right of First Opportunity to negotiate for the
purchase of said land, by and between the parties thereto, pursuant to the
terms, covenants and conditions provided therein:
Dated: November 25, 1986
Disclosed by: Memorandum of First Amendment to Restated and Amended Lease
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
6
Executed by: Metropolitan Life Insurance Company, a New York corporation
In Favor of: Fred Meyer, Inc., a Delaware corporation
Recorded: December 9, 1986
Book: 968
Page: 223
Recorder's No: 86-16630, and rerecorded in Book 970, Page 780, Recorder's
No. 86-17781, records of Douglas County, Oregon.
5. The Lessor's interest in said lease has been assigned by an instrument,
upon the terms, covenants and provisions thereof:
Dated: October 22, 1986
From: Fred Meyer Real Estate Properties, Ltd., an Oregon Limited
Partnership
To: Fred Meyer, Inc., a Delaware corporation
Recorded: December 9, 1986
Book: 968
Page: 207
Recorder's No: 86-16627, and rerecorded in book 970, Page 764, Recorder's
No. 86-17778, records of Douglas County, Oregon.
6. The interest of Fred Meyer, Inc., a Delaware corporation, has been
assigned pursuant to an Assignment of Rights and Leases to Metropolitan
Life Insurance Company, a New York corporation, by document recorded
December 9, 1986, in Book 968, Page 227, Recorder's No. 86-16631, and
rerecorded in Book 970, Page 784, Recorder's No. 86- 17782, records of
Douglas County, Oregon.
STATE OF OREGON ]
COUNTY OF D0UGLAS ] SS.
I, ______________, COUNTY CLERK AND RECORDER OF
CONVEYANCES, DO HEREBY CERTIFY THAT THIS
INSTRUMENT WAS RECORED
97 FEB-5 PM 2:45.
DOYLE SHAVER, JR.
DOUGLAS COUNTY CLERK
IN THE OFFICIAL RECORDS OF DOUGLAS COUNTY
BY GLAIN G. BENNETT
-------------------------------------
Deputy
FEE 55.00
5.00
-----
60.00 pd.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
7
Appendix 10I (18)
(Santa Clara) Eugene, OR
MODIFICATION TO MASTER LEASE
((Santa Clara) Eugene, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
15. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
SANTA CLARA, OR
Tract 1:
Beginning at a 2 inch iron pipe on the Easterly boundary line of that parcel of
land described in Book 381, Page 490, Lane County Oregon Deed Records, said 2
inch iron pipe being also the initial corner of MILTON ADDITION, as platted and
recorded in Book 39, Page 28, Lane County Oregon Plat Records, said 2 inch iron
pipe also being recorded as bearing West 4610.23 feet and South 209.13 feet from
the Northeast corner of Section 13, Township 17 South, Range 4 West of the
Willamette Meridian, and running thence South 82(degree)30' 32" West 278.21
feet to a 5/8 inch iron rod; thence South 74(degree)06' 07" West 28.22 feet to
a 5/8 inch iron rod; thence North 74(degree)17' 09" West 432.95 feet to a 5/8
inch iron rod with an aluminum cap; thence North 3(degree)29' 32" West 201.71
feet to a 5/8 inch iron rod with an aluminum cap; thence South 86(degree)30'
28" West 195.39 feet to a 5/8 inch iron rod with an aluminum cap on the Easterly
right of way line of River Road; thence along said Easterly right of way line
North 21(degree)27' 45" West 70.60 feet to a 5/8 inch iron rod with an aluminum
cap and North 15(degree)00' 45" West 155.25 feet to a 5/8 inch iron rod with an
aluminum cap, which marks the intersection of said Easterly right of way line of
River Road and the Southerly right of way line of Relocated Division Avenue;
thence along said Southerly right of way line of Relocated Division Avenue,
North 88(degree)26' 15" East 684.89 feet to a 5/8 inch iron rod marking the
point of beginning of a 914.93 foot radius curve right; thence Southeasterly
along the arc of said curve to a 5/8 inch iron rod, the long chord of which
bears South 74(degree)50' 32" East 525.06 feet, which iron rod also marks a
point on the Westerly boundary line of that certain tract of land described in
Book 412, Page 182, Lane County Oregon Deed Records; thence South 3(degree)29'
32" East 309.95 feet to a point on the Southerly boundary of said MILTON
ADDITION; thence South 76(degree)54' 53" West 223.00 feet along the Southerly
boundary of said MILTON ADDITION to the place of beginning, in Lane County,
Oregon;
EXCEPT that portion described in deed to Lane County, a political
subdivision of the State of Oregon, recorded November 14, 1981, Reception
No. 8146596, Lane County Oregon Records;
Tract 2:
Beginning at an iron rod with an aluminum cap on the Northerly boundary line of
the Belt Line Freeway, said iron rod being located South 82(degree)30' 32" West
278.21 feet and South 74(degree)06' 07" West 28.22 feet and North 74(degree)
17' 09" West 432.95 feet from the 2 inch iron pipe which marks the initial
corner of the MILTON ADDITION, as platted and recorded in Book 39, Page 28, Lane
County Oregon Plat Records, which 2 inch iron pipe is also described as being
located West 4610.23 feet and South 209.13 feet from the Northeast corner of
Section 13, Township 17 South, Range 4 West of the Willamette Meridian, Lane
County, Oregon; thence along said Northerly boundary of the Belt Line Freeway,
North 74(degree)17' 09" West 76.14 feet to a 5/8 inch iron rod with and
aluminum cap and South 82(degree)55' West 65.00 feet to a 5/8 inch iron rod with
an aluminum cap, which marks the intersection of the Northerly boundary of the
Belt Line Freeway and the Easterly boundary of River Road; thence North 21
(degree) 27' 45" West 190.00 feet along the Easterly boundary line of River
Road, to a 5/8 inch iron rod with an aluminum cap; thence North 86(degree)30'
28" East 195.39 feet to a 5/8 inch iron rod with an aluminum cap; thence South 3
(degree) 29' 32" East 201.71 feet to the place of beginning, in Lane County,
Oregon;
EXCEPT that portion described in deeds to Lane County, a political
subdivision of the State of Oregon, recorded November 4, 1981, Reception
No. 8146672 and Reception No. 8146596, Lane County Oregon Records.
Tract 3:
A parcel of land located in the Southwest quarter of Section 12 and the
Northwest quarter of Section 13, Township 17 South, Range 4 West of the
Willamette Meridian, Lane County, Oregon, described as follows: Beginning at a
point on the Northerly line of that certain parcel of land described in deed to
the City of Eugene, a municipal corporation, recorded June 22, 1966, Reception
No. 51763, Lane County Oregon Deed Records; North 76(degree)54' 53" East 222.90
feet of the initial corner of MILTON ADDITION, as platted and recorded in Book
39, Page 28, Lane County Oregon Plat Records, said initial corner being recorded
as bearing South 209.13 feet and West 4610.23 feet from the Northeast corner of
Section 13 in said Township and Range; thence North 3(degree)29' 32" West
310.52 feet more or less to a point on curve on the Southerly right of way line
of Division Avenue; thence along said Southerly right of way line along the arc
of a 914.93 foot radius curve right (the long chord of which bears South 53
(degree) 42' 23" East 144.36 feet, record South 53(degree)51' 05" East 143.93
feet), 144.51 feet to a point of tangency; thence along said Southerly right of
way line South 49(degree)10' 54" East 243.32 feet (record 237.42 feet) to a
point on the Northerly line described in said deed recorded June 22, 1966,
Reception No. 51763, Lane County Oregon Deed Records; thence South 76(degree)
54' 53" West 289.08 feet more or less to the point of beginning, in Lane County,
Oregon.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $462,532.06 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $384,742.58 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $367,923.23 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (19)
Springfield, OR
MODIFICATION TO MASTER LEASE
(Springfield, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
16. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
SPRINGFIELD, OR
The land referred to is described as
Beginning at a point on the Northerly right of way line of "Q" Street, said
point being South 0(degree)12' 00" West 75.35 feet from the Southwest corner of
the William Spencer Donation Land Claim No. 50, Township 17 South, Range 3 West
of the Willamette Meridian, said point also being North 0(degree)12' 00" East
70.85 feet from the Southeast corner of the Jacob Halstead Donation Land Claim
No. 47, said Township and Range; thence along said Northerly line South 85
(degree) 54' 00" West 269.30 feet to the Easterly line of that certain parcel
described in Reception No. 8332793, Lane County Oregon Records; thence along the
Easterly and Northerly lines of said parcel the following courses: North 125.0
feet; West 124.68 feet to the Easterly line of that certain parcel described in
Reception No. 8345284, Lane County Oregon Records; thence along the Easterly and
Northerly lines of said parcel the following courses: North 3.55 feet; West
166.60 feet to the Easterly right of way line of 5th Street; thence along said
Easterly line the following courses: North 0(degree)04' 06" East 425.02 feet;
West 8.00 feet; North 0(degree)04' 06" East 230.51 feet to the Southerly line
of that certain parcel described in Reception No. 7894832, Lane County Oregon
Records; thence along the Southerly line of said parcel and the Southerly lines
of the parcels described in Reception Nos. 8518892, 67436 (October 7, 1971) and
71751 (November 5, 1971), Lane County Oregon Records, East 566.56 feet to the
Westerly line of McWILLAMA ADDITION, as platted and recorded in Book 4, Page 34,
Lane County Oregon Plat Records; thence along said Westerly line South 0(degree)
04' 02" East 122.52 feet to the Northwest corner of Lot 14, Block 10 of said
plat; thence along the Northerly line of said Lot 14 South 89(degree)55' 05"
East 131.71 feet to the Northeast corner of said Lot, said corner also being on
the Westerly line of 7th Street; thence on said Westerly line, also being the
Easterly line of said Block 10 and its prolongation Southerly South 0(degree)
04' 02" East 624.11 feet to the Northerly line of "Q" Street; thence along said
Northerly line South 82(degree)14' 00" West 133.26 feet to the point of
beginning, in Lane County, Oregon;
EXCEPTING that portion of the above described tract of land conveyed to the
City of Springfield, by deed recorded January 19, 1977, in Reel No. 830,
Reception No. 7703531, Lane County Oregon Records, being more particularly
described as follows: Beginning at the Southeast corner of the Jacob
Halstead Donation Land Claim No. 47, Township 17 South, Range 3 West of the
Willamette Meridian; running thence North 70.85 feet to an angle point on
the South boundary of the Fred Meyer property; thence North 82(degree)14'
East 132.45 feet to the True Point of Beginning; thence North 0(degree)01'
West 15 feet to a point; thence South 41(degree)06' 30" West 22.60 feet to
a point, thence North 82(degree)14' East 15 feet to the True Point of
Beginning, in Lane County, Oregon.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $548,717.42 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $456,433.13 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $436,479.77 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
Appendix 10I (20)
(South) Salem, OR
MODIFICATION TO MASTER LEASE
((South) Salem, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
17. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: FRED MEYER, INC., a Delaware corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as Sr. V.P. of FRED MEYER, INC., a Delaware corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
SOUTH SALEM, OR
TRACT I
That tract of land situated in Lots 7, 8, 11, 12 and 14 of Smith's Fruit Farms,
Southwest Quarter of the Northeast Quarter of Section 3, Township 8 South, Range
8 West of the Willamette Meridian, Marion County, Oregon, which is more
particularly described as follows:
Beginning at a two-inch iron pipe marking the initial corner of Willa Acres as
recorded in Volume 15, Page 39, Marion County Book of Town Plats and running
thence from this the true point of beginning; South 89(degree)45' West 135.04
feet; thence South 0(degree)15' East 105.00 feet; thence Southwesterly 100
feet, more or less, to a point on the Easterly right of way line of U.S. 99
East, which bears Southeasterly 170.00 feet from the intersection of said
Easterly Highway right of way line and the Northerly boundary line of that tract
of land conveyed to R. R. and N. A. Ritchie by deed recorded in Volume 279, Page
201; thence Southeasterly along said Easterly highway right of way line 622
feet, more or less, to the Northerly right-of-way line of Relocated Madrona
Avenue, more particularly described in deed to the City of Salem, recorded in
Volume 656, page 83, Deed Records for Marion County, Oregon; thence Easterly
along said relocated Northerly right-of-way line as described in said City of
Salem deed to a point on the Southerly extension of the Easterly boundary line
of said Ritchie tract; thence North 0(degree)37' East 680 feet, more or less,
along said Easterly boundary line of said Ritchie tract described in Volume 279,
page 201 to a five-eighths inch iron rod with an aluminum cap on the Southerly
boundary line of the tract of land conveyed to R. R. and N. A. Ritchie by deed
recorded in Volume 468, page 14, Marion County Record of Deeds; thence North 89
(degree) 45' East 25.00 feet along said Southerly boundary line of said Ritchie
tract described in Volume 468, page 14, to a five- eighths inch iron rod with an
aluminum cap marking the Southeasterly corner of same; thence North 0(degree)
25'30" East 165.00 feet along the Easterly boundary line of said Ritchie tract
described in Volume 468, page 14, to a five-eighths inch iron rod with an
aluminum cap, thence South 89(degree)45' West 522.79 feet to a five-eighths
inch iron rod with an aluminum cap on the Westerly boundary line of that tract
of land conveyed to R. R. and N. A. Ritchie by deed recorded in Volume 224, page
174, Marion County Record of Deeds; said Westerly boundary line being also the
Easterly boundary line of Willa Acres; thence South 0(degree)09' East 165.00
feet along said Easterly subdivision boundary line to the point of beginning.
TRACT II
Beginning at a point on the South line of Lot 14, Smith's Fruit Farms in
Township 8 South, Range 3 West of the Willamette Meridian in Marion County,
Oregon, said point being South 89(degree)38'13" West 386.12 feet from the
Southeast corner of said Lot; thence South 89(degree)38'13" West along the
South line of said Lot, 173.00 feet to an iron pipe on the Easterly right of way
line of U.S. Highway 99E; thence Northerly along said right of way line on the
arc of a 5779.58 foot radius curve to the left (the chord of which bears North
25(degree)48'54" West 57.20 feet) a distance of 57.20 feet to the Southwesterly
corner of a
tract of land conveyed to Robert W. and Dorothy A. Delk by deed recorded in
Volume 666, page 275, Deed Records for Marion County, Oregon; thence North 89
(degree) 38'13" East along the South line of said tract, 60.00 feet to an iron
rod marking the Southeasterly corner thereof; thence North 21(degree)33'23"
East along the Easterly line of said Delk Tract, 147.23 feet to an iron rod
marking an angle corner in said Easterly line; thence North 0(degree)26'12"
East continuing along the Easterly line of said Delk tract, 100.16 feet to an
iron pipe on the Southerly right of way line of relocated Madrona Avenue; thence
Easterly along said Southerly right of way line on the arc of a 1175.92 foot
radius curve to the left (the chord of which bears North 80(degree)22'10" East
14.62 feet), a distance of 14.62 feet; thence South 11(degree)12'47" East
272.62 feet; thence North 89(degree)38'13" East 15.47 feet; thence South 0
(degree) 21'47" East 23.00 feet to the point of beginning.
TOGETHER WITH a non-exclusive easement for ingress, egress and parking over
Tract III herein.
TRACT III Beginning at a point on the South line of Lot 14, Smith's Fruit Farms
in Township 8 South, Range 3 West of the Willimette Meridian in Marion County,
Oregon, said point being South 89(degree)38'13" West 2207.34 feet from the
Southeast corner of said Lot; thence South 89(degree)38'13" West along the South
line of said Lot, 178.78 feet; thence North 0(degree)21'47" West 23.00 feet;
thence South 89(degree)38'13" West 15.47 feet; thence North 11(degree) 12'47"
West 272.62 feet to a point on the Southerly right of way line of relocated
Madrona Avenue; thence Easterly along said right of way line as follows: Along
the arc of a 1175.92 foot radius curve to the left (the chord of which bears
North 76(degree)57'57" East 125.04 feet), a distance of 125.10 feet to an iron
pipe marking a point of tangent and North 73(degree)55'05" East 29.64 feet to an
iron pipe marking a point of curve, and along the arc of a 1115.92 foot radius
curve to the right (the chord of which bears North 74 (degree) 43'54" East 31.69
feet), a distance of 31.69 feet; thence South 11 (degree) 16'10" East, leaving
said right of way line, 340.50 feet to the place of beginning.
TRACT IV
The North 30.00 feet of the south 195.0 feet of Lot Eight (8), Smith Fruit
Farms, Marion County, Oregon, and the North 30.00 feet of the South 195.00 feet
of the West 190.00 feet of Lot Seven (7), Smith Fruit Farms, Marion County,
Oregon.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $782,639.07 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $651,013.41 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $622,553.80 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
Appendix 10I (21)
The Dalles, OR
MODIFICATION TO MASTER LEASE
(The Dalles, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and FRED MEYER, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
18. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
THE DALLES, OR
PARCEL I
Lots 1 and 2, XXXXX'X ADDITION TO CITY OF THE DALLES, in City of The Dalles,
County of Wasco and State of Oregon, according to the duly recorded plat
thereof, filed December 26, 1972, Plat Book 7, Page 20.
PARCEL II
A parcel of land lying in the Methodist Mission Donation Land Claim, Township 2
North, Range 13 East of the Willamette Meridian, Wasco County, Oregon and being
a portion of that property designated as Parcel 2 and described in that deed to
the State of Oregon, by and through its State Highway Commission, recorded in
Book 129, Page 750 of Wasco County Record of Deeds; the said parcel being that
portion of said property lying southerly of that property described in that
easement to Dalles City, recorded July 18, 1962, Micro-Film No.
62-0158, records of Wasco County, Oregon.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $513,685.56 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $427,292.99 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $408,613.51 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (22)
Tualatin, OR
MODIFICATION TO MASTER LEASE
(Tualatin, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
19. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
TUALATIN, OR
The land referred to is described as
The following described portion of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 1 West,
Willamette Meridian, Washington County, Oregon:
Beginning at a point on the West line of that tract of land conveyed to Xxxx
Xxxxx Properties, Inc., Book 1005, page 000, Xxxx Xxxxxxx, Xxxxxx xx Xxxxxxxxxx,
Xxxxx of Oregon, said point being South 88(degree)59' 01" East, 1399.20 feet
and South 01(degree) 37' 27" West, 470.75 feet from the West one-quarter corner
of Section 24, Township 2 South, Range 1 West, Willamette Meridian, said point
being the true point of beginning; thence Northeasterly along the arc of a
869.51 foot radius curve to the left (chord bears North 54(degree)41' 15" East,
269.84 feet), and along the South line of that tract conveyed to the City of
Tualatin, as evidenced by a Deed recorded July 24, 1979, fee number 79029149,
Records of Washington County, Oregon, a distance of 270.94 feet; thence
continuing along the South line of said City of Tualatin Tract, North 45(degree)
45' 38" East, 54.61 feet; thence continuing along the South line of said City of
Tualatin Tract, Northeasterly along the arc of a 767.51 foot radius curve to the
right (chord bears North 64(degree)33' 18" East, 494.55 feet), a distance of
503.53 feet, more or less, to the North line of said Xxxx Xxxxx Properties;
thence along said North line, South 79(degree)33' 27" East, 232.60 feet, more
or less, to the East line of said Xxxx Xxxxx Properties; thence along the East
line, South 1(degree), 37' 21" West, 656.92 feet, more or less, to the center of
said ditch, South 76(degree)00' 23" West, 21.28 feet, more or less; thence
continuing along the center of said ditch, South 11(degree)08' 45" West, 95.66
feet, more or less; thence continuing along the center of said ditch, South 56
(degree) 16' 55" West, 258.02 feet, more or less; thence continuing along the
center of said ditch, South 89(degree)09' 17" West, 354.44 feet, more or less;
thence continuing along the center of said ditch, South 81(degree)20' 00" West,
93.00 feet, more or less; thence continuing along the center of said ditch,
North 74(degree)02' 00" West, 239.00 feet, more or less, to a point on the West
line of said Xxxx Xxxxx Properties; thence along the said West line, North 1
degree 37' 21" East, 488.16 feet to the true point of beginning.
EXCEPTING THEREFROM that portion described in a Deed to the City of Tualatin, by
instrument, recorded July 24, 1979, fee number 79029149.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $996,384.69 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $828,810.90 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $792,578.73 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (23)
(West) Eugene, OR
MODIFICATION TO MASTER LEASE
((West) Eugene, OR)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of
February 4, 1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (hereinafter referred to as "Landlord"), as landlord/lessor under
the Lease described below, and XXXX XXXXX, INC., a Delaware corporation
(hereinafter referred to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
20. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: XXXX XXXXX, INC., a Delaware corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Sr. V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as Sr. V.P. of XXXX XXXXX, INC., a Delaware corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
(West) Eugene, Oregon
Beginning at a found 2 inch diameter iron pipe being the Initial Point of XXXXX
THEATRES, as platted and recorded in Book 00, Xxxx 0, Xxxx Xxxxxx, Xxxxxx Xxxx
Records; thence North 87(degree)29'58" West along the Westerly prolongation of
the Southerly boundary of said Plat, 180.00 feet to a set 5/8 inch diameter iron
rod, being the True Point of Beginning; thence North 2(degree)12'22" East
parallel with the Westerly boundary of said Plat 420.00 feet to a set 5/8 inch
diameter iron rod; thence South 87(degree)29'58" East parallel with the
Southerly boundary of said Plat 180.00 feet to a set 5/8 inch diameter iron rod
on the Westerly boundary of said Plat; thence North 2(degree)12'22" East along
the Westerly boundary of said Plat 20.00 feet to a set 5/8 inch diameter iron
rod; thence South 87(degree)29'58" East parallel with the Southerly boundary of
said Plat 890.23 feet to a set 5/8 inch diameter iron rod being 40.00 feet
Westerly of, when measured at right angles to, the centerline of Seneca Road as
monumented by the City of Xxxxxx; thence South 2(degree)11'58" West parallel
with and 40.00 feet distant from the monumented centerline of Seneca Road 440.00
feet to a set 5/8 inch diameter iron rod on the Southerly boundary of said Plat;
thence North 87(degree)29'58" West along the Southerly boundary of said Plat
223.49 feet to a set 5/8 inch diameter iron rod; thence South 2(degree)11'58"
West parallel with the monumented centerline of Seneca Road 341.44 feet to a set
5/8 inch diameter iron rod being 40.00 feet Northerly of, when measured at right
angles to, the centerline of Xxxx 00xx Xxxxxx as monumented by the City of
Xxxxxx; thence North 87(degree)24'11" West parallel with and 40.00 feet distant
from the last mentioned centerline 846.84 feet to a set 5/8 inch diameter iron
rod; thence North 2(degree)12'22" East parallel with the Westerly boundary of
said Plat, 340.01 feet to the true point of beginning, in Lane County, Oregon.
EXCEPT that portion deeded to the City of Xxxxxx by Street Deed recorded April
21, 1983, Reception Xx. 0000000, Xxxx Xxxxxx, Xxxxxx Records.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $942,850.49 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $784,280.18 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $749,994.72 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (24)
Aurora, WA
MODIFICATION TO MASTER LEASE
(Aurora, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
21. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
AURORA, WA
The land referred to ________________ is located in the County of King, State of
Washington, and described as follows:
PARCEL A:
XXX 0, XXXXXX XX XXX XXXXX 00 FEET THEREOF; AND ALL LOTS 6 THROUGH 12, INCLUSIVE
ALL IN BLOCK 1 OF RICHMOND TRACTS, ACCORDING TO THE PLAT RECORDED IN VOLUME 25
OF PLATS, PAGE 10, IN KING COUNTY, WASHINGTON; EXCEPT THE NORTH 10 FEET OF SAID
XXXX 0, 00, 00 XXX 00 XXXXXXXX XX XXXX XXXXXX FOR ROAD BY DEED RECORDED UNDER
AUDITOR'S FILE NO. 5350960; AND EXCEPT PORTION OF SAID LOT 9 CONVEYED TO KING
COUNTY BY DEED RECORDED UNDER AUDITOR'S FILE NO. 6309861; ALSO XXXX 0, 0, 0, 0,
0 XXX 0 XX XXXXX 1 OF RICHMOND TRACTS DIVISION NO. TWO, ACCORDING TO THE PLAT
RECORDED IN VOLUME 25 OF PLATS, PAGE 38, IN KING COUNTY, WASHINGTON; ALSO XXXX 0
XXX 0 XXX XXX XXXXX 00 XXXX XX XXX 0 IN BLOCK 1 OF RICHMOND TRACTS DIVISION 4,
ACCORDING TO THE PLAT RECORDED IN VOLUME 27 OF PLATS, PAGE 40, IN KING COUNTY,
WASHINGTON;
TOGETHER WITH THAT PORTION OF VACATED NORTH 000XX XXXXXX LYING BETWEEN BLOCK 1
OF SAID RICHMOND TRACTS AND BLOCK 1 OF SAID RICHMOND TRACTS DIVISION TWO AND
BETWEEN AURORA AVE. AND LINDEN AVENUE; EXCEPT THE NORTH HALF OF SAID STREET
ADJOINING XXXX 0 XXX 0 XX XXXXX 0 XX XXXX XXXXXXXX XXXXXX;
TOGETHER WITH VACATED 10 FOOT ALLEY LYING XXXXX XX XXXXX 0 XX
XXXXXXXX TRACTS DIVISION XX. 0 XXX XXXXX XX XXXXX 0, XXXXXXXX
TRACTS DIVISION NO. 4 AS SET FORTH UNDER AUDITOR'S FILE NO. 7708040736.
PARCEL B:
XXX 0 XX XXXXX 0 XX XXXXXXXX XXXXXX, DIVISION 4, ACCORDING TO THE PLAT RECORDED
IN VOLUME 27 OF PLATS, PAGE 40, IN KING COUNTY, WASHINGTON, EXCEPT THE NORTH 60
FEET;
PARCEL C:
XXXX 0, 0 XXX 0, XXXXX 0, XXXXXXXX TRACTS DIVISION 4, ACCORDING TO THE PLAT
RECORDED IN VOLUME 27 OF PLATS, PAGE 40, IN KING COUNTY, WASHINGTON; EXCEPT THE
EAST 100 FEET OF XXXX 0 XXX 0, XXXXX 0, XXXXXXXX TRACTS, DIVISION 4, ACCORDING
TO THE PLAT RECORDED IN VOLUME 27 OF PLATS, PAGE 40, IN KING COUNTY, WASHINGTON.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $921,579.99 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $766,586.99 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $733,074.99 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (25)
Bellingham, WA
MODIFICATION TO MASTER LEASE
(Bellingham, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
22. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
BELLINGHAM, WA
THAT PART OF "CEDAR ADDITION TO NEW WHATCOM, "TOGETHER WITH THE VACATED PORTION
THEREOF, NOW A PART OF THE CONSOLIDATED CITY OF BELLINGHAM, WHATCOM COUNTY,
WASHINGTON, AS PER THE MAP THEREOF, RECORDED IN BOOK 4 OF PLATS, PAGE 20, IN THE
AUDITOR'S OFFICE OF SAID COUNTY AND STATE; ALSO THAT PART OF "PLAT OF CEDAR
ADDITION SUPPLEMENTAL TO THE CITY OF BELLINGHAM, WASHINGTON," TOGETHER WITH
VACATED PORTION THEREOF, AS PER THE MAP THEREOF, RECORDED IN BOOK 6 OF PLATS,
PAGE 3, IN SAID AUDITOR'S OFFICE; ALSO THAT PART OF "YORK ADDITION TO THE TOWN
OF NEW WHATCOM," TOGETHER WITH VACATED PORTION THEREOF NOW A PART OF THE
CONSOLIDATED CITY OF BELLINGHAM, WHATCOM COUNTY, WASHINGTON, AS PER THE MAP
THEREOF, RECORDED IN BOOK 1 OF PLATS, PAGE 52, IN THE AUDITOR'S OFFICE OF SAID
COUNTY AND STATE, DESCRIBED AS FOLLOWS:
BEGINNING AT AN INTERSECTION OF THE SOUTH 40 FOOT RIGHT OF WAY LINE OF LAKEWAY
DRIVE WITH THE WEST 40 FOOT RIGHT OF WAY LINE OF LINCOLN STREET; THENCE SOUTH 00
DEGREES 23'35" WEST ALONG SAID WEST RIGHT OF WAY LINE, 317.14 FEET; THENCE ALONG
AN ARC CURVE TO THE RIGHT WITH A RADIUS OF 460 FEET THROUGH A CENTRAL ANGLE OF
16 DEGREES 11'00", AN ARC DISTANCE OF 129.93 FEET; THENCE SOUTH 16 DEGREES
34'35" WEST, 568.62 FEET; THENCE NORTH 89 DEGREES 38'19" west, 461.59 FEET;
THENCE NORTH 00 DEGREES 23'35" EAST, A DISTANCE OF 986.40 FEET; THENCE SOUTH 89
DEGREES 39'01" EAST, 40 FEET TO THE CENTERLINE OF VACATED XXXXX STREET; THENCE
NORTH 00 DEGREES 23'35" EAST ALONG SAID CENTERLINE 5.00 FEET TO THE SOUTHERLY
RIGHT OF WAY LINE OF LAKEWAY DRIVE; THENCE EASTERLY ALONG SAID RIGHT OF WAY LINE
THE FOLLOWING 2 COURSES AND DISTANCES: SOUTH 89 DEGREES 37'42" EAST, 319.49
FEET; SOUTH 89 DEGREES 38'06" EAST, 278.81 FEET TO THE POINT OF BEGINNING.
SITUATE IN WHATCOM COUNTY, WASHINGTON.
The above described parcel is also known as Xxx 0, Xxxx Xxxxx Xxxxx Xxxx, as per
the map thereof, recorded in Volume 10 of Short Plats, Pages 76 & 77, under
Auditors File Number 148224 Records of the Auditors office of Whatcom County,
WA.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $810,876.55 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $674,501.85 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $645,015.43 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (26)
Everett, WA
MODIFICATION TO MASTER LEASE
(Everett, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
23. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
ET-EVERETT
That portion of the Northeast quarter of Northeast quarter of Section 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, X.X. and of Lot 1, Xxxxxxx Garden Tracts,
Division 1, according to the plat recorded in Volume 10 of Plats, Page 1,
Records of Snohomish County, Washington, described as follows:
Commencing at the Northeast corner of said Section 13; thence South 0(degree)
08'16" west along east line thereof 30.00 feet; thence south 89(degree)49'36"
west parallel to north line of said Section 342.10 feet; thence south 0(degree)
08'16" west 10.00 feet to the true point of beginning; thence south 89(degree)
49'36" west 475.00 feet; thence south 1(degree) 10'45" west 79.82 feet; thence
south 32(degree)29'10" west 642.53 feet; thence south 0(degree)08'16" west
661.99 feet to south line of said Northeast quarter of Northeast quarter; thence
north 89(degree)52'40" east along said south line 96.47 feet to northwest
corner of said Xxx 0, Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xx. 0; thence south 85
(degree) 30'01" East 67.07 feet; thence north 10(degree)21'02" east 47.72 feet;
thence north 3(degree)26'31" west 60.58 feet; thence south 57(degree)37'12"
east 185.29 feet to westerly right of way line of Evergreen Way; thence along
said westerly right of way line north 32(degree)33'29" east 942.88 feet; thence
north 0(degree)08'16" east 150.00 feet; thence south 89(degree)49'36" west
10.00 feet; thence north 0(degree)08'16" east 337.42 feet to the true point of
beginning:
EXCEPT portion thereof conveyed to the City of Xxxxxxx for Xxxxxxx Xxxx-
Mukilteo Road by warranty deed recorded April 23, 1983 under Auditor's File No.
8304250289.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $1,227,075.36 per annum. From December 9, 2011 through
December 8, 2016, the Fixed Rent will be $1,020,703.60 per annum. From December
9, 2016 through December 8, 2021, the Fixed Rent will be $976,082.68 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (27)(T)
(Fourth Plan) Vancouver, Washington
Recordation Requested by FIRST AMERICAN TITLE CO.
and FILED FOR RECORD
After recordation return to: XXXXX CO. WASH
Stoel Rives LLP 97 FEB-5 PM12:19
Attention: Xxxxx X. Xxxxx
950 Port of Portland Building AUDITOR
700 NE Multnomah XXXXXXXXX X. XXXX
Xxxxxxxx, XX 00000 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(FP, Fourth Plain, Washington)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the 4th day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and
ROUNDUP CO., a Washington corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, XXXX
XXXXX REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as Lessee of XXXX XXXXX REAL ESTATE PROPERTIES, LTD. pursuant to an
Agreement of Lease dated October 22, 1986 and recorded on December 9, 1986 in
the Official Records of Xxxxx County, Oregon Auditor's File No. 8612090003 holds
the lessor's interest under and to existing leases affecting portions of the
Premises (for purposes hereof, the "Subleases"). Tenant's interest in such
Subleases was then
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Xxxx Xxxxx, Inc., 0000 XX 00xx Xxxxxx, XX Xxx 00000, Xxxxxxxx,
Xxxxxx 00000-0000
Property tax account No.: 029721-000, 029763-000, C-52431
-------------------------------------------------------------------------------
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
assigned for collateral purposes, to Landlord at the closing of Landlord's
purchase of the Premises, pursuant to the terms of an Assignment of Leases
and/or Rents (the "Assignment"), by Tenant as assignor in favor of Landlord as
assignee, which is more particularly described on the attached Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant, as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: ROUNDUP CO.,
a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Xxxxx X.
Xxxxxx, as Vice President of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
--------------------------------------------
Notary Public for Oregon
My commission expires: 6/8/99
[NOTARY SEAL]
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Xxxxxx
X. Xxxxx, as Asst. Vice President of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XX XXXXXXXX
--------------------------------------------
Notary Public for Oregon
My commission expires 9/20/97
[NOTARY SEAL]
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
EXHIBIT A
(FP, Fourth Plain, Washington)
PARCEL A
The West 20.08 feet of Lot 2, the West 83.17 feet of Lot 8; the West 87.5 feet
of Lot 9, and all of Xxxx 0, 0, 0, 0, 0, 00, 00, 00, 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25, 26, 27 and 28, all in Block "A", GARDEN ACRES REPLAT,
according to the plat thereof, recorded in Volume "E" of Plats, Page 12, records
of Xxxxx County, Washington.
EXCEPT that portion of said Lots 2, 3, 4, and 5, lying in Fourth Plain Boulevard
on the North and Grand Avenue on the West.
PARCEL B
Lots 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 00, Xxxxx "X", XXXXXX XXXXX
REPLAT, according to the plat thereof, recorded in Volume "E" of Plats, Page 12,
records of Xxxxx County, Washington.
EXCEPTING THEREFROM the above described Parcels A and B that portion conveyed to
the CITY OF VANCOUVER, a municipal corporation by deed recorded May 14, 1991
under Auditor's File No. 9105140073.
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
Exhibit B - List of Matters of Record to be Terminated
(FP, Fourth Plain, Washington)
1. MEMORANDUM OF LEASE AND THE TERMS AND CONDITIONS THEREOF:
Lessor: XXXX XXXXX REAL ESTATE PROPERTIES, LTD., an Oregon
limited partnership
Lessee: ROUNDUP CO., a Washington corporation
Term: October 22, 1986 to October 31, 2006
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's File No.: 8612090003
Lessor's interest is now held of record by METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation, pursuant to instrument recorded December
9, 1986 under Auditor's File No. 8612090006.
SAID LEASE WAS AMENDED BY INSTRUMENT, INCLUDING THE TERMS AND PROVISIONS
THEREOF:
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's File No: 8612090007
SAID LEASE WAS AMENDED BY INSTRUMENT, INCLUDING THE TERMS AND PROVISIONS
THEREOF:
Dated: April 22, 1991
Recorded: May 14, 1991
Auditor's File No.: 9105140082
Xxxx Xxxxx - Metropolitan
Termination of Lease and Recorded Interests
February 3, 0000
Xxxxxxxx 10I (28)
(Lynnwood) Seattle, WA
MODIFICATION TO MASTER LEASE
((Lynnwood) Seattle, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
24. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
LYNNWOOD (SEATTLE, WA)
The land referred to __________ is located in the County of Snohomish, State of
Washington, and described as follows:
Lots 2 through 23, inclusive, Block 3, Xxxx Crest Division No. 2, according
to the plat recorded in Volume 13 of Plats, Page 12, Records of Snohomish
County, Washington;
Except the Southerly 150 feet of Lot 11; and
Except the Southerly 150 feet of the Westerly 50 feet of Lot 12; and
Except that portion of Lots 11 through 20, inclusive, and that portion of
Lot 23 conveyed to the State of Washington for Sr. No. 000 (000xx Xxxxxx
Xxxxxxxxx) by deeds recorded under Recording Nos. 1928600 and 1928601; and
Except the east 8 feet of Lots 2, 3, 21, 22 and 23, conveyed to the City of
Lynnwood by deed recorded under Recording No. 7801170170.
Situate in the County of Snohomish, State of Washington.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $1,378,651.23 per annum. From December 9, 2011 through
December 8, 2016, the Fixed Rent will be $1,146,787.16 per annum. From December
9, 2016 through December 8, 2021, the Fixed Rent will be $1,096,654.39 per
annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (29)
Longview, WA
MODIFICATION TO MASTER LEASE
(Longview, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
2. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
LONGVIEW, WA
IN THE COUNTY OF COWLITZ, STATE OF WASHINGTON
PARCEL A:
Lots 14, 15, 16, 17, and 00, Xxxxx 0, Xxxxxxxx Xxxxxx Xxxxxxx No. 1, according
to the plat thereof recorded in Volume 6 of Plats, Page 5, records of said
county, ALSO: Beginning at the intersection of the East line of Xxx 0, Xxxxx 0,
Xxxxxxxx Xxxxxx Xxxxxxx No. 1, according to the plat thereof recorded in Volume
6 of Plats, Page 5, of said county, with the Southerly right of way line of the
C. & C. Railroad; thence Westerly and Southerly along said railroad right of way
to an intersection with the East line of 32nd Avenue; thence Southwesterly along
the East line of 32nd Avenue 101 feet; thence North 89(degree)10'34" East 600
feet more or less to an intersection with the East line of Xxx 0, Xxxxx 0, (xxxx
intersection being 176.6 feet Northeast from Southeast corner of Lot 5); thence
North 34(degree)56'04" East 176.6 feet, more or less, to the place of
beginning. ALSO: That portion of Xxxx 0, 0, 00 xxx 00 xx Xxxxx 7, Columbia
Valley Gardens No. 1 according to the recorded plat thereof recorded in Volume 6
of Plats, Page 5, records of said county, described as follows: Beginning at the
Southeasterly corner of Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxx Xxxxxxx No. 1; thence
running Westerly along the Southerly line of said Lot 5, extended to the
Northwesterly corner of Lot 18 in said Block 7, said corner being on the
Easterly line of 32nd Avenue; thence Northeasterly along the said Easterly line
of 32nd Avenue 100.8 feet; thence North 89(degree)10'34" East 600 feet more or
less to an intersection with the Easterly line of said Xxx 0, Xxxxx 0; xxxxxx
Xxxxx 00(xxxxxx)00'00" Xxxx along said Easterly line of Lot 5, a distance of
176.6 feet to the place of beginning.
PARCEL B:
Xxxx 0, 0, xxx 0, Xxxxx 0, Xxxxxxxx Valley Gardens No. 1 according to the plat
thereof recorded in Volume 6, of Plats, Page 5, records of said county. EXCEPT
that portion of Lot 6 which may be a part of Columbia and Cowlitz Railway.
PARCEL C:
Beginning at the Southwest corner of Xxx 00, Xxxxx 0, Xxxxxxxx Xxxxxx Xxxxxxx
No. 1 according to the plat thereof recorded in Volume 6 of Plats, Page 5,
records of said county, said point also being a point on the North line of Ocean
Beach Highway; thence along the North line of Ocean Beach Highway and the South
line of Lot 13 on a curve to the left having a radius of 11,409.93 feet, which
bears North 9(degree)02'12" East an arc distance of 101.19 feet to the
Southeast corner of Lot 13; thence across Xxx 00, Xxxxx 0(xxxxxx)00' Xxxx a
distance of 275.98 feet to a point on the North line of Lot 12;
thence along the North line of Lots 12 and 13 North 85(degree)36' West a
distance of 121.48 feet to the Northwest corner of Lot 13; thence along the West
line of Lot 13 due South a distance of 269.07 feet to the point of beginning.
PARCEL D:
All that portion of Olympia Way as shown on plat of Columbia Valley Gardens No.
1 lying between the South line of the Columbia and Cowlitz Railroad right of
way, and a line 15 feet Northwesterly of and parallel to the Westerly right of
way of 30th Avenue, as shown on said plat; EXCEPT: Reservations and easements of
record as provided in City of Longview Ordinance No. 1982.
PARCEL E:
All that portion of Xxx 00, Xxxxx 0, Xxxxxxxx Xxxxxx Xxxxxxx No. 1, according to
the recorded plat thereof in Volume 6 of the plats, page 5, records of Cowlitz
County, Washington, lying Southerly of the Columbia and Cowlitz Railway Company
right of way.
PARCEL F:
Reciprocal easement for ingress, egress, parking as reserved in agreement
recorded March 18, 1971, as Auditor's File No. 711096.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $491,259.24 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $408,638.37 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $390,774.39 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (30)
Mill Plain, WA
MODIFICATION TO MASTER LEASE
(Mill Plain, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
25. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
MILL PLAIN, WA
In the County of Xxxxx, State of Washington
That portion of the Northwest quarter of Section 34, Township 2 North, Range 2
East of the Willamette Meridian, described as follows:
BEGINNING at the Northwest corner of said Section 34; thence South
88(degree)46'58" East 169.85 feet; thence South 1(degree) 13'02" West 65.00 feet
to the true point of beginning, said point being the intersection of the
Easterly line of Interstate 205 and the Southerly line of Mill Plain Road, said
point also being 70.00 feet right of Washington State Highway Department Station
WE 4 51+69.79; thence South 88(degree)46'58" East 275.11 feet; thence along the
arc of a curve to the right, having a radius of 3,130.00 feet, through a central
angle of 3(degree) 13'29", an arc distance of 176.16 feet, the last two courses
being parallel with and 70.00 feet distant from the centerline of Mill Plain
Road; thence South 31 (degree) 59'36" East 48.58 feet to a point 40 feet left of
Washington State Highway Department Station AR 4 22+75, said point also being on
the Westerly line of Chkalov Drive; thence along said Westerly line, South
01(degree)42'15" West, 999.05 feet to the South line of Xxxxxxxxx Xxxxx Donation
Land Claim; thence along said South line North 87(degree)58'47" West 424.79 feet
to the Easterly line of Interstate 205; thence along said Easterly line North 29
(degree) 39'56" West 80.27 feet to a point 191.23 feet right of Washington State
Highway Department Station LR 187+34.20; thence continuing along said Easterly
line North 1(degree)01'09" East 969.78 feet to the true point of beginning.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $932,702.37 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $775,838.79 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $741,922.34 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (31)
Puyallup, WA
MODIFICATION TO MASTER LEASE
(Puyallup, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
26. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Xxxxx is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
000 Xxxx Xxxxxx XX Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Xxxx Xxxxx, Inc.
Real Estate Division
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Real Estate Counsel
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: V.P.
--------------------------------------
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxx X. Xxxxxx as V.P. of ROUNDUP CO., a Washington corporation.
XXXXXX X. XXXXXXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Xxxxxx X. Xxxxx as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
XXXXXXX XXXXX
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
PUYALLUP, WA
The land referred to is located in the County of Xxxxxx, State of Washington,
and described as follows:
PARCEL A:
That part of Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 4, East of
the X.X. 14, in Xxxxxx County, Washington, lying Southerly of the inter county
river improvement and Northerly of State Highway No. 5, as deed to the State of
Washington by instrument recorded under Auditor's No. 1066356.
EXCEPT that part in Meridian Street.
EXCEPT the following described tract of land:
Beginning at a point 30 feet West of the Southeast corner of said Section 21;
thence North 158.32 feet along West line of Meridian Street; thence West 416
feet; thence South 158.32 feet; thence East 416 feet to place of beginning.
EXCEPT the following described tract of land:
Beginning at a point 715 feet North and 30 feet West of the monument at the
center of 0xx Xxxxxx and 7th Avenue N.W., thence North along West line of said
0xx Xxxxxx extended a distance of 150 feet; thence west parallel with said 7th
Avenue N.W., a distance of 120 feet; thence South parallel with West line
extended of said 0xx Xxxxxx a distance of 150 feet; thence East to place of
beginning.
EXCEPT the following described tract of land:
Commencing at a point the East line of said Section 21, 168.61 feet North of
Southeast corner thereof; thence North 89(degree)58' West 30 feet to West line
of Meridian Street; thence on said line of street North 426.51 feet; thence
South 89(degree)54' West 722 feet; thence South 0(degree) 38' West 80.05 feet;
thence North 69(degree)21' West 31.92 feet to true point of beginning for this
description; thence South 0(degree)38' West 262.45 feet; thence South 20
(degree) 39' West 83.40 feet to Northerly line of primary State Highway No. 5;
thence on said Northerly line of highway North 69(degree)21' West 255 feet;
thence North 20(degree)49'51" East 330 feet; thence South 69(degree)21' East
164.10 feet to point of beginning.
EXCEPT the tracts of land conveyed to this State of Washington by instruments
recorded under Auditor's Nos. 2364530 and 2364531;
EXCEPT that portion, if any, lying within the following described property:
Beginning at the intersection of Meridian Street and Union Avenue, now 0xx
Xxxxxx X.X.; thence West 30 feet; thence North 01(degree) 03' West along West
boundary line of said Meridian Street a distance of 1555 feet; thence South 89
(degree) 15' West 416 feet; thence South 1(degree) 03' East 122.5 feet to a
point on the North boundary of State Highway No. 5; thence South 70(degree)09'
East along said North boundary line of Xxxxx Xxxxxxx Xx. 0 a distance of 431.23
feet to beginning of a curve on said North boundary at a radius of 37.9 feet to
West line of Meridian Street; thence Northeasterly along said curve 32.5 feet to
West right of way line of Meridian Street; thence North 01(degree) 03" West
245.5 feet to point of beginning, and
EXCEPT the following described tract of land:
Beginning at the intersection of the centerline of S.R. #410 (River Road) with
the centerline of 0xx Xxxxxx X.X. located in the Southeast quarter of Section
21, Township 20 North, Range 4 East of the X.X.; thence Northwesterly along the
centerline of said S.R. #410 40.27 feet; thence Northeasterly at right angles to
said centerline 50 feet to the north right-of-way line of said S.R. #410 and
true point of beginning; thence continue Northeasterly at right angles to the
North right-of-way line of said S.R. #410 4 feet; thence Northwesterly parallel
to and 4 feet Northerly of said North right-of-way 276 feet; thence
Southwesterly at right angles 4 feet to the North right-of-way line of said S.R.
#410; thence Southeasterly along said North right-of-way line 276 feet to true
point of beginning.
PARCEL B:
All the rights and interests in land appurtenant to Parcel A described herein,
set forth in Exhibit A attached to and made a part of Deed recorded under
Auditor's No. 2049384, Records of Xxxxxx County, Washington, including but not
limited to the right of free ingress and egress for parking purposes to portions
of Parcels #1 and #4 as described in said instrument, being a part of the
following described property:
Commencing on the East line of Section 21, Township 20 North, Range 4 East of
the X.X., 168.61 feet North of Southeast corner thereof; thence North 89(degree)
58' West 30 feet to West line of Meridian Street; thence on said line of street
North 426.51 feet; thence South 89(degree)54' West 722 feet; thence South 0
degree 38' West 80.05 feet; thence North 69(degree)21' West 31.92 feet to true
point of beginning for this description; thence south 0(degree)38' West 262.45
feet; thence South 20(degree)39' West 83.40 feet to Northerly line of primary
State Highway No. 5; thence on said Northerly line of Highway North 69(degree)
21' West 255 feet; thence North 20(degree)49'51" East 330 feet; thence South 69
(degree) 21' East 164.10 feet to point of beginning. Particularly described in
Exhibit "A" attached to and made a part of this deed.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $650,738.02 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $541,295.71 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $517,632.51 per annum.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (32)
Richland, WA
MODIFICATION TO MASTER LEASE
(Richland, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Xxxx Xxxxx Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
11. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Xxxx Xxxxx and the Clackamas Distribution Center by Xxxx
Xxxxx'x designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Xxxx Xxxxx - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Xxxx Xxxxx:
Metropolitan Life Insurance Company Xxxx Xxxxx, Inc.
Real Estate Investments Real Estate Division
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx 0000 XX 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (000) 000-0000 Director of Real Estate
Telecopy No. (000) 000-0000 Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
With a copy to:
If any notice to Xxxx Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as V.P. of ROUNDUP CO., a Washington corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
RICHLAND, WA
That portion of Lot 11, Block 400, Plat of Richland, according to the plat
thereof recorded in Volumes 6 and 7 of Plats, records of Benton, County,
Washington, described as follows:
Beginning at the intersection of Wellsian Way and Elliot Street as shown on said
Plat of Richland; thence S 00(degree)51'13" East along the centerline of said
Wellsian Way, 2,555.00 feet; thence S 89(degree)08'47" West 40.00 feet to the
West margin of said Wellsian Way and the True Point of Beginning; thence S
00(degree)51'13" E along the said margin, 1,396.00 feet to the Southeast corner
of said Lot 11, Block 400; thence S 88(degree)04'02" W along the Southerly line
of said Lot 11, 27.38 feet to a point of curve; thence continuing along said
Southerly line, along the arc of a curve to the right having a radius of 900.62
feet, 80.37 feet through a central angle of 05(degree) 06'47"; thence N
16(degree)55'58" W, 58.99 feet to the point of curve; thence Northwesterly along
said curve to the left, having a radius of 255.00 feet, 320.16 feet through a
central angle of 71(degree)56'15" to the point of tangency; thence N
88(degree)52'13" W 95.00 feet; thence N 19 (degree) 03'45" W 463.46 feet to a
point which lies 600 feet West, as measured at right angles to the East line of
said Lot 11; thence N 00(degree)51'13" W parallel to said East line of Lot 11,
785.08 feet; thence Southeasterly along the arc of a curve to the left, having a
radius of 230 feet, 191.31 feet through a central angle of 47(degree)39'27" to a
point of tangency; thence N 89(degree)08'47" E, 430 feet to the True Point of
Beginning.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $360,464.16 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $299,840.64 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $286,732.85 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (33)(T)
(Tacoma) Lakewood, WA
Stoel Rives LLP 97 FEB-5 PM1:20
Attention: David W. Green RECORDED
950 Port of Portland Building CATHYBEARSALL-STIPEK
700 NE Multnomah ___________ CO. WASH
Portland, OR 97232
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(TL, Tacoma Lakewood, Washington)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and
ROUNDUP CO., a Washington corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, FRED
MEYER REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as assignee of FRED MEYER REAL ESTATE PROPERTIES, LTD. pursuant to
an Assignment of Leases and Rents dated October 22, 1986 and recorded on
December 9, 1986 in the Official Records of Pierce County, Washington as
Auditor's No. 8612090165 holds the lessor's interest under and to existing
leases affecting portions of
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Fred Meyer, Inc., 3800 SE 22nd Avenue, PO Box 42121, Portland,
Oregon 97242-0121
Property tax account No.: 0219021039 Portion Sec 1 Township 19 North Range 2
East
-------------------------------------------------------------------------------
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
the Premises (for purposes hereof, the "Subleases"). Tenant's interest in such
Subleases was then assigned, for collateral purposes, to Landlord at the closing
of Landlord's purchase of the Premises, pursuant to the terms of an Assignment
of Leases and/or Rents (the "Assignment"), by Tenant as assignor in favor of
Landlord as assignee, which is more particularly described on the attached
Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by Tenant as
evidenced by a deed being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Tenant of its acquisition of the
Premises pursuant to the terms set forth herein, which is being effected
simultaneously herewith (the "Termination Date"). As of the Termination Date,
Landlord releases and assigns to Tenant all right, title and interest of
Landlord pursuant to the Assignment and Tenant assumes all obligations under the
Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Tenant, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
respect to any breach or breaches of the Master Lease, which obligation or
liability (i) first arises prior to the Termination Date, or (ii) arises out of
or is incurred in connection with events or other matters which took place prior
to the Termination Date, or
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: ROUNDUP CO.,
a Washington corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Vice President
--------------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY,
a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Scott L.
Wippel, as Vice President of ROUNDUP CO., a Washington corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My commission expires: 6/8/99
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
STATE OF OREGON
ss. [NOTARY SEAL]
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Edward
J. Hayes, as Asst. Vice President of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
RP BUSHNELL
--------------------------------------------
Notary Public for Oregon
My commission expires 9/20/97
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
EXHIBIT A
(TL, Tacoma Lakewood, Washington)
A parcel of land lying within the Northeast quarter of Section 2, Township 19
North, Range 2 East of the Willamette Meridian, and the Northwest quarter of
Section 1, Township 19 North, Range 2 East of the Willamette Meridian, North of
100th Street Southwest and East of 54th Avenue Southwest, described as follows:
Commencing at the center of the Northeast quarter of Section 2, Township 19
North, Range 2 East of the Willamette Meridian; thence North 89(degree)54'11"
East 655.41 feet to a point on the centerline of 54th Avenue Southwest; thence
along said centerline North 0(degree)44'30" West 59.05 feet; thence North 89
(degree) 15'30" East 35.00 feet to a point on the Easterly line of 54th Avenue
Southwest, being a strip of land appropriated by Pierce County in Decree of
Appropriation entered October 31, 1972 in Pierce County Superior Court Cause No.
209287, recorded under Auditor's No. 2481393, and the true point of beginning;
thence along said Easterly line North 0(degree)44'30" West 72.45 feet; thence
on a curve to the right having a radius of 681.20 feet and a central angle of 40
(degree) 42'18" an arc distance of 483.95 feet; thence North 39(degree)57'50"
East 57.84 feet; thence leaving said Easterly line of 54th Avenue Southwest,
South 89(degree)47'14" East 960.74 feet; thence South 0(degree)26'15" East
623.51 feet; thence North 89(degree)23'38" West 526.66 feet to a point on a
line between said Sections 1 and 2; thence North 01(degree)02'45" West along
said Section line 10.00 feet; thence South 89(degree)54'11" West 583.85 feet;
thence on a curve to the right having a radius of 50.00 feet and a central angle
of 89(degree)21'19" an arc distance of 77.98 feet to the true point of
beginning, in Lakewood, Pierce County, Washington.
EXCEPT that portion conveyed to Pierce County by Deed recorded under
Auditor's No. 2605304.
ALSO EXCEPT Lot 1 of PIERCE COUNTY SHORT PLAT NO. 76-459, according to Map
recorded in Volume 11 of Short Plats at Page 29.
(Being balance of original Tract of Short Plat No. 76-459, according to Plat
recorded September 7, 1976 in Volume 11 of Short Plats at Page 29.)
TOGETHER WITH those appurtenant easements set forth in that mutual utility
easement agreement dated April 11, 1974 and recorded May 3, 1974 under Auditor's
No. 2551063.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
Exhibit B - List of Matters of Record to be Terminated
(TL, Tacoma Lakewood, Washington)
1. Memorandum of Lease.
Lessor: Fred Meyer Real Estate Properties, Ltd., an Oregon
Limited Partnership
Lessee: Roundup Co.
Term: November 1, 1982 until October 31, 1997 lessee shall
have the option to extend lease for an additional 10
years
Dated: December 18, 1985
Recorded: December 20, 1985
Auditor's No.: 8512200348
Said Memorandum refers to Unrecorded Master Lease including the terms and
conditions thereof between the Lessor and the Lessee, dated November 1,
1982.
2. Memorandum of Restated and Amended Lease, and the terms and conditions
thereof:
Lessor: Fred Meyer Real Estate Properties, ltd., an Oregon
Limited Partnership
Lessee: Roundup Co., a Washington corporation
Term: 20 years with the option to renew a total of seven
renewal terms of five years each, after the end of the
primary term from October 22, 1986 and ending October
31, 2006
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's No.: 8612090164
Said Lease being subordinate to the Deed of Trust recorded December 20,
1985 under Auditor's No. 8512200346, said subordination is subject however
to the provisions of Paragraph 24 (subordination) under said unrecorded
Lease and the provision of Paragraph 12 in that certain Lease Amendment
Agreement recorded December 20, 1985 under Auditor's No. 8512200349.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
3. Assignment of Master Leases:
Assignor: Fred Meyer Real Estate Properties, Ltd., an Oregon
Limited Partnership
Assignee: Metropolitan Life Insurance Company, a New York
corporation
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's No.: 8612090167
4. Memorandum of First Amendment to Lease Agreement, and the terms and
conditions thereof:
Lessor: Metropolitan Life Insurance Company, a New York
corporation
Lessee: Roundup Co., a Washington corporation
Term: 20 years with the option to renew with seven renewal
terms of five years each, after the end of the primary
term from October 22, 1986 and ending October 31, 2006
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's No.: 8612090168
5. Agreement and the terms and conditions thereof:
Between: Fred Meyer Real Estate Properties, Ltd., an Oregon
Limited Partnership
And: Roundup Co., a Washington corporation
Recorded: December 20, 1985
Auditor's No.: 851220349
Regarding: terms of lease
6. Assignment of Leases and/or Rents and the terms and conditions thereof:
Assignor: Fred Meyer Real Estate Properties, Ltd., an Oregon
Limited Partnership
Assignee: Roundup Co., a Washington corporation
Dated: October 22, 1986
Recorded: December 9, 1986
Auditor's No.: 8612090165
Said instrument assigns the rights of Fred Meyer Real Estate Properties,
Ltd., an Oregon Limited Partnership to Roundup Co., a Washington
Corporation any subsequent leases after the Master Lease dated November 1,
1982.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
7. Assignment of Leases and/or Rents and the terms and conditions thereof:
Assignor: Roundup Co., a Washington corporation
Assignee: Metropolitan Life Insurance Company, a New York
corporation
Dated: November 25, 1986
Recorded: December 9, 1986
Auditor's No.: 8612090169
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
Appendix 10I (34)
(Tacoma) Pacific, WA
MODIFICATION TO MASTER LEASE
((Tacoma) Pacific, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
28. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
both parties as a modification of the Lease, the Lease continues in full force
and effect in accordance with its terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Modification
or any exhibits or amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
incurred in enforcing the terms of this Agreement prior to or separate from such
trial or appeal or other action or proceeding. As used herein, "attorneys' fees"
will include (without limitation) both attorney's and paralegals' fees and
expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as V.P. of ROUNDUP CO., a Washington corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
TACOMA-PACIFIC, WA
The land referred to is located in the County of Pierce, State of
Washington, and described as follows:
PARCEL A:
A tract of land containing a portion of Lot 2 and all of Lots 3 and 6 of
T.J. Spooner's five acre lots, in Section 28, Township 20 North, Range 3
East of the Willamette Meridian, according to plat recorded in Book 1 of
Plats at Page 65, records of Pierce County Auditor, lying within the
Northeast quarter of the Southwest quarter of Section 28, Township 20
North, Range 3 East of the Willamette Meridian described as follows:
Commencing at the Northwest corner of the Northeast quarter of the
Southwest quarter of Section 28, Township 20 North, Range 3 East of the
Willamette Meridian, said point being a monument at the intersection of
South 72nd Street and South D Street; thence South 0(degree)12'15" East
40.00 feet; thence North 89(degree)47'45" East 30.00 feet to a point which
is the intersection of the East line of South D Street and the South line
of South 72nd Street, said point being the true point of beginning; thence
continuing along the said South line of South 72nd Street North 89(degree)
32'59" East 448.02 feet to a point 135.00 feet West of the West line of
Pacific Avenue; thence South 0(degree)10'37" East and parallel with the
said West line of Pacific Avenue 295.41 feet to a point on the North line
of Lot 3 of said recorded plat; thence South 89(degree)59'30" East 135.00
feet along said North line of Lot 3 to a point on the West line of Pacific
Avenue; thence along the West line of Pacific Avenue South 0(degree)10'37"
East 663.60 feet to the Southeast corner of Lot 6 of said recorded plat;
thence along the South line of said Lot 6, South 89(degree)59'29" West
582.49 feet to a point 30 feet East of the Southwest corner of said Lot 6,
said point being on the East line of South D Street; thence along the East
line of South D Street North 0(degree)12'15" West 955.60 feet to the true
point of beginning, in Tacoma, Pierce County, Washington.
Except that portion thereof within the South 50 feet of the West 336.00
feet of Lot 6 of said plat, as conveyed to the City of Tacoma for street
purposes by deed recorded under Auditor's No. 2442155.
Together with the North 25 feet of the South 50 feet of the West 336.00
feet of said Lot 6 vacated by Ordinance No. 20553 of the City of Tacoma,
recorded under Auditor's No. 2627212.
PARCEL B:
A tract of land containing a portion of Lot 2 of T.J. Spooner's five-acre
lots Section 28, Township 20 North, Range 3 East, according to plat
recorded in Book 1 of Plats at Page 65, lying within the Northeast quarter
of the Southwest quarter of Section 28, Township 20 North, Range 3 East of
the Willamette Meridian, in Pierce County, Washington, described as
follows:
Commencing at the Northwest corner of the Northeast quarter of the
Southwest quarter of Section 28, Township 20 North, Range 3 East of the
Willamette Meridian, said point being a monument at the intersection of
South 72nd Street and South D Street; thence South 0(degree)12'15" East
40.00 feet; thence North 89(degree)47'45" East 30.00 feet to a point which
is the intersection of the East line of South D Street and South line of
South 72nd Street; thence continuing along the said South line of South
72nd Street North 89(degree)32'59" East 448.02 feet to a point 135.00 feet
West of the West line of Pacific Avenue; thence South 0(degree)10'37" East
and parallel with the said West line of Pacific Avenue 65 feet to a point,
said point being the true point of beginning; thence continuing South
0(degree)10'37" East and parallel with the said West line of Pacific Avenue
230.41 feet to a point on the North line of Lot 3 of said recorded plat;
thence South 89(degree)59'30" East 135.00 feet along said North line of Lot
3 to a point on the West line of Pacific Avenue; thence along the West line
of Pacific Avenue North 0(degree)10'37" West 230.41 feet; thence North
89(degree)59'30" West 135.00 feet to the point of beginning, in Tacoma,
Pierce County, Washington.
PARCEL C:
Lots 1 through 4, inclusive, Block 2, replat of West portion of Lot 7 of
T.J. Spooner's five-acre lots, according to plat recorded in Book 14 of
Plats at Page 47, in Tacoma, Pierce County, Washington.
Together with the West 15 feet of "C" Street adjoining, vacated by
Ordinance No. 20553 of the City of Tacoma, recorded under Auditor's No.
2627212 and
Also together with that portion of the South 25 feet of the West 336.10
feet of Lot 6 of T.J. Spooner's five acre lots Section 28, Township 2
North, Range 3 East, according to plat recorded in Book 1 of Plats at Page
65, being an unnamed street, lying West of the centerline of "C" Street
extended North vacated by Ordinance No. 20553 of the City of Tacoma
recorded under Auditor's No. 2627212.
PARCEL D:
That portion of the North 132.75 feet of Lot 7, T.J. Spooner's five acre
lots in Section 28, Township 20 North, Range 3 East of the W.M. according
to plat recorded in Book 1 of Plats at Page 65, lying East of C Street
dedicated in the replat of West portion of Lot 7 of T.J. Spooner's five
acre lots, according to plat recorded in Book 14 of Plats at Page 47, in
Tacoma, Pierce County, Washington.
Together with the East 15 feet of C Street adjoining vacated by Ordinance
No. 20553 of the City of Tacoma recorded under Auditor's No. 2627212.
Together with the adjoining portion of the South 25 feet of the West 336.14
feet of Lot 6 of T.J. Spooner's five acre lots Section 28, Township 20
North, Range 3 East, according to plat recorded in Book 1 of Plats at Page
65, being an unnamed street, lying East of the centerline of "C" Street
extended North vacated by Ordinance No. 20553 of the City of Tacoma
recorded under Auditor's No. 2627212.
PARCEL E:
Commencing at the Southeast corner of Lot 7, T.J. Spooner's five acre lots
in Section 28, Township 20 North, Range 3 East of the W.M., according to
plat recorded in Book 1 of Plats at Page 65, thence West along South line
of said Lot 7 to the Southeast corner of that certain tract of land
conveyed by Louis M. Jezek to Louis Barrett and wife by deed recorded
August 2, 1963 under Auditor's No. 2019716; thence North along East line of
said tract, 99.45 feet; thence East parallel to South line of said Lot 7,
to the West line of Pacific Avenue; thence South along said West line of
Pacific Avenue to the point of beginning, in Tacoma, Pierce County,
Washington.
Except the South 30 feet thereof conveyed to City of Tacoma by deed
recorded under Auditor's No. 2652868 which is a correction of deed recorded
under Auditor's No. 2639802.
PARCEL F:
Commencing at the Southeast corner of Lot 7 of the plat of T.J. Spooner's
five acre lots Section 28, Township 20 North, Range 3 East, according to
plat recorded in Book 1 of Plats at Page 65, thence running North along
East line of said Lot 7, 99.45 feet to the true point of beginning; thence
North along said East line of said lot, 99.45 feet; thence West parallel
with the South line of said Lot 7, 177 feet; thence South parallel with the
East line of said Lot 7, 99.45 feet;
thence East parallel with the South line of said lot, 177 feet to the true
place of beginning, in Tacoma, Pierce County, Washington.
PARCEL G:
Commencing at the Southeast corner of Lot 7, T.J. Spooner's five acre lots
in Section 28, Township 20 North, Range 3 East of W.M., according to plat
recorded in Book 1 of Plats at Page 65, running thence North along the East
line of said Lot 7, 99.45 feet; thence West parallel with the South line of
said Lot 7, 177 feet to the true point of beginning; thence North parallel
with the East line of said Lot 7, 99.45 feet to a point; thence West
parallel with the South line of Lot 7, 140 feet to a point; thence South
parallel with the East line of said Lot 7, 99.45 feet to a point; thence
East parallel with the South line of said Lot 7, 140 feet to the true point
of beginning, in Tacoma, Pierce County, Washington.
Together with the portion of "C" Street adjoining, vacated by Ordinance No.
20553 of the City of Tacoma, recorded under Auditor's No. 2627212.
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $875,112.49 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $727,934.48 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $696,112.21 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (35)
(Tacoma) Stevens, WA
MODIFICATION TO MASTER LEASE
((Tacoma) Stevens, WA)
THIS MODIFICATION TO MASTER LEASE ("Modification"), dated as of February 4,
1997, by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(hereinafter referred to as "Landlord"), as landlord/lessor under the Lease
described below, and ROUNDUP CO., a Washington corporation (hereinafter referred
to as "Tenant"), as tenant/lessee under such Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord,
for the lease term specified below, certain real property described in the
attached Exhibit A (the "Premises"), pursuant to the terms of a Lease Agreement,
between Landlord's predecessor in interest (Fred Meyer Real Estate Properties,
Ltd.) and Tenant, dated October 22, 1986, as amended (the "Lease"), the
landlord's/lessor's interest in which was assigned to Landlord pursuant to an
Assignment of Master Lease dated November 25, 1986. The Lease currently includes
seven successive renewal option terms after the end of the original lease term,
which ends on December 8, 2006, at certain fixed rental amounts stated in the
Lease. Each capitalized term not otherwise defined in this Modification will
have the meaning stated in the Lease.
FOR VALUE RECEIVED, Landlord and Tenant do hereby covenant and agree
as follows:
29. Exercise of First Three Renewal Options. Tenant hereby exercises its
first three renewal options contained in the Lease. As a result, the current
term of the Lease ("Current Term") will end on December 8, 2021, unless the
Current Term is extended or earlier terminated in accordance with the provisions
of the Lease. Subject to the conditions stated in the Lease, Tenant will
continue to have four (4) additional successive options to extend the term
thereafter for additional option terms of five (5) years each (each of which
terms, if the respective option is exercised, is a "renewal term").
2. Establishment of Revised Rent for Initial Renewal Terms. The Fixed Rent
under this Lease will be as set forth in the attached Exhibit B, incorporated by
this reference. Such Fixed Rent amounts are modifications to the Fixed Rent
amounts stated in the Lease. Fixed Rent will be paid in equal monthly
installments and otherwise in accordance with the terms of the Lease (as
modified hereby).
3. Revised Rent for Remaining Renewal Option Terms. During each renewal
option term, the first of which commences December 9, 2021, the annual Fixed
Rent shall be the greater of (i) the annual fair market rental value of the
Premises for the five (5) year renewal term in question, paid in sixty (60)
equal monthly payments over the renewal term, based on the highest and best
retail use of the Premises in its "as is" condition assuming a
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
lease of the Premises at arm's length to a non-captive tenant ("Fair Market
Rent"), or (ii) one hundred and ten percent (110%) of the Fixed Rent payable at
the end of the immediately preceding lease term, or renewal option term, as
applicable (the "Rent Minimum"). (For example, if the annual Fixed Rent payable
for the year immediately preceding the renewal term in question was $1,800,000,
or $150,000 monthly, the Rent Minimum would be $1,980,000 or $165,000 monthly,
each month, for the five year renewal term in question. The annual Fixed Rent
for the renewal term in question would be the greater of the annual Fair Market
Rent paid in equal monthly installments, or $1,980,000 paid $165,000 monthly).
Landlord shall have no obligation to make improvements, decorations, repairs,
alterations or additions to the Premises as a condition to Tenant's obligations
to pay rent for the renewal term.
If at the commencement of the renewal term in question the Fair Market Rent
has not been determined pursuant to paragraphs 3 or 4, the Fixed Rent shall be
paid in the amount of the Rent Minimum and a retroactive adjustment shall be
made as a lump-sum paid within 30 days after such a determination is made, but
only if the Fair Market Rent is higher ("Retroactive Adjustment").
On the date Tenant gives Landlord written notice of its exercising an
option to renew this Lease for a renewal term, but no earlier than twelve (12)
calendar months prior to the commencement of the renewal term in question (the
"Initial Determination Date"), the parties shall discuss and attempt to
determine the Fair Market Rent by mutual agreement pursuant to the following
procedure. On the Initial Determination Date, Tenant will notify Landlord as to
Tenant's opinion of such Fair Market Rent. Landlord will notify Tenant, within
sixty (60) days after the Initial Determination Date, as to Landlord's opinion
of the Fair Market Rent. If the Landlord's opinion is higher than the Rent
Minimum and the parties are unable to reach agreement within ninety (90) days
after the Initial Determination Date and Landlord's opinion of such Fair Market
Rent, if rendered by Landlord, is greater than the Rent Minimum, then either
party may initiate the appraisal procedure in paragraph 4 below. If Landlord's
opinion of such Fair Market Rent is equal to or less than the Rent Minimum, than
the Rent Minimum shall be the Fixed Rent for such renewal term.
4. Appraisal Procedure. A party may initiate the appraisal procedure for
determining such Fair Market Rent, pursuant to paragraph 3, by giving written
notice to the other of its election to require that the Fair Market Rent be
determined by appraisal. In such event, each party within thirty (30) days
thereafter shall appoint an appraiser having the qualifications stated below and
notify the other party as to the name and address of its appraiser. If a party
fails to appoint an appraiser within the 30-day period, the single appraiser
appointed shall constitute the sole appraiser for the purpose of determining the
applicable Fair Market Rent. Each appraiser will be instructed to attempt to
reach a consensus with the other appraiser (if applicable) as to the Fair Market
Rent of the Premises.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
2
If such consensus is not reached within sixty (60) days of the appointment
of the first appraiser, then each appraiser shall, by the end of the sixtieth
(60th) day separately provide a written statement of its determination of the
Fair Market Rent (which may be in letter form and state only the appraiser's
summary opinion of the Fair Market Rent), to be delivered to the other appraiser
and each party. The Fair Market Rent shall then be determined by averaging the
opinion of the two appraisers, unless the higher of the two appraisals exceeds
the lesser by ten percent (10%), in which case a third appraisal shall be
selected within twenty (20) days of such determination by the two appraisers.
The third appraiser shall render an appraisal of the Fair Market Rent within
thirty (30) days of the appointment of the third appraiser. The Fair Market Rent
shall be determined by averaging the two of the three appraisals that are the
closest to each other. If the two appraisers appointed by the parties fail to
appoint a third appraiser (if required) within the required time period, either
party may apply to the US District Court for the judicial district in which the
Premises is located, for the appointment of the third appraiser. The date that
the Fair Market Rent is finally determined and communicated to the parties in
writing pursuant to this paragraph 4 is the "Final Determination Date".
All appraisers shall be independent third parties not affiliated with the
parties and members in good standing of the American Institute of Real Estate
Appraisers, or successor organization, and shall have, immediately preceding
their appointment, at least five (5) years' continuous experience in appraising
commercial real property, including three (3) years' experience in appraising
retail real property, in the state in which the Premises are located.
Tenant and Landlord shall each bear the cost of its own appraiser and shall
share equally the cost of the third appraiser, if any. Each party will bear its
own costs and attorneys' fees in connection with any proceeding related to the
appointment of the appraisers which is not attributable to the other party's
failure to appoint an appraiser with qualifications herein provided with the
time periods provided above.
5. Option To Terminate. If Fair Market Rent is determined pursuant to
paragraph 4 and if the annual Fair Market Rent is: (a) with respect to the
renewal option term commencing December 9, 2021, greater than one hundred and
seventy five percent (175%) of the annual Fixed Rent for the lease year
immediately preceding the option term which commences December 9, 2021, or (b)
with respect to all subsequent renewal option terms, greater than one hundred
and twenty five percent (125%) of the annual Fixed Rent for the last year of the
immediately preceding renewal option term, then Tenant will have the following
option to terminate the Lease (the "Option to Terminate") by (i) notifying
Landlord of its exercise of the Option to Terminate within thirty (30) days
after the Final Determination Date (the date of delivery to Landlord of such
notice is the "Notice Date"), (b) paying to Landlord on the Notice Date that
portion of the Retroactive Adjustment, if any, then accrued, and (iii) paying to
Landlord on the Notice Date a termination fee equal to the Fixed Rent for the
last three (3) full months of the term, as it may be extended
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
3
pursuant to this paragraph 5. If Tenant timely exercises the Option to
Terminate, the Lease shall terminate on the later of (i) six (6) calendar months
after notice of the Option to Terminate is given, or (ii) the end of the Lease
term as if tenant had not exercised its option to extend.
6. Other Modifications to Lease. For purposes of calculating the purchase
price for the Premises in the event the purchase option set forth in Section 22
in the Lease is exercised, the definition of Fixed Rent for purposes of such
purchase options will be treated as follows:
(i) if the purchase option is exercised pursuant to Section 22.1 of
the Lease, the Fair Market Value will be determined by assuming that "Fixed
Rent" would be the amounts which would have been fixed rent as if this Lease not
been modified by this Modification, and as such fixed rent would have been
adjusted by the "Renewal Terms" as if this Lease had not been modified by this
Modification. The purchase price under Section 22.1 will include the Additional
Premium as set forth in such Section (i.e., a 20% Additional Premium at the end
of the Current Term, a 15% Additional Premium at the end of the first Renewal
Term hereunder, and with such Additional Premium thereafter declining 5
percentage points for each successive Renewal Term, cumulatively, until the last
Renewal Term hereunder, in which no Additional Premium is due).
(ii) if the purchase option under conditions of economic disutility is
exercised pursuant to Section 22.6 of the Lease, the Fair Market Value will be
determined at the revised Fixed Rent established pursuant to the provisions of
this Modification, and not the amounts stated in paragraph 4.1 of the Lease.
Other than as provided above, all provisions of Section 22 of the Lease
will continue to be applicable, and the parties will follow the procedures set
forth therein.
7. Concurrent Leases. From and after the closing date of the purchase of
six shopping centers by Fred Meyer and the Clackamas Distribution Center by Fred
Meyer's designee, the "Concurrent Leases" (as defined in the Lease and its
attached Exhibit C) will exclude such shopping centers and distribution center.
Pursuant to an Agreement concerning Miscellaneous Parcels of even date
herewith (the "Pad Agreement", Tenant is acquiring the right to acquire a
portion of the Premises from Landlord on certain terms and conditions. The
Parcel(s) being purchased pursuant to such Agreement will be deemed to be
excluded from the "Premises" as of the date of closing of the purchase.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
4
8. Modifications to this Agreement. This Modification cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part unless such executory agreement is in
writing and is signed by the parties against whom enforcement of any waiver,
change, modification or discharge is sought.
9. Non-Impairment of the Lease. This Modification constitutes a
modification of certain provisions of the Lease but is not a novation of the
Lease. Except as specifically modified hereby or as the parties otherwise agree
in a written instrument duly executed by both parties as a modification of the
Lease, the Lease continues in full force and effect in accordance with its
terms.
10. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action as may be reasonably requested
by the other party to consummate the transaction contemplated by this
Modification.
11. Counterparts. This Modification may be executed in counterparts, all
such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
12. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Modification. The parties intend to be bound by the signatures on the
telecopied documents, are aware that the other party will rely on the telecopied
signatures, and hereby waive any defenses to the enforcement of the terms of
this Modification based on the forms of signature.
13. Severability. If any provision of this Modification is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Modification shall nonetheless remain in full force and effect; provided
that the invalidity or unenforceability of such provision does not materially
adversely affect the benefits accruing to any party hereunder.
14. Applicable Law. This Modification shall be governed by and construed in
accordance with the laws of the state in which the Premises is located.
15. Captions. The section headings appearing in this Modification are for
convenience or reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
16. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Modification and that the normal rule of
construction to the effect
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
5
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Modification or any exhibits or
amendments hereto.
17. Attorneys' Fees. In the event suit or action is instituted to interpret
or enforce the terms of 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 appeal of such suit or action, upon any petition
for review or in connection with any arbitration proceeding between the parties,
in addition to all other sums provided by law, and such prevailing party shall
also be entitled to recover reasonable non-litigation attorneys' fees incurred
in enforcing the terms of this Agreement prior to or separate from such trial or
appeal or other action or proceeding. As used herein, "attorneys' fees" will
include (without limitation) both attorney's and paralegals' fees and expenses.
18. Waiver. Any failure by a party at any time to require performance of
any provision of this Modification shall not limit the party's right to enforce
the provision in the future. Any waiver of any breach of any provision shall not
be a waiver of any succeeding breach or a waiver of the provision itself or any
other provision of this Modification.
19. Recordation. This Modification may not be recorded to any party hereto
without the prior written consent of the other party hereto. The parties will,
however, co-operate with each other concerning the execution and recordation of
a Memorandum of Lease in substantially the same form as attached to the Lease as
an exhibit, with modifications to evidence the exercise of the renewal options
hereunder (but without a statement of the rental provisions herein or in the
Lease).
20. Notices. Any notice pursuant to this Modification shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United Sates Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designed by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in the
accordance with the preceding sentence, the addresses for notice given pursuant
to this Modification shall be as follows:
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
6
If to Metropolitan: If to Fred Meyer:
Metropolitan Life Insurance Company Fred Meyer, Inc.
Real Estate Investments Real Estate Division
101 Lincoln Centre Drive, 6th Floor 3800 SE 22nd Avenue
Foster City, California 94404 Portland, Oregon 97202
Attention: Assistant Vice President Attention: Senior Vice President,
Telephone No. (415) 574-8181 Director of Real Estate
Telecopy No. (415) 349-4615 Telephone No. (503) 797-3450
Telecopy No. (503) 797-3539
With a copy to:
If any notice to Fred Meyer is mailed,
Metropolitan Life Insurance Company the address for notices will not be the
Real Estate Investments street address shown herein but will be:
200 Park Avenue PO Box 42121, Portland, Oregon 97242.
New York, New York 10166
Attention: Senior Vice President - With a copy to:
Real Estate Investments
Fred Meyer, Inc.
Real Estate Division
3800 SE 22nd Avenue
Portland, Oregon 97202
Attention: Corporate Real Estate Counsel
Telephone No. (503) 797-7390
Telecopy No. (503) 797-5623
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
TENANT: ROUNDUP CO., a Washington corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: V.P.
--------------------------------------
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
7
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Scott L. Wippel as V.P. of ROUNDUP CO., a Washington corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 6/8/99
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 4th day of February, 1997,
by Edward J. Hayes as Asst. V.P. of METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation.
FRANCES FOLEY
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My Commission Expires: 9/1/98
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
8
EXHIBIT A
TACOMA-STEVENS, WA
Located in the County of Pierce, State of Washington, and described as follows:
A parcel of land lying within the South half of the Southwest quarter of Section
1, Township 20 North, Range 2 East of the Willamette Meridian, in Pierce County,
Washington, described as follows:
Commencing at the Southeast corner of the Southwest quarter of Section 1,
Township 20 North, Range 2 East of the Willamette Meridian, said point being a
monument at the intersection of South 19th Street and Mason Avenue; thence along
the South line of said Section 1, Township 20 North, Range 2 East of the W.M.,
said line being the centerline of South 19th Street North 89(degree)50'09" West
328.60 feet; thence North 0(degree)09'51" East 45.00 feet to the true point of
beginning; thence along the North line of South 19th Street North 89(degree)
50'09" West 54.36 feet; thence North 0(degree)09'51" East 5.00 feet; thence
North 89(degree)50'09" West 280.00 feet to a point on the West line of the
Southeast quarter of the Southeast quarter of the Southwest quarter of said
Section 1, Township 20 North, Range 2 East of the Willamette Meridian; thence
continuing North 89(degree)50'09" West 104.00 feet; thence South 63(degree)
28'42" West 22.27 feet to a point which is North 89(degree)50'09" West 124.00
feet from said East line of said subdivision; thence North 89(degree)50'09" West
537.15 feet to a point on the West line of the Southeast quarter of the
Southwest quarter of said Section 1, Township 20 North, Range 2 East of the
Willamette Meridian; thence along the said West line North 0(degree)21'28" West
40.00 feet; thence North 89(degree)50'09" West 54.75 feet to a point on the West
line of Gove Street (formerly Page Street) produced North in the plat of West
Park Addition to Tacoma, Wash., according to plat recorded in Book 6 of Plats at
Page 9, Records of Pierce County Auditor; thence leaving the North line of South
19th Street, North 0(degree)42'12" East 581.16 feet along the West line of said
Gove Street produced North; thence South 89(degree)54'31" East 43.99 feet to the
Northwest corner of the Southwest quarter of the Southeast quarter of the
Southwest quarter of said Section 1, Township 20 North, Range 2 East of the
Willamette Meridian; thence along the North subdivision line South
89(degree)54'31" East 479.93 feet; thence South 0(degree)59'29" West 10.0 feet;
thence South 89(degree)54'31" East 180.36 feet; thence North 0(degree) 26'36"
West 10.00 feet to a point on the South line of South 18th Street; thence South
89(degree)54'31" East 322.54 feet along said South line of South 18th Street to
a point on the westerly line of Stevens Street; thence along the westerly line
of Stevens Street as conveyed to the City of Tacoma by deeds recorded under
Auditor's Nos. 1842953, 2469185 and 1842960, on a curve to the left having an
arc distance of 275.64 feet having a radius of 1957.00 feet and a central angle
of 08(degree)04'12"; thence South 22(degree)55'46" East 77.88 feet; thence South
22(degree)53'13" East 39.34 feet; thence South 89(degree) 50'09" East 2.17 feet;
thence South 22(degree)53'13" East 74.99 feet; thence leaving said Westerly line
of Steven Street North 89(degree)50'09" West and parallel with the centerline of
South 19th Street 148.86 feet; thence South 0 (degree) 09'51" West 180.00 feet
to the true point of beginning.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Exhibit B - Fixed Rent
The Fixed Rent under this Lease through the end of the Primary Term stated
therein on December 8, 2006. From December 9, 2006 through December 8, 2011, the
Fixed Rent will be $600,935.98 per annum. From December 9, 2011 through December
8, 2016, the Fixed Rent will be $499,869.47 per annum. From December 9, 2016
through December 8, 2021, the Fixed Rent will be $478,017.26 per annum.
Fred Meyer - Metropolitan Life
Lease Modification Agreement
February 4, 1997
1
Appendix 10I (36)(T)
(Distribution Center) Clackamas, OR
Recordation Requested by
and
After recordation return to:
Stoel Rives LLP
Attention: David W. Green
950 Port of Portland Building
700 NE Multnomah
Portland, OR 97232 (Space reserved for recorder's use)
-------------------------------------------------------------------------------
TERMINATION AGREEMENT AND ASSIGNMENT OF INTERESTS
(CL-DC Clackamas Distribution Center, Oregon)
This Termination Agreement and Assignment of Interests (this "Agreement"),
dated as of the day of February, 1997 between METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (hereinafter referred to as "Landlord"), as
landlord/lessor (by assignment) under the Master Lease described below, and
ROUNDUP CO., a Washington corporation (hereinafter referred to as "Tenant"), as
tenant/lessee under such Master Lease.
Landlord has leased to Tenant, and Tenant has leased from Landlord, certain
real property described in the attached Exhibit A (the "Premises"), pursuant to
the terms of a Lease Agreement, between Landlord's predecessor in interest, FRED
MEYER REAL ESTATE PROPERTIES, LTD., an Oregon limited partnership, as
landlord/lessor, and Tenant, as tenant/lessee, dated October 22, 1986, as
amended (the "Master Lease"). Such Master Lease was an amended and restated
lease, which modified and restated one or more prior leases of the Premises.
Evidence of such Master Lease and such prior lease or leases is evidenced of
record by certain memoranda of leases and/or other instruments listed on the
attached Exhibit B (the "Memoranda").
Tenant, as lessee of FRED MEYER REAL ESTATE PROPERTIES, LTD. pursuant to a
Restated and Amended Lease dated November 25, 1986 and recorded on December 9,
1986 in the Official Records of Clackamas County, Oregon as Fee No. 86 49140
holds the lessor's interest under and to existing leases affecting portions of
the Premises (for purposes hereof, the "Subleases"). Tenant's interest in such
Subleases was then assigned, for collateral purposes, to Landlord at the closing
of Landlord's purchase of the Premises, pursuant to the terms of
-------------------------------------------------------------------------------
Until a change is requested, all tax statements shall be sent to the following
address: c/o Fred Meyer, Inc., 3800 SE 22nd Avenue, PO Box 42121, Portland,
Oregon 97242-0121
Property tax account No.:
-------------------------------------------------------------------------------
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
an Assignment of Leases and/or Rents (the "Assignment"), by Tenant as assignor
in favor of Landlord as assignee, which is more particularly described on the
attached Exhibit B.
The parties desire to evidence of record a termination of the Master Lease
and to effect and record a termination of the Memoranda and release and
reconveyance to Tenant of the interest of Landlord under the Assignment, in
connection with the closing of the purchase of the Premises by First Security
Bank, National Association, as Owner Trustee ("Bank"), as evidenced by a deed
being recorded on the same date as this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Termination of Master Lease and Memoranda.
The Master Lease and Memoranda listed on the attached Exhibit B are
terminated as of the date of closing by Bank of its acquisition of the Premises
pursuant to the terms set forth herein, which is being effected simultaneously
herewith (the "Termination Date"). As of the Termination Date, Landlord releases
and assigns to Tenant all right, title and interest of Landlord pursuant to the
Assignment and Tenant assumes all obligations under the Assignment.
Effective as of the Termination Date, except as provided in paragraph
2 below, the parties shall have no further rights or obligations under the
Master Lease.
2. Nature of Termination; No Release of Accrued Obligations.
The termination hereunder is in the nature of an acceleration of the
original expiration date of the Master Lease in connection with the purchase of
the Premises by Bank, and neither this Agreement nor the termination of the
Master Lease shall in any way:
(a) be deemed to excuse or release Tenant from any obligation or
liability, including without limitation any obligation or liability under
provisions of the Master Lease to indemnify, defend and hold harmless Landlord
or other parties, or with respect to any breach or breaches of the Master Lease,
which obligation or liability (i) first arises prior to the Termination Date, or
(ii) arises out of or is incurred in connection with events or other matters
which took place prior to the Termination Date, or
(b) affect any obligation under the Master Lease which by its
terms is intended to survive the expiration or sooner termination of the Master
Lease.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
TENANT: ROUNDUP CO.,
a Washington corporation
By: SCOTT L. WIPPEL
-----------------------------------------
Name: Scott L. Wippel
---------------------------------------
Title: Vice President
--------------------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: EDWARD J. HAYES
-----------------------------------------
Name: Edward J. Hayes
---------------------------------------
Title: Asst. V.P.
--------------------------------------
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Scott L.
Wippel, as Vice President of ROUNDUP CO.., a Washington corporation.
LUDELL E. CORNILSEN
[NOTARY SEAL] --------------------------------------------
Notary Public for Oregon
My commission expires: 6/8/99
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
STATE OF OREGON
ss.
County of Multnomah
------------------------------
This instrument was acknowledged before me on February 4, 1997, by Edward
J. Hayes, as Assistant Vice President of METROPOLITAN LIFE COMPANY, a New York
corporation.
LUDELL E. CORNILSEN
--------------------------------------------
Notary Public for Oregon
My commission expires 6/8/99
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
EXHIBIT A
(CL-DC Clackamas Distribution Center, Oregon)
A tract of land located in the South one-half of Section 10, Township 2 South,
Range 2 East, of the Willamette Meridian, in the County of Clackamas and State
of Oregon, more particularly described as follows:
Commencing at the Southeast corner of said Section 10; thence North along the
East line of said Section 10, a distance of 512.43 feet; thence North 89(degree)
43'10" West a distance of 28.88 feet to a point which is 30.00 feet Westerly of,
when measured at right angles to, the center line of a road known as SE 122nd
Avenue, said point also being the true point of beginning of the tract herein to
be described; thence continuing North 89(degree)43'10" West, a distance of
3575.08 feet to a point in the West line of that certain tract of land conveyed
to Southern Pacific Company by Bargain and Sale Deed recorded April 4, 1962 in
Volume 601, page 302, Deed Records; thence North 0(degree)05'10" East along the
West line of said Southern Pacific Company tract, a distance of 759.89 feet to
the most Southerly Northwest corner thereof; thence North 89(degree)40'00"
East, along the North line of said Southern Pacific Company tract, a distance of
115.00 feet; thence North 01(degree)05'10" East, along the West line of said
Southern Pacific Company tract, a distance of 157.00 feet to the most Northerly
Northwest corner thereof; thence North 89(degree)40'00" East, along the North
line of said Southern Pacific Company tract, a distance of 192.80 feet (Volume
601, page 302 calls 182 feet) to the Northeast corner thereof said corner also
being in the West line of that certain tract of land conveyed to Southern
Pacific Company by Bargain and Sale Deed recorded April 4,1962 in Volume 601,
page 296, Deed Records: thence North 0(degree)29'10" West, along the West line
of last said Southern Pacific Company tract, a distance of 220.00 feet to a
point in the Southerly line of Clackamas Highway (State Highway No. 212) said
point being 60 feet Southerly of, when measured at right angles to, the center
line of said Clackamas Highway (1900 relocation as noted in Warranty Deed Fee
No. 82 6071); thence North 89(degree)40'00" East, along the South line of said
Clackamas Highway, a distance of 3022.10 feet to a point in the East line of
that certain tract of land conveyed to Southern Pacific Company by Bargain and
Sale Deed recorded April 4, 1962 in Volume 601, page 288, Deed Records; thence
South along said East line and the Southerly extension thereof, a distance of
780.38 feet to a point in the North line of that certain tract of land conveyed
to Southern Pacific Company by Bargain and Sale Deed recorded April 4, 1962 in
Volume 601, page 290, Deed Records; thence East along the North line of last
said Southern Pacific Company tract, a distance of 245.68 feet to a point in the
West line of SE 122nd Avenue, said point being 30 feet Westerly of, when
measured at right angles to, the center line of said SE 122nd Avenue; thence
South along the West line of said SE 122nd Avenue, a distance of 393.37 feet to
the point of beginning.
EXCEPTING THEREFROM that portion of said property lying below a depth of 500
feet measured vertically from the contour of the surface thereof.
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 4, 1997
Exhibit B - List of Matters of Record to be Terminated
(CL-DC Clackamas Distribution Center, Oregon)
1. Lease, including the terms and provisions thereof
Dated : September 19, 1977
Recorded : September 19, 1977 as Fee No. 77 37740
Lessor : Fred Meyer Properties, Inc., an Oregon corporation
Lessee : Roundup Co., a Washington corporation
2. Lease, including the terms and provisions thereof
Dated : November 13, 1978
Recorded : November 13, 1978 as Fee No. 78 48611
Lessor : Fred Meyer Properties, Inc., an Oregon corporation
Lessee : Roundup Co., a Washington corporation
3. The Lessor's interest in said Lease was assigned by instrument
Dated : December 11, 1981
Recorded : February 4, 1982 as Fee No. 82 3404
From : Fred Meyer Properties, Inc., an Oregon corporation
To : Fred Meyer Real Estate Properties, Ltd., an Oregon
limited partnership
4. The Lessee's interest in said Lease was assigned by instrument
Dated : December 11, 1981
Recorded : February 4, 1982 as Fee No. 82 3405
From : Roundup Co., a Washington corporation
To : RU Acquisition Corporation, a Washington corporation
5. Memorandum of Restated and Amended Lease, including the terms and
provisions thereof
Dated : November 25, 1986
Recorded : December 9, 1986 as Fee No. 86 49140
Lessor : Fred Meyer Real Estate Properties, Ltd., an Oregon
limited partnership
Lessee : Roundup Co., a Washington corporation
6. The Lessor's interest in said Lease was assigned by various assignments
the last of which was
Dated : November 25, 1986
Recorded : December 9, 1986 as Fee No. 86 49145
From : Roundup Co., a Washington corporation
To : Metropolitan Life Insurance Company, a New York
corporation
The terms and provisions of the above Memorandum of Lease were amended by
instrument
Recorded : December 9, 1986 as Fee No. 86 49144
Fred Meyer - Metropolitan
Termination of Lease and Recorded Interests
February 3, 1997
