THIRD EXTENSION AGREEMENT
DATE: Effective as of November 1, 1998
PARTIES: Tigard-Tualatin School District 23J "TTSD"
and
Eagle Hardware & Garden, Inc. "Eagle"
RECITALS:
A. TTSD and Eagle entered into an Agreement to Lease dated April 30,
1997, (the "Agreement") covering certain real property in Tigard, Oregon (the
"10.5-acre parcel") and a Put to Lease Property dated April 30, 1997, (the
"Put") covering certain other adjoining real property in Tigard, Oregon (the
"1.52-acre parcel").
B. TTSD and Eagle thereafter entered into an extension agreement
("First Extension Agreement") effective August 30, 1997, that confirmed the
exercise of the Put, extended certain of Eagle's deadlines, and required
Eagle to pay a $190,000 nonrefundable fee.
C. TTSD and Eagle thereafter entered into a second extension agreement
("Second Extension Agreement") effective August 28, 1998, that extended
certain of Eagle's deadlines and required Eagle to pay an additional $100,000
nonrefundable fee.
D. TTSD and Eagle each desire to successfully enter into and conclude
the leases of the 10.5-acre and 1.52-acre parcels from TTSD to Eagle and
understand the need to extend the deadlines as hereinafter described.
AGREEMENT:
In consideration of the mutual covenants set forth below, TTSD and
Eagle agree as follows:
1. EXTENSION REGARDING EAGLE'S SOLE REMAINING CONDITION. Provided that
the $50,000 is remitted to TTSD in accordance with Section 3 below, the
November 2, 1998, deadline for Eagle's waiver or satisfaction of the condition
set forth in Section 3(b)(iii) of the Agreement is hereby extended until
10 a.m. on December 2, 1998.
2. CLOSING. Provided that the $50,000 is remitted to TTSD in
accordance with Section 3 below, (a) the Closing shall occur at or before 5
p.m. on December 2, 1998, and (b) the dates of September 19, 1997, October
20, 1997, and November 21, 1997, set forth in Section 8 of the Agreement are
hereby modified to the effect that the sole specified date for the Closing is
"at or before 5 p.m. on December 2, 1998."
3. PAYMENT OF ADDITIONAL NONREFUNDABLE FEE. Eagle shall have until 5
p.m. on November 2, 1998, to remit $50,000 to TTSD as a nonrefundable fee
designed solely to compensate TTSD for postponing the deadlines as described
in this Third Extension Agreement and agreeing to keep the 10.5-acre parcel
and 1.52-acre parcel off the market
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between November 2, 1998, and December 2, 1998. Eagle agrees that this fee is
not a penalty, that this fee is fair and reasonable compensation for
postponing the deadlines as described above and agreeing to keep the property
off the leasehold market, and that this fee is nonrefundable. Provided that
the $50,000 is remitted to TTSD by 5 p.m. on November 2, 1998, and the
Closing occurs in accordance with the Agreement (as modified by the First
Extension Agreement, the Second Extension Agreement, and this Third Extension
Agreement), TTSD shall credit the $50,000 to Eagle as prepaid rent for the
10.5-acre parcel. If Eagle fails to cause the $50,000 to be remitted to TTSD
by 5 p.m. on November 2, 1998, the Agreement and Put shall have no further
force or effect.
4. SUPPLEMENTAL EXTENSION FEE. At Closing, the parties shall
calculate a supplemental extension fee by assuming that they had closed on
October 17, 1998, and computing the ground rent that would have accrued under
the two ground leases from October 17, 1998, through the actual date of
Closing. That amount shall then be divided in half, and Eagle shall remit
that sum (i.e., the imputed ground rent divided by two) to TTSD at Closing as
a supplemental extension fee. The supplemental extension fee is in addition
to the sum described in Section 3 above and shall not be credited as prepaid
rent.
5. REMAINDER OF AGREEMENT. In all other respects, the terms and
conditions of the Agreement and the Put (as previously modified by the First
Extension Agreement and Second Extension Agreement) shall remain in full
force and effect.
TIGARD-TUALATIN SCHOOL DISTRICT 23J EAGLE HARDWARE & GARDEN, INC.
By /s/ Xxxxxxxx X. Xxxxx By /s/ Xxxx X. Xxxxxx
--------------------------------- -----------------------------------
Chair of the School Board Xxxx X. Xxxxxx
Vice President
By /s/ Xxxxxxx X. Xxxx November 9, 1998
--------------------------------- -----------------------------------
Superintendent
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