AGREEMENT CONCERNING MISCELLANEOUS PARCELS
This Agreement Concerning Miscellaneous Parcels ("Agreement") is made
as of February 4, 1997 by and between METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation ("Metropolitan") and ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware corporation,
for itself and on behalf of its wholly owned corporate affiliates which lease
certain shopping centers from Metropolitan under existing leases (collectively,
"▇▇▇▇ ▇▇▇▇▇"), with respect to the following:
A. Metropolitan owns certain properties, consisting of shopping centers,
which have been leased to ▇▇▇▇ ▇▇▇▇▇, or its wholly-owned subsidiaries (each
shall be known herein as a "Shopping Center"; more than one Shopping Center
shall be known herein as "Shopping Centers"), pursuant to existing lease between
such parties (the "Leases").
B. ▇▇▇▇ ▇▇▇▇▇, has requested, and Metropolitan has agreed to grant to ▇▇▇▇
▇▇▇▇▇, an option whereby ▇▇▇▇ ▇▇▇▇▇ may require Metropolitan to convey to ▇▇▇▇
▇▇▇▇▇, Metropolitan's interest in certain Parcels (as hereinafter defined) which
consist of portions of the Shopping Centers, all subject to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Parcels; Subdivision or Other Partition. Those portions of
Metropolitan's property described or shown on Exhibit A attached hereto and
incorporated herein, shall be known as "Parcels." Any Parcel which is not
presently a legal lot in compliance with applicable laws concerning partition,
subdivision and/or lot line adjustment is referred to herein as an "Unsubdivided
Parcel." At such time as an Unsubdivided Parcel becomes a legal lot in
compliance with applicable laws concerning partition, subdivision, and/or lot
line adjustment such Parcel is referred to herein as a "Subdivided Parcel."
As used herein, the term "partition" will mean any procedure available
under applicable law to cause a Parcel and the Remaining Center (as defined
below) to be separate legal lots that are legally capable of separate ownership,
including (without limitation) partition, short plat, parcel map, lot line
adjustment, and/or other procedures. Use of the term "Subdivided Parcel" will
not be construed to require a subdivision, as compared to a partition, of the
Subdivided Parcel and the Remaining Center.
2. Remaining Center. That portion of each Shopping Center which shall
continue to be owned by Metropolitan and leased to ▇▇▇▇ ▇▇▇▇▇ following the
conveyance to ▇▇▇▇ ▇▇▇▇▇ of a Parcel which is part of such Shopping Center,
shall be known as a "Remaining Center."
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3. Option. Metropolitan hereby grants to ▇▇▇▇ ▇▇▇▇▇ an irrevocable option
("Option") to require Metropolitan to convey and release the Parcels subject to
the terms of this Agreement. Exercise of the Option by ▇▇▇▇ ▇▇▇▇▇ with respect
to some or all of the Parcels will be no later than the end of the term of the
Option, as set forth herein. The Option price for each Parcel is as stated on
the attached Exhibit B and totals Nine Million Dollars ($9,000,000) ("Option
Price") for all Parcels; provided, however, if either (i) the term of this
Option expires and ▇▇▇▇ ▇▇▇▇▇ has not taken title to all of the Parcels, or (ii)
▇▇▇▇ ▇▇▇▇▇ elects not to pursue the partition of one or more of the Parcels,
then the Option Price for such Parcels shall be re-allocated to the other
Parcels on a prorata basis, in accordance with their respective percentages set
forth in Exhibit B, so that the entire Option Price will be re-allocated to the
Parcels acquired by ▇▇▇▇ ▇▇▇▇▇ pursuant to the Option. The Option Price shall be
paid to Metropolitan contemporaneously with the mutual execution of this
Agreement (the "Effective Date"), subject to the holdback provided below.
The term of the Option ("Term") shall expire on February 15, 1999;
provided, that the Term will be extended, pursuant to the procedures set forth
herein, on a day-for-day basis equal to the number of days in which Metropolitan
may fail to respond, within the time periods provided herein, to a matter that
requires Metropolitan's consent or approval under this Agreement.
Of the total Option Price, $50,000 for each group of Parcels with respect
to each Remaining Center will be placed into a holdback escrow pursuant to the
terms of the escrow agreement approved by the parties, a copy of which is
attached as Exhibit C to this Agreement (the "Holdback Escrow"). The escrow
agent for the Holdback Escrow and for the closing of the conveyance of the
Parcel to ▇▇▇▇ ▇▇▇▇▇ will be First American Title Insurance Company of Oregon
("FATCO"), utilizing the offices of FATCO at Portland, Oregon. As and at the
time that ▇▇▇▇ ▇▇▇▇▇ exercises its Option and a Subdivided Parcel is released to
▇▇▇▇ ▇▇▇▇▇, the $50,000 of funds in the Holdback Escrow that were attributable
to the Remaining Center of which that Parcel is a part will be released to
Metropolitan at the closing of the conveyance of the Parcel to ▇▇▇▇ ▇▇▇▇▇ (or
the first Parcel, if more than one Parcel in a particular Shopping Center is
contemplated to be conveyed). Interest on the Holdback Escrow will accrue to the
benefit of Metropolitan. The remaining balance, including all accrued interest,
will be disbursed to Metropolitan on February 15, 1998 (the "Holdback
Disbursement Date").
The Option Price is fully earned by Metropolitan upon mutual execution of
this Agreement and is non-refundable. Regardless of whether ▇▇▇▇ ▇▇▇▇▇ exercises
its Option and satisfies the conditions of this Agreement concerning release of
the Parcel by the end of the Term, the Option will expire and terminate, and the
entire Option Price will be retained by Metropolitan.
Notwithstanding any other provision of this Agreement, ▇▇▇▇ ▇▇▇▇▇ may
elect, in its discretion, at any time after the Effective Date to abandon its
efforts to obtain a subdivision or partition of one or more of the Parcels
and/or to acquire such Parcel(s) at which time that portion
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of the Holdback Escrow attributable to the Shopping Center of which the Parcel
is a part shall be released to Metropolitan. No such abandonment or any
inability to obtain such subdivision or partition, or any failure by ▇▇▇▇ ▇▇▇▇▇
to satisfy the conditions of this Agreement for conveyance of the Parcel to ▇▇▇▇
▇▇▇▇▇, will entitle ▇▇▇▇ ▇▇▇▇▇ to any reimbursement of the Option Price paid for
the Parcel.
During the Term of the Option and unless ▇▇▇▇ ▇▇▇▇▇ has notified
Metropolitan of ▇▇▇▇ ▇▇▇▇▇'▇ abandonment of efforts5 to obtain a subdivision or
partition of such Parcel(s), Metropolitan will not place liens or encumbrances
on the Parcel(s) that cannot be released by the payment of monies and that would
be binding on the Parcel(s) after the closing of ▇▇▇▇ ▇▇▇▇▇'▇ purchase, without
▇▇▇▇ ▇▇▇▇▇'▇ consent or approval, which will not be unreasonably withheld.
4. Procedures Concerning Approval of Subdivision or Partition.
4.1 Approval of Legal Description and Proposed Site Plan. ▇▇▇▇ ▇▇▇▇▇
will submit to Metropolitan: (i) a perimeter legal description of the Parcel
prepared by a surveyor licensed in the state in which the Parcel is situated;
and (ii) a proposed site plan of the Shopping Center showing the Parcel and
showing the location of the main ▇▇▇▇ ▇▇▇▇▇ retail store at the Shopping Center,
the gross building area of the main ▇▇▇▇ ▇▇▇▇▇ store, the gross land area of the
Parcel and of the Shopping Center, and the number of parking spaces within the
Shopping Center other than the Parcel. The perimeter legal description of the
Parcels shall be consistent with the Parcels shown on Exhibit A (i.e. that there
are only de minimis variations compared to that shown on Exhibit A, and there is
no detriment to the value and utility to the Remaining Center resulting from any
variation).
Metropolitan will reasonably approve or disapprove (with reasons stated)
the legal description and site plan within fifteen calendar days after receipt.
If disapproved, the legal description and site plan will be revised by ▇▇▇▇
▇▇▇▇▇ and re-submitted to Metropolitan, and the parties will continue to follow
the foregoing procedures until such matters are mutually and reasonably
acceptable to the parties (or such earlier date as the Term expires or ▇▇▇▇
▇▇▇▇▇ abandons its efforts to get Metropolitan's approval as to the subdivision
or partition).
4.2 Application for Subdivision or Partition Approval. Upon approval
of the legal description and site plan, ▇▇▇▇ ▇▇▇▇▇ will cause the surveyor to
prepare the subdivision or partition application and related drawings or surveys
required to obtain necessary governmental approvals of the subdivision or
partition. Such application and drawings or survey must show the Parcel as
approved by Metropolitan and otherwise be in compliance with the requirements of
this Agreement. ▇▇▇▇ ▇▇▇▇▇ shall submit the application and related documents to
Metropolitan for its approval, which, subject to Metropolitan's approval rights
under Section 4.3, shall not be unreasonably withheld, in which case the parties
will follow the same time periods and observe the same procedures as set forth
in Section 4.1 above.
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4.3 Approval of Conditions or Requirements of Authorities. ▇▇▇▇ ▇▇▇▇▇
will keep Metropolitan informed about the status of ▇▇▇▇ ▇▇▇▇▇'▇ application for
subdivision or partition approval and any conditions that are proposed to be
imposed by the governmental authorities as a condition for approval. From time
to time until ▇▇▇▇ ▇▇▇▇▇ has obtained final approval of the subdivision or
partition pursuant to conditions that are approved by Metropolitan in writing,
▇▇▇▇ ▇▇▇▇▇ will submit to Metropolitan for its approval any changes or
conditions for approval requested or required by the governmental authorities in
connection with the subdivision or partition, in which case the parties will
follow the same time periods and observe the same procedures as set forth in
Section 4.1 above.
Without limiting the foregoing, but subject to ▇▇▇▇ ▇▇▇▇▇'▇ right to
abandon or discontinue its efforts as provided in Section 3, ▇▇▇▇ ▇▇▇▇▇ will
diligently pursue obtaining the necessary governmental approvals required for
the partition or subdivision. ▇▇▇▇ ▇▇▇▇▇ will be responsible for paying the
costs of its surveyor, all application fees required by the governmental
authority, all filing and recording fees related to the partition or subdivision
of the Parcels, and all costs of ▇▇▇▇ ▇▇▇▇▇'▇ attorneys and consultants.
Metropolitan will be responsible (only) for its own attorneys' fees and the cost
of its administrative time in administering this Agreement.
▇▇▇▇ ▇▇▇▇▇ may approve (without the need for approval by Metropolitan, and
in which event Metropolitan shall be deemed to have approved) any condition or
requirement that can be satisfied by ▇▇▇▇ ▇▇▇▇▇ by the payment of money (and
shall promptly make such payment), or that is imposed solely against the Parcel,
and which is not binding on Metropolitan or the Remaining Center. If the
condition or requirement involves the dedication, grant or conveyance of
additional right-of-way area, sidewalks or public easements, Metropolitan will
not unreasonably withhold its approval thereof, provided that (i) the
dedication, grant or conveyance does not affect the value or utility of the
Remaining Center in more than a de minimis manner, and (ii) any proceeds
received for the conveyance is paid to Metropolitan and does not affect the rent
to be paid by ▇▇▇▇ ▇▇▇▇▇ as tenant under the existing Leases.
4.4 Access and Parking Requirements. The Parcel must have legal
access, directly or pursuant to the CC&R's described in Section 5.3 below, onto
a public road. The Parcel and the remaining Center must independently have
sufficient parking to comply with current applicable parking codes (without
consideration of any reciprocal parking arrangements between the Parcel and the
Remaining Center).
4.5 Authorized Representatives or Contact Person(s). Each party will
at all times have one or more persons to be designated by it to be the contact
person with respect to any request for a decision or any consent or approval
required under this Agreement. ▇▇▇▇ ▇▇▇▇▇'▇ initial designated contact persons,
each of whom also has authority to bind ▇▇▇▇ ▇▇▇▇▇, are its: Senior Vice
President of Corporate Facilities Division (▇▇▇▇▇ ▇. ▇▇▇▇▇▇); and Vice President
of Acquisition and Development (▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇). Metropolitan's initial
contact person is
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its: Asset Manager, Real Estate Investments (▇▇▇ Hills). Designation of, and any
change to the designation of, authorized representatives or contact persons will
be by written notice given in the manner provided herein.
4.6 Reports and Related Matters. ▇▇▇▇ ▇▇▇▇▇ will provide written
status reports on the progress in preparing and applying for necessary
governmental approvals for the subdivision or partition of Parcels and the
conditions and requirements of the governmental authorities therefor.
Metropolitan will promptly notify ▇▇▇▇ ▇▇▇▇▇ of any matter in such reports that
is not acceptable to Metropolitan.
4.7 Execution of Permits and Approvals. With respect to execution of
applications for permits and approvals required by governmental authorities from
the record owner of the Parcel in connection with the subdivision and/or
partition of the Parcels, Metropolitan shall execute such applications and
return same to ▇▇▇▇ ▇▇▇▇▇ within five (5) business days after receipt of such
applications, provided that (i) the matters set forth in the application has
been approved (or deemed approved) by Metropolitan, to the extent approval is
otherwise required by this Agreement, and (ii) the applications contain a legend
or other writing notifying the governmental authority substantially as follows:
"Metropolitan Life Insurance Company has executed the
attached application solely because Metropolitan is the
record owner of the subject property. ▇▇▇▇ ▇▇▇▇▇ has applied
for and is seeking the subject permit. The subject property
is currently under contract to ▇▇▇▇ ▇▇▇▇▇, but title has not
been transferred. Metropolitan understands that the
governmental authority shall look solely to ▇▇▇▇ ▇▇▇▇▇ for
compliance with the terms of the permit."
The Option Term shall be extended on a day-to-day basis equal to the number
of days in which Metropolitan may fail to respond, within the time periods
provided herein, to a matter that requires Metropolitan's execution under this
Section.
5. Procedures Concerning Conveyance of Parcels. Upon approval of the
matters that require approval under Section 4 above, ▇▇▇▇ ▇▇▇▇▇ will be entitled
to finalize the subdivision or partition and exercise its Option to obtain a
conveyance of the Subdivided Parcel, pursuant to the terms of this Section 5,
provided that each of the following can be accomplished with respect to such
Subdivided Parcel within the Term of this Agreement:
5.1 As-Is Sale; Closing. ▇▇▇▇ ▇▇▇▇▇ will prepare and submit to
Metropolitan, for its review and approval, the form of purchase and sale
agreement and deed for the conveyance of the Subdivided Parcel. The form of
purchase and sale agreement is attached hereto as Exhibit D.
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The closing of the conveyance of the Subdivided Parcel will be on a date,
to be selected by ▇▇▇▇ ▇▇▇▇▇ and reasonably acceptable to Metropolitan, within
thirty (30) days after ▇▇▇▇ ▇▇▇▇▇'▇ delivery of the form of purchase and sale
agreement, the deed and the materials required under this Section 5. The
Subdivided Parcel shall be conveyed to ▇▇▇▇ ▇▇▇▇▇ on an "as-is, where-is" basis,
with all faults. The form of deed and terms of such conveyance are as set forth
in Exhibit D. The closing will be on a Parcel-by Parcel basis (but the parties
will reasonably co-operate on efforts to consolidate the closings, if feasible).
If an escrow or closing agent is desired to close the conveyancing of the
Parcel, the parties will use First American Title Insurance Company (Portland
office), provided that Metropolitan receives a closing protection letter from
FATCO's parent, First American Title Insurance Company substantially in the form
Metropolitan received with respect to the Holdback Escrow.
5.2 Existing Loans. Any loans encumbering the fee interest in a Parcel
(except for the ground lease trust deed created February 14, 1994 encumbering
Beaverton Town Center) shall be satisfied by Metropolitan or released from the
Parcel at the time of conveyance of such Parcel. ▇▇▇▇ ▇▇▇▇▇ will be responsible
for paying any prepayment premium payable to the lender upon release of the
Parcel if the loan on the Parcel was one of the Existing Mortgages (as defined
in the Leases) on the Shopping Center. The parties will reasonably cooperate and
keep the other party informed about the status of communications with the
lenders on any loans encumbering the Shopping Center and the requirements for
release of the Parcel therefrom.
Subject to the qualifications stated below, Metropolitan will be
responsible for paying (from the Option Price or otherwise) any principal
payment required for the partial release and any accrued but unpaid interest.
Title insurance endorsements or updates required by the lender, or reasonable
transfer, release or processing fees required by the lenders on the Existing
Mortgages will be paid by ▇▇▇▇ ▇▇▇▇▇. The recording fees for release of the
Existing Mortgages will be paid by ▇▇▇▇ ▇▇▇▇▇. Recording fees and any transfer,
release or processing fees required by any lenders on loans other than the
Existing Mortgages will be paid by Metropolitan. If the holder of one of the
Existing Mortgages has the right to refuse prepayment, or will not release its
lien from the Parcel, then Metropolitan will be under no obligation to convey
the Parcel to ▇▇▇▇ ▇▇▇▇▇.
5.3 CC&R's. The parties have approved the form of Covenants,
Conditions and Restrictions ("CC&R's") to be executed and recorded against the
Subdivided Parcel and Remaining Center immediately prior to or contemporaneously
with the conveyance of the Subdivided Parcel. The form of the CC&R's is attached
as Exhibit E, except that the CC&R's for the Beaverton property is attached as
Exhibit F. The CCR's will bind the parties' respective interests and not be
subordinate to any financing placed thereon (except for the ground lease trust
deed created February 14, 1994 encumbering Beaverton Town Center).
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As to any matter under the CCR's which by its terms may be "deemed
approved" by Metropolitan, Metropolitan will, within ten (10) days after receipt
of a request for acknowledgment that the matter was deemed approved, confirm in
writing the approval of the matter in question. Except for the first such
acknowledgment in any twelve (12) month period (for which there will no charge
for the confirming letter), Metropolitan may charge, and ▇▇▇▇ ▇▇▇▇▇ will pay, a
fee of $1,000 for each confirming letter that ▇▇▇▇ ▇▇▇▇▇ requires to confirm
such approval (as a result of expiration of a time period after which the matter
was "deemed approved") under this Agreement.
Pursuant to the CCR's for each of the Shopping Centers, Metropolitan has
granted (or shall grant) ▇▇▇▇ ▇▇▇▇▇ a license to exercise the rights of
Declarant in accordance with the terms thereof. Metropolitan shall not revoke
any such license, or any portion thereof, or notify any of the respective Owners
(as defined in the CCR's) under such CCR's that such license, or any portion
thereof, has been revoked, unless one or more of the following events occurs:
(i) expiration or termination of the respective Lease covering a portion of the
Shopping Center encumbered by such CC&Rs; (ii) any material breach by ▇▇▇▇
▇▇▇▇▇, or any of its corporate subsidiaries or affiliates, under any of the
Leases; or (iii) any material default by ▇▇▇▇ ▇▇▇▇▇, or any of its corporate
subsidiaries or affiliates, under the CCR's; or (iv) ▇▇▇▇ ▇▇▇▇▇ improperly
exercising the license granted under such CCR's, but excluding any exercise done
in a good faith belief that ▇▇▇▇ ▇▇▇▇▇ was permitted to execute which only has a
de minimis detrimental effect on the Shopping Center. In the event of any events
described in subsection (ii), (iii) or (iv) above, Metropolitan shall have the
option, exercisable upon written notice to ▇▇▇▇ ▇▇▇▇▇ to revoke the entire
license, or any portion thereof.
This provision will survive the closing of the purchase of the Parcel by
▇▇▇▇ ▇▇▇▇▇ and the recordation of the deed for the Parcel to ▇▇▇▇ ▇▇▇▇▇.
5.4 Final Subdivision or Partition; ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Compliance. At
the time of closing, the Subdivided Parcel and the Remaining Center will each be
separate legal lots, in final compliance with all applicable legal requirements
concerning subdivision and partition, and a copy of the final subdivision or
partition map (as approved by the parties and as filed with the City/County)
will have been delivered to Metropolitan. Metropolitan's approval of the final
subdivision or partition map shall be subject to the approval standards set
forth in Sections 4.2 and 4.3. For purposes of this Agreement, compliance with
all applicable legal requirements concerning subdivision and partition will not
be considered "final" until all rights of third-party appeal of the governmental
action have expired. ▇▇▇▇ ▇▇▇▇▇ shall take all necessary steps, at ▇▇▇▇ ▇▇▇▇▇'▇
cost, to comply with all notification and reporting requirements, if applicable,
of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended (15
U.S.C. ss. 18a) (the "▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act") and to advise Metropolitan as to
whether notification on reporting would be required by Metropolitan, and to
ensure that the conveyance of each Subdivided Parcel shall not violate, or
create a state of facts that would violate, (i) any zoning, use or other ▇▇▇▇,
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or (ii) restrictions placed on the Shopping Centers by encumbrances, such as
leases and CC&R's with respect to both the Subdivided Parcel and the Remaining
Center, and shall furnish evidence reasonably satisfactory to Metropolitan to
such effect. Metropolitan shall reasonably cooperate with ▇▇▇▇ ▇▇▇▇▇, at no cost
or detriment to Metropolitan, in ▇▇▇▇ ▇▇▇▇▇'▇ efforts to achieve such
compliance.
5.5 Title Endorsements; Survey. At ▇▇▇▇ ▇▇▇▇▇'▇ cost, Metropolitan's
owner's title policies (and title coverage for the Leases, if any) with respect
to the Shopping Center shall be endorsed at the time each Subdivided Parcel is
conveyed, to conform the legal descriptions set forth in the existing title
policies to the legal description of the Remaining Centers and to provide
coverage that the Remaining Center is properly subdivided. ▇▇▇▇ ▇▇▇▇▇ will
provide to Metropolitan a boundary survey of the Subdivided Parcel and of the
Remaining Center.
5.6 Tax Parcelization. In the event that a Subdivided Parcel and the
applicable Remaining Center are not separate tax parcels at the time of
conveyance of the Subdivided Parcel, ▇▇▇▇ ▇▇▇▇▇ shall take all necessary steps
to cause the creation of the Subdivided Parcel as a separate tax parcel at the
earliest available time (which may not be until the next tax year after the year
in which the closing of the conveyance occurred). ▇▇▇▇ ▇▇▇▇▇ shall indemnify
Metropolitan from payment of taxes, fees and penalties relating to the Remaining
Center and the applicable Subdivided Parcel for the remainder of the term of the
Lease covering the Shopping Center or until the separate tax parcels have been
created.
5.7 Lease Amendment. Metropolitan and ▇▇▇▇ ▇▇▇▇▇ shall cause each
Lease relating to a Shopping Center to be amended, at the time of such
conveyance, to reflect the conveyance of the applicable Subdivided Parcel. The
form of the Lease amendment will be as attached hereto as Exhibit G. In no event
shall the Lease amendment result in any reduction in the rent payable by tenant
under the Lease.
5.8 Prompt Response to Requests. If Metropolitan has questions or
reasonably requires additional information to verify that the conveyance of the
Subdivided Parcel will not cause the Remaining Center to be in violation of any
applicable ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ will promptly respond to the request and use all
commercially reasonable efforts to satisfy the same.
If Metropolitan has objections to any request, report, application or
document submitted to Metropolitan, under this Section 5 or Section 4 above
(except as provided in Section 4.7 above), Metropolitan will notify ▇▇▇▇ ▇▇▇▇▇
as to its objections promptly and in any event within fifteen (15) calendar days
of receipt of all information pertaining to the request, report, application or
document that Metropolitan reasonably needs to make an informed decision.
Failure to notify ▇▇▇▇ ▇▇▇▇▇ as to an objection within such 15-day period will
conclusively be deemed an approval of the request, report, application or
document; provided, that if ▇▇▇▇ ▇▇▇▇▇ reasonably requires execution of an
application or document or written confirmation of such approval from
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Metropolitan before proceeding on the matter in question and notified
Metropolitan of such at the beginning of such 15-day period, ▇▇▇▇ ▇▇▇▇▇ will not
be required to rely on the "deemed approved" provision of this Agreement and may
require written confirmation or execution of the application or document by
Metropolitan (and each day after the 15-day period in which Metropolitan delays
in providing such written confirmation or execution will extend the Term of this
Agreement). In the event that Metropolitan reasonably believes that more than
fifteen (15) days are necessary to evaluate the request due to the complexity of
the particular matter which Metropolitan is then reviewing, Metropolitan shall
notify ▇▇▇▇ ▇▇▇▇▇ of such within such fifteen (15) day period and the parties
shall reasonably agree to an extended period (but the extension beyond the
15-day period will extend the Option Term).
5.9 Effect of Expiration of Term. At the expiration of the Term of the
Option (as it may be extended for Metropolitan's delays, as provided herein),
Metropolitan's obligation to convey the Parcels not yet conveyed will cease.
5.10 Metropolitan's Delays. With respect to any extension of the
Option Term to which ▇▇▇▇ ▇▇▇▇▇ believes it is entitled under the terms of this
Agreement, ▇▇▇▇ ▇▇▇▇▇ shall notify Metropolitan in writing of ▇▇▇▇ ▇▇▇▇▇'▇
calculation of the number of days of delay for each consent or approval sought
no later than ten (10) business days after the last day of such delay, together
with ▇▇▇▇ ▇▇▇▇▇'▇ determination of the new Option Term expiration date. Delivery
of the notice shall be a requirement of ▇▇▇▇ ▇▇▇▇▇'▇ entitlement to such
extensions.
6. Costs and Expenses. Unless otherwise allocated herein, all costs and
expenses relating to the transactions described herein shall be borne solely by
▇▇▇▇ ▇▇▇▇▇, except for Metropolitan's attorneys' fees (which shall be paid by
Metropolitan) and the administrative cost of Metropolitan's time in
administering this Agreement. Any taxes or increases in taxes on the Remaining
Centers caused by or relating to the conveyance of the Parcels to ▇▇▇▇ ▇▇▇▇▇
shall be borne solely by ▇▇▇▇ ▇▇▇▇▇ throughout the term of the Leases.
7. Independent Conveyance. The fact that one or more Parcels may not be
conveyed, whether due to noncompliance with the terms of this Agreement or
otherwise, shall, in and of itself, (i) have no effect on the conveyance of the
other Parcels, and other Parcels shall be conveyed pursuant to the terms of this
Agreement, or (ii) not entitle ▇▇▇▇ ▇▇▇▇▇ to any reduction or refund of any
portion of the Option Price. However, no provision of this Agreement will be
construed to limit a party's right to pursue any right or remedy permitted under
applicable law (including, without limitation, specific enforcement) in the
event of the other party's breach under this Agreement.
8. Repurchase Option. Metropolitan will have a repurchase option pursuant
to which Metropolitan may elect to re-acquire, exercisable within thirty (30)
days after the date of termination or expiration of the Lease of the Remaining
Center, any Parcel conveyed to ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
9
▇▇▇▇▇ pursuant to this Agreement and with respect to which ▇▇▇▇ ▇▇▇▇▇ has not
entered into a sale, exchange or bona fide ground lease to an unaffiliated third
party or improved such Parcel with additional retail space (whether or not the
Parcel was sold, exchanged or leased) (an "Unconveyed Parcel"). The purchase
price for the Unconveyed Parcel will be its Option Price. This option to
repurchase will automatically terminate as of the closing date for the sale or
exchange or the effective date for the bona fide ground lease of a Parcel to a
bona fide third party not affiliated with ▇▇▇▇ ▇▇▇▇▇ or the date on which ▇▇▇▇
▇▇▇▇▇ has completed construction of improvements with additional retail space
(whether or not the Parcel has been sold, exchanged or leased). Metropolitan,
upon request, will execute an acknowledgment of termination of the repurchase
option or other document reasonably required by ▇▇▇▇ ▇▇▇▇▇ or the title company
to evidence the termination of the repurchase option.
In addition, in the event ▇▇▇▇ ▇▇▇▇▇ discontinues its plan to sell,
exchange or ground lease a Parcel or to improve a Parcel with additional retail
space, ▇▇▇▇ ▇▇▇▇▇ will have a right, by written notice to Metropolitan, to offer
to Metropolitan the option to re-acquire the Parcel. Metropolitan will have 180
days after receipt of such notice to notify ▇▇▇▇ ▇▇▇▇▇ of its election to
re-purchase the Parcel (in which event the parties will proceed to close the
repurchase on the terms stated herein), or Metropolitan's option to repurchase
under this Section 8 will cease and terminate.
9. Confidentiality. Subject to the qualifications stated below, each party
and its representatives shall hold in strictest confidence all data and
information obtained with respect to the other party or its business, whether
obtained before or after the execution and delivery of this Agreement, and shall
not disclose the same to others; provided, however, that it is understood and
agreed that a party may disclose such data and information in confidence (and
will not be liable for any breach of confidentiality by the recipient) to its
employees, directors, officers, partners, or to its accountants, legal counsel
and professional advisors; (ii) such data and information may be disclosed or
submitted as may be required in connection with any litigation, arbitration or
other proceeding between the parties; and/or (iii) such data and information may
be disclosed or submitted as may be legally required by any governmental or
court order or law or regulation.
In the event this Agreement is terminated or a party fails to perform
hereunder, the party will, upon the other party's request, promptly return to
the other party any written statements, documents, schedules, exhibits or other
written information obtained from the other party in connection with this
Agreement or the transaction contemplated herein with respect to those aspects
of the Agreement which are then not consummated. In the event of a breach or
threatened breach by a party or its agents or representatives of this Section 9,
the non-defaulting party shall be entitled to an injunction restraining other
party or its agents or representatives from disclosing, in whole or in part,
such confidential information. Nothing herein shall be constructed as
prohibiting a party from pursuing any other available remedy at law or in equity
for such breach
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
10
or threatened breach. The provisions of this Section 9 shall survive closing of
the sale of the Parcels or any termination of this Agreement.
10. Public Disclosure. Prior to and after the closing of the sale of the
Parcels, any release to the public of information with respect to the sale
contemplated herein or any matters set forth in this Agreement will be made only
in the form reasonably approved by ▇▇▇▇ ▇▇▇▇▇ and Metropolitan. The provisions
of this Section 10 shall survive the closing of the sale of the Parcels or any
termination of this Agreement.
11. Assignment. Subject to the provisions of this Section 11, the terms and
provisions of this Agreement are to apply to and bind the permitted successors
and assigns of the parties hereto, and will be deemed a covenant on the
respective Shopping Centers to which it pertains. ▇▇▇▇ ▇▇▇▇▇ may not assign its
rights under this Agreement other than to a wholly owned subsidiary or affiliate
of ▇▇▇▇ ▇▇▇▇▇.
Notwithstanding the foregoing, under no circumstances shall ▇▇▇▇ ▇▇▇▇▇ have
the right to assign this Agreement to any person or entity owned or controlled
by an employee benefit plan if Metropolitan's sale of a Parcel to such person or
entity would, in the reasonable opinion of Metropolitan's ERISA advisor, create
or otherwise cause a "prohibited transaction" under ERISA. The provisions of
this Section 11 shall survive the closing of the sale of the Parcels or any
termination of this Agreement.
12. Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United States 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 Agreement shall be as follows:
If to Metropolitan:
Metropolitan Life Insurance Company
Real Estate Investments
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Vice President
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
11
With a copy to:
Metropolitan Life Ins. Co.
Real Estate Investments
Dol Devill, Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇, Inc.
Real Estate Division
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President,
Director of Real Estate
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If any notice to ▇▇▇▇ ▇▇▇▇▇ is mailed, the address for notices will not be the
street address shown herein but will be: ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
With a copy to:
▇▇▇▇ ▇▇▇▇▇, Inc.
Real Estate Division
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate Counsel
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
13. Modifications. This Agreement 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.
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
12
14. Entire Agreement. This Agreement, including the exhibits and schedules
hereto, contains the entire agreement between the parties hereto pertaining to
the subject matter hereof and fully supersedes all prior written or oral
agreements and understandings between the parties pertaining to such subject
matter.
15. Relation of the Agreement to Leases. This Agreement does not supersede
or otherwise affect the purchase option and other rights in favor of ▇▇▇▇ ▇▇▇▇▇
(exercisable at the end of the Lease term as to the Shopping Center) as set
forth in the Leases (except to the extent the purchase option in the Lease would
be inapplicable to a Parcel already conveyed under this Agreement), or otherwise
affect the rental or other rights and obligations of the parties under the
Leases covering the Shopping Centers, but will constitute an addition and
addendum to such Leases, to which reference is hereby made.
16. Further Assurances. Each party agrees that it will execute and deliver
such other documents and take such other action, whether prior or subsequent to
the closing of the sale of the Parcels, as may be reasonably requested by the
other party to consummate the transaction contemplated by this Agreement. The
provisions of this Section 16 shall survive the closing of the sale of the
Parcels.
17. Counterparts. This Agreement 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.
18. Facsimile Signatures. In order to expedite the transaction contemplated
herein, telecopied signatures may be used in place of original signatures on
this Agreement. Metropolitan and ▇▇▇▇ ▇▇▇▇▇ 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 Agreement based on the forms of signature.
19. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement 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.
20. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon. ▇▇▇▇ ▇▇▇▇▇ and Metropolitan
agree that the provisions of this Section 20 shall survive the closing of the
sale of the Parcels or any termination of this Agreement.
21. No Third-Party Beneficiary. The provisions of this Agreement and of the
documents to be executed and delivered at the closing of the sale of the Parcels
are and will be
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
13
for the benefit of Metropolitan and ▇▇▇▇ ▇▇▇▇▇ only and are not for the benefit
of any third party, and accordingly, no third party (other than an approved
successor and assign of the parties' interest, subject to the provisions hereof)
shall have the right to enforce the provisions of this Agreement or of the
documents to be executed and delivered at the closing of the sale of the
Parcels.
22. Captions. The section headings appearing in this Agreement 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.
23. Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement 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 Agreement or
any exhibits or amendments hereto.
24. 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.
25. Waiver. Any failure by a party at any time to require performance of
any provision of this Agreement 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 Agreement.
26. Recordation. This Agreement may not be recorded to any party hereto
without the prior written consent of the other party hereto. The provisions of
this Section 26 shall survive the closing of the sale of the Parcels or any
termination of this Agreement.
27. Time of the Essence. The parties hereto expressly agree that time is of
the essence of this Agreement.
28. Authority. By execution of this Agreement, each party represents and
covenants with the other that the party has the corporate authority and right to
enter into this Agreement and to perform its terms, and that each person signing
this Agreement for the party is duly and validly authorized to do so.
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
14
29. Covenants Concerning Beaverton Property. As to the Beaverton property,
the following will also be applicable:
(i) unless and until the Ground Lease, Ground Lease Interests and
Lessee Financing Instruments (as defined in the document attached as Exhibit F
to this Agreement) are subject to the CCR's attached as Exhibit F ("Beaverton
CCR's") to this Agreement, or the Ground Lease, Ground Lease Interests and
Lessee Financing Instruments are terminated, ▇▇▇▇ ▇▇▇▇▇ (or its successor as
holder of the lessor's interest in the Ground Lease) will (a) not modify the
Ground Lease in a manner that would permit an action that is restricted or
prohibited by the Beaverton CCR's without the prior written approval of the
Declarant, (b) obtain the approval of Declarant as to any matter which the
Beaverton CCR's require to be approved by Declarant, if and to the extent that
▇▇▇▇ ▇▇▇▇▇'▇ consent or approval to such matter is required under the Ground
Lease, (c) will use commercially reasonable efforts to enforce obligations under
the Ground Lease whose performance is required to comply with the restrictions
and requirements of the Beaverton CCR's, and (d) to the extent that ▇▇▇▇ ▇▇▇▇▇
(as holder of the lessor's interest in the Ground Lease) has the right under the
Ground Lease to grant (or deny) approval of improvements thereon, ▇▇▇▇ ▇▇▇▇▇
will not approve such improvements without first obtaining Declarant's approval
to the extent the improvement would have required the approval of Declarant
under the Beaverton CCR's, except for reconstruction of improvements in
connection with restoration of casualty, major remodeling or other events where
the reconstructed improvements are substantially the same as existing as of the
date hereof, and except for Minor Improvements (as defined below) therein. A
"Minor Improvement" is any alteration or addition that is not structural in
nature (including, without limitation, interior tenant improvements, which may
be without Declarant's consent), or which (singularly or in the aggregate in any
calendar year) involve less than a capital expenditure of $2,000,000 (which
threshold figure will be adjusted from time to time after the date of
recordation of this Declaration by changes in the CPI as provided in Section 12
of the Beaverton CCR's). Changes to the Common Areas within the Town Center
Property (as defined in the Beaverton CCR's) may be made without Declarant's
consent provided that the restrictions in Section 15.26 of the CCR's are
satisfied.
(ii) at such time as ▇▇▇▇ ▇▇▇▇▇ desires to convey fee title to the
Beaverton property to a third party (other than a wholly-owned affiliate of ▇▇▇▇
▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇▇ will either (a) cause the Beaverton property to be subject to
the Beaverton CCR's, and the holders of the Ground Lease, Ground Lease Interests
and Lessee Financing Instruments must subordinate their interests to the
Beaverton CCR's (as referenced in Section 15.24) or (b) the Ground Lease, Ground
Lease Interests and Lessee Financing Instruments to be terminated as a condition
to ▇▇▇▇ ▇▇▇▇▇'▇ right to convey the fee title to the Beaverton property; and
(iii) this Section 29 will constitute an addition to the lease of the
Beaverton ▇▇▇▇ ▇▇▇▇▇ Lease, and will survive the closings under the Option (if
▇▇▇▇ ▇▇▇▇▇ acquires a parcel at the Beaverton property), and will be fully
enforceable thereafter as a covenant of ▇▇▇▇ ▇▇▇▇▇, and
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
15
shall run the land of the Beaverton property, and any default in the
performance of such covenant will be a non-monetary default under the Beaverton
▇▇▇▇ ▇▇▇▇▇ Lease.
30. Approvals. Metropolitan shall not be arbitrary or capricious in
withholding its consent or approval under this Agreement or revoking the license
referred to in Section 5.3.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date.
METROPOLITAN:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Ass't. V. P.
--------------------------------
▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇, INC.,
a Delaware corporation,
for itself and its wholly owned corporate subsidiaries
who are collectively referred to as "▇▇▇▇ ▇▇▇▇▇"
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: SR Vice President
--------------------------------
▇▇▇▇ ▇▇▇▇▇-Metropolitan Agreement
Concerning Pads at Shopping Centers
February 4, 1997
16
