Exhibit 10.50
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (the "Agreement") is made as of
March 8, 2005, by and between Levitz SL, L.L.C. (the "Company") and Acadia
Levitz, LLC (the "Investor"). Capitalized terms used herein but not otherwise
defined have the meaning set forth in the Operating Agreement (as defined
below).
BACKGROUND
A. The Company was formed under Delaware Law on May 21, 1999.
B. The Company operates pursuant to an operating agreement dated
May 21, 1999, as amended on June 21, 2002, and as further amended on April 30,
2004 (collectively, the "Existing Operating Agreement").
C. The Investor desires to acquire a preferred membership
interest in the Company in accordance with the term hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. The Investor shall contribute $20 million to the Company in
exchange for a preferred equity interest (the "Preferred Interest") in the
Company to be governed in accordance with the Third Amendment to Existing
Operating Agreement (the "Third Amendment to Operating Agreement") in the form
attached hereto as Exhibit "A". The Existing Operating Agreement and the Third
Amendment to Operating Agreement are collectively, the "Operating Agreement".
2. Authorization and Closing.
(a) Authorization. The Company has authorized the
issuance and sale to the Investor of the Preferred Interest having the rights,
terms, covenants and preferences set forth in the Third Amendment to Operating
Agreement.
(b) Issuance of Preferred Interest; Contribution. Upon
the terms and subject to the conditions set forth herein, the Company shall
issue to the Investor the Preferred Interest in exchange for an aggregate
contribution to the Company of Twenty Million Dollars (U.S. $20,000,000) (the
"Contribution Amount").
(c) Closing. The closing of the contribution and
acquisition of the Preferred Interest (the "Closing") shall take place at the
office of Klaff Realty, LP, 122 S. Michigan Avenue, Suite 1000, Chicago, IL
60603-6116, March 8, 2005, or at such other place or such other time or date as
the Investor and the Company may designate (the "Closing Date"), which Closing
may be accomplished by mail.
(d) Investor Closing Deliveries. At or prior to the
Closing, the Investor will deliver to the Company:
(i) The Contribution Amount by wire transfer of
immediately available funds to an account designated by the Company.
(ii) The Third Amendment to Operating Agreement,
duly executed by the Investor.
(iii) The Indemnity Agreement in the form attached
hereto as Exhibit "B", duly executed by Acadia Realty Limited Partnership, and
made in favor of the L-A Members and Klaff Realty.
(iv) Certified resolutions from the Board of
Trustees of Acadia Realty Trust authorizing the entering into and execution of
this Agreement by the Investor and all other documents to be delivered in
connection with the Closing and the transactions herein contemplated.
(v) Opinion of counsel reasonably satisfactory
to the Company concerning due authorization and acquisition of the Preferred
Interest by the Investor.
(vi) Such other documents and instruments as
shall be reasonably required in order for the Investor to consummate this
transaction in accordance with the terms and conditions of this Agreement.
(e) Company Closing Deliveries. At or prior to the
Closing, the Company will deliver to the Investor:
(i) The Third Amendment to Operating Agreement,
duly executed by the Continuing Members.
(ii) The Guaranty in the form attached hereto as
Exhibit "C", duly executed by the L-A Member and the Klaff Member, and made in
favor of the Investor.
(iii) Certified resolutions from the Voting
Members authorizing the entering into and execution of this Agreement by the
Company and all other documents to be delivered in connection with the Closing
and the transactions herein contemplated.
(iv) (1) A certified copy of the Certificate of
Formation, the limited liability company agreement, and a good standing
certificate, each dated within thirty (30) days of the Closing Date, with
respect to the Company and each Subsidiary that owns or leases the following
properties: Northridge, CA, Oxnard, CA, St. Paul, MN, Farmingdale, NY,
Milwaukie, OR and Woodbridge, NJ (each a "Material Property" and collectively,
the "Material Properties"), and a (2) copy of the Certificate of Formation or
Certificate of Limited Partnership, as applicable, and the limited liability
company agreement or limited partnership agreement, as applicable, with respect
to each other Subsidiary.
(v) A sworn statement from an authorized
signatory on behalf of the Company made under oath and under penalties of
perjury that the Company is not a "foreign person" and containing such
information as shall be required by Internal Revenue Code Section 1445(b)(2) and
the regulations issued thereunder.
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(vi) A copy of the existing title insurance
policy for each Material Property (each, a "Title Insurance Policy" and
collectively, the "Title Insurance Policies"), together with an update (each, an
"Title Update" and collectively, the "Title Updates") to each such Title Policy.
(vii) A copy of the existing survey with respect
to each Material Property.
(viii) With respect to each Property, all
environmental reports and any amendments or supplements thereto (each, an
"Environmental Report" and collectively, the "Environmental Reports").
(ix) A consent from the Levitz Lender (the
"Lender Consent") (1) certifying the outstanding principal amount of the Levitz
Loan, and that to its knowledge no default exists thereunder, and (2) consenting
to the admission of the Investor to the Company and the other transactions
contemplated by this Agreement.
(x) Each of the material loan documents (the
"Loan Documents") evidencing, securing or guaranteeing the Loan and any and all
modifications or amendments thereto.
(xi) [Intentionally Deleted].
(xii) A true and complete copy of the Unitary
Lease and any and all other Leases (as defined below) and any and all amendments
and modifications thereto.
(xiii) A true and complete copy of each Overlease
and any and all amendments and modifications thereto with respect to the
following properties: Woodbridge, NJ, Sacramento, CA, Willowbrook, NJ, and San
Leandro, CA.
(xiv) Opinion of counsel reasonably satisfactory
to the Investor concerning due authorization and issuance of the Preferred
Interest by the Company.
(xv) Such other documents and instruments as
shall be reasonably required in order for the Company to consummate this
transaction in accordance with the terms and conditions of this Agreement.
3. Representations and Warranties of Company. The Company hereby
represents and warrants to the Investor that:
(a) Organization and Limited Liability Company Power. The
Company is a limited liability company duly formed, validly existing and in good
standing under the laws of Delaware. Each of the Company and the Subsidiaries
has all requisite limited liability company power and authority or limited
partnership power and authority to own, operate and lease its properties, to
carry on its business as currently conducted and, subject to the Lender Consent
and the consents of the Continuing Members, to execute and deliver this
Agreement, the Third Amendment to Operating Agreement and any other instruments
to be delivered pursuant hereto, to carry out the transactions contemplated by
each of this Agreement and the Third
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Amendment to Operating Agreement and to perform all of its obligations under
this Agreement and the Third Amendment to Operating Agreement. The copy of the
Company's Existing Operating Agreement and the Company's Certificate of
Formation attached hereto as Exhibits "E-1" and "E-2", respectively, are true,
correct and complete copies. The Existing Operating Agreement has not been
altered or amended, except as shown in Exhibit "E-1" and is in full force and
effect. There are no oral modifications, amendments or waivers by or among the
members pertaining to the subject matter of the Existing Operating Agreement.
The Company's obligations set forth in Sections 4.8, 4.9 and 4.10 of the
Existing Operating Agreement have been satisfied in full.
(b) Authorization; No Breach. Subject to the Lender
Consent and the consents of the Continuing Members, the execution, delivery and
performance of each of this Agreement and the Third Amendment to Operating
Agreement have been duly authorized by the Company. Subject to the Lender
Consent and the consents of the Continuing Members, each of the Agreement and
the Third Amendment to Operating Agreement constitutes valid and binding
obligations of the Company, enforceable in accordance with its terms except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally and subject to the
availability of equitable remedies. Subject to the Lender Consent and the
consents of the Continuing Members, the execution and delivery by the Company of
this Agreement and the Third Amendment to Operating Agreement, the offering,
sale and issuance of the Preferred Interest hereunder and the fulfillment of and
compliance with the respective terms hereof and thereof by the Company, does not
and shall not conflict with or result in a breach of the terms, conditions or
provisions of, constitute a default under, result in a violation of, or require
any authorization, consent, approval, exemption or other action by any person or
notice to any court or administrative or governmental body pursuant to, (1) the
organizational documents of the Company or the Subsidiaries, (2) any law,
statute, rule or regulation to which the Company or the Subsidiaries is subject,
or (3) any agreement, instrument, order, judgment or decree to which the Company
or the Subsidiaries is subject, except, in the case of subclauses (2) and (3)
above, for any conflict, result, default, right or other requirement that could
not reasonably be expected to have a material adverse effect on the transaction
contemplated hereby.
(c) Capitalization and Related Matters. Exhibit" F"
attached hereto sets forth the Members of the Company and each such Member's
Percentage Interest immediately following the Closing. The Continuing Members
are the only Members of the Company as of the date hereof and collectively own
100% of the Percentage Interests in the Company.
(d) Properties.
(i) The Company or one of the Subsidiaries is
the sole owner of good, valid, fee simple, marketable and insurable title to
each of those Properties listed on Exhibit "G-1" attached hereto (collectively,
the "Fee Properties") and any and all fixtures located at each Fee Property or
in the buildings, structures and other improvements thereon, is in each case
free and clear of all Encumbrances, except for Permitted Encumbrances (as
hereinafter defined). For purposes of this Agreement, the term "Encumbrances"
shall mean any liens, mortgages, deeds of trust, security agreements, security
interests, claims, options, rights of
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purchase or first refusal, encroachments, rights-of-way, easements, operating
agreements, covenants, encumbrances, reservations, orders, decrees, judgments,
leases, subleases, licenses, assignments, agreements, charges, conditions,
restrictions, rights of others or other matters affecting title to the
Properties after the date hereof. For purposes of this Agreement, the term
"Permitted Encumbrances" means: (1) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (2) any matter set forth in a Title Insurance Policy or Title Update
delivered by the Company to the Investor pursuant to Section 2.1(e)(vi) hereof
or in the title policy for any other Property, (3) the lien granted pursuant to
any of the Loan Documents, and (4) any other matters described in Exhibit "H"
attached hereto affecting title to Properties.
(ii) (1) The Company or one of the Subsidiaries
is the holder of the lessee's interest in each Property listed on Exhibit "G-2"
attached hereto (the "Leased Properties"). (2) The Company or one of its
Subsidiaries has a good, valid, marketable and insurable leasehold interest in
each such Property, subject to the Permitted Encumbrances. (3) Exhibit "G-2"
includes a description of each Overlease and all amendments and modifications
thereto pursuant to which the Leased Properties are leased. (4) Except for the
Permitted Encumbrances, the Company and the Subsidiaries have not encumbered
their interests in any of the Overleases and the Company has no actual knowledge
of any other encumbrance of such interests. (5) Except as listed in Exhibit "I"
attached hereto, (x) to the Company's actual knowledge, there exists no uncured
event of default by any Subsidiary or the lessor under any Overlease, and (y)
the lessor under each Overlease has not delivered to or received from any
Subsidiary notices of default with respect to its Overlease which are presently
subject to a grace or cure period.
(iii) Except for the Fee Properties listed on
Exhibit "G-1" and the Leased Properties listed on Exhibit "G-2", and personal
property incidental to the use and operation thereof, to the extent such
personal property is owed by the applicable Subsidiary, the Company and the
Subsidiaries own no other property, real or personal, tangible or intangible.
(iv) With respect to each Property for which a
Title Insurance Policy has been delivered pursuant to Section 2.1(e)(vi) hereof,
to the Company's actual knowledge, there has been no material adverse change in
the state of title since the date of such Title Insurance Policy, except as
disclosed in the Title Update for such Property.
(v) To the Company's actual knowledge, except as
forth in Exhibit "J" attached hereto, (1) no part of any Property and no
improvement thereon has been damaged by fire or other casualty or (2) is the
subject of, or is affected by, any condemnation or eminent domain proceeding
currently instituted or pending.
(vi) Except as set forth in the Environmental
Reports delivered to the Investor, the Company has no actual knowledge of the
existence, deposit, storage, removal, burial or discharge of any "Hazardous
Material" on, under or about any Property. Hazardous Material shall mean (1)
asbestos and any chemicals, flammable substances or explosives, any radioactive
materials (including radon), any other hazardous wastes or substances which
have, as of the date hereof, been determined under any applicable Federal, State
or local government law to be hazardous, toxic or waste by the U.S.
Environmental
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Protection Agency, the U.S. Department of Transportation, and/or any
instrumentality now or hereafter authorized to regulate materials and substances
in the environment which has jurisdiction over the Property ("Environmental
Agency"), (2) any oil, petroleum or petroleum derived substance, any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, (3) PDBs, (4) lead, and (5) infectious
materials, which materials listed under items (1), (2), (3), (4) and (5) above
cause the Property (or any part thereof) to be in material violation of any
applicable environmental laws or the regulations of any Environmental Agency so
as to require remediation.
(vii) Except for the Permitted Encumbrances or as
set forth in Exhibit "K" attached hereto, no person has an option to purchase or
rights of refusal to purchase any Property or the buildings, structures or other
improvements thereon or any part thereof or interest therein, except as provided
herein and in the Operating Agreement.
(e) Debt.
(i) (1) With respect to the Properties subject
to the Levitz Loan, there is no indebtedness with respect to any such Property
or any excess cash flow or any residual interest therein, whether secured or
unsecured, other than Permitted Encumbrances and the permitted indebtedness
described in Section 6.8 of the original loan agreement for the Levitz Loan. (2)
With respect to the property held by Portland-Johnson (the "Portland-Johnson
Property"), there is no indebtedness with respect to such property or any excess
cash flow or any residual interest therein, whether secured or unsecured, other
than Permitted Encumbrances and Permitted Indebtedness (as such term is defined
in Section 5.22 of the loan agreement for the Portland-Johnson Loan).
(ii) (1) To the Company's actual knowledge, none
of the Subsidiaries that are subject to the Levitz Loan are in default of any of
the terms, covenants and conditions set forth in the Levitz Loan documents, and
the Company has no actual knowledge of any facts or circumstances which, with
the passage of time or notice or both, would reasonably be likely to constitute
such a default. (2) To the Company's actual knowledge, Portland-Johnson is not
in default of any of the terms, covenants and conditions set forth in the
Portland-Johnson Loan documents, and the Company has no actual knowledge of any
facts or circumstances which, with the passage of time or notice or both, would
reasonably be likely to constitute such a default.
(f) Other Material Contracts and Commitments. Attached
hereto as Exhibit "L" is a true and materially complete list of all contracts,
agreements, commitments and other instruments that are in excess of One Hundred
Thousand ($100,000) Dollars in each instance and to which the Company or any of
the Subsidiaries is a party or by which any or all of them is or are bound as of
the date hereof (collectively, the "Material Contracts"), including all
amendments thereto and modifications thereof. To the Company's actual knowledge,
no party is in default in any material respect under any of the Material
Contracts or (to the extent that it might cause liability from and after the
Closing Date) any prior Material Contracts to which the Company was a party or
by which it was bound (including, without limitation, any contracts of sale and
deeds of real property).
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(g) Books and Records. The books of account and other
records of the Company and the Subsidiaries are in all material respects
complete and correct and have been maintained in accordance with good business
practices.
(h) Tax Returns. All Tax Returns (as hereinafter defined)
required by law to be filed by the Company or the Subsidiaries on or prior to
the date of this Agreement have been filed, and all such Tax Returns are
correct, accurate and complete in all material respects. To the Company's actual
knowledge, the Company has paid all Taxes (as hereinafter defined) shown on such
Tax Returns, except for any contested Taxes, as set forth in Exhibit "M"
attached hereto. For purposes of this Agreement (1) "Tax" or "Taxes" shall mean
any or all federal, state, local or foreign taxes (whether in the nature of
income, franchise, transfer, gains, profits, sales or use, withholding,
employee, excise, personal property, customs, gross receipts or other taxes or
duties of any kind whatsoever) (other than real property taxes, or transfer and
recording taxes, if any, payable by the Company in connection with the
transactions contemplated by this Agreement) and penalties, interest and fines,
with respect thereto and (2) "Tax Return" or "Tax Returns" shall mean any
report, return or other information or statement, or any amendment thereof,
required to be supplied in connection with any Tax. The Company has not filed
with any governmental authority any agreement amending the period for the
assessment of Taxes for which the Company or its Subsidiaries may be liable. To
the actual knowledge of the Company, no audit of any of the tax returns or
reports filed by the Company or the Subsidiaries is in progress or is
contemplated by any governmental authority.
(i) Insurance. Attached hereto as Exhibit "D" are true
and correct copies of certificates with respect to polices of property, fire,
casualty, liability, life, and/or workmen's compensation insurance maintained by
the Company and/or the Subsidiaries. All such policies (1) are fully paid for,
to the Company's actual knowledge, and in full force and effect; and (2) are, to
the Company's actual knowledge, sufficient for compliance by the Company and the
Subsidiaries, as the case may be, with all requirements of law and with the
requirements of all agreements to which the Company and/or the Subsidiaries are
parties. The Company has no actual knowledge that any of the provisions of any
such insurance policy have been violated and the Company and the Subsidiaries
have not received any notice or request from any insurance company or Board of
Fire Underwriters (or organization exercising functions similar thereto) that
was not complied with requiring the performance of any work or alteration with
respect to the Properties, or any part thereof or improvement or structure
thereon, or canceling or threatening to cancel any of said policies or to
increase the premiums therefor.
(j) Litigation; Bankruptcy.
(i) To the Company's actual knowledge, except as
set forth in Exhibit "N" attached hereto, there are no actions, suits, claims,
arbitrations, litigation, proceedings or investigations pending against the
Company or the Subsidiaries, which, if adversely determined, might materially
adversely affect the condition (financial or otherwise) of business of the
Company, any Subsidiary or the condition or ownership of any Property.
(ii) None of the Company or any of the
Subsidiaries is now or has ever been a debtor under any case commenced under the
United States Bankruptcy Code, or any predecessor thereof, or any state
insolvency law, or are any such parties taking any steps to
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commence any such bankruptcy or insolvency proceeding nor, to the Company's
actual knowledge, is any creditor preparing or threatening to commence any
involuntary bankruptcy or involving case against the Company or against any
Subsidiary.
(k) Compliance with Applicable Laws. Except as set forth
in Exhibit "O" attached hereto or in the Environmental Reports, to the Company's
actual knowledge, the Company and the Subsidiaries are in material compliance
with all statutes, laws, ordinances, regulations, rules, determinations,
requirements, orders, judgments and decrees, applicable to it or to its assets,
properties or business, including, without limitation, all applicable federal
and state securities laws and regulations, and all federal, state and local
statutes, laws, ordinances, regulations, rules, requirements, orders, judgments
and decrees, including without limitation, those pertaining to the maintaining,
operating, ownership or management of real property, pertaining to employment
and employment practices, terms and conditions of employment, and wages and
hours, and pertaining to safety, health, fire prevention, environmental
protection, building standards, zoning and other matters. Except as set forth in
Exhibit "O" or the Environmental Reports, none of the Company or the
Subsidiaries has received any written notice that is still outstanding from any
governmental authority having jurisdiction over any Property to the effect that
a Property is not in compliance with applicable laws and ordinances, including
all applicable zoning and land use laws and ordinances (provided that a notice
shall be deemed to be "outstanding" until the Company has paid all amounts due
and owing as a result of such non-compliance).
(l) Leases. Attached hereto as Exhibit "P-1" is a true
and complete list of all agreements pursuant to which any person uses or
occupies or has the right to use or occupy, any part of any Property, including
all amendments thereto and modifications thereof (the "Leases"). To the
Company's actual knowledge, all of the Leases are valid, in full force and
effect and there are no monetary or material non-monetary defaults thereunder on
the part of tenant or the landlord thereunder except as disclosed on Exhibit
"P-2" attached hereto. To the Company's actual knowledge, no tenant under any
Lease has any defense, set-off or claim or any basis for any defense or claim
for reduction, deduction or set-off against the landlord thereunder or the rent
under any such Lease or the other obligations owed by such tenant under such
Lease. Except as disclosed on Exhibit "P-2", no tenant under a Lease has given
the landlord thereunder written notice of any intent to terminate its Lease
prior to the end of its stated term or otherwise to cease the active conduct of
the tenant's business, and no tenant has paid any rent, additional rent or other
charge of any nature for a period of more than thirty (30) days in advance. To
the Company's actual knowledge, there are no brokerage or finders commissions or
other compensation or fees payable after the date hereof by reason of the Leases
or any extensions, expansions, renewals or modifications thereof, or that could
be due in the future, all with respect to amounts owing or owed to any exclusive
leasing agent or pursuant to any exclusive leasing agreement with respect to the
Leases, except as set forth on Exhibit "P-2".
(m) Financial Statements. A true and complete set of
unaudited financial statements of the Company and the Subsidiaries as of
December 31, 2004, has been delivered to the Investor and, to the Company's
actual knowledge, such financial statements present fairly the financial
condition of the Company and of the Subsidiaries in accordance with generally
accepted accounting principals consistently applied, as of the date thereof. To
the Company's actual knowledge, no material adverse change has occurred in the
financial
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condition, operation, assets or liabilities of the Company and of the
Subsidiaries since the date of such financial statements.
(n) Real Estate Taxes. To the Company's actual knowledge,
there are no unpaid or outstanding real estate or other taxes or assessments on
or against the Properties, or any part thereof, except for real estate taxes not
yet due and payable. To the Company's actual knowledge, there are no unpaid or
outstanding charges for water, sewer or other utilities except those not yet due
and payable.
(o) Taxation as Partnership. The Company has been treated
as a partnership and that the Members of the Company as of the date hereof are
taxed as partners for federal, state, local and foreign income tax purposes. The
Company has not filed any election pursuant to Treasury Regulation Section
301.7701 3(c) to be treated as an entity other than a partnership. The Company
has not elected, pursuant to Code Section 761(a) or otherwise to be excluded
from the provisions of Subchapter K of the Code. The Company has prepared and
filed with the IRS and other necessary taxing authorities all documents, if any,
necessary to confirm and maintain its status as a partnership.
(p) No Employees. The Company and each Subsidiary have no
employees.
(q) Subsidiaries. The Company owns a limited liability
company or limited partnership interest, as the case may be, in those
Subsidiaries and their general partners (the "General Partners"), as applicable,
all of which are set forth on Exhibit "Q-1" attached hereto. The only
subsidiaries that the Company has an ownership interest in are the Subsidiaries
and the General Partners listed on Exhibit "Q-1". As of the date hereof, the
Company has good and valid title to an ownership interest in the percentage set
forth on Exhibit "Q-1" with respect to each Subsidiary and General Partner free
and clear of all liens, security interests, options, rights of first refusal and
adverse claims to title of any kind or character, and such interests are not
subject to any agreement (other than this Agreement) providing for the sale or
transfer thereof, except as set forth in Exhibit "Q-2". Each of the Subsidiaries
and General Partners is duly organized, validly existing and in good standing
under the laws of the state of its organization, has the full and unrestricted
power and authority, corporate and otherwise, to own, operate and lease its
properties and to carry on its business as currently conducted. Each
Subsidiary's and General Partner's organizational documents are in full force
and effect. The Company is not in default of any of its obligations under any of
the Subsidiary or General Partners organizational documents and the Company has
no actual knowledge of any other party thereto being in default of its
obligations thereunder, except as set forth on Exhibit "Q-3" attached hereto.
(r) Preferred Interest. The Preferred Interest is not
subject to any lien, pledge or encumbrance of any nature whatsoever and the
Investor is acquiring same free of any rights to same by any other party.
(s) Property Information. The Company has made available
to the Investor true and correct copies of all leases and environmental, title
and survey reports for the
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Properties (collectively with the Loan Documents and the financial statements
referred to in Section 3(t) above, the "Transaction Documents and Information").
(t) No Brokers. The Company is not a party to or in any
way obligated to make any payment relating to, any contract or outstanding claim
for the payment of any broker's or finder's fee in connection with the origin,
negotiation, execution or performance of this Agreement or the acquisition of
the Preferred Interest by the Investor hereunder.
(u) Legal Counsel. The Company has been duly represented
by legal counsel in connection with the negotiation of this Agreement and the
Third Amendment to Operating Agreement.
The representations and warranties of the Company as to itself and the
Subsidiaries set forth in this Section 3 shall be deemed remade as of Closing.
As used in this Agreement, the term "to the Company's actual knowledge" or any
other reference to the knowledge of the Company (a) shall mean and apply to the
actual knowledge of Hersch Klaff and Leslie Marshall (the "Company's Knowledge
Individuals"), and not to any other persons, (b) shall mean the actual (and not
implied or constructive) knowledge of the Company's Knowledge Individuals,
without any duty on the Company's Knowledge Individuals to conduct any
investigation or inquiry of any kind, and (c) shall not apply to or to be
construed to apply to information or material which may be in the possession of
the Company of the Subsidiaries generally or incidentally, but which is not
actually known to the Company's Knowledge Individuals. Similarly, any reference
to any written notice, claim, litigation, filing or other correspondence or
transmittal to the Company or the Subsidiaries set forth herein shall be limited
to refer to only those actually received by or known to the Company's Knowledge
Individuals in the limited manner provided in clauses (a) through (c) above.
Each of the representations and warranties contained in this Section 3 is
subject to the information disclosed in the Transaction Documents and
Information. Each representation and warranty of the Company contained in this
Agreement shall be modified as appropriate so as to disclose any material
inaccuracies or exceptions to such representations or warranties that have
arisen, to the Company's actual knowledge, during the period after the date
hereof and prior to the Closing Date, provided that the Company shall not be
required to disclose any Permitted Changes (as defined below) and its remade
representations and warranties shall be deemed subject to any and all applicable
Permitted Changes. As used in this Agreement, "Permitted Changes" shall mean:
(i) any matters expressly permitted in this Agreement or otherwise specifically
approved or agreed to in writing by the Investor; and (ii) any matter or action
that this Agreement expressly contemplates will take place or occur prior to or
concurrently with the Closing.
Notwithstanding anything to the contrary in this Agreement, the
representations and warranties set forth in Sections 3(d)(ii)(2) and (4),
3(d)(v)(1), 3(d)(vi) and 3(k) shall not apply to the Existing Homelife Demised
Premises. The Existing Homelife Demised Properties are identified on Exhibit
"G-2".
4. Covenants of Company.
(a) Access. The Company shall afford, and shall cause its
Subsidiaries, to afford, to the Investor and the Investor's accountants, counsel
and
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representatives full access during normal business hours throughout the period
prior to the Closing Date (or the earlier termination of this Agreement pursuant
to Section 11(b)) to all their respective Properties, books, commitments,
contracts and records and, during such period, shall, upon request, furnish
promptly to the Investor all other information concerning them as the Investor
may reasonably request, provided that no investigation or receipt of information
pursuant to this Section 4(a) shall affect any representation or warranty of the
Company or the conditions to the obligations of the Investor. The Investor shall
give the Company reasonable advance notice of entry by the Investor or any of
its agents, employees or contractors onto the Properties so that the Company
shall have an opportunity to have a representative present during any such
inspection, and the Company expressly reserves the right to have such a
representative present. The Investor shall not perform any invasive tests at the
Properties. The Investor agrees that in exercising its right of access
hereunder, the Investor will use and will cause its agents, employees or
contractors to use their reasonable efforts not to interfere with the activity
or rights of tenants or any persons occupying or providing service at the
Property.
(b) Requests by Investor. The Company shall, subject to
the satisfaction of the conditions set forth in Section 8, take such actions, in
each case, as may be necessary or reasonably requested by the Investor in order
to consummate or implement the terms of this Agreement.
(c) Other Actions. Upon the terms and subject to the
conditions of this Agreement, the Company will use its commercially reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable consistent with applicable law
to consummate and make effective in the most expeditious manner practicable the
transactions contemplated hereby.
(d) Notices. For so long as the Investor is a Member, the
Company shall copy the Investor on all notices, consents, approvals and requests
given or received by the Company in connection with the Loan and any
refinancings thereof. The covenant and obligation contained in this Section 4(d)
shall survive Closing hereunder.
(e) Transfer Taxes. The Company shall pay any transfer
taxes due in connection with (i) the issuance of the Preferred Interest to the
Investor and the admission of the Investor as a Member to the Company and (ii)
the redemption of the Investor's Preferred Interest in accordance with the terms
of the Third Amendment to Operating Agreement. The covenant and obligations
contained in this Section 4(e) shall survive Closing hereunder.
5. Representations and Warranties of Investor. The Investor
hereby represents and warrants that:
(a) Intentions of Investor. The Investor is acquiring the
Preferred Interest acquired pursuant hereto for its own account with the present
intention of holding such securities for purposes of investment, and it has no
intention of selling such securities in a public distribution in violation of
the federal securities laws or any applicable state securities laws.
(b) Securities Act. The Investor understands that the
Preferred Interest has not been registered under the Securities Act of 1934 (the
"Securities Act") or the securities
11
laws of any state and must be held indefinitely unless subsequently registered
under the Securities Act and any applicable state securities laws or unless an
exemption from such registration becomes or is available.
(c) "Accredited Investor". The Investor is an "accredited
investor", as defined under Rule 501(a) promulgated under the Securities Act.
(d) Corporate Power. The Investor has all requisite power
and authority to execute and deliver this Agreement and consummate the
transactions contemplated hereby. The Investor has taken all action as and in
the manner required by law, its certificate of incorporation or bylaws, its
certificate of formation or limited liability company agreement or otherwise to
authorize the execution, delivery and performance of this Agreement, the Third
Amendment to Operating Agreement and the other ancillary documents to which it
is a party and the transactions contemplated hereby and thereby.
(e) Investigations by Investor. The Investor has had
ample opportunity to make inquiries of the Company's Manager and Voting Members,
examine books and records of the Company and the Subsidiaries and otherwise to
conduct such investigation as the Investor has deemed appropriate in connection
with its acquisition of the Preferred Interest. The Investor has entered into
this Agreement solely upon its independent investigation of the Company, the
Subsidiaries, the Existing Operating Agreement, and the Transaction Documents
and Information. The Investor is not relying upon any oral information supplied
by or any oral representations made by or on behalf of the Company of the
Subsidiaries, or upon budgets or projections of any kind that may have been
supplied to it. The Company makes no representation or warranty (and assumes no
responsibility with respect to) the future operations of the Company or the
Subsidiaries, and the Company assumes no responsibility or liability with
respect to the future performance by the Company or the Subsidiaries.
(f) No Breach. The execution and delivery of this
Agreement, and the Third Amendment to Operating Agreement, do not, and the
consummation of the transactions contemplated hereby and thereby will not,
violate (i) any provisions of the organizational documents of the Investor, (ii)
any material terms of any material contract or commitment of any kind or
character to which the Investor is a party or by which it or its property may be
bound, or (iii) any law, regulation, rule, judgment or order applicable to the
Investor or its property.
(g) Enforceability. This Agreement and the Third
Amendment to Operating Agreement, each constitutes the valid and binding
obligation of the Investor, enforceable in accordance with their terms except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally and subject to the
availability of equitable remedies.
(h) No Brokers. The Investor is not a party to or in any
way obligated to make any payment relating to, any contract or outstanding claim
for the payment of any broker's or finder's fee in connection with the origin,
negotiation, execution or performance of this Agreement or the acquisition of
the Preferred Interest hereunder.
12
(i) Legal Counsel. The Investor has been duly represented
by legal counsel in connection with the negotiation of this Agreement and the
Third Amendment to Operating Agreement.
The representations and warranties of the Investor set forth in this
Section 5 shall be deemed remade as of the Closing.
6. Covenants of Investor.
(a) Third Amendment to Operating Agreement; Requests by
Company. The Investor shall (i) subject to the satisfaction of the conditions
set forth in Section 7, execute and/or deliver the Third Amendment to Operating
Agreement and the Indemnity Agreement and such other documents, certificates,
agreements and other writings and (ii) take such other actions as may be
necessary or reasonably requested by the Company in order to consummate or
implement expeditiously the acquisition of the Preferred Interest in accordance
with the terms of this Agreement.
(b) Other Actions. Upon the terms and subject to the
conditions of this Agreement, the Investor will use its commercially reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable consistent with applicable law
to consummate and make effective in the most expeditious manner practicable the
transactions contemplated hereby.
7. Conditions to the Obligations of Investor. The obligation of
the Investor to make the contribution to the Company at the Closing and the
other obligations of the Investor hereunder required to be performed on the
Closing Date shall be subject to the satisfaction (or waiver by the Investor) as
of the Closing Date of the following conditions:
(i) The Investor shall have received the closing
deliveries described in Section 2(e) hereof.
(ii) The representations and warranties of the
Company made in Section 3 of this Agreement shall be true and correct in all
material respects when made and as of the Closing Date as though made on and as
of the Closing Date.
(iii) The Company shall have performed or complied
in all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by the Company by the Closing Date.
(iv) There shall exist no claim, action, suit,
investigation, litigation or proceeding, pending or threatened in any court or
before any arbitrator or governmental instrumentality which relates to the
transactions contemplated by this Agreement or that materially adversely affects
the Company.
(v) The Company shall have paid all of the
Investor's reasonable expenses incurred in the due diligence, structuring and
completion of its contribution to the Company and the issuance of the Preferred
Interest, including, but not limited to, reasonable attorneys' fees.
13
8. Conditions to the Obligations of Company. The obligation of
the Company to sell the Preferred Interest and the other obligations of the
Company hereunder required to be performed on the Closing Date shall be subject
to the satisfaction (or waiver by the Company) as of the Closing Date of the
following conditions:
(i) The Company shall have received the closing
deliveries described in Section 2(d) hereof.
(ii) The representations and warranties of the
Investor contained in Section 5 of this Agreement shall have been true and
correct in all material respects when made and as of the Closing Date as though
made on and as of the Closing Date.
(iii) The Investor shall have performed or
complied in all material respects with all obligations and covenants required by
this Agreement to be performed or complied with by the Investor by the Closing
Date.
9. Legend. If certificated, each certificate for Restricted
Securities shall be imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER
AND COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER SPECIFIED IN THAT CERTAIN LEVITZ SL, LLC
OPERATING AGREEMENT AS OF MAY 21, 1999, AS AMENDED AND MODIFIED FROM
TIME TO TIME. A COPY OF SUCH AGREEMENT SHALL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
10. "As-Is, Where Is". EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY EXPRESSLY SET FORTH IN SECTION 3 OF THIS AGREEMENT,
THE INVESTOR WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH THE COMPANY THAT THE
COMPANY, THE SUBSIDIARIES AND THEIR RESPECTIVE ASSETS AND PROPERTIES ARE IN
THEIR "AS-IS, WHERE IS" CONDITION "WITH ALL FAULTS" AS OF THE CLOSING DATE AND
SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR
GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO THEIR CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE,
OR TYPE WHATSOEVER FROM OR ON BEHALF OF THE COMPANY. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY EXPRESSLY SET FORTH IN SECTION 3
OF THIS AGREEMENT, THE COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY,
14
GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR
IMPLIED, CONCERNING (I) THE VALUE, NATURE, QUALITY OR CONDITION OF THE COMPANY,
THE SUBSIDIARIES AND THEIR RESPECTIVE ASSETS AND PROPERTIES OR THE PREFERRED
INTEREST, INCLUDING THE WATER, SOIL AND GEOLOGY OF THE PROPERTIES, (II) THE
INCOME TO BE DERIVED FROM THE ASSETS AND THE PROPERTIES, (III) THE SUITABILITY
OF THE PROPERTIES FOR ANY AND ALL ACTIVITIES AND USES WHICH THE INVESTOR MAY
CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE
PROPERTIES, (IV) THE COMPLIANCE OF OR BY THE COMPANY, THE SUBSIDIARIES AND THEIR
RESPEVTIVE ASSETS OR PROPERTIES (OR THEIR OPERATION) WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (V)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTIES, (VI) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTIES, (VII) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTIES, (VIII) THE
PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE
PROPERTIES OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTIES,
(IX) THE UNITARY LEASE, OVERLEASES, OTHER LEASES OR OTHER AGREEMENTS AFFECTING
THE COMPANY, THE SUBSIDIARIES OR THEIR RESPECTIVE ASSETS OR PROPERTIES, OR (X)
ANY OTHER MATTER WITH RESPECT TO THE COMPANY, THE SUBSIDIARIES AND THEIR
RESPECTIVE ASSETS OR PROPERTIES. THE INVESTOR ACKNOWLEDGES AND AGREES THAT,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN
SECTION 3 OF THIS AGREEMENT, ANY INFORMATION PROVIDED BY OR ON BEHALF OF THE
COMPANY OR THE SUBSIDIARIES WITH RESPECT TO THE COMPANY'S AND THE SUBSIDARIES'
RESPECTIVE ASSETS AND PROPERTIES WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT
THE COMPANY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION. THE COMPANY SHALL NOT BE LIABLE OR BOUND IN
ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE COMPANY, THE SUBSIDIARIES AND THEIR RESPECTIVE ASSETS AND
PROPERTIES (OR THEIR OPERATION), FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 3 OF THIS AGREEMENT.
11. Miscellaneous.
(a) Remedies. The Investor shall have all rights and
remedies set forth in this Agreement and the other ancillary documents and all
of the rights that the Investor has under any law.
(b) Termination. This Agreement may be terminated at any
time prior to the Closing Date by mutual agreement of the Company and the
Investor.
15
(c) Press Releases. The Company and the Investor will
consult with the other before issuing, and provide the other the opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated hereby and will not issue any such
press release or make any such public statement without the other party's prior
written consent, except that a party hereto may make such disclosures as are
required by law, but only after disclosing to each of the other parties hereto
the basis for concluding that such disclosure is so required and the contents of
such disclosure.
(d) Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly given
when delivered in person, by telecopy, by facsimile, by nationally-recognized
overnight courier, or by first class registered or certified mail, postage
prepaid, addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by the addressee as follows:
If to the Company:
Levitz SL, L.L.C.
c/o Klaff Realty, LP
122 S. Michigan Avenue, Suite 1000
Chicago, IL 60603-6116
Attention: Hersch Klaff and Keith Brown
with a copy to:
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
260 S. Broad Street
Philadelphia, PA 19102-5003
Attention: Lawrence J. Arem
If to the Investor:
Acadia Levitz, LLC
1311 Mamaroneck Avenue
Suite 260
White Plains, NY 10605
Attention: Kenneth F. Bernstein and Joel Braun
with a copy to:
Acadia Levitz, LLC
1311 Mamaroneck Avenue
Suite 260
White Plains, NY 10605
Attention: Robert Masters
All such notices, requests, consents and other communications
shall be deemed to have been delivered (i) in the case of personal delivery, on
the date of such delivery, (ii) in the
16
case of nationally-recognized overnight courier, on the next Business Day and
(iii) in the case of mailing, on the third Business Day following such mailing
if sent by certified mail, return receipt requested.
(e) Successors and Assigns. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not.
(f) Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Investor. No other course of dealing between the Company and the
Investor or any delay in exercising any rights hereunder operate as a waiver of
any rights of Investor.
(g) Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by a party or on its behalf.
(h) Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(i) Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement and the other ancillary documents embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, that may
have related to the subject matter hereof in any way.
(j) Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
(k) Governing Law. This Agreement will be governed by and
construed in accordance with the domestic laws of the State of Delaware, without
giving effect to any choice of law or conflicting provision or rule (whether of
the State of Delaware, or any other jurisdiction) that would cause the laws of
any jurisdiction other than the State of Delaware to be applied. In furtherance
of the foregoing, the internal law of the State of Delaware will control the
interpretation and construction of this Agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
17
(l) Waiver Of Jury Trial. THE COMPANY AND THE INVESTOR
HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION OR ENFORCEMENT
THEREOF. THE COMPANY AND THE INVESTOR AGREE THAT THIS SECTION IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AGREEMENT AND WOULD NOT ENTER INTO THIS AGREEMENT IF
THIS SECTION WERE NOT PART OF THIS AGREEMENT.
(m) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
* * * * *
18
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed as of the date first above written.
COMPANY:
By: LUBERT-ADLER REAL ESTATE FUND
II, L.P., its voting member
By: Lubert-Adler Group II, L.P., its
general partner
By: Lubert-Adler Group II, LLC, its
general partner
By:
-------------------------------
Its:
-------------------------------
By: LUBERT-ADLER REAL ESTATE
PARALLEL FUND II, L.P., its voting
Member
By: Lubert-Adler Group II, L.P., its
general partner
By: Lubert-Adler Group II, LLC, its
general partner
By:
-------------------------------
Its:
-------------------------------
By: LEVITZ SL KLAFF EQUITY, L.L.C., its
voting member
By: Klaff Realty, LP, its manager
By: Klaff Realty, Ltd., its
general partner
By:
-------------------------------
Its:
-------------------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
19
INVESTOR:
ACADIA LEVITZ, LLC
By:
-------------------------------------------------
Its:
-------------------------------------------------
20
EXHIBIT "A"
FORM OF THIRD AMENDMENT TO OPERATING AGREEMENT
EXHIBIT "B"
FORM OF INDEMNITY AGREEMENT
EXHIBIT "C"
FORM OF GUARANTY
EXHIBIT "D"
COPIES OF CERTIFICATES OF INSURANCE
EXHIBIT "E-1"
COPY OF COMPANY'S EXISTING OPERATING AGREEMENT
EXHIBIT "E-2"
COPY OF COMPANY'S CERTIFICATE OF FORMATION
EXHIBIT "F"
MEMBERS AND THEIR PERCENTAGE INTEREST
Member Percentage Interest
- ------------------------------------------------- -------------------
Lubert-Adler Real Estate Fund II, L.P. 23.427%
Lubert-Adler Real Estate Parallel Fund II, L.P. 34.413%
Levitz SL Klaff Equity, L.L.C. 12.16%
Blackacre Furniture Funding LLC 30.00%
K.S. Opportunities III, L.L.C. (Promote Member)* 0.00%
- ----------
* Promote Member is entitled to an allocation of Net Profits and Net Losses and
to certain distributions as provided in the Existing Operating Agreement.
EXHIBIT "G-1"
FEE PROPERTIES
St. Paul, 3201 Country Dr., St. Paul, MN 55117-1096
Oxnard, 2420 N. Oxnard Blvd., Oxnard, CA 93030
Northridge, 19350 Nordhoff Street, Northridge, CA 91324
Farmingdale, 90 Price Parkway, Farmingdale, NY 11735
Portland-Johnson, 13631 S. E. Johnson Rd., Milwaukie, OR 97222-1295
EXHIBIT "G-2"
LEASED PROPERTIES
La Puente, 17520 E. Castleton Street, City of Industry, CA 91744-1701
Description of Overlease:
A. Lease dated March 1, 1979, by and between Wincorp Industries
Inc. (Landlord) and Levitz Furniture Corporation (Tenant)
B. Letter dated July 1, 1980, from Wincorp Industries Inc. to
Levitz Furniture Corporation giving notice of commencement
date as June 29, 1980
C. First Amendment to Lease dated September 1, 1979, between
Wincorp Industries, Inc., a Delaware corporation, and Levitz
Furniture Corporation
D. Tri-Party Agreement entered into as of April 4, 1980, among
Wincorp Industries, Inc., Levitz Furniture Corporation and
Laurel Development Company
E. Letter Agreement entered into on or about July 1, 1980,
between Wincorp Industries, Inc. and Levitz Furniture
Corporation
F. Letter Agreement entered into on or about October 17, 1997,
between The Estate of James Campbell and BT Commercial
Corporation and acknowledged by Levitz Furniture Incorporated
and Levitz Furniture Company of the Pacific Realty, Inc.
G. Order Under 11 U.S.C. Sections 363, 365 and 1146(c) and
Fed. R. Bankr. 6004 and 6006 (I) Authorizing Sale-Leaseback
Transaction Free and Clear of Liens, Claims, Encumbrances, and
Interests and (II) Determining that the Sale-Leaseback
Transaction is Exempt from any Stamp, Transfer, Recording or
Similar Tax
H. Letter dated May 13, 2004, from Tenant to Landlord re:
Tenant's exercise of one (1) twenty (20) year extension option
I. Letter dated September 20, 2004, from Landlord to Tenant re:
Base Rent during option term
J. Letter dated January 12, 2005, from Tenant to Landlord re:
Base Rent during option term
San Leandro, 3199 Alvarado Street, San Leandro, CA 94577-5790
Description of Overlease:
A. Lease Agreement dated as of August 25, 1971, by and between
Peerage Equities Corporation (Lessor) and Levitz Furniture
Corporation (Lessee)
B. Warranty Deed dated 8/25/71 between Peerage Equities
Corporation and Ruth E. Jensen (Building and Improvements
only)
C. Assignment of Levitz Lease dated 8/25/71 between Peerage
Equities Corporation, as assignor, and Ruth E. Jensen, as
assignee
K. First Amendment to Lease Agreement dated December 21, 1971
L. Warranty Deed dated 12/31/71 between Peerage Equity
Corporation, as grantor and Corporate Property Investors, as
grantee (land only exclusive of any buildings)
M. Warranty Deed dated March 3, 1981, between Ruth E. Jensen, as
grantor, and Frederick G. Gould, grantee (Buildings and
Improvements only)
N. Assignment of Ground Lease dated March 3, 1981, between Ruth
E. Jensen, assignor, and Frederick G. Gould, as assignee
O. Assignment of Levitz Lease dated March 3, 1981, between Ruth
E. Jensen, as assignor, and Frederick G. Gould, as assignee
P. General Assignment dated March 3, 1981, between Ruth E.
Jensen, as assignor, and Frederick G. Gould, as assignee
Q. Warranty Deed dated October 11, 1982, between Frederick G.
Gould, as grantor and John A. Washburn, as grantee (Buildings
and Improvements only).
R. Assignment of Ground Lease dated October 11, 1982, between
Frederick G. Gould, as assignor, and John A. Washburn, as
assignee
S. Assignment of Levitz Lease dated October 11, 1982, between
Frederick G. Gould, as assignor, and John A. Washburn, as
assignee
T. General Assignment dated as of October 11, 1982, between
Frederick G. Gould, as assignor, and John A. Washburn, as
assignee
N. Notice to Levitz Furniture Corporation of assignment of lease
O. Letter dated October 29, 1996, by Levitz Furniture Corporation
exercising its first option to extend Lease from July 1, 1997
to June 30, 2002
P. Letter dated October 1, 2001, exercising its second option to
extend lease.
Willowbrook, 531 Route 46, Fairfield, NJ 07004-1907
Description of Overlease:
A. Ground Lease dated November 22, 1971, by and between Peerage
Equities Corporation (Lessor) and Spice Properties Co., Inc.
(Lessee)
B. Lease Agreement dated November 22, 1971, by and between
Peerage Equities Corporation (Lessor) and Levitz Furniture
Corporation (Lessee)
C. Assignment of Lease dated November 22, 1971, by and between
Peerage Equities Corporation (Assignor) and Spice Properties
Co., Inc. (Assignee)
D. Assignment of Lease and Agreement dated November 22, 1971, by
and between Spice Properties Co., Inc. (Assignor) and Levitz
Furniture Corporation (Assignee)
E. Lease Assignment and Assumption Agreement dated September 30,
1996, by and between Levitz Furniture Corporation (Assignor)
and Levitz Furniture Realty Corporation (Assignee)
Woodbridge, 429 Route 1 South, Iselin, NJ 08830-3009
Description of Overlease:
A. Ground Lease dated October 28, 1966, by and between Mario
Cellentani and Helen Cellentani (Landlord) and Litwin
Properties, Inc. (Tenant)
B. Assignment of Lease by and between Woodbridge Mall No. 2, Inc.
(formerly known as Litwin Properties, Inc.), as assignor, and
Carthay Realty Corp., as assignee
C. Assignment of Lease dated June 29, 1973, by and between
Carthay Realty Corp., as assignor, and Mann Theatres
Corporation of California, as assignee
D. Acceptance of Assignment dated July 1, 1973, by Mann Theatres
Corporation
E. Assignment of Lease dated February 1, 1980, by and between
Theatres Corporation of California, as assignor, to Levitz
Furniture Corporation of the Eastern Region, Inc., as assignee
Langhorne, 1661 East Lincoln Highway, Langhorne, PA 19047-3096
Description of Overlease:
A. Lease dated May 1, 1973, by and between Quint Leasing Company
(Lessor) and Levitz Furniture Corporation (Lessee)
B. Letter dated October 9, 1992, by Levitz Furniture Corporation
electing to extend the term of the Lease until June 30, 2003
C. Letter dated November 21, 2002, from Tenant to Landlord
electing to extend the term of the Lease for an additional
5-year term.
Sacramento, 4741 Watt Avenue, North Highlands, CA 95660-5515
Description of Overlease:
A. Agreement of Lease dated as of March 9, 1970, by and between
A&A Key Builders Supply, Inc. and B&B Enterprises, Inc.
(Lessor) and Levitz Furniture Co. of Santa Clara, Inc.
(Lessee)
B. Resolution dated May 26, 1970, amending the Articles of
Incorporation for Levitz Furniture Company of Santa Clara to
read, Levitz Furniture Company of Northern California, Inc.
C. Resolution dated March 21, 1973, amending the Articles of
Incorporation of Levitz Furniture Company of Northern
California, Inc. to read, Levitz Furniture Company of the
Pacific, Inc.
D. Letter dated April 27, 1994, by Levitz Furniture Corporation
exercising its first option to extend the Lease from September
1, 1995, to August 31, 2005
E. Option to Purchase dated as of March 9, 1970, by and between
A&A Key Builders Supply, Inc. and B&B Enterprises, Inc.
(Lessor) and Levitz Furniture Co. of Santa Clara, Inc.
(Lessee)
F. Letter dated May 14, 2004, exercising second option to extend
the Lease from September 1, 2005, to August 31, 2010.
Brea (Homelife), 2335 E. Imperial Highway, Brea, CA 92821 (Store No. 4189)
Description of Overlease:
A. Lease dated January 7, 1999, by and between BUP II Partners,
as landlord, and Sears, as tenant
B. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
C. First Amendment to Lease dated September 19, 2000, between BUP
II Partners and Homelife
D. Assignment and Assumption of Lease Agreement dated January 25,
2002 between Homelife and HL Brea, L.L.C.
Deptford (Homelife), 1561 Almonesson Road, Deptford, NJ 08096 (Store No. 4334)
Description of Overlease:
A. Specialty Store Lease dated February 17, 1997, by and between
Almonesson Associates II, LLC, as landlord, and Sears, as
tenant
B. Amendment to Specialty Store Lease dated March 21, 1997,
between Almonesson Associates II, LLC and Sears
C. Lease Supplement dated July 27, 1998, between Almonesson
Associates II, LLC and Sears
D. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
E. Assignment and Assumption of Lease Agreement dated
February 15, 2002, between Homelife and HL Deptford, L.L.C.
Downingtown (Homelife), 955 East Lancaster Avenue, Downingtown, PA 19335
(Store No. 4403)
Description of Overlease:
A. Lease Agreement dated December 23, 1999, by and between B&S
Pike Associates, L.P., as landlord, and Homelife, as tenant
B. Assignment and Assumption of Lease Agreement dated January 25,
2002, between Homelife and HL Downingtown, L.P.
Hayward (Homelife), 680 W. Winton Road, Hayward, CA 94545 (Store No. 4349)
Description of Overlease:
A. Sublease dated February 1, 1999, by and between Sears, as
sublandlord, and Homelife, as subtenant
B. Lease Supplement dated September 22, 2000, between Sears and
Homelife
C. Assignment and Assumption of Sublease Agreement dated January
25, 2002, between Homelife and HL Hayward, L.L.C.
The Court of Oxford Valley (Homelife), 110 Commerce Boulevard, Oxford Valley, PA
19030 (Store No. 4065)
Description of Overlease:
A. Specialty Store Lease dated January 25, 1995, by and between
Oxford Valley Road Associates, as landlord, and Sears, Roebuck
and Co. ("Sears"), as tenant
B. Amendment to Specialty Store Lease dated March 27, 1995, by
and between Oxford Valley Road Associates and Sears
C. Lease Supplement dated March 5, 1996, between Oxford Valley
Road Associates and Sears
D. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
E. Assignment and Assumption of Lease Agreement dated February
15, 2002, between Homelife and HL Fairless Hills, LP
San Jose (Homelife), 5353 Almaden Expressway, Suite 5C, San Jose, CA 95118
(Store No. 4019)
Description of Overlease:
A. Sublease dated February 1, 1999, by and between Sears, as
sublandlord, and Homelife, as subtenant.
B. Assignment and Assumption of Sublease Agreement dated
_________ __, 2002, between Homelife and HL San Jose, L.L.C.
Scottsdale (Homelife), 9130 E. Indian Bend Road, Scottsdale, AZ 85250
(Store No. 4497)
Description of Overlease:
A. Lease dated February 11, 1991, by and between Pima Grande
Development, as landlord, and Sears, as tenant
B. Short Form Memorandum of Lease dated February 11, 1991,
between Pima Grande Development, as landlord, and Sears, as
tenant
C. Lease Supplement dated November 7, 1991, between Pima Grande
Development and Sears
D. First Amendment to Lease dated June 6, 1997, between Pima
Grande Development and Sears
E. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
F. Assignment and Assumption of Lease Agreement dated March 7,
2002, between Homelife and HL Scottsdale, L.L.C.
Torrance (Homelife), 19800 Hawthorne Boulevard, Suite 280, Torrance CA 90503
(Store No. 4109)
Description of Overlease:
A. Lease dated May 3, 1996, by and between Gateway Pioneer, Inc.
No. 1, as landlord, and Sears, as tenant
B. Lease Supplement dated January 14, 1997, between Gateway
Pioneer, Inc. No. 1 and Sears
C. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
D. Assignment and Assumption of Lease Agreement dated February
15, 2002, between Homelife and HL Torrance, L.L.C.
Irvine 1 (Homelife), 13732 Jamboree Road, Tustin, CA 92602 (Store No. 4108)
Description of Overlease:
A. Lease dated December 15, 1995, by and between Irvine Retail
Properties Company, as landlord, and Sears, as tenant
B. Lease Supplement dated January 22, 1997, between Irvine Retail
Properties Company and Sears
C. First Amendment to Lease dated May 26, 1998, between Irvine
Retail Properties Company and Sears
D. Assignment and Assumption of Leases dated February 1, 1999,
between Sears and Homelife
E. Assignment and Assumption of Lease Agreement dated
January 25, 2002, between Homelife and HL Irvine 1, L.L.C.
West Covina (Homelife), 2753 Eastland Center Drive #2000, West Covina, CA 91790
(Store No. 4307)
Description of Overlease:
A. Lease dated April 13, 2000, by and between Eastland Shopping
Center LLC, as landlord, and Homelife, as tenant
B. Lease Amendment No. 1 dated August 31, 2000, between Eastland
Shopping Center LLC and Homelife
C. Assignment and Assumption of Lease Agreement
dated _________ __, 2002, between Homelife and HL West Covina,
L.L.C.
Northridge (Homelife), 9301 Tampa, Avenue, Northridge, CA 91325 (Store No. 4004)
Description of Overlease:
Lease dated February 1, 2002, between Crown Glendale Associates, LLC
(assignee of Sears) and HL Northridge, L.L.C.
Glendale (Homelife), 314 N. Central Avenue, Glendale, CA 91203 (Store No. 4398)
Description of Overlease:
Lease dated February 1, 2002, between Crown Northridge Associates, LLC
(assignee of Sears) and HL Glendale, L.L.C.
EXHIBIT "H"
MATTERS AFFECTING TITLE TO PROPERTIES
Portland-Johnson, OR:
Traffic Control, Illumination, and Utility Easement
Sign/Slope/Utility & Sidewalk Easement
Grant of Easement for Road and Right of Way Purposes
Lease dated September 24, 2003, as amended, between Levitz SL Portland-Johnson,
L.L.C., as landlord, and Lowe's HIW, Inc., as tenant (includes Right of First
Refusal (Section 14))
Farmingdale, NY:
Lease dated August 31, 2004, as amended, between Levitz SL Farmingdale, L.L.C.,
as landlord, and Lowe's Home Centers, Inc., as tenant (includes Right of First
Refusal (Section 18))
Willowbrook, NJ:
Sublease dated May 28, 2004, but effective as of June 3, 2002, as amended,
between Levitz SL Willowbrook, L.L.C., as landlord, and Futurama Furniture of
Fairfield, Inc., as tenant
Northridge, CA:
Option to Lease dated November 15, 2004, between Wal-Mart Real Estate Business
Trust and Levitz SL Northridge, L.L.C. (Exhibit B is Ground Lease (includes
Right of First Refusal (Section 22))
Oxnard, CA:
Agreement of Sale dated January 5, 2005, between Levitz SL Oxnard, L.L.C., as
seller, and Avion Development, LLC, as buyer
EXHIBIT "I"
EXCEPTIONS TO SECTION 3(d)(ii)
None
EXHIBIT "J"
EXCEPTIONS TO 3(d)(v)
St. Paul, MN:
A condemnation proceeding has been commenced with respect to two acres of green
space.
Woodbridge, NJ:
Consent Order dated October 10, 2003, entering Final Judgment in Condemnation
(Superior Court of New Jersey, Law Division, Middlesex County, Docket no.
MID-L-4104-02). Proceeding involved taking of certain land in connection with
road expansion.
EXHIBIT "K"
EXCEPTIONS TO 3(d)(vii)
Portland-Johnson, OR:
Lease dated September 24, 2003, as amended, between Levitz SL Portland-Johnson,
L.L.C., as landlord, and Lowe's HIW, Inc., as tenant (includes Right of First
Refusal (Section 14))
Farmingdale, NY:
Lease dated August 31, 2004, as amended, between Levitz SL Farmingdale, L.L.C.,
as landlord, and Lowe's Home Centers, Inc., as tenant (includes Right of First
Refusal (Section 18))
Northridge, CA:
Option to Lease dated November 15, 2004, between Wal-Mart Real Estate Business
Trust and Levitz SL Northridge, L.L.C. (Exhibit B is Ground Lease (includes
Right of First Refusal (Section 22))
Oxnard, CA:
Agreement of Sale dated January 5, 2005, between Levitz SL Oxnard, L.L.C., as
seller, and Avion Development, LLC, as buyer
EXHIBIT "L"
LIST OF MATERIAL CONTRACTS
Oxnard, CA:
Broker's Sale Commission Agreement with CB Richard Ellis - $600,000 on
$15,000,000 Minimum Sale Price plus Bonus Commission on Ultimate Purchase Price
Sale Commission to Klaff Realty, LP - .5% on $15,000,000 Minimum Sale Price plus
Bonus Payment
Farmingdale, NY:
Leasing Commission to Klaff Realty, LP - $360,458
Northridge, CA:
Broker's Leasing Commission Agreement with CB Richard Ellis - $437,500, includes
commission to Sam Rothbardt
Leasing Commission to G Limited - $300,000
Leasing Commission to Klaff Realty, LP - $188,000
EXHIBIT "M"
LIST OF CONTESTED TAXES
None
EXHIBIT "N"
EXCEPTIONS TO SECTION 3(j)(i)
None
EXHIBIT "O"
EXCEPTIONS TO SECTION 3(k)
Willowbrook, NJ:
Letter dated January 21, 2005, from Township of Fairfield re: Compliance
Procedures to finalize open building permits for Levitz and Futurama
EXHIBIT "P-1"
LIST OF LEASES
Unitary Lease:
Unitary Lease dated June 8, 1999, as amended by (i) the First Amendment to
Unitary Lease dated October 8, 1999; (ii) the Second Amendment to Unitary Lease
dated December 23, 1999; (iii) the Third Amendment to Unitary Lease dated
December 29, 1999; (iv) the Fourth Amendment to Unitary Lease dated January 3,
2001; (v) the Fifth Amendment to Unitary Lease dated March 8, 2001; (vi) the
Sixth Amendment to Unitary Lease dated May 2, 2001; (vii) the Seventh Amendment
to Unitary Lease dated December 13, 2001; (viii) the Eighth Amendment to Unitary
Lease dated April 3, 2002; (ix) the Ninth Amendment to Unitary Lease dated April
19, 2002; (x) the Tenth Amendment to Unitary Lease dated May 31, 2002; (xi) the
Eleventh Amendment to Unitary Lease dated February 12, 2003; (xii) the Twelfth
Amendment to Unitary Lease dated May 23, 2003; (xiii) the Thirteenth Amendment
to Unitary Lease dated August 29, 2003; (xiv) the Fourteenth Amendment to
Unitary Lease dated May 13, 2004; (xv) the Fifteenth Amendment to Unitary Lease
dated May 21, 2004; (xvi) the Sixteenth Amendment to Unitary Lease dated October
28, 2004; that certain Agreement dated as of December 13, 2001, between Klaff
Realty, LP, on behalf of Landlord, and the Companies, together with various
subsidiaries and affiliates of Companies; and (xvii) that certain Agreement
dated as of November 12, 2004, among Landlord, KLA Breuners, LLC and Companies.
Portland-Johnson, OR:
Lease dated September 24, 2003, as amended, between Levitz SL Portland-Johnson,
L.L.C., as landlord, and Lowe's HIW, Inc., as tenant
Farmingdale, NY:
Lease dated August 31, 2004, as amended, between Levitz SL Farmingdale, L.L.C.,
as landlord, and Lowe's Home Centers, Inc., as tenant
Willowbrook, NJ:
Sublease dated May 28, 2004, but effective as of June 3, 2002, as amended,
between Levitz SL Willowbrook, L.L.C., as landlord, and Futurama Furniture of
Fairfield, Inc., as tenant
EXHIBIT "P-2"
EXCEPTIONS TO SECTION 3(l)
Farmingdale, NY:
Leasing Commission to Klaff Realty, LP - $360,458
EXHIBIT "Q-1"
LIST OF SUBSIDIARIES AND/OR GENERAL PARTNERS
[See attached Organizational Chart]
EXHIBIT "Q-2"
EXCEPTIONS TO SECTION 3(q)
Pledge Agreement (Membership/Partnership Interests) dated June 21, 2002, by
Levitz SL, L.L.C. to Greenwich Capital Financial Products, Inc.
Pledge Agreement (Distributions) dated June 21, 2002, by Levitz SL, L.L.C. to
Greenwich Capital Financial Products, Inc.
Langhorne GP Pledge Agreement dated June 21, 2002, by Levitz SL-GP, L.L.C. to
Greenwwich Capital Financial Products, Inc.
Assignment of Membership Interest dated June 21, 2002, by Levitz SL, L.L.C.
(executed in blank)
Assignment of Membership Interest dated June 21, 2002, by Levitz SL, L.L.C.
(executed in blank)
Assignment of Partnership Interest by Levitz SL, L.L.C. (executed in blank)
Assignment of Partnership Interest by Levitz SL-GP, L.L.C. (executed in blank)
EXHIBIT "Q-3"
EXCEPTIONS TO SECTION 3(q)
None