FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: April 20, 1999
(Date of earliest event reported)
LEVITZ FURNITURE INCORPORATED LEVITZ FURNITURE CORPORATION
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
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DELAWARE 1-12046 23-2351830 FLORIDA 33-61534 23-1657490
(State or (Commission (IRS Employer (State or (Commission (IRS Employer
other File Number) Identification other File Identification
jurisdiction No.) jurisdiction Number) No.)
of of
incorporation) incorporation)
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7887 NORTH FEDERAL HIGHWAY
BOCA RATON, FLORIDA 33487
(561) 994-6006
(Address including zip code, and telephone number including area
code of registrants' principal executive offices)
Item 5. Other Events.
On April 20, 1999, Levitz Furniture Corporation, a Florida
corporation (the "Company") and Levitz Furniture Incorporated, a Delaware
corporation ("LFI"), announced that, as part of their continuing long-term
business plan, they, along with various of their debtor subsidiaries,
entered into a sale-leaseback transaction (the "Sale- Leaseback
Transaction") involving certain owned or leased properties, as described
below. The Sale-Leaseback Transaction, in conjunction with the warehouse
rationalization plan previously announced by the Company and various of its
debtor subsidiaries (the "Warehouse Plan"), is intended to permit the
Company and its affiliates to realize value from the subject properties.
The Company will continue retail operations at the properties involved in
the Sale-Leaseback Transaction. In connection with the Sale-Leaseback
Transaction, the Company and various of its debtor subsidiaries sold and/or
assigned for value their interests in the subject properties, in their
entirety, and then leased back that portion of the properties to be used
for the continuing retail operations, thereby avoiding a disruption of
their operations.
In connection with the Sale-Leaseback Transaction, the Company
and various of its debtor subsidiaries entered into a Contract of Sale,
dated April 20, 1999, as amended, with Klaff Realty, LP, Lubert-Adler
Capital Real Estate Fund II, L.P., Lubert- Adler Real Estate Fund II, L.P.,
Lubert-Adler Parallel Fund II, L.P. (collectively, Klaff- Adler") pursuant
to which the Company and various of its debtor subsidiaries agreed to (a)
sell their fee interests in eight parcels of real property (the "Fee
Property") and (b) assume and assign their leasehold interests in fourteen
parcels of real property (the "Leases" and together with the Fee Property,
the "Property") to various entities owned by Klaff-Adler for approximately
$67,306,000 (the "Purchase Price"), less certain typical closing
adjustments.
Contemporaneously therewith, the Company and certain of its
debtor subsidiaries entered into a Unitary Lease (the "Levitz Lease") with
Klaff-Adler to lease the Property back from Klaff-Adler for a 20-year
initial term (the "Initial Term"). The Levitz Lease requires the Company
and various of its debtor subsidiaries to pay Klaff- Adler annual basic
rent equal to 10 3/4% of the Purchase Price for the first five years of the
Initial Term and such annual basic rent is then increased by an additional
5% for each 5 year period thereafter. In addition, the Company and various
of its debtor subsidiaries are required, under the Levitz Lease, to vacate
certain properties, in whole or in part, during the first three years of
the Levitz Lease term. Moreover, within a specified time period, the
Company and various of its debtor subsidiaries will also vacate certain
portions of the Property, which Klaff-Adler may redevelop, as part of the
Warehouse Plan. In the event the Company and various of its debtor
subsidiaries do not vacate certain other identified properties, the annual
basic rent for each property not vacated shall increase to 10 3/4% of the
market value of that parcel, as defined in the Levitz Lease. Further, the
Company and various of its debtor subsidiaries shall remain responsible for
all rent and other performance obligations under any preexisting lease of
the Property.
Under an order dated May 19, 1999, the Sale-Leaseback
Transaction was approved by the United States Bankruptcy Court for the
District of Delaware, and the transactions contemplated by the
Sale-Leaseback Transaction were consummated on June 8, 1999.
The Sale-Leaseback Transaction was intended to permit the
Company and various of its debtor subsidiaries to realize the value
contained in the Property, yet continue to operate in its current
locations. In addition, the proceeds from the Sale- Leaseback Transaction
were used to pay down a large portion of the Company's and LFI's
debtor-in-possession financing facility.
Disclaimer: This communication contains forward-looking statements as
defined by the Private Securities Litigation Reform Act of 1995.
Forward-looking statements include statements concerning plans, objectives,
goals, strategies, future events or performance and underlying assumptions
and other statements which are other than statements of historical facts.
These statements are subject to uncertainties and risks, including, but not
limited to, product and service demand and acceptance, changes in
technology, economic conditions, the impact of competition and pricing,
government regulation, and other risks defined in this document and in
statements filed from time to time with the Securities and Exchange
Commission. All such forward-looking statements, whether written or oral,
and whether made by or on behalf of the company, are expressly qualified by
the cautionary statements and other cautionary statements which may
accompany the forward-looking statements. In addition, the companies
disclaim any obligation to update and forward-looking statements to reflect
events or circumstances after the date hereof.
Item 7. Financial Statements and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits:
10.62 Contract of Sale dated April 20, 1999, by and between Levitz
Furniture Corporation and the Various Subsidiaries Set Forth
Therein, Klaff Realty, LP, Lubert-Adler Capital Real Estate
Fund II, L.P., Lubert-Adler Real Estate Fund II, L.P., and
Lubert-Adler Parallel Fund, L.P.
10.63 First Amendment to Contract of Sale dated June 8, 1999, by and
between Levitz Furniture and the Various Subsidiaries Set Forth
Therein and the Various Purchasers Set Forth Therein.
10.64 Unitary Lease dated June 8, 1999, by and between Various
Landlords Set Forth Therein and Levitz Furniture Corporation
and the Various Subsidiaries Set Forth Therein.
99.01 Order, Under 11 U.S.C. ss.ss. 363, 365 and 1146(c) and Fed. R.
Bankr. P. 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, approved by the United States Bankruptcy Court for
the District of Delaware on May 19, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
LEVITZ FURNITURE INCORPORATED
By: /s/ Edward P. Zimmer
-------------------------------------
Edward P. Zimmer
Vice President, Secretary and
General Counsel
Date: July 2, 1999
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
LEVITZ FURNITURE CORPORATION
By: /s/ Edward P. Zimmer
-------------------------------------
Edward P. Zimmer
Vice President, Secretary and
General Counsel
Date: July 2, 1999
INDEX TO EXHIBITS
Exhibit
Number Exhibit
10.62 Contract of Sale dated April 20, 1999, by and between Levitz
Furniture Corporation and the Various Subsidiaries Set Forth
Therein, Klaff Realty, LP, Lubert-Adler Capital Real Estate
Fund II, L.P., Lubert-Adler Real Estate Fund II, L.P., and
Lubert-Adler Parallel Fund, L.P.
10.63 First Amendment to Contract of Sale dated June 8, 1999, by and
between Levitz Furniture and the Various Subsidiaries Set Forth
Therein and the Various Purchasers Set Forth Therein.
10.64 Unitary Lease dated June 8, 1999, by and between Various
Landlords Set Forth Therein and Levitz Furniture Corporation
and the Various Subsidiaries Set Forth Therein.
99.01 Order, Under 11 U.S.C. ss.ss. 363, 365 and 1146(c) and Fed. R.
Bankr. P. 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, approved by the United States Bankruptcy Court for
the District of Delaware on May 19, 1999.
Exhibit 10.62
CONTRACT OF SALE
THIS CONTRACT OF SALE ("Agreement") made as of this 20th day of
April, 1999 between LEVITZ FURNITURE CORPORATION, a Florida corporation,
and the various subsidiaries set forth on Exhibit 1 (hereinafter,
collectively "Seller") and KLAFF REALTY, LP, a Delaware limited partnership
("Klaff"), LUBERT-ADLER CAPITAL REAL ESTATE FUND II, L.P. ("LA1"), a
Delaware limited partnership, LUBERT-ADLER REAL ESTATE FUND II, L.P.
("LA2"), a Delaware limited partnership and LUBERT-ADLER PARALLEL FUND II,
L.P. ("LA3"), a Delaware limited partnership (Klaff, LA1, LA2 and LA3 are
hereinafter, collectively "Purchaser").
W I T N E S S E T H:
WHEREAS:
1. The Seller filed for protection from its creditors under Chapter
11 of the Bankruptcy Code (as defined below) on September 5, 1997. The
Seller's Chapter 11 case is currently pending before the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") in
In re Levitz Furniture Incorporated et al, a Delaware corporation, Case No.
97-1842 (the "Bankruptcy Cases").
2. Seller represents it owns (a) fee simple title to those certain
parcels of real estate (hereinafter collectively referred to as the "Fee
Parcels" and individually as a "Fee Parcel") located and described as set
forth in Exhibit 2; and (b) the tenant's entire right, title and interest
in and to certain leases for locations described in Exhibit 3 (hereinafter
collectively referred to as the "Leased Parcels" and individually as a
"Leased Parcel"), on each of which it currently operates or formerly
operated a Levitz retail store. Each of such Fee Parcels and Leased Parcels
is sometimes hereinafter individually referred to as a "Parcel"; and all of
same are hereinafter collectively referred to as the "Parcels."
3. Seller wishes to sell and Purchaser wishes to purchase Seller's
fee and leasehold interests in and to such Parcels.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. For this Agreement, the following expressions shall
have the meanings hereinafter set forth.
1.1 "Auction" shall have the meaning set forth in Section 15.3
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hereof.
1.2 "Bankruptcy Code" means Title 11 and applicable portions of
Titles 18 and 28 of the United States Code, as amended from time to time.
1.3 "Breakup Fee" means a fee of One Million Three Hundred
Thousand Dollars ($1,300,000.00) payable by Seller to Purchaser under the
circumstances and in the manner set forth in Section 15.4 hereof.
1.4 "Business day" means any day that is not a Saturday, Sunday
or legal holiday in the Commonwealth of Pennsylvania, State of Illinois or
the State of New York.
1.5 "Closing Date" means the date referred to in Section 9.1.
"Closing" means the event whereby title to all of the Properties is
actually conveyed by Seller to Purchaser in accordance with the provisions
of this Agreement and the Purchase Price, as adjusted pursuant to the
provisions of this Agreement, paid by Purchaser and received by Seller in
accordance with Section 3.
1.6 "Cost Reimbursement" shall mean the cost reimbursement
referred to in Section 14.3 which shall, except as provided in Section
15.1, be approved by the Bankruptcy Court by entry of the Procedures Order,
substantially in the form of Exhibit 4.
1.7 "EBITDA" shall mean earnings before interest, taxes,
depreciation and amortization expenses, as determined in accordance with
generally accepted accounting principles consistently applied.
1.8 "Environmental Law" means any applicable statute,
regulation, rule, ordinance, code, license or order of any Governmental
Authority (as such term is hereinafter defined) and all applicable judicial
and administrative and regulatory decrees, judgments and orders, relating
to the protection of public health, public safety or the environment,
including, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Sections 9601 et seq., as amended by
the Superfund Amendments and Reauthorization Act of 1986; the Resource
Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq.; the Clean
Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution
Control Act, 42 U.S.C. Sections 1251 et seq.; the National Environmental
Policy Act, 42 U.S.C. Sections 4321 et seq.; the Refuse Act, 33 U.S.C.
Sections 401 et seq.; the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. Sections 136 et seq.; the Emergency Planning and Community
Right to Know Act, 42 U.S.C. Sections 11001 et seq.; the Occupational
Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; the Hazardous
Materials Transportation Act, as amended by the Hazardous Materials
Transportation Authorization Act of 1994, 49 U.S.C. Sections 5101 et seq.;
the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. Sections 2701 et seq.; as each of these
may be amended from time to time; and any state or local analogues to any
of these statutes.
1.9 "Final Order" means an order of the Bankruptcy Court which
(a) has not been reversed or stayed and as to which the time to appeal has
expired and as to which no appeal or petition for review, rehearing,
reconsideration or certiorari is pending; or (b) with respect to which any
appeal has been finally decided and no further appeal or petition for
certiorari can be taken or granted.
1.10 "Governmental Authority": Any municipal, county, state,
federal or foreign governments, agencies, departments, authorities, both
public and quasi-public, courts, boards, bureaus, commissions and officers
of any of the foregoing.
1.11 "Hazardous Substance": Any material, substance, compound,
solid, liquid or gas, or any radiation, emission or release of energy in
any form, whether naturally occurring, man-made or the product of any
process (1) which is or may under certain conditions be toxic, harmful,
hazardous or acutely hazardous to public health, public safety or the
environment, (2) which is or may be defined or regulated as a "hazardous
waste," "hazardous substance," "toxic substance," pollutant or contaminant
under any Environmental Law, (3) the use, handling, management, release,
treatment, storage, transportation or disposal of which is or may be
regulated under any Environmental Law or (4) the removal, remediation or
abatement of which is required under any Environmental Law. Hazardous
Substances include asbestos, polychlorinated biphenyls, mercury, lead,
petroleum and petroleum products and derivatives, urea formaldehyde foam
insulation and radon and other radioactive materials.
1.12 "Levitz Lease" means the Unitary Lease, in form and
substance attached hereto as Exhibit 5 and made a part hereof, to be
entered into at Closing between Purchaser or Purchaser's Designee, as
landlord, and Seller, as tenant.
1.13 "Levitz Store" means, with respect to any Parcel, that
portion thereof currently or formerly being occupied and used by Levitz as
a Levitz retail store.
1.14 "Overlease" means any lease between a fee owner (or lessee
or ground lessee) as landlord and Seller as tenant, covering or with
respect to any Leased Parcel. All Overleases as of the date hereof are
listed on Exhibit 6.
1.15 "Permitted Exceptions" means, with respect to each Parcel:
(a) the lien of real estate taxes not yet due and payable; and (b) all
easements and other matters of record identified on Exhibit 7. Mortgages,
judgments and other monetary liens (except for mortgages on the fee
interest of landlords under Overleases where: (i) the lien of such mortgage
is subordinate to the leasehold estate created by the Overlease; or (ii) by
agreement of the mortgagee under such mortgage, the foreclosure of such
mortgage shall not result in a termination of the Overlease (each, a
"Permitted Mortgage")); and leases, other than the Space Leases, shall not
be Permitted Exceptions.
1.16 "Personal Property" means, with respect to each Parcel,
the relevant working files (other then records of Seller's business) which
are in the possession of Seller and are required for the efficient
operation of the Real Estate, including sepias, drawings, surveys, plans
and specifications; (unless required by law to be maintained by Seller
solely in its capacity as an operator of a Levitz Store on such Parcel) all
licenses, permits, certificates of occupancy (or local equivalent) in the
possession of or available to Seller; the real estate records, statements,
invoices (including real property tax invoice and statements); engineering
reports and environmental reports; all guarantees and warranties related to
all Real Estate; and all tangible personal property (other than inventory
and stock in the trade) located on any Parcel and used in connection with
the operation and maintenance of any Real Estate (but, for purposes of
clarification, excluding any personal property used exclusively or
primarily for retail operations (e.g. cash registers) or storage of
furniture (e.g. furniture racking system)).
1.17 "Procedures Order" shall mean an order of the Bankruptcy
Court: (a) approving the procedures for the Auction set forth in Section
15.3 hereof; (b) approving the Breakup Fee to Purchaser set forth in
Section 15.4 hereof; and (c) approving the Cost Reimbursement set forth in
Sections 14.3 hereof, which shall, except as provided in Section 15.1, be
in the form of Exhibit 4.
1.18 "Property" means, with respect to each Parcel,
collectively all of Seller's rights, title and interest in the Real Estate
and all the other assets described in Section 2. "Properties" means each
and every Property, collectively.
1.19 "Purchaser Designee" means any limited partnership,
limited liability company or corporation owned in whole or part, directly
or indirectly, by Hersch Klaff and/or Dean
S. Adler.
1.20 "Real Estate" means, with respect to each Parcel, Seller's
entire right, title and interest in and to the land described on Exhibits 2
and 3 and all of the buildings, buildings systems, building equipment,
building fixtures (including pylon structures but excluding the furniture
racking system), and other real property improvements constructed thereon.
1.21 "Sale Motion" shall mean a motion filed by Seller within
the time frame required by Section 15.1 seeking approval of the matters set
forth in Section 15.1 and 15.2.
1.22 "Sale Order" shall mean an order of the Bankruptcy Court:
(a) authorizing the Seller to execute this Agreement, and approving this
Agreement, the sale of the Properties to Purchaser pursuant to this
Agreement, and the Levitz Lease, which shall, except as provided in Section
15.2, be in the form of Exhibit 8: or (b) if Purchaser is not the
successful bidder, approving the sale of the Properties to the successful
bidder, and which shall, except as provided in Section 15.2, be in the form
of Exhibit 8.
1.23 "Space Lease(s)" means all tenant ground lease(s), space
lease(s), license(s), concessions or other occupancy or use agreements
where Seller is the landlord, sublandlord or licensor, including all
modifications, addenda and supplements thereto and guarantees thereof,
applicable to any part of the Real Estate, including all Transferred
Leases. However, "Space Leases" does not include license, concession or
other occupancy or use agreements for departments of any Levitz Stores
("Concession Agreements") which would not in any event be binding upon or
required to be recognized by Purchaser by reason of termination or closing
of the Levitz Store or otherwise. All existing Space Leases and Concession
Agreements as of the date hereof are listed on Exhibits 9 and 10
respectively.
1.24 "Transferred Leases" means those Space Leases listed on
Exhibit 11.
2. SALE AND PURCHASE.
2.1 Seller agrees to sell, convey, assign and transfer to
Purchaser (or, at Purchaser's option, to a Purchaser Designee), and
Purchaser agrees to purchase and acquire from Seller (or, with regard to
any Parcel at Purchaser's option, Purchaser agrees to cause a Purchaser
Designee to purchase and acquire), free and clear of all liens, claims and
encumbrances other than the Permitted Exceptions:
(a) With regard to all Fee Parcels, all of Seller's
right, title and interest in and to: (i) the Real Estate; (ii) land lying
in the bed of any street, road or avenue, opened or proposed, if any, in
front of or adjoining the Real Estate, strips or gores adjoining the Real
Estate, if any; (iii) all appurtenances and hereditaments appertaining to
the Real Estate, including without limitation any easements; (iv) all
awards made or to be made to Seller for the Parcels or any part thereof by
reason of a taking by eminent domain or in lieu thereof, except as
otherwise set forth in the Levitz Lease; (v) except as otherwise set forth
in the Levitz Lease, any unpaid award for damages to the Real Estate by
reason of change of grade of any street (Seller hereby agreeing to execute
and deliver to Purchaser, on the Closing Date or thereafter, all proper
instruments for collection of any such award); (vi) any Personal Property,
and (vii) any Transferred Leases.
(b) With regard to all Leased Parcels, all of Seller's
right, title and interest in and to: (i) the Overleases and any
appurtenances pertaining thereto, including without limitation any
easements; (ii) any Personal Property; and (iii) any Transferred Leases.
2.2 Except as otherwise provided in this Agreement, the
Properties shall be conveyed to Purchaser "As Is" and "Where Is" in the
same condition as it exists as of the date of this Agreement, normal wear
and tear excepted, and subject to warehouse renovations, store remodelings
and other work approved by Purchaser as set forth on Exhibit 12 attached
hereto.
3. PURCHASE PRICE. The "Purchase Price" for all of the Properties
shall be SEVENTY MILLION ONE HUNDRED EIGHTY-EIGHT THOUSAND DOLLARS
($70,188,000.00), as adjusted pursuant to the terms of this Agreement;
which shall be and be deemed allocated among the Parcels for all purposes
(including without limitation payment of any and all Transfer Taxes (as
hereinafter defined) and amounts of title insurance premiums) as set forth
in Exhibit 13 hereto. The Purchase Price shall be payable as follows:
3.1 The sum of Three Million Seven Hundred Thousand Dollars
($3,700,000.00) (the "Deposit") shall be payable on the next business day
after the date of this Agreement by wire transfer of immediately available
federal funds to First American Title Insurance Company of New York, 228
East 45th Street, New York, NY (the "Escrow Agent"), to be held by Escrow
Agent in escrow for delivery at Closing or as otherwise provided herein, in
one or more federally insured interest bearing escrow accounts. If
Purchaser fails to deliver the Deposit within three (3) business days after
the date of this Agreement, then this Agreement shall terminate and be void
and no party shall have any rights or obligations pursuant hereto. All
interest accruing on the Deposit shall become a part of same and shall be
distributed in accordance with the terms hereof.
3.2 The balance of the Purchase Price, as adjusted pursuant to
the provisions of this Agreement, by wire transfer of immediately available
federal funds to Seller's account, at Closing.
3.3 In the event Purchaser is entitled to and does exercise the
right to terminate this Agreement as hereinafter provided, or any of the
conditions precedent to Closing under Section 11 are not timely satisfied
and not waived by Purchaser in writing, Escrow Agent shall promptly release
and deliver to Purchaser the Deposit, together with all accrued interest
and all other monies paid on account of the Purchase Price.
4. ADJUSTMENTS AND PRORATIONS.
4.1 As hereinafter set forth, at Closing, Purchaser as landlord
and Seller as tenant shall enter into the Levitz Lease for all Parcels
pursuant to which Seller as tenant will continue to be responsible for all
real estate taxes, insurance, utilities, Overlease rent and all other
expenses regarding each Parcel (except as expressly otherwise set forth in
the Levitz Lease). In view of the foregoing, there shall be no proration at
Closing of any of said items of income or expenses if and to the extent
same would not be appropriate.
4.2 Notwithstanding the foregoing, at Closing Seller shall pay
(or Purchaser at its option may take a credit against the Purchase Price
for) the following amounts with respect to each Parcel (or all Parcels, as
the case may be):
(a) Rent under the Levitz Lease for the balance of the
month in which Closing occurs;
(b) All payments required to be made to Landlord under
the Levitz Lease for periods through and including the last day of the
month in which Closing occurs;
(c) All of the following expenses paid or incurred by
Purchaser in connection with the transaction contemplated hereby for all
Parcels: any and all sales, transfer, conveyance, deed, recording and/or
documentary stamp taxes, fees and similar costs and charges relating to, or
with respect to, the conveyance and transfer of the Properties, and the
execution and/or recordation of the Levitz Lease or any sublease from a
Purchaser Designee to Purchaser (hereinafter collectively referred to as
"Transfer Taxes"); all title insurance premiums, fees and charges for
owners or leasehold title policies in the aggregate amount of the Purchase
Price, in form acceptable to Purchaser, including all title endorsements
listed on Exhibit 14; all survey costs for survey preparation, update,
inspection and/or recertification; and all costs of environmental and/or
physical consultant and/or inspections prepared by ATC Associates, Inc. at
the request of Seller; provided, however, if Purchaser is the successful
bidder at the Auction and Purchaser desires that the aforesaid
environmental audits be certified to Purchaser and/or Purchaser's lender,
then Purchaser shall pay Seller Twenty-Eight Thousand Dollars ($28,000.00)
towards the costs of such environmental audits.
4.3 Further notwithstanding the foregoing, all rent and
additional rent under the Transferred Leases shall be pro-rated and
apportioned on the Closing Date, as of 11:59 P.M. of the day immediately
preceding Closing, in accordance with the following provisions:
(a) Purchaser shall receive a credit at Closing for base
or minimum rent and any monthly escalation or pass-through payments
(whether collected on an estimated basis or otherwise) for taxes, CAM
Charges (as hereinafter defined), etc., due under all Transferred Leases
for the period from the Closing Date through and including the last day of
the month in which Closing occurs. Seller may retain all base or minimum
rent and such monthly escalation payments under all Transferred Leases for
the month in which Closing occurs (collectively "Closing Month Rents") it
may have heretofore collected or may hereafter receive; and Purchaser shall
promptly pay over to Seller the entire amount of any Closing Month Rents
Purchaser may hereafter receive;
(b) Real estate tax payments (other than those included
in Closing Month Rents) due under Transferred Leases shall be prorated on a
per diem basis as and when collected. Purchaser shall not be obligated to
make any payment or give any credit to Seller on account of or by reason of
any rental or other payments which are unpaid as of the date of Closing,
but shall be required to turn over Seller's share of the same within thirty
(30) days if, as and when received by Purchaser after the Closing (subject
to Section 4.4). Purchaser shall not be required to institute any action or
proceeding to collect any rent delinquencies;
(c) Percentage rent (i.e., that portion of the rent
payable to the landlord by the tenant under a Transferred Lease which is a
percentage of the amount of sales or of the dollar amount of sales of such
tenant), if any, payable under each Transferred Lease shall be prorated
with respect to the lease year thereunder in which the Closing occurs on a
per diem basis as and when collected. Any percentage rent collected by
Purchaser including any percentage rent which is delinquent and pertaining
to: (i) an entire lease year or accounting period of a tenant under a
Transferred Lease which ends on a date prior to the date of Closing; and
(ii) that portion of a lease year or accounting period of such tenant
covering a period prior to the date of Closing where such lease year or
accounting period begins prior to the date of Closing and ends thereafter
shall in both cases (subject to Section 4.4) be paid to Seller within
thirty (30) days of receipt by Purchaser. Purchaser shall not be required
to institute any action or proceeding to collect any delinquent percentage
rent;
(d) Common area maintenance expenses and charges relating
to Transferred Leases ("CAM Charges") shall be prorated. Seller shall be
responsible for all CAM Charges incurred prior to Closing, and Purchaser
shall be responsible for CAM Charges subsequent to Closing (subject to the
relevant provisions of the Levitz Lease). All CAM Charge payments made by
each tenant under its Transferred Lease for the entire lease year during
which the Closing occurs, including end-of-year adjustments, if any, shall
be prorated between Seller and Purchaser in the following manner: Prior to
Closing, Seller shall deliver to Purchaser, with regard to each Transferred
Lease where the tenant is required to pay CAM Charges under its lease, a
detailed computation showing all CAM Charge expenses incurred by Seller for
the period from the beginning of each such tenant's then current billing
period for CAM Charges (e.g., calendar year, lease year, etc.) through the
Closing Date, any CAM Charge monthly escalation or pass through payments
theretofore collected by Seller (whether on an estimated basis or
otherwise) relating to such tenant (hereinafter referred to as the "CAM
Payments"), and a bill for the tenant's pro rata share of CAM Charges
(i.e., for CAM Charges through the Closing Date net of any such CAM
Payments), together with all invoices and other evidence documenting such
CAM Charges in detail required by such tenant's lease. Purchaser, at its
option, may either:
(i) elect to send any such bills to tenants
promptly following Closing, in which event such tenant shall pay any amount
shown due directly to Seller, and Purchaser shall have no responsibility to
collect same; or
(ii) elect to incorporate any bills prepared by
Seller into a single post-closing (as and when Purchaser deems appropriate
for annual reconciliation or other billing of CAM charges for any tenant)
bill for CAM Charges to such tenant, in which event such single bill, as
and when paid, shall be apportioned between Seller and Purchaser based on
the ratio of pre-and post-Closing CAM Charges (taking into account any CAM
Payments retained by Seller at Closing); or
(iii) elect, post-Closing (as and when Purchaser
deems appropriate for annual reconciliation or other billing of CAM Charges
for any tenant) to send two bills to such tenant (i.e., one for pre-Closing
CAM Charges as prepared by Seller and one for post-Closing CAM Charges),
with such tenant to pay Seller directly for unpaid pre-Closing CAM Charges,
if any.
Notwithstanding Purchaser's election above set forth, any CAM
Payments for any tenant shall be retained by Seller up to the amount of the
pre-Closing CAM Charges payable by such tenant as evidenced by such bills
and computations delivered by Seller at Closing, and any excess shall be
paid or credited to Purchaser at Closing. If, based upon an annual
reconciliation of CAM Charges, Purchaser determines that tenants under
Transferred Leases are owed refunds with respect to the pre- Closing
period, then then Seller shall pay such refund to Purchaser within thirty
(30) days after notice, and this obligation shall survive the Closing.
4.4 In the event that there remains any unpaid base or minimum
rent under any Transferred Lease for a period prior to the month of
Closing, all payments of base or minimum rent received from such tenant
shall be applied to sums owed Purchaser before any part thereof shall be
treated as belonging to Seller. In the event that there remains any unpaid
tenant receivable other than base or minimum rent (including without
limitation any tax, CAM Charges, insurance or percentage rent payments) for
any period prior to the Closing under any such lease, all payments received
from any tenant in arrears shall be applied to any sums owed Purchaser from
such tenant (whether base or minimum rent or any other amount) before any
part thereof shall be treated as belonging to Seller. If at the time of
Closing any tenants under any Transferred Leases owe Seller any money,
Seller shall have the right, subsequent to the Closing, to collect such
sums directly from the tenants including bringing lawsuits against the
tenants (at Seller's sole expense) for such collection; provided, however,
Seller agrees that any such legal action or collection shall not include
any disturbance of the possession, use or occupancy by the tenants of this
space under any Transferred Lease or any right to evict the tenants,
whether pursuant to the lease provisions or otherwise, and Purchaser shall
not be obligated to join in any lawsuit or in any other way to participate
or cooperate with Seller in its collection attempts, unless required to by
law for Seller to maintain its action, and in such event, Purchaser will
(at Seller's expense) join in such a lawsuit or action only if the same
does not include, require or result in disturbance of the possession, use
or occupancy by any tenants, as aforesaid.
4.5 All brokerage and leasing commissions or other compensation
due or accrued prior or subsequent to the date of Closing to any broker,
agent, or other person in connection with any Parcel for brokerage or other
services rendered to Seller or any predecessor of Seller in connection with
the management and/or leasing of the Parcel (including without limitation
any that may or could be due at Closing or in the future, attributable to
the execution or renewal of any Space Lease) shall be credited to Purchaser
to the extent not paid by Seller prior to Closing (it being agreed that
payment of all of the foregoing shall be the sole responsibility of
Seller).
4.6 All prepaid rentals, other prepaid payments, security
deposits, electric, gas, sewer and water deposits deposited with Seller by
tenants, (including all accrued interest on all of the foregoing, unless
Seller is entitled to retain the benefit thereof) under any Transferred
Leases shall all belong to Purchaser and all shall be assigned and
delivered to Purchaser at the Closing. At Purchaser's option, Purchaser may
take a cash credit in the amount of all security deposits and other amounts
to be delivered to Purchaser at Closing pursuant to this Section 4.6, and
Seller may retain same. Purchaser shall indemnify Seller against liability
with respect to such security deposits to the extent of such security
deposit credit.
4.7 If, following Closing, a claim should be made by any
entity, party or authority that it is entitled to receive unpaid or
additional Transfer Taxes, Seller shall be responsible for and hereby
agrees to pay any such claim as and when made (including any interest
and/or penalties thereon or in connection therewith). Seller shall have the
right to contest any such claim, provided it deposits the amount claimed in
escrow with Purchaser for payment if such contest is unsuccessful. Seller
shall and hereby agrees to defend, indemnify and hold Purchaser harmless
from and against any claim, cost, loss or liability arising from or related
to non-payment of any Transfer Taxes.
4.8 The parties recognize that the roofs of the St. Paul, MN,
Burnsville, MN and Woodbridge, NJ Levitz Stores, among others, are in need
of repair, replacement and/or snow bracing, as more fully described in
Exhibits 15 and 18 attached hereto (the "Roof Work"), which Roof Work must
be completed by Seller at Seller's sole cost and expense. Seller shall
cause the Roof Work to be performed in a good and workmanlike manner, in
accordance with all applicable laws and to Purchaser's reasonable
satisfaction. Any Roof Work shall be performed using such materials and
techniques as will assure at least a twenty (20) year useful life for the
roofs. Within sixty (60) days after Closing and every sixty (60) days
thereafter until the Roof Work is fully completed, the Seller shall provide
Purchaser with a written report which shall describe the Roof Work that
Seller has completed since Closing or during the sixty (60) day period
preceding the report. All such Roof Work shall be completed within eighteen
(18) months after Closing; provided, however if the Roof Work is not
completed prior to the date of confirmation of a plan of reorganization
under Chapter 11 of the Bankruptcy Code in the Bankruptcy Cases (the "Plan
of Reorganization"), then the Plan of Reorganization shall expressly
provide that Purchaser shall have an allowed super-priority administrative
expense claim, which shall have priority over any and all administrative
expenses of the kind specified in Sections 503(b) or 507(b) of the
Bankruptcy Code, equal to Nine Hundred Eighty-Five Thousand Dollars
($985,000.00) less the value of all Roof Work performed and paid for by
Seller to the date the Plan of Reorganization is confirmed, which amount
shall be funded on the effective date of such confirmed Plan of
Reorganization and placed in one or more segregated, federally insured,
interest bearing escrow accounts designated by Purchaser (the "Roof Work
Account") to pay for the cost of the Roof Work. Alternatively, Seller may
post a letter of credit in the aforesaid amount, issued by a bank and
otherwise in form and substance, acceptable to Purchaser. All interest
earned on the funds in the Roof Work Account shall be added to and become a
part of the Roof Work Account. Prior to the disbursement of any funds in
the Roof Work Account or a draw on the letter of credit, as the case may
be, Seller shall provide to Purchaser: (a) a budget for the completion of
the Roof Work, setting forth in reasonable detail line items for the
significant portions of the Roof Work; and (b) a copy of each executed
construction contract for the Roof Work. The funds in the Roof Work Account
shall be disbursed or the letter of credit may be drawn in the following
manner: On or before the 15th day of each month during the course of the
construction of the Roof Work, Seller shall deliver to Purchaser a
statement certified by Seller setting forth the costs of Roof Work incurred
by Seller for the preceding calendar month, accompanied by AIA form G702
(or such other voucher or form reasonably prescribed by Purchaser or its
lender), and which shall provide for retainage of ten percent (10%) until
the Roof Work is fifty percent (50%) completed, at which time the retainage
shall be reduced to five percent (5%) ("Seller's Maintenance Draw").
Purchaser shall pay or cause to be disbursed Seller's Maintenance Draw
within thirty (30) days thereafter. If the actual cost of performing the
Roof Work is greater than the balance in the Roof Work Account or if it
exceeds the amount of the letter of credit, then Seller will pay the
difference on demand, and if the actual costs are less, then Purchaser will
promptly refund the difference to Seller. The Roof Work is in addition to
any maintenance, repairs and replacements that Seller is obligated to
perform pursuant to the Levitz Lease. The provisions of this Section 4.8
shall survive the Closing.
4.9 The parties acknowledge that Mostardi-Platt Associates, Inc
has reviewed certain environmental reports prepared by ATC Associates, Inc.
with respect to the Real Estate, and has issued a report (the
"Environmental Report Summary") which sets forth certain environmental
conditions described in Exhibit 16 (which, together with any other
environmental conditions identified pursuant to clause (a) below, are
hereinafter called "Environmental Conditions") and recommends that certain
action be taken in response to the Environmental Conditions, including the
performance of additional environmental investigation and testing. Between
the date of this Agreement and the date of Closing, Seller shall, at
Seller's sole cost and expense: (a) perform all additional environmental
investigation and testing recommended by the Environmental Report Summary;
and (b) prepare and submit to Purchaser for Purchaser's approval, an
environmental remediation plan (the "Remediation Plan") which shall set
forth, among other things, the scope of work, estimated cost, contractors
and consultants to be engaged and time frame within which Seller will cause
the Environmental Conditions to be remediated; provided, however, if Seller
reasonably determines that the individual cost of remediating the
Environmental Conditions at any individual Parcel of Real Estate exceeds
fifty percent (50%) of the liquidation value of such Parcel as allocated in
Exhibit 13 (each, a "High Remediation Cost Property"), then Seller may
elect to withdraw such High Remediation Cost Property from this transaction
by providing Purchaser with written notice ("Withdrawal Notice") expressing
Seller's desire to withdraw any High Remediation Cost Property, such
Withdrawal Notice to be given, if at all, at least ten (10) business days
prior to the date of the Auction. If Seller timely provides a Withdrawal
Notice, then: (a) the Purchase Price set forth in Section 3 of this
Agreement shall be reduced by the liquidation value assigned to the High
Remediation Cost Property so withdrawn as set forth in Exhibit 13; provided
further, however, Purchaser may negate a Withdrawal Notice relating to a
High Remediation Cost Property if Purchaser agrees to limit Seller's
remediation liability to fifty percent (50%) of the liquidation value of
such High Remediation Cost Property as set forth in Exhibit 13. Except as
provided in the prior sentence, Seller shall cause the Environmental
Conditions to be remediated in a good and workmanlike manner and in
accordance with all applicable laws and the Remediation Plan. Within sixty
(60) days after Closing and every sixty (60) days thereafter until the
Environmental Conditions are fully remediated, the Seller shall provide
Purchaser with a written report which shall describe the Environmental
Conditions that Seller has remediated since Closing or during the sixty
(60) day period preceding the report. All above ground remediation shall be
completed within nine (9) months after Closing, and any underground
remediation shall be completed within thirty-six (36) months after Closing;
provided, however, Seller need not remove as part of the remediation
required by this Section (as distinguished from any remediation that Seller
is obligated to perform pursuant to the Levitz Lease) any: (a) non-friable
asbestos containing material in any vinyl composition floor tile; or (b)
non-friable nonspray-on asbestos pipe wrap insulation. If Seller has not
completed the remediation of the Environmental Conditions in accordance
with the Remediation Plan prior to the date of confirmation of the Plan of
Reorganization in the Bankruptcy Cases, then the Plan of Reorganization
shall expressly provide that Purchaser shall have an allowed super-priority
administrative expense claim, which shall have priority over any and all
administrative expenses of the kind specified in Sections 503(b) or 507(b)
of the Bankruptcy Code, equal to seventy-five percent (75%) of the budget
for completing the Remediation Plan; provided, however, the budget amount
for any given Property for purposes of calculating the super-priority claim
shall not exceed the lesser of Four Hundred Thousand Dollars ($400,000.00)
or fifteen percent (15%) of the liquidation value assigned to such Property
in Exhibit 13; and such amount shall be funded on the effective date of any
such confirmed Plan of Reorganization and placed in one or more segregated,
federally insured, interest bearing escrow accounts designated by Purchaser
(the "Environmental Remediation Account") to pay for the cost of
remediating the Environmental Conditions. Alternatively, Seller may post a
letter of credit in the aforesaid amount, issued by a bank and otherwise in
form and substance, acceptable to Purchaser. All interest earned on the
funds in the Environmental Remediation Account shall be added to and become
a part of the Environmental Remediation Account. Prior to the disbursement
of any funds in the Environmental Remediation Account or a draw on the
letter of credit, as the case may be, Seller shall provide to Purchaser a
copy of each executed construction contract for the remediation. The funds
in the Environmental Remediation Account shall be disbursed in the
following manner: (i) On or before the 15th day of each month during the
course of the remediation, Seller shall deliver to Purchaser a statement
certified by Seller setting forth the costs of remediation incurred by
Seller for the preceding calendar month, accompanied by AIA form G702 (or
such other voucher or form reasonably prescribed by Purchaser or its
lender), and which shall provide for retainage of ten percent (10%) until
the remediation is fifty percent (50%) completed, at which the retainage
shall be reduced to five percent (5%) ("Seller's Environmental Draw").
Purchaser shall pay or cause to be disbursed Seller's Environmental Draw or
the letter of credit may be drawn within thirty (30) days thereafter. If
the actual cost of performing the remediation is greater than the balance
in the Environmental Remediation Account or the amount of the letter of
credit, as the case may be, then Seller will pay the difference on demand,
and if the actual costs are less, then Purchaser will promptly refund the
difference to Seller. The provisions of this Section 4.9 shall survive the
Closing.
4.10 At Closing, Purchaser shall deliver to the Escrow Agent an
amount equal to One Million Dollars ($1,000,000.00), which amount is in
addition to the Purchase Price and shall be held by the Escrow Agent in a
federally insured interest bearing escrow account (the "Purchase Price
Adjustment Account") until such funds are required to be distributed as
provided in this Section 4.10 Alternatively, Purchaser may post a letter of
credit in the aforesaid amount issued by a bank and otherwise in form and
substance, acceptable to Seller. All interest accruing on the funds in the
Purchase Price Adjustment Account shall become a part of same and shall
likewise be distributed in accordance with the terms of this Section 4.10.
If: (a) the Bankruptcy Court enters an order which becomes a Final Order on
or before December 31, 1999 either: (i) approving Seller's Plan of
Reorganization; or (ii) converting all of the Seller's Chapter 11
Bankruptcy Cases to Bankruptcy Cases under Chapter 7 of the Bankruptcy
Code; and (b) no event has occurred or failed to occur which, with the
giving of notice or passage of time or both, would constitute a default
under this Agreement or the Lease; then the funds in the Purchase Price
Adjustment Account shall be distributed to Seller, or in the case of a
letter of credit, the letter of credit may be drawn and the proceeds
distributed to Seller. If the Bankruptcy Court does not enter an order
which becomes a Final Order on or before December 31, 1999 consistent with
either clause (a)(i) or (ii) or an event has occurred or failed to occur
which, with the giving of notice or passage of time or both, constitutes a
default under this Agreement or the Lease, then the funds in the Purchase
Price Adjustment Account shall be distributed to Purchaser, or in the case
of a letter of credit, the letter of credit shall be returned to Purchaser.
The provisions of this Section 4.10 shall survive the Closing.
4.11 Purchaser shall not employ and shall not be responsible
for any charges, salaries, vacation pay or fringe benefits of employees of
Seller prior to or following the Closing and none of the foregoing shall be
prorated.
5. TITLE.
5.1 Seller shall convey to Purchaser at Closing good,
marketable, valid and insurable fee (or leasehold, as the case may be)
title to each Parcel, subject only to the Space Leases and the Permitted
Exceptions.
5.2 If at Closing there shall exist on any Parcel a mortgage or
other lien of a specified or readily ascertainable dollar amount on
Seller's interest (other than Permitted Mortgages), Seller shall be
required to remove the same by payment, by bonding, or causing the Title
Company to insure over the same or otherwise.
5.3 It shall be a condition to Purchaser's obligation to close
that Purchaser shall be able to obtain at Closing (at Seller's expense as
aforesaid) a title insurance policy from First American Title Insurance
Company (or such other reputable and nationally known title insurance
company reasonably acceptable to both parties hereto) for each Parcel, in
the amount of the Purchase Price allocated thereto, subject only to the
Permitted Exceptions and otherwise in form acceptable to Purchaser
(including all title endorsements listed on Exhibit 14 and/or such
affirmative insurance as Purchaser's mortgage lender deems appropriate in
its reasonable judgment).
6. HAZARDOUS SUBSTANCES. Seller represents and warrants (and it shall
be a condition precedent to Purchaser's obligation to close) that, except
as otherwise disclosed in written reports delivered to Purchaser prior to
the date hereof by Seller or by Purchaser's environmental consultants as
set forth in Exhibit 17, as of the date of Closing: all Real Estate is in
compliance with and does not violate any provisions of any Environmental
Law; and that Seller has never used the Properties for the dumping or
storage of any Hazardous Substances and knows of no such use by any other
party and that there does not exist on, in or under any Property any
Hazardous Substances, except for Hazardous Substances existing on the Real
Estate that are used in the ordinary course of business of Purchaser and
are not in violation of any Environmental Law. The provisions of this
Section 6 shall survive the Closing.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER. In order to
induce Purchaser to enter into the transaction herein set forth, Seller
covenants, represents and warrants to Purchaser the following, all of which
shall be required to be true and correct in all material respects on the
date hereof and as of the Closing Date (except with respect to matters
disclosed on Exhibit 18 attached hereto) as a condition precedent to
Purchaser's obligations hereunder, and all of which shall survive the
Closing:
7.1 Levitz Furniture Corporation: (a) is a corporation, duly
organized, validly existing and in good standing under the laws of the
State of Florida, and is duly qualified as a foreign corporation and is in
good standing in each jurisdiction where a Parcel owned or leased by Levitz
Furniture Corporation is located; and (b) subject to Bankruptcy Court
approval, has the requisite corporate power and authority and the legal
right to own, pledge, mortgage and operate its properties, to sell (or
assign leasehold interest in) the Properties, to enter into this Agreement
and to enter into the Levitz Lease. Each of the subsidiaries identified on
Exhibit 1: (i) is a corporation, duly organized, validly existing and in
good standing under the laws of the State set forth in Exhibit 1 opposite
such subsidiaries name, and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction where any Parcel owned or leased
by such subsidiary is located; and (ii) subject to Bankruptcy Court
approval, has the requisite corporate power and authority and the legal
right to own, pledge, mortgage and operate its properties, to sell (or
assign leasehold interest in) the Properties, to enter into this Agreement
and to enter into the Levitz Lease.
7.2 The execution, delivery and performance by Seller of each
of the documents consummating the herein referenced sale to which it is a
party are within the corporate powers of Seller, have been duly authorized
by all necessary corporate action and, on the Closing Date will have been
approved by the Bankruptcy Court, and do not: (a) contravene the charter or
by-laws of Seller; (b) to Seller's knowledge, violate any law (including,
without limitation, the Securities Exchange Act of 1934) or regulation, or
any order or decree of any court or governmental instrumentality; (c)
conflict with or result in a breach of, or constitute a default under
(except to the extent waived by any lender), any material indenture, loan
agreement, mortgage or deed of trust or any material lease, agreement or
other instrument binding on Seller or any of its properties; or (d) result
in or require the creation or imposition of any lien upon any of the
property of Seller (other than the Levitz Lease). This Agreement has been
duly executed and delivered by Seller and each person who is a signatory to
this Agreement has full power and authority to bind Seller subject to
Bankruptcy Court approval.
7.3 Seller has good, marketable and insurable fee or leasehold
title to all of the Real Estate (subject only to the Permitted Exceptions)
as specified on Exhibit 2 and Exhibit 3, and to Seller's knowledge, there
are no monetary liens (including liens or retained security interests of
conditional vendors) of any nature whatsoever on any of the Real Estate
(except for Permitted Mortgages). Seller is not a party to any contract,
agreement, lease or instrument, the performance of which, either
unconditionally or upon the happening of an event, will result in or
require the creation of a lien on any of the Properties or otherwise result
in a violation of this Agreement, except as expressly permitted hereunder.
7.4 It is Seller's intent to use the proceeds of the sale of
the Properties in accordance with the provisions of the Sale Order for
repayment of debt and/or general working capital purposes; and such
proceeds shall not be used in any manner by Seller which will result in a
breach or a default under any existing agreement between Seller and any of
its creditors.
7.5 Except as otherwise set forth herein (and subject to the
entry of the Sale Order), no consent from any person or entity is required
as a condition to the execution and delivery of this Agreement or the
Levitz Lease, or any other document or instrument to be executed and
delivered by any Seller pursuant to the terms hereof, or the performance by
Seller hereunder, or under any of the other documents or instruments to be
executed and delivered by any Seller hereunder.
7.6 Except as set forth on Exhibit 18 attached hereto, Seller
has filed or caused to be filed all tax returns in which the liability for
taxes in the aggregate is in excess of Fifty Thousand Dollars ($50,000.00)
and which to Seller's knowledge are required to be filed to date, and has
paid all taxes shown to be due and payable before delinquency on said
returns or on any assessments made (other than those being contested in
good faith by appropriate proceedings for which adequate reserves have been
provided on the books of Seller), and no tax liens have been filed and, to
Seller's knowledge, no claims are being asserted by any taxing authority
with respect to any taxes that would become a lien on the Properties or any
portion thereof.
7.7 Seller has been represented by counsel in connection with
the negotiation and drafting of this Agreement and all related agreements,
including the Levitz Lease, and Seller has undertaken its own independent
investigation and review and, based upon such investigation and review, and
based on Seller's current financial condition and its business plan, has
determined in the exercise of its business judgment that the transactions
contemplated in this Agreement (including without limitation the amount of
the Purchase Price and the terms of the Levitz Lease) are fair and are in
the best interests of Seller and its shareholders and creditors.
7.8 Except as set forth on Exhibit 18 attached hereto, Seller
has not received written notice from any Governmental Authority, mortgagee,
tenant, insurer or other party with respect to any of the Properties: (a)
that either the Properties or the use or operation of the improvements
thereon is currently in violation of any zoning, environmental or other
land use regulations; (b) that Seller is currently in violation or with the
passage of time will be in material violation of the requirements of any
ordinance, law or regulation or order of any government or any agency, body
or subdivision thereof (including, without limitation, the local building
department) or the requirements of any insurance carrier of Seller
respecting the Properties or Board of Fire Underwriters affecting any of
the Properties, or that any investigation has been commenced, or is
contemplated, regarding any such possible violation; or (c) asserting that
Seller is required to perform work at any Property and to Seller's
knowledge no such notice has been issued.
7.9 Except as set forth on Exhibit 19 attached hereto, there is
no pending material litigation brought by or against Seller affecting any
Property (including, without limitation, the Real Estate, the Overleases,
and the Space Leases) or the operation of any Property. Seller has no
knowledge of any other such threatened material litigation which affects
any Property. The provisions of this Section shall not apply to any
litigation involving personal injury or property damage that is fully
covered by Seller's liability insurance (subject to any deductible).
7.10 The Space Leases described in Exhibit 9 comprise all the
Space Leases presently existing for any Property and each is in full force
and effect; no Space Lease has been modified or supplemented except (if at
all) as set forth on Exhibit 9; Seller has delivered to Purchaser true,
correct and complete copies of each instrument constituting any Space
Lease; no rent has been paid more than one month in advance by any tenant,
and no tenant is entitled to any current defense, credit, allowance or
offset against rental; the information set forth in Exhibit 9 is true,
correct and complete. To Seller's knowledge, there is no default of either
landlord or any default of tenant under any of the Space Leases, and to
Seller's knowledge, no state of facts which with notice and/or the passage
of time would ripen into a default. There are no persons or entities (other
than Seller) entitled to possession of any Real Estate other than those
listed on Exhibit 9 and or pursuant to the Concession Agreements listed in
Exhibit 10. No work or installations are required of Seller under any Space
Lease, and Seller has fully completed all tenant improvements specified in
any Space Lease to be the responsibility of the landlord and has paid all
tenant construction allowances. There are no leasing commissions due nor
will any become due in connection with any Space Lease, or the renewal
thereof and no understanding or agreement exists in regard to payment of
any leasing commissions or fees for future Space Leases. No Space Lease
tenant is entitled to any free rent in lieu of a tenant improvement
allowance or otherwise. To Seller's knowledge, Seller has no obligations
with respect to contributing for or paying dues or charges to a tenant's
merchant's association. Seller is the holder of the entire lessor's
interest under each Space Lease and has not assigned, transferred, pledged
or encumbered same.
7.11 To Seller's knowledge, the Concession Agreements described
in Exhibit 10 comprise all the Concession Agreements presently existing for
any Property and each is in full force and effect; no Concession Agreement
has been modified or supplemented except (if at all) as set forth on
Exhibit 10. Seller has delivered to Purchaser true, correct and complete
copies of each instrument constituting any Concession Agreement, and no
rent has been paid more than one month in advance by any licensee under a
Concession Agreement, and, to Seller's knowledge, no licensee is entitled
to any current defense, credit, allowance or offset against rental. To
Seller's knowledge, the information set forth in Exhibit 10 is true,
correct and complete. To Seller's knowledge, there is no default of either
Seller or any default of licensee under any of the Concession Agreements,
and to Seller's knowledge, no state of facts which with notice and/or the
passage of time would ripen into a default.
7.12 To Seller's knowledge, there is no default by any party
under any reciprocal easement agreement, covenant or restriction, or other
agreement of record affecting any Real Estate (hereinafter collectively the
"Title Agreements"), and no state of facts which with notice or the passage
of time would constitute such a default. In amplification of the foregoing,
to Seller's knowledge, it has paid all amounts, satisfactorily performed
all work, and otherwise complied with all provisions required to be paid,
performed or complied with by the owner (or occupant) of all of the Real
Estate under all Title Agreements. Seller has delivered or caused to be
delivered to Purchaser true, correct and complete copies of each instrument
constituting any Title Agreement.
7.13 Seller will pay all general, special and betterment
assessments on any Property which are due and payable (i.e., prior to
delinquency) prior to the date of Closing.
7.14 To Seller's knowledge, there are not now and will not be
on the date of Closing any agreements or understandings relating to any
Property which would be binding on Purchaser, except for Title Agreements,
Overleases, and Space Leases. No alterations, amendments or waivers
pertaining to the foregoing will be made by Seller except with Purchaser's
written approval prior to the date of Closing.
7.15 To Seller's knowledge, all permits and authorizations
necessary with respect to each Property for its use, operation and
occupancy are now in effect and will be in full force and effect as of the
date of Closing.
7.16 Except as set forth on Exhibit 18 hereof, to Seller's
knowledge, no property other than each Parcel is included in the tax
assessment of each Parcel, and there are no unpaid assessments for utility
installations.
7.17 There are no on-site employees or hired persons in
connection with the management, operation or maintenance of any Property
for which Purchaser will have any responsibility. Purchaser shall have no
obligation, liability or responsibility with respect to charges, salaries,
vacation pay, fringe benefits or like items subsequent to Closing, nor with
any management or employment agreements with respect to any Property.
7.18 Except as set forth on Exhibit 18 hereof, Seller has no
knowledge of any structural defects in the improvements situated upon each
Parcel, and the roofs over such improvements are free of leaks, except to
the extent any such roof problem would not materially impair normal store
operation.
7.19 To Seller's knowledge, there is presently adequate parking
at each Parcel to comply with the requirements of all of the Space Leases,
Title Agreements and the applicable zoning laws (both individually and in
the aggregate), as modified by any variances in place, for the present use
of the Property.
7.20 Except as set forth in the Leases, no tenant under a Space
Lease, landlord under an Overlease, party to a Title Agreement, or other
person has any
option, right of first refusal,
redemption right, or other right to purchase any of the Real Estate or any
part thereof or interest therein. No landlord under an Overlease has any
right to cancel or terminate same or increase the rent payable thereunder
by reason of any of the transactions set forth in this Agreement.
7.21 To Seller's knowledge, each Property has adequate drainage
systems and easements in place so that water freely runs off it and does
not pool or collect on any portion thereof in a manner that would
materially impair the use and occupancy of such Property; and such run-off
does not violate the rights of any owners of adjacent property.
7.22 To Seller's knowledge, all construction and/or maintenance
work required by the terms of any Overlease, Space Lease, or Title
Agreement, or by any building, zoning or other law, ordinance or regulation
affecting any Property, including without limitation any roadway and
utility line construction on the Properties and/or adjacent property, has
been completed and there are and will be no charges, liens or assessments
against any Property or Purchaser for any of same.
7.23 Seller knows of no pending or threatened eminent domain
proceedings against or affecting any Property.
7.24 The Overleases described in Exhibit 6 comprise all the
Overleases presently existing for any of the Real Estate and each is in
full force and effect; no Overlease has been modified or supplemented,
except (if at all) as set forth on Exhibit 6; Seller has delivered to
Purchaser true, correct and complete copies of each instrument constituting
any Overlease; no rent has been paid more than one (1) month in advance by
Seller, and all rent and/or additional rent due to date under any Overlease
has been paid; the information set forth in Exhibit 6 is true, correct and
complete. To Seller's knowledge, there is no default of either the landlord
or any material default of Seller under any of the Overleases, and to
Seller's knowledge, no state of facts exists which with notice and/or the
passage of time would ripen into a material default other than as stated in
the Sale Order. No work or installations are required of Seller except as
specified (if at all) in the Overleases, and in any case Seller has fully
completed all improvements specified in any Overlease to be the
responsibility of the tenant. There are no leasing commissions due nor will
any become due by Seller in connection with any Overlease. To Seller's
knowledge, Seller has no obligations with respect to contributing for or
paying dues or charges to a tenant's merchant's association. Seller has not
assigned, hypothecated, encumbered or conveyed its interest under the
Overleases.
7.25 Following the execution of this Agreement and prior to the
Closing Date, except as set forth on Exhibit 12 hereof, Seller shall
maintain, repair, replace and operate the Properties in the same manner as
Seller is presently operating and maintaining the Properties, including,
without limitation, the provision of security to the Properties. Following
the date of execution and delivery of this Agreement, Seller shall not
sell, assign, lease or create any right, title or interest in the
Properties, or any part thereof, or create, or permit to exist, any lien or
encumbrance thereon, without the prior consent of Purchaser, which consent
may be withheld in Purchaser's sole discretion. Seller shall operate and
maintain the Properties in compliance with all applicable laws, ordinances,
codes, statutes and regulations shall not delay or defer any repair or
maintenance item, and shall pay all bills and obligations arising from any
Property as payment becomes due. Seller shall not make any alterations to
or upon any Property, other than alterations required in connection with
Seller's repair maintenance and replacement obligations hereunder, except
with purchaser's prior written consent, which consent may be withheld in
Purchaser's sole discretion. Seller shall not make or permit any change,
amendment, cancellation, termination or extension to any Overlease, Space
Lease, Title Agreements, Permitted Exceptions, contracts, or any of the
other documents or agreements of which it is a party and shall not make any
other agreement concerning any Property, in any case which is not
terminable upon thirty (30) days' notice, without premium or penalty,
without Purchaser's prior written consent, which consent may be withheld in
Purchaser's sole discretion. Seller shall promptly notify Purchaser in
writing of any inquiries, notices, demands, requests, discussions, or
correspondence with any landlords, tenants, subtenants, licensees or
occupants with respect to any existing or future Overlease, Space Lease,
Concession Agreement, or Title Agreement. Seller shall diligently comply
with its obligations under all Overleases, Space Leases, Concession
Agreements and Title Agreements. Seller shall not make application to any
governmental or quasi-governmental or municipal authority with respect to
any permits or other approvals (except for the extension thereof in the
ordinary course of business) or any other change in the zoning or otherwise
affecting any Property, except in each case with Purchaser's prior written
consent, which may be withheld in Purchaser's sole discretion.
Notwithstanding anything above contained, Seller shall not be deemed
to be in breach or default of or under any representation or warranty set
forth in Sections 6, 7.4, 7.9, 7.12, 7.13, 7.14, 7.19, 7.22, 7.23, or 7.25
if and to the extent the fact, event, circumstance or condition causing or
resulting in any such breach of a representation or warranty would: (a)
constitute a default under the Levitz Lease; and (b) is fully cured by
Seller (as tenant under the Levitz Lease) within the applicable grace
period therein set forth; provided, however, nothing contained in this
paragraph shall be deemed to limit Section 11 hereof or any other condition
to Purchaser's obligation to close or otherwise require Purchaser to close
in the event of any breach by Seller of any of its representations,
warranties or covenants hereunder.
If any of the representations of Seller set forth in this Section 7
are made to "Seller's knowledge," such phase shall mean the joint and
several knowledge of: (a) Michael McCreery (Seller's VP & CFO); (b) Edward
Zimmer (Seller's General Counsel); and/or (c) Ronald Barr (Seller's
in-house architect).
All of the representations, warranties and covenants made by Seller
in this Agreement exclude and except those matters referred to in Exhibit
18.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER.
In order to induce Seller to enter into the transaction herein set
forth, Purchaser covenants, represents and warrants to Seller the
following, all of which shall be required to be true and correct in all
material respects on and as of the Closing Date as a condition precedent to
Seller's obligations hereunder, and all of which shall survive the Closing:
8.1 Klaff is: (a) is a limited partnership, duly organized,
validly existing and in good standing under the laws of Delaware and is
duly qualified as a foreign limited partnership in each other jurisdiction
where a Parcel is located and where the failure to so qualify would have a
material adverse effect on the financial condition, operations, business,
properties or assets of Klaff; (b) has the requisite power and authority
and the legal right to own and operate its properties, to buy the Parcels,
to enter into the Levitz Lease and to conduct its business as now or
currently proposed to be conducted. LA1, LA2 and LA3: (a) each are limited
partnerships, duly organized, validly existing and in good standing under
the laws of Delaware and are duly qualified as foreign limited partnerships
in each other jurisdiction where a Parcel is located and where the failure
to so qualify would have a material adverse effect on the financial
condition, operations, business, properties or assets of LA1, LA2 and LA3;
(b) each has the requisite power and authority and the legal right to own
and operate its properties, to buy the Parcels, to enter into the Levitz
Lease and to conduct its business as now or currently proposed to be
conducted.
8.2 The execution, delivery and performance by Purchaser of
each of the documents to which it is a party are within the partnership
powers of Purchaser, have been duly authorized by all necessary partnership
action, including the consent of all general partners where required, and
do not: (a) contravene the partnership agreement of Purchaser; (b) to
Purchaser's best knowledge, violate any law (including, without limitation,
the Securities Exchange Act of 1934) or regulation, or any order or decree
of any court or governmental instrumentality; or (c) conflict with or
result in a breach of, or constitute a default under, any material
agreement or other instrument binding on Purchaser or any of its
properties.
9. THE CLOSING.
9.1 The Closing of the sale and purchase of the Properties
shall be held at the Philadelphia, PA offices of Purchaser's counsel,
Klehr, Harrison, Harvey, Branzburg & Ellers, at 9:00 A.M. on the first
business day after: (a) all conditions precedent to Closing have been
fulfilled or waived; and (b) the Sale Order becomes a Final Order, provided
that Purchaser can waive such required Final Order and require Closing to
occur at any time prior thereto upon three (3) business days written notice
to Seller.
9.2 At Closing, Purchaser shall pay the Purchase Price adjusted
in accordance with the relevant provisions of this Agreement; and Purchaser
shall execute and/or deliver partnership resolutions authorizing the
transaction herein contemplated. Purchaser shall also deliver
organizational documents, signed counterparts of the Levitz Lease and a
memorandum thereof, if any, and other assignment documents required under
this Agreement.
9.3 At Closing, Seller shall execute and/or deliver to
Purchaser the following:
(a) A special warranty deed (or the equivalent thereof)
for each Fee Parcel in proper recordable form, duly executed and
acknowledged by Seller, and sufficient to convey to Purchaser or at
Purchaser's option to a Purchaser Designee, fee simple absolute ownership
of the Real Estate free and clear of all liens, encumbrances and leases
except for the Space Leases and Permitted Exceptions.
(b) An Assignment of Lease for each Overlease, in proper
recordable form, duly executed and acknowledged by Seller, and sufficient
to assign to Purchaser or at Purchaser's option to a Purchaser Designee,
Seller's entire right, title and interest in and to each Overlease, free
and clear of all liens, encumbrances (other than Permitted Exceptions) and
leases except for the Space Leases.
(c) An Assignment of Lease for each Transferred Lease, in
proper recordable form, duly executed and acknowledged by Seller, and
sufficient to convey to Purchaser or at Purchaser's option to a Purchaser
Designee, Seller's entire right, title and interest in and to each
Transferred Lease.
(d) An Estoppel Certificate for each Transferred Lease,
substantially in the form of Exhibit 20.
(e) Notices to Overlease landlords, Space Tenants and
other parties to Reciprocal Easement Agreements (in each case in compliance
with any relevant requirements of any such document) affecting any Property
advising them of the transfer of the Property to Purchaser and the Levitz
Lease.
(f) A Bill of Sale, duly executed and acknowledged by
Seller, and sufficient to convey to Purchaser or at Purchaser's option to a
Purchaser Designee, Seller's entire right, title and interest in and to the
Personal Property, free and clear of all liens, encumbrances and leases.
(g) The corporate resolutions of Seller authorizing the
transaction contemplated hereby.
(h) All forms and returns required in connection with
payment of Transfer Taxes and/or recording the deeds.
(i) The Levitz Lease. At Seller's request, Purchaser and
Seller shall also execute and deliver at Closing copies of recordable
memoranda of the Levitz Lease for recordation respecting each Parcel.
(j) FIRPTA affidavit in form reasonably satisfactory to
Purchaser to the effect that Seller is not a "foreign person."
(k) Copies of all documents constituting Personal
Property (which copies may be delivered within ten (10) days following
Closing).
(l) Originals of all other documentation, instruments,
plans, specifications, or otherwise, in the possession of Seller or owned
by Seller which could be used by Purchaser in connection with the
Properties and which Seller has not previously delivered to Purchaser and
which are not needed by Seller to run its business in accordance with the
Levitz Lease (which originals may be delivered within thirty (30) days
following Closing).
(m) Such other affidavits, indemnities, certificates,
instruments or documents as may be reasonably requested by Purchaser or its
title insurance company, or as may be required to comply with any
applicable law, including any bonds or deposits as may be required to
comply with any applicable law.
(n) A copy of the Sale Order which has been certified by
the Bankruptcy Court.
(o) A certificate of Seller reaffirming the continuing
accuracy as of the Closing Date of the representations and warranties of
Seller set forth in this Agreement.
(p) A list containing the names, addresses and telephone
numbers of all individuals and entities who, within the nine (9) month
period preceding the Closing, have contacted Seller or its agents and
expressed interest in leasing and/or purchasing the Properties or any
portion thereof.
(q) Letters from the appropriate local Governmental
Authority certifying as to the zoning of each Property and indicating
whether there are any outstanding notices of uncorrected code violations
relating to such Property.
10. ACCESS BY PURCHASER.
10.1 Immediately from and after the date of execution of this
Agreement and up until the Closing Date, Purchaser shall have the right to
conduct, or cause to be conducted, such due diligence investigations,
reviews, studies, tests, examinations and analyses of the Properties and
Seller as Purchaser shall deem necessary or desirable, in the sole
discretion of Purchaser, including, but not limited to, zoning, permits,
approvals, contracts, soils analysis, title, survey, financials, leasing,
engineering and environmental status of the Properties. Seller shall
deliver to Purchaser or, at Purchaser's request, make available to
Purchaser or its designees, for inspection and copying, at any time during
regular business hours and upon reasonable notice to Seller, all
information, documents, materials, instruments, agreements, and contracts
relating to the Properties or Seller, to the extent available, including,
but not limited to, title commitments and policies, as-built surveys,
engineering reports, building and occupancy permits, licenses and
inspections, Overleases, Space Leases, insurance policies, environmental
reports, tests and other information concerning the Properties and books
and records relating to the Properties in Seller's possession. During such
period, Purchaser and its designees shall have free access to the
Properties during regular business hours and upon reasonable notice of not
less than twenty-four (24) hours to Seller for the purpose of conducting
any such due diligence investigations. Seller hereby authorizes Purchaser
and its designees to consult with governmental agencies concerning the
Properties.
10.2 Purchaser shall obtain appropriate insurance coverage for
damage to property and injury to persons in connection with any pre-Closing
examination or inspection of the Real Estate.
10.3 Purchaser agrees to repair any damage to the Properties
caused by its investigation of the Properties and to indemnify and hold
Seller harmless from and against any expense, claim, loss, cost and
liability (including reasonable attorneys' fees) caused by Purchaser in
connection with Purchaser's investigations or any other entry by Purchaser
on the Properties. Anything contained herein to the contrary
notwithstanding, the foregoing indemnity and hold harmless agreement shall
survive the termination of this Agreement for a period of six (6) months.
11. CONDITIONS PRECEDENT TO CLOSING. The obligations of Purchaser
under this Agreement are subject to the fulfillment prior to or at the
Closing of each of the following conditions, any of which may be waived by
Purchaser in writing: (a) the performance and compliance by Seller of all
agreements and conditions required or contemplated by this Agreement to be
performed or complied with by Seller prior to or at the Closing including
delivery of all items and documents in accordance with the provisions of
Section 9 hereof; (b) each of the representations and warranties made by
Seller in connection with the transactions contemplated hereby, shall have
been true and correct on and as of the Closing Date as if such
representations or warranties were made originally on and as of that time;
(c) there shall have been no material adverse change in the Properties
since the date hereof; (d) to the extent any governmental permits including
any licenses, authorizations or permits held by any Seller with respect to
the Properties are not assignable or transferrable, Purchaser has either
obtained licenses, authorization and permits on substantially the same
terms as such licenses, authorizations and permits were originally issued
to such Seller or has obtained binding commitments from the applicable
authorities to issue such licenses, authorizations and permits to Purchaser
following the Closing; (e) no suit, proceeding, inquiry or investigation
shall have been commenced or threatened, or order entered, by any
Governmental Authority or other person on any grounds to restrain, enjoin
or hinder, or to seek damages on account of, the consummation of the
transactions herein contemplated; (f) the Sale Order shall have been
entered by the Bankruptcy Court in form and substance satisfactory to
Purchaser; and (g) , unless waived by Purchaser, the Sale Order shall have
become a Final Order.
12. ASSIGNMENT. No party hereto may assign or transfer its rights or
delegate its duties or obligations hereunder without the prior written
consent of the other party; and any document, instrument or act for which
consent has not been obtained purporting to effect any such assignment,
transfer or delegation shall be void ab initio. Notwithstanding the
foregoing, Purchaser shall have the right to assign all or any portion of
this Agreement to any affiliate or to any lender providing any financing
which is secured in whole or in part by all or any portion of the
Properties; provided, however, in the case of any assignment to an
affiliate, (a) such affiliate executes and delivers to Seller an instrument
pursuant to which the affiliate assumes and agrees to pay and perform all
covenants and agreements to be paid and performed by Purchaser hereunder
and (b) Purchaser shall remain liable hereunder for all of Purchaser's
obligations hereunder.
13. INSURANCE AND RISK OF LOSS.
13.1 Seller shall maintain fire and extended coverage insurance
on each of the Properties until Closing, in an amount not less than
Seller's existing policies with respect to Properties in effect on the date
hereof.
13.2 Loss or damage to the Properties as a result of the
exercise of the power of eminent domain or as a result of fire or casualty
between the date of this Agreement and the time of Closing shall be at the
risk of Seller. Seller shall use any insurance proceeds received to restore
the Properties to substantially similar condition prior to such loss or
damage. If there is any material loss of any Property as a result of the
exercise of the power of eminent domain, or any material loss to any
Property as a result of fire or casualty, that cannot be or is not repaired
or restored prior to Closing, then Purchaser may, at Purchaser's option:
(a) withdraw the Property or Properties so affected by the condemnation,
fire or casualty and proceed to Closing on the balance of the Properties,
in which event the Purchase Price set forth in Section 3 of this Agreement
shall be reduced by the liquidation value assigned to the Property or
Properties so withdrawn as set forth on Exhibit 13; or (b) proceed to
Closing on all the Properties, in which event Seller, upon completing
Closing, shall deliver to Purchaser any eminent domain award or other
compensation and the proceeds of any insurance received by Seller on
account of any loss or damage (and Purchaser shall be entitled to a credit
against the Purchase Price in the amount of any deductibles associated with
such loss or damage), which have not been used by Seller to restore the
Properties, and shall assign all claims to such compensation, proceeds or
awards, even if such award, compensation or proceeds shall exceed the
Purchase Price. Seller shall execute and deliver to Purchaser any and all
documents required before or after Closing for payment of the aforesaid
compensation, proceeds and awards by Purchaser.
13.3 A "material loss" shall be any loss or damage of all or
any portion of a Property by: (a) fire or any other casualty whatsoever
where the cost of restoring such damage exceeds twenty percent (20%) of the
liquidation value assigned to such Property in Exhibit 13; or (b)
condemnation or eminent domain proceedings by any public authority or if a
notice of any such prospective condemnation or taking is given by any
public authority.
14. DEFAULT.
14.1 If Purchaser shall breach or fail to perform and comply
with any of the terms, covenants, provisions, representations or warranties
of this Agreement, after three (3) days' prior written notice to Purchaser
(except that no written notice shall be required for a breach or failure to
perform on the Closing Date), Seller shall have as its sole and exclusive
remedy the right to retain the Deposit together with accrued interest, as
assessed and liquidated damages and not as a penalty, whereupon this
Agreement shall be null and void, and, except as otherwise set forth in
this Agreement, neither party shall have any further rights, duties or
obligations under this Agreement, and Seller shall have no other remedy
against Purchaser. Notwithstanding the foregoing, Seller shall continue to
maintain its rights with respect to indemnification as set forth in Section
10 hereof.
14.2 Prior to the entry of the Procedures Order, if Seller
shall breach or fail to perform or comply with any of the terms, covenants,
provisions, representations or warranties of this Agreement, after three
(3) days' prior written notice to Seller (except that no written notice
shall be required for a breach or failure to perform on the Closing Date),
Purchaser shall have the right to terminate this Agreement, in which case
the Deposit, together with all interest accrued thereon, shall be promptly
returned to Purchaser.
14.3 Notwithstanding anything to the contrary contained herein,
if Purchaser shall be the successful bidder at the Auction (as hereinafter
defined), but the Bankruptcy Court fails to enter the Sale Order, then the
Deposit, together with all interest earned thereon, shall be promptly
returned to Purchaser and, in addition, Seller shall, promptly upon written
request by Purchaser (together with reasonable evidence of the following,
which may include bills and invoices) reimburse Purchaser, in an amount
equal to one hundred ten percent (110%) of Purchaser's reasonable out of
pocket expenses incurred in connection with the negotiation of that certain
letter of intent between the parties hereto dated February 11, 1999, the
preparation and negotiation of this Agreement and the Levitz Lease,
Purchaser's due diligence and Purchaser's seeking of the Bankruptcy Court's
approval in connection herewith, but in no event shall such reimbursement
exceed Six Hundred Fifty Thousand Dollars ($650,000.00) ("Cost
Reimbursement"). Expenses shall include, but not be limited to, attorney's
fees and expenses, consultant's fees and expenses, and travel costs. The
Sale Motion seeking approval of the sale procedures and Breakup Fee shall,
as a separate matter, expressly seek the Bankruptcy Court's approval of the
Cost Reimbursement.
14.4 After the Sale Order is entered approving Purchaser as the
successful bidder, if Seller shall breach or fail to perform or comply with
any of the terms, covenants, provisions, representations or warranties of
this Agreement, after three (3) days' prior written notice to Seller
(except that no written notice shall be required for a breach or failure to
perform on the Closing Date), Purchaser shall have the right, in its sole
discretion, to either: (a) terminate this Agreement, in which case the
Deposit, together with all interest accrued thereon, shall be promptly
returned to Purchaser and Seller shall pay Purchaser Cost Reimbursement
under Section 14.3; or (b) exercise any and all remedies available to it
under law and/or in equity, including an action for specific performance.
15. BANKRUPTCY COURT APPROVALS/BREAK UP FEE/PAYMENT OF
COSTS/OVERBID PROCEDURES.
15.1 Filing of Sale Motion; Entry of Procedures Order. Within
five (5) business days after execution of this Agreement, Seller shall file
a motion (the "Sale Motion") with the Bankruptcy Court seeking an order
approving and authorizing: (a) the procedures for the Auction set forth in
Section 15.3 hereof; (b) the Breakup Fee set forth in Section 15.4 hereof;
and (c) the Cost Reimbursement set forth in Sections 14.3 hereof (the
"Procedures Order"). The Procedures Order shall be in the form of Exhibit
4. Seller shall use its best efforts to obtain entry of the Procedures
Order. If the Sale Motion has not been filed within five (5) business days
after the execution of this Agreement or the Procedures Order has not been
entered within twenty (20) days after filing of the Sale Motion, Purchaser
shall have the right to terminate its obligations under this Agreement by
written notice to Seller, in which event the provisions of Section 14.2
shall apply and none of the parties hereto shall have any obligation to the
others, except for those covenants which by their express terms survive the
termination of this Agreement.
15.2 Entry of Sale Order. The Sale Motion shall also seek
approval of the Sale Order. The Sale Order shall be in the form of Exhibit
8, and Seller shall use its best efforts to obtain entry of the Sale Order;
provided, however, in the event the Bankruptcy Court enters a modified Sale
Order and the only effect of such modified Sale Order is that Seller's
interest in the Leased Parcels would not be conveyed to Purchaser free and
clear of any claims or interests which could restrict the use or transfer
of Purchaser's interest in the Leased Parcels subsequent to the leaseback
to Seller as contemplated by the Levitz Lease, then: (a) Seller shall be
deemed to have delivered a satisfactory Sale Order, and (b) Purchaser shall
receive a credit against the Purchase Price equal to the maximum Cost
Reimbursement that would have been due Purchaser if Section 14.3 had been
applicable. If the Procedures Order has been entered but the Sale Order is
not entered within thirty (30) days after filing of the Sale Motion,
Purchaser shall have the right to terminate its obligations under this
Agreement by written notice to Seller, in which event the provisions of
Section 14.3 shall apply and none of the parties hereto shall have any
obligation to the others, except for those covenants which by their express
terms survive the termination of this Agreement.
15.3 The Auction. An auction (the "Auction") for the sale of
the Properties shall be held in Delaware, on a date and at a place
specified in the Procedures Order. At the Auction, bids for all of the
Properties on a global basis (as distinguished from a sale of each
individual Property or groups of less than all of the Properties, which
shall not be permitted) may be submitted only by Purchaser and by a person
or entity who has, prior to the opening of bidding, deposited with Seller a
cashier's check or a certified check payable to Seller in the amount of
Three Million Seven Hundred Thousand Dollars ($3,700,000.00). Any bid for
the Properties must be for "all cash." All bids shall constitute an offer
by the bidder to purchase the Properties from Seller on substantially the
same terms as are set forth in this Agreement and to lease the Properties
to Seller on substantially the same unitary lease terms as are set forth in
the Levitz Lease; provided, however, provisions applicable to the Breakup
Fee shall not apply with respect to any person other than Purchaser.
The initial minimum overbid at the Auction shall be not less
than One Million Seven Hundred Thousand Dollars ($1,700,000.00) in excess
of the Purchase Price. Subsequent additional overbids shall be in
increments of Four Hundred Thousand Dollars ($400,000.00). If Purchaser
shall enter an overbid, Purchaser shall be entitled to a credit equal to
the amount of the Breakup Fee (i.e. One Million Three Hundred Thousand
Dollars ($1,300,000.00)). To illustrate the foregoing, assume another
bidder bids One Million Seven Hundred Thousand Dollars ($1,700,000.00) in
excess of the Purchase Price, Purchaser then bids Two Million One Hundred
Thousand Dollars ($2,100,000.00) in excess of the Purchase Price, and no
other bids are received. The price at which Purchaser shall acquire the
Properties shall be the Purchaser Price plus Eight Hundred Thousand Dollars
($800,000.00), being the Two Million One Hundred Thousand Dollar
($2,100,000.00) overbid less the One Three Hundred Thousand Dollar
($1,300,000.00) credit. Seller shall be required to accept the highest bid
made at the auction by a qualified bidder.
If a bidder other than Purchaser shall be the successful
bidder, Seller shall retain such bidder's Three Million Seven Hundred
Thousand Dollars ($3,700,000.00) cashier's check or certified check
deposited with Seller prior to the Auction as the "Deposit" pursuant to
Section 3 of this Agreement. Seller shall be entitled to retain such amount
as liquidated damages if such bidder fails to close the sale of the
Properties. If a bidder other than Purchaser shall be the successful
bidder, Seller shall promptly cause Purchaser's Deposit to be returned to
Purchaser.
If a bidder other than Purchaser shall be the successful bidder
at the Auction, and the sale to such other bidder or to any other bidder
whose bid was higher than Purchaser's shall fail to close for any reason,
Seller shall promptly notify Purchaser of such failure and Purchaser shall
then have the right (but not the obligation), within seven (7) days of
Purchaser's receipt of such notice, to elect to purchase the Properties
pursuant to this Agreement for the Purchase Price. If Purchaser shall elect
to do so, the sale of the Properties shall close in accordance with the
terms of this Agreement within ninety (90) days of Purchaser's election.
15.4 Breakup Fee. Seller agrees to pay to Purchaser a Breakup
Fee of One Million Three Hundred Thousand Dollars ($1,300,000.00) if the
sale to Purchaser pursuant to this Agreement is not consummated by reason
of another successful bidder purchasing the Properties. The Breakup Fee
shall be payable upon the consummation of the sale of the Properties to
such other bidder from the proceeds of such transaction.
16. BROKERS. Except as provided in the last sentence of this Section
16, Purchaser and Seller each represents and warrants that it dealt with no
broker or finder in connection with this transaction; and each agrees to
defend, indemnify and hold the other harmless from and against any and all
loss, liability and expense, including reasonable attorney's fees, the
indemnified party may incur arising by reason of the above representations
being false. The provisions of this Article 16 shall survive Closing. The
parties acknowledge that Seller has retained The Blackstone Group as a
consultant in connection with this transaction, and Seller shall be solely
responsible for, and shall indemnify, defend and hold Purchaser harmless
from and against any fees, charges, expenses or commissions that may be due
The Blackstone Group in connection with this transaction.
17. NOTICES. All notices, demands, requests, consents, approvals or
other communications (for the purpose of this Section collectively called
"Notices") required or permitted to be given hereunder or which are given
with respect to this Agreement shall be valid only if in writing and sent
by registered or certified United States mail, return receipt requested,
postage prepaid, or delivered by Federal Express or UPS courier service,
addressed as follows:
To Purchaser: Klaff Realty, L.P.
111 West Jackson Boulevard
Chicago, IL 60604-3501
Attention: Mr. Hersch Klaff
and
Lubert-Adler Real Capital Real Estate Fund II, L.P.
Lubert-Adler Real Estate Fund II, L.P.
Lubert-Adler Parallel Fund II, L.P.
101 West Main Street
Moorestown, NJ 08057
Attention: Mr. Dean Adler
Copy to (if given before 7/4/99):
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
1401 Walnut Street
Philadelphia, PA 19102
Attention: Stephan L. Cutler, Esquire
Copy to (if given after 7/4/99):
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
260 S. Broad Street
Philadelphia, PA 19102
Attention: Stephan L. Cutler, Esquire
To Seller: Levitz Furniture Corporation
7887 N. Federal Highway
Boca Raton, FL 33487
Attention: Edward Zimmer, General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Attention: Richard R. Kalikow, Esquire
18. ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior or contemporaneous
understandings, if any, with respect thereto. This Agreement may not be
canceled, modified, changed or supplemented, nor may any obligation
hereunder be waived, except by written instrument signed by the party to be
charged or by its agent duly authorized in writing or except as otherwise
expressly provided herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto
and their respective successors or assigns.
19. SURVIVAL. This Agreement, and all provisions hereof, shall
survive the Closing and continue in full force and effect thereafter.
20. TITLES AND HEADINGS. Titles and headings of Articles and Sections
of this Agreement are for convenience of reference only and shall not
affect the construction of any provision of this Agreement. All references
to "Sections" and "Articles" shall be deemed to be references to Sections
and Articles of this Agreement unless otherwise indicated or unless the
context otherwise requires.
21. ATTACHMENTS. Each of the Exhibits and Schedules referred to
herein and attached hereto is an integral part of this Agreement and is
hereby incorporated in this Agreement by this reference.
22. FURTHER ASSURANCES. Seller and Purchaser each agree to do such
further acts and things and to execute and deliver such additional
agreements and instruments as the other may reasonably require to
consummate, evidence or confirm the sale or any other agreement contained
herein in the manner contemplated hereby.
23. BINDING EFFECT. This Agreement is and each of the other documents
to which Seller is or will be a party, when delivered, will be a legal,
valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to Bankruptcy Court approval. This
Agreement has been duly executed and delivered by Purchaser. This Agreement
is and each of the other documents to which Purchaser is or will be a
party, when delivered, will be a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
Subject to the provisions of Section 12 hereof, this Agreement shall extend
to and be binding upon the legal representatives, heirs, executors,
administrators, successors and assigns of the parties hereto.
24. RULES OF CONSTRUCTION. The provisions of this Agreement shall be
construed, in all respects, without reference to any rule or canon
requiring or permitting the construction of provisions of documents against
the interest of the party responsible for the drafting of the same, it
being the intention and agreement of the parties that this Agreement be
conclusively deemed to be the joint product of both parties and their
counsel.
25. TIME OF THE ESSENCE. All times provided for in this Agreement
shall be of the essence, and each extension of any such time or times shall
continue to be of the essence of this Agreement.
26. POST-CLOSING INSPECTION. Following Closing, Seller shall, upon
request, give Purchaser access to Seller's books and records with respect
to the operation of the Parcels for the calendar year in which Closing
occurs and for the previous calendar year, for purposes of verifying
collections and remittances and the preparation by Purchaser of financial
statements and reports with respect to the Parcels. Such books and records
shall be made available to Purchaser at reasonable times and upon
reasonable advance notice to Seller, and without any expense to Seller or
charge to Purchaser. The provisions of this Section 26 shall survive the
Closing.
27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
taken together shall constitute a single agreement.
28. JOINT AND SEVERAL LIABILITY. If Seller consists of more than one
person or entity, the obligations of such persons and entities hereunder
shall be joint and several. A separate action may be brought or prosecuted
against any such person or entity comprising Seller, regardless of whether
the action is brought or prosecuted against the other persons or entities
comprising Seller, or whether such persons or entities are joined in the
action. Purchaser may compromise or settle with any one or more of the
persons or entities comprising Seller for such sums, if any, as it may see
fit and may in its discretion release any one or more of such persons or
entities from any further liability to Purchaser without impairing,
affecting or releasing the right of Purchaser to proceed against any one or
more of the persons or entities not so released.
29. NO WAIVER. The waiver by one party of the performance of any
covenant or condition hereunder shall not invalidate this Agreement, nor
shall it be considered to be a waiver by such party of any other covenant
or condition hereunder. The waiver by any or all of the parties of the time
for performing any action shall not constitute a waiver of the time for
performing any other act or identical act required to be performed at a
later time. The exercise of any remedy provided by law and the provisions
of this Agreement for any remedy shall not exclude other remedies unless
they are expressly excluded.
30. LIMITATION ON SELLER'S DEBT. Seller hereby covenants that during
the two (2) year period (the "Restriction Period) following the date (the
"Reorganization Date") the Bankruptcy Court's order approving the Plan of
Reorganization becomes a Final Order, the Seller shall not incur, through
the Plan of Reorganization or otherwise, unsecured funded debt ("Unsecured
Debt") in excess of Fifty Million Dollars ($50,000,000.00) (the "Unsecured
Debt Limit"); provided, however, in the event of a merger or consolidation
between Seller and another company (the "Other Company") which does not
result in a reduction in the pro forma audited tangible net worth of the
company that survives the merger or consolidation (the "Surviving Company")
(which pro forma audited tangible net worth shall be computed according to
generally accepted accounting principles consistently applied) relative to
Seller's audited tangible net worth immediately prior to the merger or
consolidation (which audited tangible net worth shall be computed according
to generally accepted accounting principles consistently applied), the
Unsecured Debt Limit of the Surviving Company shall be increased, but only
to the extent that the ratio between the Surviving Company's EBITDA and
interest expense (which interest expense shall include any new interest
expense that, according to generally accepted accounting principles
consistently applied, must be reflected on the Surviving Company's
financial statements), both of which shall be calculated on a pro-forma
basis for the effects of the merger or consolidation (including any
interest on any incremental debt that is acquired or proposed), for the
twelve (12) month period immediately preceding the merger or consolidation
would exceed 2:1. Seller further covenants that neither the Plan of
Reorganization nor any loan documents evidencing the Unsecured Debt shall:
(i) obligate the Seller or the Surviving Company to repay any principal
with respect to the Unsecured Debt during the three (3) year period
following the Reorganization Date; or (ii) obligate the Seller or the
Surviving Company to pay interest at a rate in excess of thirteen percent
(13%) per annum; or (iii) obligate the Seller or the Surviving Company to
pay any interest during the first six (6) months of the Restriction Period.
Seller further covenants that neither Seller nor the Surviving Company
shall pay any dividends on any of its capital stock during the Restriction
Period, other than any existing dividend obligations of the Other Company
that are retained by the Surviving Company. For purposes of this Section
30, Unsecured Debt shall not include Seller's secured working capital
facility or Seller's obligations under capital leases (other than the
Levitz Lease). The provisions of this Section 30 shall survive the Closing.
31. WITHDRAWAL OF FOUR PROPERTIES. Seller shall have the right to
withdraw from this transaction any of the Properties located at
Farmingdale, NY, Willowbrook, NJ, San Dimas, CA and San Leandro, CA (each,
a "Withdrawable Property" and collectively the "Withdrawable Properties")
if Seller provides Purchaser with a Withdrawal Notice at least five (5)
business days prior to the date of the Auction. If Seller timely provides a
Withdrawal Notice, then: (a) the Purchase Price set forth in Section 3 of
this Agreement shall be reduced by the liquidation value assigned to the
Withdrawable Property so withdrawn as set forth in Exhibit 13; and (b) (i)
if Purchaser shall be the successful bidder at the Auction and all
preconditions to Closing set forth in Section 11 of this Agreement shall
have occurred, then at Closing Purchaser shall receive a credit against the
Purchase Price equal to Three Hundred Fifty Thousand Dollars ($350,000.00);
and (ii) if Purchaser shall be the successful bidder at the Auction but
Closing does not occur and circumstances are such that Purchaser is
entitled to Cost Reimbursement, then the amount of Cost Reimbursement shall
be increased by Three Hundred Fifty Thousand Dollars ($350,000.00); and
(iii) if Purchaser shall not be the successful bidder at the Auction and
circumstances are such that Purchaser is entitled to the Breakup Fee, then
the amount of the Breakup Fee shall be increased by Three Hundred Fifty
Thousand Dollars ($350,000.00).
32. ACQUISITION OF JBAN'S INTEREST IN THE BEST PRODUCTS PROPERTY. If
Purchaser exercises the right of first refusal set forth in Section 28.5 of
the Agreement of Sublease dated as of June 2, 1982 (the "Best/Levitz
Sublease") between Levitz Furniture Company of the Pacific, Inc. ("LFCPI"),
as tenant, and JBAN LLC (by virtue of various assignments) ("JBAN"), as
landlord, with respect to JBAN's interest in and to the "Noridge Lease" (as
defined in the Best/Levitz Sublease) located at Northridge, CA, or if
Purchaser otherwise acquires JBAN's (or its successors' or assigns')
interest in and to the Noridge Lease, then commencing on the date Purchaser
acquires JBAN's (or its successors' or assigns') interest in and to the
Noridge Lease and ending on the fifth (5th) anniversary of such acquisition
date, Purchaser shall receive an abatement of all sums that may be due
Seller pursuant to: (a) the Paying Agency Agreement dated as of June 2,
1982 by and among LFCPI, JBAN (by virtue of various assignments) and
Manufacturers Hanover Trust Co.; and (b) the Agreement to Assign dated as
of November 20, 1981 between LFCI and JBAN (by virtue of various
assignments). The provisions of this Section 32 shall survive the Closing.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
as of the day and year first above written.
WITNESSES/ATTEST: PURCHASER:
KLAFF REALTY, LP, a Delaware limited
partnership
By: Klaff Realty, Limited, an Illinois
corporation
By: /s/ Hersch Klaff
__________________________
Name: Hersch Klaff
Title: President
LUBERT-ADLER CAPITAL REAL ESTATE FUND
II, L.P., a Delaware limited partnership
By: Lubert-Adler Group, LLC, a Delaware
limited liability company
By: /s/ Dean S. Adler
____________________________
Dean S. Adler, President
LUBERT-ADLER REAL ESTATE FUND II, L.P., a
Delaware limited partnership
By: Lubert-Adler Group, LLC, a Delaware
limited liability company
By: /s/ Dean S. Adler
_____________________________
Dean S. Adler, President
LUBERT-ADLER PARALLEL FUND II, L.P., a
Delaware limited partnership
By: Lubert-Adler Group, LLC, a Delaware
limited liability company
By: /s/ Dean S. Adler
____________________________
Dean S. Adler, President
WITNESSES/ATTEST: SELLER:
LEVITZ FURNITURE CORPORATION, a Florida
Corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE REALTY
CORPORATION, a Florida corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE
MIDWEST, INC., a Colorado corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE
PACIFIC, INC., a California corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF
WASHINGTON, INC., a Washington corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF
WASHINGTON REALTY, INC., a Washington
corporation
By: /s/ Edward P. Zimmer
________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
SCHEDULE OF EXHIBITS
Exhibit 1 List of Levitz' Subsidiaries
Exhibit 2 Description of Fee Parcels
Exhibit 3 Description of Leased Parcels
Exhibit 4 Procedures Order
Exhibit 5 Levitz Lease
Exhibit 6 List of Overleases
Exhibit 7 List of Permitted Exceptions
Exhibit 8 Sale Order
Exhibit 9 List of Space Leases
Exhibit 10 List of Concession Agreements
Exhibit 11 List of Transferred Leases
Exhibit 12 List of Warehouse Renovations, Store Remodelings and other work
approved by Purchaser
Exhibit 13 Purchase Price Allocation
Exhibit 14 List of Title Endorsements
Exhibit 15 List of Roof Work
Exhibit 16 List of Environmental Conditions
Exhibit 17 Environmental Disclosures
Exhibit 18 Seller Disclosures
Exhibit 19 List of Litigation
Exhibit 20 Form of Estoppel Certificate
Exhibit 1
List of Levitz' Subsidiaries
Levitz Furniture Realty Corporation, a Florida corporation Levitz Furniture
Company of the Midwest, Inc., a Colorado corporation Levitz Furniture
Company of the Pacific, Inc., a California corporation Levitz Furniture
Company of Washington, Inc., a Washington corporation Levitz Furniture
Company of Washington Realty, Inc., a Washington corporation
Exhibit 2
Description of Fee Parcels
Group #1 Redevelopment Properties:
o Portland, 13631 S. E. Johnson Rd., Milwaukie, OR 97222-1295
Group #2 Redevelopment Properties:
o Hartford, 55 Graham Place, Southington, CT 06489-1594
o Oxnard, 2420 N. Oxnard Blvd., Oxnard, CA 93030-2090
Group #3 Redevelopment Properties:
o Modesto, 1604 Sisk Rd., Modesto, CA 95350-2501
o Seattle 2, 20111 46 Ave. West, Lynnwood, WA 98036-6694
Non-Redevelopment Properties:
o St. Paul, 3201 Country Dr., St Paul, MN 55117-1096
o Portland 2, 9770 S. W. Scholls Ferry Rd., Tigard,
OR 97223-4303
o Paramus, 545 Route 17 South, Paramus, NJ 07652-3093
Exhibit 3
Description of Leased Parcels
Group #1 Redevelopment Properties:
o Woodbridge, 429 Route 1 South, Iselin,
NJ 08830-3009 06489-1594
o Fresno, 4525 West Shaw Ave., Fresno, CA 93722-6208
Group #2 Redevelopment Properties:
o Cherry Hill, 1001 Church Road, Cherry Hill, NJ 08002-1299
o Northridge, 19350 Nordhoff Street, Northridge, CA 91324-2492
Group #3 Redevelopment Properties:
o Roosevelt Field, 895 East Gate Blvd., Garden City E, NY
11530-2199
o Minneapolis, 12301 Dupont Avenue South, Burnsville, MN
55337-1689
o Redondo Beach, 1601 Kingsdale Ave., Redondo Beach, CA
90278-3928
o San Francisco, 900 Dubuque Ave., San Francisco, CA 94080-1890
Non-Redevelopment Properties:
o Farmingdale, 90 Price Parkway, Farmingdale, NY 11735-1394
o Willowbrook, 531 Route 46, Fairfield, NJ 07004-1907
o Langhorne, 1661 E. Lincoln Hwy., Langhorne, PA 19047-3096
o Mesa, 225 South Dobson Road, Mesa, AZ 85202-2009
o San Dimas, 633 W. Bonita Ave., San Dimas, CA 91773-2580
o San Leandro, 3199 Alvarado St., San Leandro, CA 94577-5790
o Sacramento, 4741 Watt Ave., North Highlands, CA 95660-5515
o La Puente, 17520 E. Castelton St., City of Industry, CA
91744-1701
Exhibit 14
List of Title Endorsements
1. Removal of "Gap" Exception
2. Removal of all pre-printed exceptions (e.g., mechanics liens, parties
in possession, survey, etc.). Client should approve cost of premium
for survey coverage
3. Comprehensive Endorsement (ALTA 9 or equivalent) restrictions,
encroachments, etc.
4. Contiguity Endorsement (if applicable) if legal is comprised of more than
one parcel
5. Public Street Access Endorsement
6. Separate Tax Lot Endorsement
7. Access
8. Affirmative Coverage (as to encroachments of Levitz' improvements into
setback or adjacent
properties)
TABLE OF CONTENTS
PAGE
1. DEFINITIONS........................................................1
2. SALE AND PURCHASE..................................................5
3. PURCHASE PRICE.....................................................5
4. ADJUSTMENTS AND PRORATIONS.........................................6
5. TITLE.............................................................13
6. HAZARDOUS SUBSTANCES..............................................13
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER...............13
8. COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER............19
9. THE CLOSING.......................................................20
10. ACCESS BY PURCHASER...............................................22
11. CONDITIONS PRECEDENT TO CLOSING...................................22
12. ASSIGNMENT. ......................................................23
13. INSURANCE AND RISK OF LOSS........................................23
14. DEFAULT...........................................................24
15. BANKRUPTCY COURT APPROVALS/BREAK UP FEE/PAYMENT OF
COSTS/OVERBID PROCEDURES..........................................25
16. BROKERS...........................................................27
17. NOTICES...........................................................27
18. ENTIRE AGREEMENT..................................................28
19. SURVIVAL..........................................................28
20. TITLES AND HEADINGS...............................................28
21. ATTACHMENTS.......................................................29
22. FURTHER ASSURANCES................................................29
23. BINDING EFFECT....................................................29
24. RULES OF CONSTRUCTION.............................................29
25. TIME OF THE ESSENCE...............................................29
26. POST-CLOSING INSPECTION...........................................29
27. COUNTERPARTS......................................................29
28. JOINT AND SEVERAL LIABILITY.......................................29
29. NO WAIVER.........................................................30
30. LIMITATION ON SELLER'S DEBT.......................................30
31. WITHDRAWAL OF FOUR PROPERTIES.....................................31
32. ACQUISITION OF SCHOTTENSTEIN PROPERTY.............................31
CONTRACT OF SALE
by and between
LEVITZ FURNITURE CORPORATION
AND THE VARIOUS SUBSIDIARIES SET FORTH ON
EXHIBIT "1" ATTACHED HERETO
(collectively, "Seller")
and
KLAFF REALTY, LP
LUBERT-ADLER CAPITAL REAL ESTATE FUND II, L.P.
LUBERT-ADLER REAL ESTATE FUND II, L.P. AND LUBERT-
ADLER PARALLEL FUND II, L.P.
(collectively, "Purchaser")
Dated: As of April 20, 1999
Exhibit 10.63
FIRST AMENDMENT TO CONTRACT OF SALE
(SALE-LEASEBACK)
THIS FIRST AMENDMENT TO CONTRACT OF SALE ("Amendment") made as of
June 8, 1999 between LEVITZ FURNITURE CORPORATION, a Florida corporation,
and the various subsidiaries set forth on Exhibit "A" (hereinafter,
collectively "Seller") and the various entities set forth on Exhibit "B"
(hereinafter, collectively "Purchaser").
W I T N E S S E T H:
WHEREAS:
A. Seller and Klaff Realty, L.P., a Delaware limited partnership
("Klaff"), Lubert-Adler Capital Real Estate Fund II, L.P. ("LA1"), a
Delaware limited partnership, Lubert-Adler Real Estate Fund II, L.P.
("LA2"), a Delaware limited partnership and Lubert-Adler Real Estate
Parallel Fund II, L.P. ("LA3"), a Delaware limited partnership (Klaff, LA1,
LA2 and LA3 are hereinafter, collectively the "Klaff/Adler") entered into
that certain Contract of Sale dated as of April 20, 1999, as amended by
that certain side letter dated as of May 28, 1999 between Seller and
Klaff/Adler (the "Original Agreement") pursuant to which Seller agreed to
sell to, and leaseback from, Klaff/Adler, and Klaff/Adler agreed to
purchase from, and leaseback to, Seller certain real property more
particularly described in the Original Agreement.
B. On or about June 1, 1999, Klaff/Adler assigned all of its right,
title and interest in, to and under the Original Agreement to KS
Opportunities III, L.L.C., a Delaware limited liability company
("KS Opportunities").
C. On or about June 1, 1999, KS Opportunities assigned all of its
right, title and interest in, to and under the Original Agreement to Levitz
SL Klaff Equity, L.L.C., a Delaware limited liability company
("Klaff Equity").
D. On or about June 1, 1999, Klaff Equity assigned all of its right,
title and interest in, to and under the Original Agreement to Levitz SL,
L.L.C., a Delaware limited liability company ("Levitz SL").
E. On or about June 1, 1999, Levitz SL assigned all of its right,
title and interest in, to and under the Original Agreement to Purchaser.
F. Seller and Purchaser wish to amend the Original Agreement in
accordance with the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise provided herein, each word used
herein that begin with a capital letter and are not defined in this
Amendment shall have the same meaning ascribed to such word in the Original
Agreement.
2. Postponement of Closing on the Langhorne Property.
2.1 Due to certain adverse environmental conditions at the Real
Property located at 1661 E. Lincoln Highway, Langhorne, PA 19047-3096 (the
"Langhorne Property"), the parties have agreed to hold a Closing (the
"Initial Closing") on all Properties other than the Langhorne Property, and
postpone Closing solely with respect to the Langhorne Property until the
date hereinafter set forth. The Purchase Price to be paid at the Initial
Closing shall be reduced by the Liquidation Value allocated to the
Langhorne Property in the Original Agreement, the Total Liquidation Value
(as defined in the Unitary Lease) and Market Value (as defined in the
Unitary Lease) shall be reduced by Eight Hundred Twenty-Two Thousand
Dollars ($822,000.00) and One Million Four Hundred Sixty-One Thousand Nine
Hundred Forty-Six Dollars ($1,461,946.00), respectively, and the annual
Basic Rent (as defined in the Unitary Lease) shall be reduced by an amount
equal to Eighty-Eight Thousand Three Hundred Sixty-Five Dollars
($88,365.00).
2.2 Seller has investigated and will continue to perform
additional testing at the Langhorne Property in order to continue to
investigate the nature, source and extent of the hazardous and other
substances detected at the Langhorne Property, including, without
limitation, trichloroethene ("TCE"), methyl tertiary butyl ether ("MTBE")
and total petroleum hydrocarbons ("TPH"), and shall prepare and submit to
Purchaser (for Purchaser's review and approval, such approval not to be
unreasonably withheld) a complete remediation plan (including a detailed
budget) in order to remediate the TCE, MTBE and TPH to levels acceptable to
the Commonwealth of Pennsylvania ("Seller's Remediation Plan") on or before
July 8, 1999. Seller shall immediately perform any and all other tests
reasonably requested by Purchaser to determine the nature, source and
extent of the contamination at the Langhorne Property. Seller's Remediation
Plan shall be a commercially reasonable remediation plan that is based upon
the aforesaid test results, then prevailing site conditions, then
prevailing applicable laws and is designed to achieve, not later than June
8, 2002, Act 2 Protection (as hereinafter defined) for all hazardous and
other regulated substances which are detected above Statewide Health
Standards, as defined pursuant to the Land Recycling and Environmental
Remediation Standards Act, 35 P.S. 6026.101 et seq. ("Act 2"). Purchaser
shall endeavor to provide Seller with written notice of approval or
disapproval of Seller's Remediation Plan within five (5) business days
after Seller submits same to Purchaser. If Purchaser disapproves of
Seller's Remediation Plan, then Purchaser shall indicate in its notice of
disapproval the reasons why the Seller's Remediation Plan is unacceptable
to Purchaser. If Purchaser fails to give notice of approval or disapproval
within five (5) business days after Seller's Remediation Plan is submitted
to Purchaser, then Seller may give Purchaser a reminder notice, which
reminder notice shall specifically state that Purchaser's failure to
approve or disapprove of Seller's Remediation Plan within three (3)
business days thereafter shall result in the deemed approval of Seller's
Remediation Plan. Seller shall revise Seller's Remediation Plan promptly
after Seller's receipt of Purchaser's notice of disapproval. If Seller has
failed to secure Purchaser's approval of Seller's Remediation Plan by July
30, 1999, then Seller shall immediately commence implementation of a
remediation plan reasonably prepared by Purchaser which shall have been
delivered to Seller on or before July 25, 1999 ("Purchaser's Remediation
Plan"). Once Purchaser approves or is deemed to have approved Seller's
Remediation Plan, or in the alternative, once Purchaser provides Seller
with Purchaser's Remediation Plan (in either case, the plan to be
implemented will be hereinafter referenced as the "Plan of Remediation"),
Seller shall immediately commence implementation of the Plan of Remediation
and diligently prosecute same to completion; provided, however, if the Plan
of Remediation is Purchaser's Remediation Plan, then Purchaser may elect to
implement the Plan of Remediation, such election to be made, if at all,
when Purchaser submits Purchaser's Remediation Plan to Seller. If Purchaser
has not elected to implement the Plan of Remediation, then the Plan of
Remediation shall be fully implemented and completed by Seller by June 8,
2002 (not including any ongoing monitoring that may be required). The Plan
of Remediation must achieve statutory protection from liability for the
owner of the Langhorne Property, and for any of the owner's successors or
assigns, under Act 2, with no conditions or land use restrictions that
would limit use of the Langhorne Property for any industrial, commercial or
other business use or purpose whatsoever, or any other conditions, controls
or provisions that would adversely impact the value of the Langhorne
Property or Purchaser's interest therein (the "Act 2 Protection").
Notwithstanding anything to the contrary in this Section 2.2, if the Plan
of Remediation consists of passive remediation (as hereinafter defined),
Seller shall immediately begin active remediation (as hereinafter defined),
even if Seller already has begun passive remediation, if any of the
following occurs: (a) any TCE is found in any test result of the
groundwater at levels in excess of 76 parts per billion; (b) any MTBE or
any other regulated substance is found in any test result at a level above
Pennsylvania Statewide Health Standards then existing or later in use for
that substance; (c) there is any change in Pennsylvania cleanup standards
which makes such standards more stringent and results in a state regulated
need to remediate; or (d) Purchaser reasonably believes that passive
remediation may not be sufficient to attain Act 2 Protection for TCE, MTBE
or any other regulated substance for which such remediation has been
proposed and/or implemented. Any and all investigation and remediation
costs relating to the Plan of Remediation shall be borne by Seller;
provided, however, if the Plan of Remediation is Purchaser's Remediation
Plan and the primary difference between the Purchaser's Remediation Plan
and the Seller's Remediation Plan is the expected end date for attaining
Act 2 Protection, then Seller's liability for implementing the Plan of
Remediation (whether implemented by Seller or Purchaser) shall be limited
to Four Hundred Thousand Dollars ($400,000.00). If the Plan of Remediation
has not been fully implemented and completed, including the achievement of
Act 2 Protection, prior to the date of confirmation of the Plan of
Reorganization in the Bankruptcy Cases, then the Plan of Reorganization
shall expressly provide that Purchaser shall have an allowed super-priority
administrative expense claim, which shall have priority over any and all
administrative expenses of the kind specified in Sections 503(b) or 507(b)
of the Bankruptcy Code, equal to seventy-five percent (75%) of the budget
for completing the Plan of Remediation, and such amount shall be funded on
the effective date of any such confirmed Plan of Reorganization and placed
in the Environmental Remediation Account to pay for the cost of completing
the Plan of Remediation. Notwithstanding the foregoing, Seller shall use
its best efforts to have such super-priority administrative expense claim
approved by the Bankruptcy Court in an amount equal to one hundred percent
(100%) of the budget for completing the Plan of Remediation. Alternatively,
Seller may post a letter of credit in the aforesaid amount, issued by a
bank and otherwise in form and substance, acceptable to Purchaser. As used
herein: (a) "active remediation" means any method of remediation which
involves treatment or changing the concentration or nature of regulated
substances by the addition of chemicals or other substances or by causing
or inducing motion of materials; and (b) "passive remediation" means any
method of remediation other than "active remediation," and includes,
without limitation, natural attenuation, monitoring, engineering controls,
institutional controls, risk assessment, investigation, study and modeling.
2.3 Closing on the Langhorne Property shall be held on the
earlier to occur of: (a) the first (1st) business day that is at least
ninety (90) days after the Initial Closing; or (b) five (5) business days
after the execution of a "Buyer/Seller Agreement" with the Pennsylvania
Department of Environmental Protection ("DEP") pursuant to which Seller
performs the remediation and Purchaser receives from DEP a covenant not to
sue for identified environmental conditions at the Langhorne Property.
Purchaser and Seller shall diligently work and cooperate to attempt to
enter into the aforesaid Buyer/Seller Agreement. Notwithstanding the
forgoing, Purchaser reserves the right to unilaterally accelerate the
Closing on the Langhorne Property upon the giving of five (5) business
days' prior written notice to Seller. All provisions of the Original
Agreement relating to the Initial Closing shall be equally applicable with
respect to the Closing on the Langhorne Property except that the Purchase
Price shall be the Liquidation Value allocated to the Langhorne Property in
the Original Agreement.
2.4 Simultaneously with the Closing on the Langhorne Property,
subject to Section 2.5 below, the Unitary Lease shall be amended as
follows:
(a) The purchaser of the Langhorne Property shall join in
the Unitary Lease as a landlord, the Langhorne Property shall become part
of the Demised Premises (as defined in the Unitary Lease) and Exhibit "C"
hereto shall be added to Exhibit "A" of the Unitary Lease.
(b) The Total Liquidation Value (as defined in the
Unitary Lease) and Market Value (as defined in the Unitary Lease) shall be
increased by Eight Hundred Twenty-Two Thousand Dollars ($822,000.00) and
One Million Four Hundred Sixty-One Thousand Nine Hundred Forty-Six Dollars
($1,461,946.00), respectively.
(c) The annual Basic Rent (as defined in the Unitary
Lease) shall be increased by an amount equal to Eighty-Eight Thousand Three
Hundred Sixty-Five Dollars ($88,365.00). Commencing on the first day of the
sixth year of the term of the Unitary Lease, and on every fifth anniversary
of such date thereafter during the initial term of the Unitary Lease or any
extension thereof, annual Basic Rent paid pursuant to the prior sentence
shall increase by five percent (5%) of the annual Basic Rent paid pursuant
to the prior sentence during the immediately preceding twelve (12) month
period.
(d) The Langhorne Property shall be designated as a Group
3 Redevelopment Property;
(e) Subject to Section 2.4(f) below, provided no Event of
Default (as defined in the Unitary Lease) then exists, the Unitary Lease
shall terminate solely as to the +/-86,000 square foot warehouse portion of
the Levitz Building (as defined in the Unitary Lease) located at the
Langhorne Property (the "Langhorne Warehouse") on the earlier of the
following dates: (1) the date Tenant surrenders and vacates the Langhorne
Warehouse; or (2) June 8, 2001 if Landlord (as defined in the Unitary
Lease): (i) notifies Tenant (as defined in the Unitary Lease) to vacate the
Langhorne Warehouse, such notice to be given on or before June 8, 2000; and
(ii) agrees to pay Tenant Five Hundred Thousand Dollars ($500,000.00) (the
"Langhorne Early Termination Fee"); or (3) June 8, 2002; and the Unitary
Lease shall remain in full force and effect as to the remaining portions of
the Demised Premises. The Langhorne Early Termination Fee shall be paid to
Tenant as follows: (A) Fifty Thousand Dollars ($50,000.00) when the notice
described in clause (ii) above is given; (B) Two Hundred Thousand Dollars
($200,000.00) within five (5) business days after Tenant surrenders and
vacates the Langhorne Warehouse; and (C) Two Hundred Fifty Thousand Dollars
($250,000.00) when Act 2 Protection has been achieved.
(f) If: (1) Landlord does not give the notice described
in Section 2.4(e)(2)(i) above; and (2) the Plan of Remediation is not being
implemented by Purchaser; and (3) Act 2 Protection has not been achieved by
June 8, 2002; then commencing on June 8, 2002 the annual Basic Rent under
the Unitary Lease with respect to the Langhorne Property shall increase
from Eighty-Eight Thousand Three Hundred Sixty-Five Dollars ($88,365.00) to
One Hundred Fifty-Seven Thousand One Hundred Fifty-Nine and 20/100 Dollars
($157,159.20). Commencing on the first day of the sixth year of the term of
the Unitary Lease, and on every fifth anniversary of such date thereafter
during the initial term of the Unitary Lease or any extension thereof,
annual Basic Rent paid pursuant to the prior sentence shall increase by
five percent (5%) of the annual Basic Rent paid pursuant to the prior
sentence during the immediately preceding twelve (12) month period.
(g) If: (1) Landlord gives the notice described in
Section 2.4(e)(2)(i) above; and (2) Act 2 Protection has not been achieved
by June 8, 2002; then Landlord shall have no obligation to pay Tenant the
Langhorne Early Termination Fee, and Tenant shall immediately repay to
Landlord the entire portion of the Langhorne Early Termination Fee received
to date.
(h) Except as set forth in Section 2.4(e) above, Tenant
shall have no right to terminate the Unitary Lease with respect to the
Langhorne Property unless Tenant achieves Act 2 Protection on or before the
expiration of the Optional Termination Period (as defined in the Unitary
Lease).
2.5 If CDC Mortgage Capital Inc., its successor and/or assign
("Lender") declines to finance the acquisition of the Langhorne Property,
then the Langhorne Property shall be leased to Seller pursuant to a
separate, stand alone lease (the "Langhorne Lease") upon the same terms and
conditions as the Unitary Lease (except such provisions as by their terms
are not applicable to the Langhorne Property). Seller's obligations under
the Langhorne Lease shall be cross-defaulted with the obligations of the
Seller under the Unitary Lease, but the obligations of the respective
landlords under the Langhorne Lease and the Unitary Lease shall not be
cross-defaulted.
2.6 The provisions of this Section 2 shall survive the Initial
Closing, the Langhorne Closing and any termination or expiration of the
Unitary Lease or Langhorne
Lease.
3. Miscellaneous Post-Closing Environmental Matters. Seller shall use
its best efforts to perform the work described in Exhibit "D" attached
hereto, including the delivery of final copies of all environmental reports
that have been delivered by facsimile. Any work related to radon or wetland
issues shall be performed at Purchaser's expense. The provisions of this
Section 3 shall survive the Initial Closing, the Langhorne Closing and any
termination or expiration of the Unitary Lease or Langhorne Lease.
4. Limitation on Seller's Debt. Section 30 of the Original Contract
is hereby deleted and replaced with the following:
Seller hereby covenants that during the two (2) year period
(the "Restriction Period) following the date (the
"Reorganization Date") the Bankruptcy Court's order approving
the Plan of Reorganization becomes a Final Order, none of the
entities comprising Seller (including, its parent, Levitz
Furniture Incorporated) (each a "Levitz Entity" and
collectively the "Levitz Entities"), shall incur, through the
Plan of Reorganization or otherwise, unsecured funded debt
("Unsecured Debt") in excess of Fifty Million Dollars
($50,000,000.00) (the "Unsecured Debt Limit"); provided,
however, in the event of a merger or consolidation between any
one or more of the Levitz Entities and another company (the
"Other Company") which does not result in a reduction in the
pro forma audited tangible net worth of the company that
survives the merger or consolidation (the "Surviving Company")
(which pro forma audited tangible net worth shall be computed
according to generally accepted accounting principles
consistently applied) relative to the Levitz Entities' audited
tangible net worth immediately prior to the merger or
consolidation (which audited tangible net worth shall be
computed according to generally accepted accounting principles
consistently applied), the Unsecured Debt Limit of the
Surviving Company shall be increased, but only to the extent
that the ratio between the Surviving Company's EBITDA and
interest expense (which interest expense shall include any new
interest expense that, according to generally accepted
accounting principles consistently applied, must be reflected
on the Surviving Company's financial statements), both of which
shall be calculated on a pro-forma basis for the effects of the
merger or consolidation (including any interest on any
incremental debt that is acquired or proposed), for the twelve
(12) month period immediately preceding the merger or
consolidation would exceed 2:1. Seller further covenants that
neither the Plan of Reorganization nor any loan
documents evidencing the Unsecured Debt shall: (i) obligate any
Levitz Entity or the Surviving Company to repay any principal
with respect to the Unsecured Debt during the three (3) year
period following the Reorganization Date; or (ii) obligate any
Levitz Entity or the Surviving Company to pay interest at a
rate in excess of thirteen percent (13%) per annum; or (iii)
obligate any Levitz Entity or the Surviving Company to pay any
interest during the first six (6) months of the Restriction
Period. Seller further covenants that neither the Surviving
Company nor any Levitz Entity shall pay any dividends on any of
its capital stock during the Restriction Period, other than any
existing dividend obligations of the Other Company that are
retained by the Surviving Company. For purposes of this Section
30, Unsecured Debt shall not include the Levitz Entities'
secured working capital facility or Seller's obligations under
capital leases (other than the Levitz Lease, if such lease is
determined to be a capital lease). The provisions of this
Section 30 shall survive the Initial Closing, the Langhorne
Closing and any termination or expiration of the Unitary Lease
or Langhorne Lease.
5. No Other Amendments. In all other respects, the Original Agreement
is hereby ratified, remains in full force and effect and is unamended.
6. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
taken together shall constitute a single agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment
as of the day and year first above written.
PURCHASER:
LEVITZ SL HARTFORD, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PARAMUS, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL ST. PAUL, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL OXNARD, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MODESTO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PORTLAND - JOHNSON, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PORTLAND - SCHOLLS, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SEATTLE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SACRAMENTO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL ROOSEVELT FIELD, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL WOODBRIDGE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MESA, L.L.C., a Delaware limited
liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MINNEAPOLIS, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL CHERRY HILL, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL FARMINGDALE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL WILLOWBROOK, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL LANGHORNE, L.P., a Delaware
limited liability company
By: LEVITZ SL-GP, L.L.C., a Delaware
limited liability company, its
general partner
By: /s/ Alan R. Saposnik
_____________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL NORTHRIDGE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL REDONDO BEACH, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SAN FRANCISCO, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SAN LEANDRO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL FRESNO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL LA PUENTE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
___________________________________
Name: Alan R. Saposnik
Title: Vice President
ATTEST: SELLER:
LEVITZ FURNITURE CORPORATION, a Florida
corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE REALTY
CORPORATION, a Florida corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE
MIDWEST, INC., a Colorado corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE
MIDWEST REALTY, INC., a Colorado
corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE
PACIFIC, INC., a California corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF
WASHINGTON, INC., a Washington corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF
WASHINGTON REALTY, INC., a Washington
corporation
By: /s/ Edward P. Zimmer
___________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
Exhibit "A"
List of Levitz' Subsidiaries
Levitz Furniture Realty Corporation, a Florida corporation
Levitz Furniture Company of the Midwest, Inc., a Colorado corporation
Levitz Furniture Company of the Midwest Realty, Inc., a Colorado corporation
Levitz Furniture Company of the Pacific, Inc., a California corporation
Levitz Furniture Company of Washington, Inc., a Washington corporation
Levitz Furniture Company of Washington Realty, Inc., a Washington corporation
Exhibit "B"
List of Entities Comprising Purchaser and the Property to be Acquired by Each
Name Property
Levitz SL Hartford, L.L.C. Hartford, 55 Graham Place, Southington,
CT 06489-1594
Levitz SL Paramus, L.L.C. Paramus, 545 Route 17 South, Paramus, NJ
07652-3093
Levitz SL St. Paul, L.L.C. St. Paul, 3201 Country Dr., St Paul, MN
55117-1096
Levitz SL Oxnard, L.L.C. Oxnard, 2420 N. Oxnard Blvd., Oxnard, CA
93030-2090
Levitz SL Modesto, L.L.C. Modesto, 1604 Sisk Rd., Modesto, CA
95350-2501
Levitz SL Portland - Scholls, L.L.C. Portland 2, 9770 S. W. Scholls Ferry
Rd., Tigard, OR 97223-4303
Levitz SL Portland - Johnson, L.L.C. Portland, 13631 S. E. Johnson Rd.,
Milwaukie, OR 97222-1295
Levitz SL Seattle, L.L.C. Seattle 2, 20111 46 Ave. West, Lynnwood,
WA 98036-6694
Levitz SL Sacramento, L.L.C. Sacramento, 4741 Watt Ave., North
Highlands, CA 95660-5515
Levitz SL Roosevelt Field, L.L.C. Roosevelt Field, 895 East Gate Blvd.,
Garden City E, NY 11530-2199
Levitz SL Woodbridge, L.L.C. Woodbridge, 429 Route 1 South, Iselin,
NJ 08830-3009 06489-1594
Levitz SL Mesa, L.L.C. Mesa, 225 South Dobson Road, Mesa, AZ
85202-2009
Levitz SL Minneapolis, L.L.C. Minneapolis, 12301 Dupont Avenue South,
Burnsville, MN 55337-1689
Levitz SL Cherry Hill, L.L.C. Cherry Hill, 1001 Church Road, Cherry
Hill, NJ 08002-1299
Levitz SL Farmingdale, L.L.C. Farmingdale, 90 Price Parkway,
Farmingdale, NY 11735-1394
Levitz SL Langhorne, L.P. Langhorne, 1661 E. Lincoln Highway,
Langhorne, PA 19047-3096
Levitz SL Willowbrook, L.L.C. Willowbrook, 531 Route 46, Fairfield,
NJ 07004-1907
Levitz SL Northridge, L.L.C. Northridge, 19350 Nordhoff Street,
Northridge, CA 91324-2492
Levitz SL Redondo Beach, L.L.C. Redondo Beach, 1601 Kingsdale Ave.,
Redondo Beach, CA 90278-3928
Levitz SL San Francisco, L.L.C San Francisco, 900 Dubuque Ave.,
San Francisco, CA 94080-1890
Levitz SL San Leandro, L.L.C. San Leandro, 3199 Alvarado St.,
San Leandro, CA 94577-5790
Levitz SL Fresno, L.L.C. Fresno, 4525 West Shaw Ave., Fresno,
CA 93722-6208
Levitz SL La Puente, L.L.C. La Puente, 17520 E. Castelton St.,
City of Industry, CA 91744-1701
Exhibit "C"
Site Plan for Langhorne Property
Exhibit "D"
Miscellaneous Post-Closing Environmental Work
Exhibit 10.64
UNITARY LEASE
by and between
THE ENTITIES IDENTIFIED AS LANDLORD ON
EXHIBIT "K" ATTACHED HERETO
(collectively, "Landlord")
and
THE ENTITIES IDENTIFIED AS TENANT ON
EXHIBIT "K" ATTACHED HERETO
(collectively, "Tenant" or sometimes "Levitz")
Dated: As of June 8, 1999
Table of Contents
ARTICLE I
Condition of Demised Premises; Tenant's Representations
and Warranties....................................................6
ARTICLE II
Term.............................................................12
ARTICLE III
Basic Rent; Other Rent; Net Lease................................16
ARTICLE IV
Impositions......................................................18
ARTICLE V
Insurance........................................................23
ARTICLE VI
Use of Demised Premises; Use of Common Areas.....................29
ARTICLE VII
Surrender and Right to Remove Trade Fixtures.....................32
ARTICLE VIII
Landlord's Right to Perform Tenant's Covenants ..................33
ARTICLE IX
Compliance With Laws and Insurance Policies......................34
ARTICLE X
Mechanics' Liens; Other Liens; Mortgages.........................35
ARTICLE XI
Repairs and Maintenance; Common Area
Maintenance and Common Area Charges..............................37
ARTICLE XII
Right of Landlord to Inspect and Repair..........................44
ARTICLE XIII
Indemnifications.................................................44
ARTICLE XIV
Light, Heat and Power, etc.......................................46
ARTICLE XV
Changes, Alterations and New Construction........................46
ARTICLE XVI
Destruction and Restoration......................................49
ARTICLE XVII
Quiet Enjoyment..................................................52
ARTICLE XVIII
Eminent Domain...................................................52
ARTICLE XIX
Assignments and Subleases; Leasehold Properties; Space
Leases...........................................................55
ARTICLE XX
Default and Remedies.............................................65
ARTICLE XXI
Arbitration and Appraisal........................................70
ARTICLE XXII
Estoppel Certificates; Financial Statements......................72
ARTICLE XXIII
Invalidity of Particular Provisions .............................72
ARTICLE XXIV
Notices..........................................................73
ARTICLE XXV
Options to Extend; Extended Term Basic Rent .....................74
ARTICLE XXVI
Hazardous Substances.............................................77
ARTICLE XXVII
Miscellaneous....................................................82
ARTICLE XXVIII
Subordination....................................................85
ARTICLE XXIX
Transfer of Landlord's Interest; Landlord's Severance
Rights; Limitation of Landlord's Liability.......................85
ARTICLE XXX
Limitation on Levitz's Debt......................................87
UNITARY LEASE
THIS UNITARY LEASE ("Lease") dated as of the 8th day of June, 1999 by
and between the entities identified as landlord on Exhibit "K" attached
hereto (whether one or more, "Landlord"), and the entities identified as
tenant on Exhibit "K" attached hereto (whether one or more, "Tenant" or
sometimes "Levitz").
STATEMENT OF INTENT
Subject to Article XXIX, this Lease constitutes one unitary,
indivisible, non-severable lease of all the Demised Premises and this Lease
is a single lease. This Lease does not constitute separate leases contained
in one document each governed by similar terms. The use of the expression
"unitary lease" to describe this Lease is not merely for convenient
reference. It is the conscious choice of a substantive appellation to
express the intent of the parties in regard to an integral part of this
transaction: To accomplish the creation of an indivisible lease, the
parties agree that from an economic point of view the portions of the
Shopping Centers leased pursuant to this Lease constitute one economic unit
and that the Basic Rent and all other provisions have been negotiated and
agreed to based on a demise of all the portions of the Shopping Centers
covered by this Lease as a single, composite, inseparable transaction.
Except as expressly provided in this Lease for specific isolated purposes
(and in such cases only to the extent expressly so stated), all provisions
of this Lease, including definitions, commencement and expiration dates,
rental provisions, use provisions, renewal provisions, breach, default,
enforcement and termination provisions and assignment and subletting, shall
apply equally and uniformly to all the Demised Premises as one unit and are
not severable. The economic terms of this Lease would have been
substantially different had separate leases or a "divisible" lease been
acceptable to the Landlord. A default of any of the terms or conditions of
this Lease occurring with respect to any portion of the Demised Premises
situated on a particular Shopping Center shall be a default under this
Lease with respect to all the Demised Premises. Except as expressly
provided in this Lease for specific isolated purposes (and in such cases
only to the extent expressly so stated), Landlord and Tenant agree that the
provisions of this Lease shall at all times be construed, interpreted and
applied such that the intention of Landlord and Tenant to create a unitary
lease shall be preserved and maintained. The parties agree that for the
purposes of any assumption, rejection or assignment of this Lease under 11
U.S.C. Section 365 or any amendment or successor section thereof, this is
one indivisible and non-severable lease dealing with and covering one legal
and economic unit which must be assumed, rejected or assigned as a whole
with respect to all (and only all) the Demised Premises covered hereby.
Words and phrases and expressions which appear in this Lease with the first
letter of each word capitalized are defined terms. Defined terms shall have
the meanings as defined in this Lease.
Definitions
The following is a list containing definitions of several terms used
in this Lease; other terms are defined elsewhere in this Lease:
1. "Affiliate" means any corporation controlling, controlled by, or
under common control with either Tenant or Landlord (whichever of Landlord
or Tenant is being referred to in the context) within the meaning of the
rules and regulations promulgated under the Securities Act of 1933, as
amended.
2. "Appurtenances" means all easements (including any rights under
applicable construction, operating and/or reciprocal easements agreements)
over adjoining real property, rights of way, hereditaments, interests in or
to adjacent streets or alleys or other real property and all the benefits
thereunto belonging and appertaining to any portion of the Land or the
Improvements.
3. "Bankruptcy Cases" means In re Levitz Furniture Incorporated et
al., Case No. 97- 1842 currently pending before the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court").
4. "CAM" is defined in Section 11.03.
5. "CAM Costs" are defined in Section 11.03.
6. "Common Area Charges" means the amount or share, if any, that a
party is responsible to pay for CAM Costs as determined in Section 11.07
and Section 11.08.
7. "Common Areas" means, with respect to any Shopping Center, all
areas and facilities outside of the Demised Premises or Landlord's
Buildings erected or situated on the Shopping Center designated and
improved for common use, excepting (i) other tenants' pylon signs and sign
panels, and (ii) loading docks; but including the following areas and
facilities to the extent they exist: parking areas; access roads; entrances
and driveways; lighting facilities; grass, shrubs, trees and landscaping;
retaining walls; landscaped areas, passageways sidewalks and curbs
(including exterior sidewalks and curbs adjacent to the buildings);
culverts; retention basins and drainage facilities; directional and
shopping center pylons or monuments; marking or striping of the parking
areas and roadways; sewer and sewage disposal systems; water supply,
electric lines, gas lines and other service and utility lines, pipes and
installations of every kind and including those, if any, off the Shopping
Centers servicing common areas and common facilities of the Shopping
Centers, including traffic control devices within the Shopping Centers and,
to the extent the owner of the Shopping Center is responsible for such
devices off-site, the traffic control devices on adjacent roadways.
8. "Covenants" means all recorded documents and/or instruments which
run with any part of the Land, encumber any of the Shopping Centers or
otherwise bind Landlord or Tenant and which exist as of the date of this
Lease, or are otherwise agreed to by Tenant.
9. "Demised Premises" means collectively those certain buildings or
portions of buildings, as shown by outline in "red" on Exhibit "A" and
located on the Fee Title Properties and the Leasehold Properties; the
buildings outlined in red are the premises intended to be leased to Tenant
under this Lease. Exhibit "A" shows certain portions of the Demised
Premises: (i) as shown by outline in "green" indicating that these portions
are the warehouse portion of the Levitz Building; and (ii) as shown by
outline in "blue", indicating that these portions are the retail portion of
the Levitz Building.
10. "Fee Title Property" means a Shopping Center owned by Landlord in
fee title, as listed on Exhibit "B", and "Fee Title Properties" means each
and every Fee Title Property, collectively.
11. "Floor Area of the Demised Premises" means the aggregate gross
square feet of all levels inside every Levitz Building and the other
buildings, if any, within the Demised Premises, measured from the exterior
surface of perimeter walls to the exterior surface of opposite perimeter
walls, except if a building included within the Demised Premises shares a
common wall with any Landlord's Buildings on the Shopping Center, then
measured to the center of that common wall. Floor Area of the Demised
Premises shall include the gross square feet of all basements, balcony or
mezzanine space (other than the mezzanine space at the Redondo Beach, CA
Levitz Building). Furthermore, the Floor Area of the Demised Premises shall
include the entire Floor Area of the Redevelopment Properties and the five
(5) Non-Redevelopment Properties (even though Tenant may have terminated
this Lease as to a portion of such Levitz Buildings pursuant to Section
2.02 and 2.03) but only until such time as the adjustment to the Floor Area
of the Demised Premises is required to be made pursuant to Section 2.05.
Any dispute as to the Floor Area of the Demised Premises shall be
determined by arbitration pursuant to Article XXI.
12. "Floor Area of Landlord's Buildings" means the aggregate gross
square feet of all levels inside Landlord's Buildings, measured from the
exterior surface of perimeter walls to the exterior surface of opposite
perimeter walls except if any Landlord's Buildings share a common wall with
a building included within the Demised Premises, then measured to the
center of that common wall. Floor Area of Landlord's Buildings shall
include the gross square feet of all basements, balcony or mezzanine space
(other than the mezzanine space at the Redondo Beach, CA Building);
provided, however, the Floor Area of the Landlord's Buildings shall not
include any portion of the Floor Area of the Redevelopment Properties or
the five (5) Non-Redevelopment Properties (even though Tenant may have
terminated this Lease as to a portion of such Levitz Buildings pursuant to
Section 2.02 and 2.03), but only until such time as the adjustment to the
Floor Area of the Demised Premises is required to be made pursuant to
Section 2.05. Any dispute as to the Floor Area of the Landlord's Buildings
shall be determined by arbitration pursuant to Article XXI.
13. "Improvements" means all buildings, structures and other
improvements now existing or hereafter constructed on the Land and any
restoration, addition to or replacement thereof (and when so referred to
excludes and does not mean to include Tenant's Trade Fixtures or the
Appurtenances).
14. "Land" means the parcels of land described in Exhibit "D"
attached hereto, unless otherwise herein expressly provided (and does not
include the Improvements, Tenant's Trade Fixtures or the Appurtenances).
15. "Landlord" means the owner or owners at the time in question of
fee title to certain portions of the Demised Premises which Landlord owns
in fee title or in other instances means the holder of a leasehold estate,
as the lessee thereunder, as to other portions of the Demised Premises
which constitute Leasehold Properties.
16. "Landlord's Buildings" means any and all buildings and storerooms
located within buildings in the Shopping Centers which are owned or leased
by Landlord or subleased by Landlord from an Overlandlord, not including
the Demised Premises and not including any buildings owned or leased by any
Overlandlord, if any, within a Shopping Center, which is not leased by
Landlord. The existing Landlord's Buildings are outlined in "purple" on
Exhibit "A".
17. "Landlord's Common Area Charge" is defined in Section 11.03.
18. "Landlord's Share" means, with respect to any Shopping Center, a
fraction, the numerator of which is the Floor Area of Landlord's Buildings
in a particular Shopping Center and the denominator of which is the Floor
Area of Landlord's Buildings in that Shopping Center plus the Floor Area of
the Demised Premises in that same Shopping Center (multiplied by the amount
of the item to be shared, such as CAM Costs or Impositions).
19. "Leasehold Property" means a Shopping Center held by Landlord as
the tenant under a lease or sublease, as listed on Exhibit "C", and
"Leasehold Properties" means each and every Leasehold Property,
collectively.
20. "Levitz Building" means the entire store building on each
Shopping Center being used at the date of this Lease, in part or in whole,
for operation of a "Levitz" furniture store ("Levitz Store"), or else
subject to a Space Lease.
21. "Liquidation Value" shall mean, as to any particular portion of
the Demised Premises situated in a particular Shopping Center, the
liquidation value of such portion as set forth in Exhibit "E".
22. "Market Value" shall mean, as to any particular portion of the
Demised Premises situated on a particular Shopping Center, the market value
of such portion as set forth in Exhibit "E".
23. "Non-Redevelopment Properties" means the Levitz Buildings
identified as such on Exhibits "B" and "C" attached hereto and made a part
hereof.
24. "Overlandlord" means the landlord under an Overlease.
25. "Overlease" means the leases set forth on Exhibit "F", each of
which has been sold and assigned by Levitz to Landlord or Landlord's
Affiliate contemporaneously with the making of this Lease.
26. "Redevelopment Properties" means the Levitz Buildings identified
as such on Exhibits "B" and "C" attached hereto and made a part hereof.
27. "Responsible Party" means the person or entity who is responsible
pursuant to this Lease, at the time in question, to perform or cause to be
performed the CAM tasks, if any.
28. "Shopping Center" means any and "Shopping Centers" means all of
those parcels of real estate which comprise collectively the Land, and
includes all the buildings and other Improvements, if any, and the
Appurtenances situated thereon. Neither the Common Areas in the Shopping
Centers nor the Landlord's Buildings, if any, situated thereon, have been
leased to Tenant.
29. "Sale Order" shall mean the order of the Bankruptcy Court
approving the Contract of Sale (as hereinafter defined) and the
transactions therein contemplated, including this Lease, in the form
attached to the Contract of Sale, with such modifications to such Sale
Order as are acceptable to the Landlord in its sole discretion.
30. "Space Leases" means those leases of space in the Shopping
Centers listed on Exhibit "G", or leases, subleases, licenses or other
occupancy agreements which may hereafter be entered into at any time in the
future by Landlord with respect to Landlord's Buildings, or Tenant with
respect to the Demised Premises, in the Shopping Centers as part of the
buildings erected or to be erected thereon. Space Leases refer to all
storerooms so leased other than space occupied by Levitz and used as a
Levitz Store.
31. "Tenant", unless otherwise stated in the text where the word is
used, shall include Levitz Furniture Corporation and the various
subsidiaries set forth on Exhibit "K" attached hereto and, subject to the
provisions of this Lease, any permitted successor of Levitz Furniture
Corporation and collectively shall include in addition any permitted
assignee of the leasehold interest of Tenant under this Lease.
32. "Tenant's Share" means a fraction, the numerator of which is the
Floor Area of the Demised Premises located in a particular Shopping Center
and the denominator of which is the Floor Area of the Demised Premises in
that Shopping Center plus the Floor Area of the Landlord's Buildings in
that same Shopping Center (multiplied by the amount of the item to be
shared, such as CAM Costs, Impositions, etc.).
33. "Tenant's Trade Fixtures" means items and personal property owned
by Tenant or any of Tenant's subtenants located in or used in Tenant's or
subtenant's furniture business operation at the Shopping Centers, such as
signs (excluding pylon structures), counters, cash registers, showcases,
tables, shelves, merchandise feature walls, counters, desks, metal floor
racks, stockroom and shipping area shelving and fixtures, office furniture
and office machines, light fixtures and alarm systems. Tenant's Trade
Fixtures shall not include building or structural items, such as walls and
partitions, compressors, blowers, ducts, air conditioning and heating
equipment, lights or lighting fixtures, electrical and gas equipment,
wiring and conduits, plumbing fixtures and pipes, carpeting or other floor
coverings, dropped ceilings, or pylon structures and the like.
34. "Total Liquidation Value" shall mean the aggregate Liquidation
Value of the Demised Premises which is, from time to time, demised to
Tenant under this Lease. The initial Total Liquidation Value is Sixty-Seven
Million Six Hundred Fifty-Six Thousand Dollars ($67,656,000.00).
35. "Unavoidable Delays" means delays affecting the process of
construction, repair, maintenance or installations, relating to the Demised
Premises or Restoration of the Improvements due to strikes, acts of God,
acts of the elements, inability to obtain labor or materials, governmental
restrictions, enemy action, earthquakes, civil commotion, war, unavoidable
casualty or similar causes beyond the reasonable control of Tenant, but
Unavoidable Delays shall not apply to or excuse or delay payment of any
sums payable by Tenant hereunder. No delay arising as a result of the
financial inability of Tenant to pay Rent or other sums payable by Tenant
hereunder or to provide insurance coverage or relating to the business
operations of Tenant shall be deemed an Unavoidable Delay. As to any
obligation under this Lease by Landlord to pay money, Unavoidable Delay
shall not apply to or excuse or delay such payment.
WITNESSETH:
In consideration of the mutual covenants and agreements hereinafter
set forth, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Demised Premises, together with a non-exclusive right for
Tenant's benefit and the benefit of Tenant's employees, customers, agents,
licensees, concessionees and invitees to use, with Landlord and all other
occupants of the Shopping Centers, if any, and all other permittees of
Landlord, the Common Areas and all easements, rights and privileges and
amenities otherwise appurtenant to the Shopping Centers (see also Sections
6.03 and 11.10), SUBJECT TO all matters of every kind and nature which now
affect any portion of the Demised Premises, including, matters affecting
the title to any portion of the Demised Premises, whether or not of record;
building code violations or violation of any statute, law or ordinance; any
state of facts an accurate survey of the Demised Premises would disclose;
the physical condition or environmental conditions of or at any portion of
the Demised Premises; existing and future zoning laws, building codes and
other laws; the rights and interests of persons in possession, Covenants,
Overleases and REAs (as hereinafter defined).
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE I
Condition of Demised Premises; Tenant's Representations and Warranties
Section 1.01. As a material inducement to Landlord in consummating
this transaction, including acquiring Tenant's interest in the Shopping
Centers pursuant to the Contract of Sale and the making of this Lease,
Tenant hereby represents and warrants to Landlord that Tenant is fully
acquainted with the nature and condition, in all respects, of the Demised
Premises and the Shopping Centers and each portion or part thereof, or to
the extent not so actually acquainted has had opportunity to become
familiar with all such conditions including the state of the title thereto,
the soil and geology thereof, the manner of construction and the physical
condition and state of repair or lack of repair of the Land (which includes
both the surface and subsurface) and the Improvements (which includes all
improvements to the Demised Premises and the Shopping Centers of every
nature including inside the existing buildings and the roofs and the
structures thereof), and the nature and extent of the rights of others (if
any) with respect thereto, whether by way of easement, right of way, lease,
possession, lien, encumbrance, license, reservation, condition or
otherwise. Tenant accepts the Demised Premises and the use of each Shopping
Center's Common Areas and each part and component thereof "AS IS" and
"WHERE IS" and "WITH ALL FAULTS", whether patent or latent. Landlord in
fact has not made and does not make any representations or warranties
whatsoever to Tenant in this Lease with respect to the condition of the
Demised Premises or title or any matters or things pertaining thereto,
express or implied, and Tenant hereby acknowledges that fact and waives any
and all rights and claims to the contrary. All indemnities and other
post-closing obligations of Tenant made or undertaken by Tenant, as seller,
to Landlord, as purchaser, in the contract of sale which was executed on
April 20, 1999 (the "Contract of Sale") shall be, and hereby are,
incorporated by reference in this Section 1.01, and Tenant agrees that any
breach by Tenant, as the seller, of any of said indemnities or other
post-closing obligations shall automatically be deemed and shall constitute
a default by Tenant under this Lease as a breach and default of such
indemnities or other post-closing obligations made or undertaken to
Landlord in this Lease, and Landlord shall have all rights and remedies
hereunder and under the Contract of Sale with respect to such default in
addition to, and not in exclusion of, all other rights or remedies
available in law or in equity. The breach of any representation, warranty,
covenant, indemnity or other post-closing obligation made or undertaken by
Landlord, as purchaser in the Contract of Sale, shall not in any event
permit Tenant to terminate this Lease or reduce the Basic Rent, additional
rent or other payments to be made by Tenant under this Lease or diminish
Tenant's other obligations, provided, however, in the event of a Landlord
default of the same, Tenant shall be permitted to offset against the Basic
Rent the amount of any final and unappealable money judgment Tenant obtains
based on Landlord's default if Landlord does not pay such judgment within
ten (10) days after the judgment becomes final and unappealable.
Section 1.02. If the Demised Premises or portions thereof either at
the date of this Lease or, if agreed to by Tenant or done with Tenant's
written consent or done pursuant to this Lease, in the future are the
subject of (i) any Covenants, agreements, tenancies, subtenancies,
licenses, occupancies or rights of others which apply to or relate to the
use, operation, maintenance, repair, construction or relate to any other
aspect of the Demised Premises or any portion thereof (including the
Overleases, Collateral Leases, occupancy agreements or utility easements),
or (ii) any construction, operating and reciprocal easement agreements or
other easement agreements in favor of an owner of adjoining property or to
which Tenant is a party or which is binding on Tenant or which is a matter
of public record affecting the Demised Premises or any part thereof, or any
similar agreements, (hereinafter referred to as "REAs"), Tenant hereby
assumes and agrees to perform and discharge, subject to reimbursement by
Landlord in certain instances pursuant to the provisions contained in this
Lease, any and all obligations with respect to all of the same (including
also for example Tenant's status as a sublandlord under a sublease) and
with respect to any and all matters affecting the Demised Premises or the
title thereof, which Landlord herein might otherwise be obligated to
observe, do, perform, or discharge by reason of the ownership of the
Demised Premises by Landlord to the extent that the same are in existence
as of the date of this Lease or are hereafter agreed to by Tenant or are
otherwise permitted hereunder; provided, however, a default by Tenant as
landlord or sublandlord under a Collateral Lease or license agreement with
a concessionaire shall not, in and of itself, constitute an Event of
Default hereunder. Notwithstanding the foregoing, Landlord reserves all
comment and approval rights and all demand and request rights under all
REAs and Title Agreements (as hereinafter defined) and Tenant shall not
have any such rights thereunder. If any other party to an REA or other
Title Agreement affecting the Demised Premises requests the consent of
Landlord to any matter requiring its consent thereunder and Landlord shall
in good faith determine that it is not required to grant its consent
thereto, then Landlord shall not grant its consent thereto without the
prior written consent of Tenant, which Tenant agrees not to unreasonably
withhold, condition or delay (and Tenant shall be deemed to have granted
its consent if Tenant shall fail to reply to a written request for such
consent prior to the earlier of: (i) the date Landlord is required to reply
under such REA or Title Agreement; or (ii) ten (10) days after Landlord
shall have requested Tenant's consent). Nothing contained herein shall
require Landlord to grant its consent to any matter under any REA or Title
Agreement. Landlord shall not modify or amend any REA or Title Agreement in
any manner which adversely impairs or affects the Demised Premises or their
value or use, without Tenant's consent. If the REA and this Lease express
in the respective documents different obligations concerning the same
subject matter, the greater obligations shall be observed by Tenant.
In any case where an Overlease or other document provides that
notwithstanding Tenant's transfer and sale of its leasehold interest in a
Shopping Center, if Tenant leases or subleases back the Levitz Building and
continues in possession, Tenant shall continue to be the only party
recognized as the tenant under the Overlease, then for so long as such
limitation is applicable (but without intending herein to concede or agree
that this Lease or Landlord's transaction with Tenant falls within the
intended category in such Overlease), Tenant agrees to follow Landlord's
directions and not act without Landlord's written consent in any dealings
with the Overlandlord or any other party to the document.
Section 1.03. In order to induce Landlord to enter into the
transaction herein set forth, Tenant covenants, represents and warrants to
Landlord the following, all of which shall be required to be true and
correct in all material respects on and as of the date of this Lease
(except with respect to matters disclosed in writing to Landlord and its
attorneys and attached to the Contract of Sale):
a. Tenant: (i) is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
is duly qualified as a foreign corporation and in good standing in each
jurisdiction where the Demised Premises is located; and (ii) has the
requisite corporate power and authority and the legal right to enter into
this Lease.
b. The execution, delivery and performance by Tenant of this
Lease are within the corporate powers of Tenant, have been duly authorized
by all necessary corporate action and have been approved by the Bankruptcy
Court, and do not (A) contravene the charter or by-laws of Tenant, (B) to
Tenant's best knowledge, violate any law (including the Securities Exchange
Act of 1934) or regulation, or any order or decree of any court or
governmental instrumentality, (C) conflict with or result in a breach of,
or constitute a default under (except to the extent waived by any lender),
any material indenture, loan agreement, mortgage or deed of trust or any
material lease, agreement or other instrument binding on Tenant or any of
its properties, or (D) result in or require the creation or imposition of
any lien upon any of the property of Tenant. This Lease has been duly
executed and delivered by Tenant and each person who is a signatory to this
Lease has full power and authority to bind Tenant. This Lease is, when
delivered, a legal, valid and binding obligation of Tenant, enforceable
against Tenant in accordance with its terms.
c. No consent from any person or entity is required as a
condition to the execution and delivery of this Lease, or any other
document or instrument to be executed and delivered by any Tenant pursuant
to the terms hereof, or the performance by Tenant hereunder, or under any
of the other documents or instruments to be executed and delivered by any
Tenant hereunder.
d. Tenant has been represented by counsel in connection with
the negotiation and drafting of this Lease and all related agreements, and
Tenant has undertaken its own independent investigation and review and,
based upon such investigation and review, and based on Tenant's current
financial condition and its business plan, has determined in the exercise
of its business judgment that the transactions contemplated in this Lease
are fair and are in the best interests of Tenant and its shareholders and
creditors.
e. Except as set forth in the Contract of Sale, Tenant has not
received written notice from any governmental authority, mortgagee, tenant,
insurer or other party with respect to any of the Shopping Centers: (i)
that either the Shopping Centers or the use or operation of the
improvements thereon is currently in violation of any zoning, environmental
or other land use regulations; (ii) that Tenant is currently in violation
or with the passage of time will be in material violation of the
requirements of any ordinance, law or regulation or order of any government
or any agency, body or subdivision thereof (including the local building
department) or the requirements of any insurance carrier of Tenant
respecting the Shopping Centers or Board of Fire Underwriters affecting any
of the Shopping Centers, or that any investigation has been commenced, or
is contemplated, regarding any such possible violation; or (iii) asserting
that Tenant is required to perform work at any Shopping Center and to
Tenant's knowledge no such notice has been issued.
f. Except as set forth in the Contract of Sale, there is no
pending material litigation brought by or against Tenant affecting any
Shopping Center (including the Overleases and the Space Leases) or the
operation of any Shopping Center. Tenant has no knowledge of any other such
threatened material litigation which affects any Shopping Center. The
provisions of this paragraph shall not apply to any litigation involving
personal injury or property damage that is fully covered by Tenant's
liability insurance.
g. The Space Leases described in Exhibit "G" comprise all the
Space Leases presently existing for any Shopping Center and each is in full
force and effect; no Space Lease has been modified or supplemented except
(if at all) as set forth in Exhibit "G"; Tenant has delivered to Landlord
true, correct and complete copies of each instrument constituting any Space
Lease; no rent has been paid more than one month in advance by any tenant,
and no tenant is entitled to any current defense, credit, allowance or
offset against rental; the information set forth in Exhibit "G" is true,
correct and complete. To Tenant's knowledge, there is no default of either
landlord or any default of tenant under any of the Space Leases, and to
Tenant's knowledge, no state of facts which with notice and/or the passage
of time would ripen into a default. No work or installations are required
of Tenant under any Space Lease, and Tenant has fully completed all tenant
improvements specified in any Space Lease to be the responsibility of the
landlord and has paid all tenant construction allowances. There are no
leasing commissions due nor will any become due in connection with any
Space Lease, or the renewal thereof and no understanding or agreement
exists in regard to payment of any leasing commissions or fees for future
Space Leases. No Space Lease tenant is entitled to any free rent in lieu of
a tenant improvement allowance or otherwise. To Tenant's knowledge, Tenant
has no obligations with respect to contributing for or paying dues or
charges to a tenant's merchant's association.
h. To Tenant's knowledge, there is no default by any party
under any REA, Covenants or other agreement of record affecting any
Shopping Center (collectively the "Title Agreements"), and no state of
facts which with notice or the passage of time would constitute such a
default. In amplification of the foregoing, to Tenant's knowledge, it has
paid all amounts, satisfactorily performed all work, and otherwise complied
with all provisions required to be paid, performed or complied with by the
owner (or occupant) of all of the Shopping Centers under all Title
Agreements. Tenant has delivered or caused to be delivered to Landlord
true, correct and complete copies of each instrument constituting any Title
Agreement.
i. There are not now any agreements or understandings relating
to any Shopping Center which would be binding on Landlord, except for Title
Agreements, Overleases, and Space Leases.
j. To Tenant's best knowledge, all permits and authorizations
necessary with respect to the Shopping Centers for their use, operation and
occupancy are now in effect.
k. Tenant has no knowledge of any structural defects in the
improvements situated upon any Shopping Center. The heating and air
conditioning, plumbing, electrical and drainage systems at or serving each
Shopping Center and all facilities and equipment relating thereto are in
good condition and working order, and roofs are free of leaks; except to
the extent any such system or roof problem would not materially impair
normal store operation.
l. To Tenant's best knowledge, there is presently adequate
parking at each Shopping Center to comply with the requirements of all of
the Space Leases, Title Agreements and the applicable zoning laws (both
individually and in the aggregate).
m. Each Shopping Center has adequate drainage systems and
easements in place so that water freely runs off it and does not pool or
collect on any portion thereof in a manner that would materially impair the
operation of the store on the Shopping Center; and such run-off does not
violate the rights of any owners of adjacent property.
n. To Tenant's best knowledge, all construction and/or
maintenance work required by the terms of any Overlease, Space Lease, or
Title Agreement, or by any building, zoning or other law, ordinance or
regulation affecting any Shopping Center, including any roadway and utility
line construction on the Shopping Centers and/or adjacent property, has
been completed and there are and will be no charges, liens or assessments
against any Shopping Center or Landlord for any of same.
o. Tenant knows of no pending or threatened eminent domain
proceedings against or affecting any Shopping Center.
p. The Overleases described in Exhibit "F" comprise all the
Overleases presently existing for any of the Shopping Centers and each is
in full force and effect; no Overlease has been modified or supplemented,
except (if at all) as set forth on Exhibit "F"; Tenant has delivered to
Landlord true, correct and complete copies of each instrument constituting
any Overlease; no rent has been paid more than one (1) month in advance by
Tenant, and all rent and/or additional rent due to date under any Overlease
has been paid; the information set forth in Exhibit "F" is true, correct
and complete. To Tenant's knowledge, there is no default of either the
landlord or any material default of Tenant under any of the Overleases, and
to Tenant's knowledge, no state of facts exists which with notice and/or
the passage of time would ripen into a material default other than as
stated in the Sale Order. No work or installations are required of Tenant
except as specified (if at all) in the Overleases, and in any case Tenant
has fully completed all improvements specified in any Overlease to be the
responsibility of the tenant. There are no leasing commissions due nor will
any become due by Landlord or Tenant in connection with any Overlease. To
Tenant's knowledge, Tenant has no obligations with respect to contributing
for or paying dues or charges to a tenant's merchant's association.
q. Except as otherwise disclosed in written reports delivered
to Landlord prior to the date hereof by Tenant or by Tenant's environmental
consultants and noted on Exhibit "I", as of the date of this Lease all
Shopping Centers are in compliance with and do not violate any provisions
of the Environmental Laws (as hereinafter defined); and that Tenant has
never used the Shopping Centers for the dumping or storage of any Hazardous
Substances and knows of no such use by any other party and that there does
not exist on, in or under any Shopping Center any Hazardous Substances
except for Hazardous Substances existing on the Shopping Centers that are
used in the ordinary course of business of Tenant and are not in violation
of any Environmental Laws.
All representations of Tenant set forth in this Section 1.03 are made
to the "best of Tenant's knowledge," which phrase shall mean the collective
actual knowledge of: (a) Michael McCreery (Tenant's VP & CFO); (b) Edward
Zimmer (Tenant's General Counsel); and (c) Ronald Barr (Tenant's in-house
architect).
ARTICLE II
Term
Section 2.01. The term of this Lease commences on the date hereof
("Commencement Date") and unless sooner terminated under any provision of
this Lease, shall expire on the last day of the month in which the
twentieth (20th) anniversary of the Commencement Date occurs (the "Initial
Term"), subject to Tenant's rights of extension as provided in Article XXV.
Section 2.02. (a) Subject to the provisions of Section 2.02(b), and
provided no Event of Default then exists, this Lease shall terminate solely
as to the warehouse portion of all Redevelopment Properties and the
Paramus, NJ Levitz Building on the earlier of the following dates
("Warehouse Termination Date"): (a) the date Tenant surrenders and vacates
the warehouse portion of such Redevelopment Properties; or (b) August 31,
1999 (as to the Paramus, NJ Levitz Building and the Redevelopment
Properties located at Minneapolis, MN, Hartford, CT, Redondo Beach, CA, San
Francisco, CA, Lynnwood, WA and Roosevelt Field, NY), October 31, 1999 (as
to the Redevelopment Property located at Modesto, CA), November 30, 1999
(as to the Redevelopment Property located at Cherry Hill, NJ) and May 31,
2001 (as to the Redevelopment Property located at Oxnard, CA); and this
Lease shall remain in full force and effect as to the remaining portions of
the Demised Premises.
(b) Provided no Event of Default then exists, Tenant may, on
one or more occasions, elect to terminate this Lease with respect to the
retail and/or warehouse portions of the Redevelopment Properties located at
Portland, OR and Fresno, CA, and all, but not less than all, of the
Redevelopment Properties located at Woodbridge, NJ and Lynnwood, WA (each,
a "Group 1 Redevelopment Property" and collectively, the "Group 1
Redevelopment Properties"); provided, however, Tenant's right to terminate
this Lease with respect to all (in the case of Woodbridge, NJ and Lynnwood,
WA) or such retail and/or warehouse portions (in the case of Portland, OR
and Fresno, CA) of such Group 1 Redevelopment Property shall expire, if not
sooner exercised, on the second (2nd) anniversary of the Commencement Date
(such two (2) year period being hereinafter referred to as the "Optional
Termination Period"); and this Lease shall remain in full force and effect
as to the remaining portions of the Demised Premises. In each instance
where Tenant desires to exercise the aforesaid termination right, Tenant
shall give Landlord irrevocable written notice of termination on or before
the earlier of: (i) a date which is at least three hundred sixty-five (365)
days prior to the date Tenant vacates and surrenders all (in the case of
Woodbridge, NJ and Lynnwood, WA) or such retail and/or warehouse portion
(in the case of Portland, OR and Fresno, CA) of such Group 1 Redevelopment
Property; or (ii) the last day of the Optional Termination Period. If
Tenant does not: (A) timely provide the aforesaid termination notice; or
(B) vacate and surrender all (in the case of Woodbridge, NJ and Lynnwood,
WA) or the warehouse portion (in the case of Portland, OR and Fresno, CA)
of such Group 1 Redevelopment Property prior to the third (3rd) anniversary
of the Commencement Date; then this Lease shall not terminate as to such
Group 1 Redevelopment Property and the annual Basic Rent with respect to
such Group 1 Redevelopment Property shall increase to a market rent equal
to the product of: (I) the Market Value of such Group 1 Redevelopment
Property; and (II) ten and three-quarters percent (10.75%). Commencing on
the first day of the sixth year of the term of this Lease, and on every
fifth anniversary of such date thereafter during the initial term of this
Lease or any extension thereof, annual Basic Rent paid pursuant to the
prior sentence shall increase by five percent (5%) of the annual Basic Rent
paid pursuant to the prior sentence during the immediately preceding twelve
(12) month period.
(c) Notwithstanding the fact that this Lease shall have
terminated with respect to the warehouse or retail portion of a
Redevelopment Property, there shall be no reduction to: (i) the Basic Rent,
Impositions, or rents and other payments pursuant to the Overleases and
REAs, and property and liability insurance required by Article V, until the
Tenant entirely vacates and surrenders the entire Redevelopment Property;
or (ii) Tenant's Share of CAM Costs (as distinguished from Impositions,
rents and other payments pursuant to the Overleases and REAs, and property
and liability insurance required by Article V), until Landlord shall have
entered into a binding lease for all or any portion of such warehouse
portion of such Redevelopment Property and the tenant under such new lease
has commenced occupancy of same for the regular conduct of its business (as
distinguished from occupancy during any tenant fit-out period, such tenant
fit-out period not to exceed six (6) months); and all such adjustments
shall be calculated in accordance with Section 2.05 below.
(d) In connection with the termination of this Lease with
respect to the warehouse portions of the San Francisco, CA, Lynnwood, WA,
Roosevelt Field, NY and Modesto, CA Redevelopment Properties, Tenant shall
use its bests efforts to reconfigure the portion of the Demised Premises
located at each such Redevelopment Property which is currently used as
warehouse, customer service and pick-up and loading areas in a manner which
maximizes the frontage, gross leasable area and value of the warehouse
portion of such Redevelopment Property with respect to which this Lease has
been terminated. For example, Tenant shall not locate or relocate its
retail, warehouse, customer service and pick-up and loading areas at each
such Redevelopment Property within the "No Build Area" identified on
Exhibit "A", unless the local municipality prohibits the Tenant from
locating or relocating such areas anywhere else at such Redevelopment
Property.
Section 2.03. Provided no Event of Default then exists, this Lease
shall terminate solely as to the portion of the Demised Premises comprised
of the following (each, a "Group 2 Redevelopment Property" and
collectively, the "Group 2 Redevelopment Properties"): (a) the balance of
the space in the Redevelopment Properties located at Cherry Hill, NJ (the
"Cherry Hill Property"), Hartford, CT, Oxnard, CA and one (1) other Levitz
Building to be identified by Tenant (other than the Paramus, NJ or La
Puente, CA Levitz Buildings) (the "Additional Building"); and (b) the
warehouse portion of the Redevelopment Property located at Northridge, CA
and at least seventy-five thousand (75,000) square feet of contiguous
usable space at one (1) other Levitz Building (other than the Paramus, NJ
or La Puente, CA Levitz Buildings) (the "Additional Space"); such
termination to occur as to any particular Group 2 Redevelopment Property on
the earlier of the following dates (the "Final Termination Date"): (x) the
date Tenant vacates and surrenders such Group 2 Redevelopment Property; or
(y) the end of the Optional Termination Period; and this Lease shall remain
in full force and effect as to the remaining portions of the Demised
Premises. Notwithstanding the foregoing, if Landlord does not acquire fee
simple title to the Cherry Hill Property prior to the date Tenant desires
to vacate and surrender the Cherry Hill Property, then this Lease shall not
terminate as to the balance of the space in the Cherry Hill Property, nor
shall Tenant have any right to vacate the Cherry Hill Property until the
end of the basic term of the Overlease for the Cherry Hill Property (to
wit: December 5, 2002). The Additional Building shall be identified by
Tenant by written notice to Landlord given not later than December 31,
1999. The Additional Space shall be identified by Tenant by written notice
to Landlord given not later than the date which is five hundred forty (540)
days after the date of this Lease (to wit: November 29, 2000). Any
reduction in the Basic Rent or Tenant's Share of CAM Costs, Impositions,
rents and other payments pursuant to the Overleases and REAs, and property
and liability insurance required by Article V, shall be calculated in
accordance with Section 2.05 below.
Section 2.04. Provided no Event of Default then exists, Tenant may,
on one or more occasions, elect to terminate this Lease solely as to: (a)
the portion of the Demised Premises comprised of the Redevelopment
Properties located at Burnsville, MN, Redondo Beach, CA, San Francisco, CA,
Roosevelt Field, NJ, Modesto, CA and Lynnwood, WA (each, a "Group 3
Redevelopment Property" and collectively, the "Group 3 Redevelopment
Properties"); and (b) all, but not less than all, of the space in the
Levitz Buildings located at not more than five (5) Non- Redevelopment
Properties (other than the Paramus, NJ or La Puente, CA Levitz Buildings);
and this Lease shall remain in full force and effect as to the remaining
portions of the Demised Premises. In each instance where Tenant desires to
exercise its termination right as to the balance of the space in the Group
3 Redevelopment Properties, Tenant shall give Landlord irrevocable written
notice of termination on or before the earlier of: (i) a date which is at
least three hundred sixty-five (365) days prior to the date Tenant vacates
and surrenders the particular Group 3 Redevelopment Property; or (ii) the
last day of the Optional Termination Period. In each instance where Tenant
desires to exercise its termination right as to the balance of the space in
one or more of the five (5) Non-Redevelopment Properties, Tenant shall give
Landlord irrevocable written notice of termination at least five hundred
forty (540) days prior to the date Tenant vacates and surrenders the
particular Non-Redevelopment Property, and in no event later than five
hundred forty (540) days after the date of this Lease (to wit: November 29,
2000). Any reduction to the Basic Rent or Tenant's Share of CAM Costs,
Impositions, rents and other payments pursuant to the Overleases and REAs,
and property and liability insurance required by Article V, shall be
calculated in accordance with Section 2.05 below.
Section 2.05. If this Lease shall have terminated only with respect
to either the warehouse portion or retail portion of a Redevelopment
Property pursuant to Sections 2.02 or 2.03 (as distinguished from a
termination of this Lease as to both the warehouse and retail portions of
such Redevelopment Property) and Landlord thereafter enters into a binding
lease for all or any portion of such warehouse portion or retail portion of
such Redevelopment Property, then commencing with the first day of the
first (1st) full month following the date the tenant under such new lease
has commenced occupancy of such warehouse or retail portion of such
Redevelopment Property for the regular conduct of its business (as
distinguished from occupancy during any tenant fit-out period, such fit out
period not to exceed six (6) months), the Floor Area so leased to such new
tenant shall be excluded from the Demised Premises and included as part of
Landlord's Buildings for purposes of calculating Tenant's Share and
Landlord's Share of CAM Costs (as distinguished from Impositions, rents and
other payments pursuant to the Overleases and REAs, and property and
liability insurance required by Article V). Commencing with the first (1st)
day of the first (1st) full month following the date Tenant entirely (as
distinguished from partially) vacates one (1) or more of the five (5) Non-
Redevelopment Properties with respect to which this Lease has been
terminated pursuant to Section 2.04: (a) Floor Area of such vacated
Non-Redevelopment Property shall be excluded from the Demised Premises and
included as part of Landlord's Buildings for purposes of calculating
Tenant's Share and Landlord's Share of CAM Costs, Impositions, rents and
other payments pursuant to the Overleases and REAs, and property and
liability insurance required by Article V; and (b) the annual Basic Rent
shall be reduced in an amount equal to the product of the annual Basic Rent
multiplied by a fraction, the numerator of which is the Liquidation Value
of the Non-Redevelopment Property with respect to which this Lease has been
terminated and the denominator of which is the Total Liquidation Value.
Except as set forth in the last sentence of Section 2.02(b), commencing
with the first (1st) day of the fourth (4th) full month following the date
Tenant entirely (as distinguished from partially) vacates a Redevelopment
Property with respect to which this Lease has been terminated pursuant to
Sections 2.02, 2.03 or 2.04: (a) Floor Area of such vacated Redevelopment
Property shall be excluded from the Demised Premises and included as part
of Landlord's Buildings for purposes of calculating Tenant's Share and
Landlord's Share of CAM Costs, Impositions, rents and other payments
pursuant to the Overleases and REAs, and property and liability insurance
required by Article V; and (b) the annual Basic Rent shall be reduced in an
amount equal to the product of the annual Basic Rent multiplied by a
fraction, the numerator of which is the Liquidation Value of the
Redevelopment Property with respect to which this Lease has been terminated
and the denominator of which is the Total Liquidation Value. For example,
if Tenant vacates and surrenders the warehouse portion of the Northridge,
CA Redevelopment Property and five (5) months thereafter, Landlord leases
100,000 square feet of the warehouse, then commencing on the date the new
warehouse tenant takes occupancy for the regular conduct of its business
(as distinguished from occupancy during any tenant fit-out period, such fit
out period not to exceed six (6) months), 100,000 square feet shall be
excluded from the Floor Area of the Demised Premises and included in the
Floor Area of Landlord's Buildings solely for purposes of determining
Tenant's Share and Landlord's Share of CAM Costs. If the Lease is
terminated solely with respect to the Fresno, CA Levitz Building, then
commencing with the first day of the fourth (4th) full month following the
date Tenant fully vacates and surrenders the Fresno, CA Levitz Building:
(a) 123,926 square feet shall be excluded from the Demised Premises and
included as part of Landlord's Buildings for purposes of calculating
Tenant's Share and Landlord's Share of CAM Costs, Impositions, rents and
other payments pursuant to the Overleases and REAs, and property and
liability insurance required by Article V; and (b) the annual Basic Rent
shall be reduced by $109,865 (i.e. $7,273,020 x $1,022,000 / $67,656,000).
If the Lease is thereafter terminated solely with respect to the Mesa, AZ
Levitz Building, then commencing with the first day of the fourth (4th)
full month following the date Tenant vacates and surrenders the Mesa, AZ
Levitz Building: (a) 149,882 square feet shall be excluded from the Demised
Premises and included as part of Landlord's Buildings for purposes of
calculating Tenant's Share and Landlord's Share of CAM Costs, Impositions,
rents and other payments pursuant to all the Overleases and REAs, property
and liability insurance required by Article V; and (b) the annual Basic
Rent shall be reduced by $208,120 (i.e. $7,163,155 x $1,936,000 /
$66,634,000).
Section 2.06. Except as expressly provided in Sections 2.02, 2.03,
2.04, 16.04, 18.02 and 25.01 (last paragraph), Tenant has no right and will
have no right either to terminate this Lease, or to quit or surrender the
leasehold estate hereby created or all or any part of the Demised Premises,
or to be released, relieved or discharged from the payment of Basic Rent or
any obligation or liability under this Lease for any reason, including if
the Demised Premises is subject to any damage to or destruction of all or
any part of the Improvements, or any interference with the use or
possession of all or any part of the Demised Premises, or the occurrence of
any act which renders the performance by Landlord or Tenant impossible or
which frustrates the use of the Demised Premises for any purpose, or any
force majeure, or any action or threatened action of any court,
administrative agency or other governmental authority.
Section 2.07. In any case where this Lease shall have terminated as to
a portion of a Levitz Building and such portion thereby becomes part of
Landlord's Buildings, Tenant shall deliver to Landlord a floor plan of the
Levitz Building, which floor plan shall differentiate between the Demised
Premises and the Landlord Building, identify all existing and proposed
demising walls, entrances and exits relating thereto, loading dock
facilities and such other matters as may be requested by Landlord and which
are reasonable under the circumstances. Tenant shall bear the cost of
separately demising the portion of the Levitz Building that continues to be
part of the Demised Premises from the portion that has become part of
Landlord's Buildings, including the cost to separate utilities, electric,
HVAC, plumbing, fire sprinklers and other mechanical, life, safety or
building systems, such work to be performed in accordance with all
applicable laws. Each of the parties hereto agrees to cooperate with the
other party hereto to grant all easements in, over, upon and through the
portion of the Levitz Building that may be reasonably necessary to assure
that such party and its tenants have a commercially reasonable means of
ingress and egress to the Landlord's Building or the Demised Premises, as
the case may be, including access to all utilities, loading docks and trash
compacting areas, provided that no such easements shall interfere in any
material respect with Tenant's or Landlord use or business or the size of
the Demised Premises or Landlord's Building, as the case may be. If
Landlord demands that Tenant perform the work described in the first
sentence of this Section, then Tenant shall complete such work upon the
earlier to occur of: (a) five hundred forty (540) days after the date of
this Lease (to wit: November 29, 2000); (b) sixty (60) days after the date
Landlord provides Tenant with written notice of a proposed tenant or
subtenant for such space; or (c) as may be required by applicable law.
ARTICLE III
Basic Rent; Other Rent; Net Lease
Section 3.01. In addition to all other payments to be made by Tenant
under this Lease, Tenant shall pay to Landlord in lawful money of the
United States commencing on the date of this Lease and throughout the
Initial Term, as net basic rent for each year during the Initial Term the
following rent, payable in equal monthly installments in advance (the
"Basic Rent"), subject to any adjustment that may be necessary pursuant to
Sections 2.02, 2.04, 2.05, 3.04 or as elsewhere expressly provided in this
Lease:
Years Annual Basic Rent Monthly Basic Rent
----- ----------------- ------------------
1-5 $7,273,020.00 $606,085.00
6-10 $7,636,671.00 $636,389.25
11-15 $8,018,505.00 $668,208.75
16-20 $8,419,430.00 $701,619.17
In the Extended Terms, the Basic Rent shall be the amounts provided for in
Article XXV. All Basic Rent shall be paid on the twenty-fifth (25th) day of
each month prior to the month for which the Basic Rent is due; prorated,
however, for any partial month within which the Commencement Date occurs.
Tenant agrees to make payments of Basic Rent to Landlord by wire transfer
of immediately available Federal funds to a separate bank account at bank
designated by Landlord from time to time, such account to bear interest at
the bank's usual rate for such accounts. Landlord shall have the sole title
and possession of the payments and when the Basic Rent is paid to Landlord
it shall not be an asset of Tenant, but until an Event of Default occurs,
between the date such Basic Rent is paid and the first (1st) day of the
month for which the Basic Rent is due, Landlord shall keep the payment of
Basic Rent in the aforesaid bank account, separate from Landlord's other
business accounts, and the interest earned on the funds in the separate
bank account shall be paid to Tenant annually or credited towards the Rent
coming due hereunder, as Landlord shall determine in its sole and absolute
discretion. Landlord shall send Tenant appropriate information showing the
interest earned from time to time.
Section 3.02. It is the purpose and intent of both Landlord and
Tenant that this Lease is and shall always be an absolutely "net" lease for
Landlord and that all the Basic Rent payable hereunder shall be net to
Landlord and paid without any abatements, deferral, reduction, set-off,
counterclaim, defense or deduction whatsoever, so that this Lease shall
yield to Landlord the Basic Rent and all additional rent free of all costs,
expenses and charges of every kind and nature relating to the Demised
Premises which may be attributed to or become due during the term of this
Lease (except as expressly provided otherwise in this Lease in Article IV);
all such costs, expenses and charges shall be paid by Tenant, and Tenant
agrees that Landlord shall be defended, indemnified and saved harmless by
Tenant from and against the same.
Section 3.03. Subject to certain Landlord reimbursement obligations
under Sections 4.09, 5.13, 11.03, 11.08 and 11.13, Tenant will also pay, as
additional rent, all Impositions (defined in Article IV), CAM Costs, all
rents and other payments pursuant to all the Overleases, all payments
pursuant to the REAs, and Tenant will pay cleanup costs for remediation of
any environmental condition or other payments arising out of Article XXVI
(Hazardous Substances), and all other costs, expenses and other payments
which Tenant in any of the provisions of this Lease is required to pay or
has assumed or agreed to pay. All of such sums, Impositions, CAM Costs,
costs, expenses and other payments, including Basic Rent, shall be deemed
to be collectively included in the definition of "Rent."
Section 3.04. If funds in the Purchase Price Adjustment Account (as
defined in the Contract of Sale) are paid to Tenant, then commencing
January 1, 2000, the annual Basic Rent shall be increased by an amount
equal to the product of: (a) the funds so disbursed from the Purchase Price
Adjustment Account (including all interest earned thereon); and (b) ten and
three-quarters percent (10.75%). Commencing on the first day of the sixth
year of the term of this Lease, and on every fifth anniversary of such date
thereafter during the initial term of this Lease or any extension thereof,
annual Basic Rent paid pursuant to this Section shall increase by five
percent (5%) of the annual Basic Rent paid pursuant to this Section during
the immediately preceding twelve (12) month period.
ARTICLE IV
Impositions
Section 4.01. Subject to the provisions of this Article IV, Tenant
agrees to pay, as additional rent, prior to delinquency and before any
fine, penalty, interest or cost may be added for the non-payment thereof,
but subject to certain reimbursement by Landlord pursuant to Section 4.09,
all taxes, assessments, excises, levies, license and permit fees, water and
sewer rents, rates and charges, transit taxes, charges for public utilities
(whether governmental or nongovernmental), and all other governmental
charges, general and special, ordinary and extraordinary, unforeseen as
well as foreseen, of any kind and nature whatsoever; including assessments
for public improvements or benefits, which at any time prior to or during
the term of this Lease are laid, assessed, levied, confirmed, imposed upon,
or become due and payable out of or in respect of, or become a lien on: (i)
the Shopping Centers or any part thereof or any personal property,
equipment or other facility located thereon or used in the operation
thereof (other than Landlord's personal property in Landlord's Buildings);
or (ii) rent, income or other payments received from the Shopping Centers
by Tenant or anyone claiming by, through or under Tenant; or (iii) any use,
occupancy or operation of the Shopping Centers or any rights, obligations,
easements and franchises as may now or hereafter be appurtenant or
appertain to the Shopping Centers; or (iv) this transaction or any document
to which Tenant is a party creating or transferring an estate or interest
in the Shopping Center (provided, however, any subsequent conveyance by
Landlord of Landlord's interest in the Demised Premises or this Lease as to
which a transfer tax is imposed shall not be payable by Tenant); or (v) the
Rent payable hereunder to Landlord or as to any payments payable by Tenant
to any third party, as for example, any tax payable in any State similar to
the Florida sales tax on rents or the Philadelphia, Pennsylvania business
tax on gross receipts; or (vi) any tax, license fee or levy on a tenant's
use and/or occupancy or on a Tenant's leasehold interest, such as in
Philadelphia, Pennsylvania (all of which taxes, assessments, water and
sewer rents, rates and charges, transit taxes, charges for public
utilities, excises, levies, license fees and other governmental charges
described in the preceding portion of this Section 4.01 are hereinafter
collectively referred to as "Impositions" or singly as an "Imposition").
Any Imposition relating to a fiscal period of the taxing authority
encompassing a period after the end of this Lease a part of which period is
included within the term of this Lease shall be adjusted as between
Landlord and Tenant as of the expiration of the term of this Lease by
effluxion; Landlord shall pay the portion of Impositions attributable to
any period subsequent to the expiration by effluxion of the term of this
Lease, and Tenant shall pay the portion attributable to any period during
the term of this Lease; provided that to the extent any Impositions for the
payment of which Tenant is liable under clause (v) hereinabove is measured
by Landlord's income, Tenant's liability therefor shall be computed on the
assumption that Landlord has no property other than the applicable Shopping
Center subject to such Imposition and no income other than the income from
the applicable Shopping Center.
Notwithstanding the foregoing definition, but subject to Article II,
the expression "Impositions" which Tenant shall be liable to pay under this
Lease shall not include the Impositions on any Landlord's Building if it is
being assessed and taxed as a separate and independent tax lot by the
taxing authorities at the date of this Lease or which is so taxed in the
future resulting from an application by Landlord for a separate tax
subdivision and as a separate and independent tax parcel.
Section 4.02. Nothing herein contained shall require Tenant to pay
municipal, state or federal income taxes imposed on Landlord in respect of
Landlord's income or in respect of any federal or state estate tax,
succession tax, inheritance tax or (other than as stated in clause (iv) in
Section 4.01) transfer taxes of Landlord, or corporation franchise taxes
imposed upon any corporate owner of Landlord's interest in the Demised
Premises or the Shopping Centers; provided, however, that if at any time
during the term of this Lease the methods of taxation prevailing at the
commencement of the term of this Lease shall be altered so that in lieu of
or substitute for or a recharacterization of the whole or any part of the
taxes, assessments, levies, impositions or charges now levied, assessed or
imposed on real estate (including by imposition of new taxes), there shall
be imposed, (i) a tax, assessment, levy, imposition or charge, wholly or
partially as a capital levy or otherwise, on the rents received from the
Demised Premises, or (ii) a tax, assessment, levy, imposition or charge
measured by or based in whole or in part upon the income from the Demised
Premises, or (iii) a license fee measured by the rent payable under this
Lease, then all such taxes, assessments, levies, impositions or charges or
the part thereof so measured or based, shall be deemed to be included
within "Impositions", and Tenant shall pay and discharge the same as herein
provided in respect of the payment of Impositions; provided, however, that
to the extent any Impositions for the payment of which Tenant is liable
under clauses (i), (ii), or (iii) hereinabove is measured by Landlord's
income, Tenant's liability therefor shall be computed upon the assumption
that Landlord has no properties other than the Shopping Center subject to
such Impositions.
Section 4.03. Subject to Section 4.07, if, by law, any Imposition may
at taxpayer's option be paid in installments, then provided no Event of
Default is continuing, Tenant may exercise the option to pay (and which
shall include accrued interest on the unpaid balance of such Imposition) in
installments and, in such event, shall make such payments as they become
due during the term of this Lease and prior to delinquency and before any
fine, penalty, further interest or cost may be added thereto, except that,
if an Event of Default under this Lease shall occur, Tenant shall, on
demand, promptly pay the remaining installments together with accrued
interest, if any.
Section 4.04. The certificate, advice or bill of the non-payment of
any such Imposition made or issued by the appropriate official designated
by law to make or issue the same or to receive payment of any such
Imposition shall be prima facie evidence that such Imposition is due and
unpaid at the time of the making or issuance of such certificate, advice or
bill.
Section 4.05. As between the parties hereto, Tenant alone, so long as
Tenant is contesting the Impositions in accordance with the terms of this
Lease, shall have the duty of attending to, making or filing any petition,
declaration, statement or report provided or required by law as the basis
of or in connection with the contest, determination, equalization,
reduction or payment of any Imposition which is to be borne, paid or may
become payable by Tenant, and Landlord shall not be or become responsible
therefor, nor for the contents of any such petition, declaration, statement
or report. However, Landlord shall have the privilege, at its option and
cost and in its discretion, to voluntarily participate in or assume or
share any of such responsibilities to whatever extent Landlord desires, all
without diminishing Tenant's duty to pay the Impositions.
Section 4.06. Tenant shall have the right to contest or object to the
amount or validity of any Imposition by appropriate legal proceedings
pursued diligently and in good faith, but Tenant shall pay the Imposition
timely and this right to contest shall not be deemed or construed in any
way as relieving, modifying or extending Tenant's covenant to pay any such
Imposition at the time and in the manner stated in other Sections in this
Article. Nothing contain in this Lease shall be deemed to require Tenant to
pay, or cause to be paid, any Impositions so long as Tenant is in good
faith and by proper legal proceedings, where appropriate, diligently
contesting the validity, amount or application thereof, provided in each
case, at the commencement of such action or proceeding, and during the
pendency thereof, (i) no Event of Default shall exist, (ii) Tenant shall
keep Landlord apprised of the status of such contest, (iii) such contest
operates to suspend collection and enforcement of the contested
Impositions, (iv) such contest continues to be prosecuted continuously and
with diligence and (vi) the amount of the contested Imposition, together
with any lien, interest or penalties relating thereto, is bonded to the
reasonable satisfaction of Landlord or the funds for any such payment are
otherwise escrowed with Landlord. Tenant shall notify Landlord of all such
contests at least ten (10) days prior to the filing of the protest or
proceeding. Landlord shall not be required to join and cooperate in any
such proceedings unless necessary to do so in order to prosecute such
proceedings and Landlord will not be subjected to any liability for the
payment of any costs or expenses in connection with any such proceedings
brought by Tenant. If Tenant shall not be contesting any Impositions,
nothing in this Section shall be in derogation of Landlord's right to
contest or appeal or negotiate for reduction, at Tenant's expense, any
Impositions payable in whole or in part during the term of this Lease, by
legal proceedings or in such other manner as may be available to Landlord;
provided, however, if Landlord brings the proceeding without Tenant, Tenant
shall not be liable for expenses in an amount exceeding (i) the amount of
the refund Tenant receives, if any, or (ii) the value of the benefits
Tenant realizes from Landlord's contest, whichever of (i) or (ii) is
greater; and Landlord shall notify Tenant of such proceedings.
Section 4.07. At the date of this Lease Tenant will pay to Landlord
or if Landlord or any Mortgagee so designates by written notice to Tenant
to any Mortgagee (as hereinafter defined) initially an amount sufficient
which, when added to the monthly payments to be made subsequently by Tenant
to Landlord or any Mortgagee on an ongoing basis throughout the term of
this Lease, as described hereinafter in this Section, will place in one or
more segregated (which may be a book entry subaccount) interest bearing
accounts designated by Landlord or any Mortgagee in writing to Tenant,
immediately available Federal funds at least thirty (30) days before the
next Impositions payable by Tenant hereunder are in the aggregate and
severally payable to the tax authorities, all the moneys sufficient to pay
in full such Impositions which will be due. After paying the initial amount
described in the immediately preceding sentence, Tenant shall pay to
Landlord or upon written notice to Tenant to any Mortgagee, throughout the
term of this Lease, as additional rent, monthly payments, at the same time
that the monthly installments of Basic Rent are payable, amounts reasonably
estimated by Landlord or any Mortgagee (such estimates to be based upon
historical and projected bills for Impositions) so as to place in the
escrow account or accounts thirty (30) days before the next date that the
respective Impositions payable by Tenant will be payable to the taxing
authority, in order to provide money for Landlord or any Mortgagee
sufficient in amount to pay such next occurring installments coming due of
Impositions; and in addition to those regular monthly payments, Landlord or
any Mortgagee may by notice given at any time and from time to time, as to
Impositions next becoming payable, require Tenant to pay Landlord or any
Mortgagee additional lump sum amounts if Landlord or any Mortgagee
reasonably estimates that the monthly payments, as they are on hand and
will be subsequently made, will not be sufficient to result in an amount to
meet the Impositions that are next due and payable; so that Landlord or any
Mortgagee always will have in the escrow account the full amount of
Impositions payable by Tenant thirty (30) days before the amount is payable
to the tax authorities. Payments so received by Landlord or any Mortgagee
shall be applied by Landlord or such Mortgagee to the payment of such
Impositions (or if so required by an Overlease, will be paid to the
Overlandlord) so long as no Event of Default exists. Following any Event of
Default and so long as the Event of Default remains uncured by Tenant,
Landlord shall have the right to use the payments or any portion thereof to
cure the Event of Default regardless whether the Event of Default relates
to Impositions or other items which gave rise to Tenant's default. Landlord
or any Mortgagee shall furnish Tenant, within fifteen (15) business days
after the date when any of the Impositions would have become delinquent,
receipts or other proper evidence of payment of the Impositions. If the sum
of the payments by Tenant grows to contain an excess or deficiency of
money, more or less than will be sufficient or deficient to pay the next
installment, Landlord or any Mortgagee will adjust the future regular
monthly installments payments appropriately. Landlord and each Mortgagee
shall have the sole title and possession of the payments and when the
moneys are paid to Landlord it shall not be an asset of Tenant, but until
an Event of Default occurs, Landlord or any Mortgagee shall keep the
payments of Impositions in a bank selected by Landlord or any Mortgagee in
a separate (which may be a book entry subaccount) bank account bearing
interest at the bank's usual rate for such accounts, separate from
Landlord's business account, and the interest thereon paid by the bank
shall be added to and deemed additional payments. Landlord or any Mortgagee
shall send Tenant appropriate information showing the interest earned.
Landlord or any Mortgagee shall notify Tenant as to the identity of the
bank holding the payments. If any surplus remains after Landlord or any
Mortgagee has paid any installment of Impositions, or as a result of
Tenant's surrender and vacation of a portion of the Demised premises as
provided herein, that surplus shall continue to be held in the escrow
account by Landlord or any Mortgagee to be applied as provided in this
Section; provided, however, if the term of this Lease shall have ended and
no Event of Default then exists, any such surplus shall be refunded to
Tenant within sixty (60) days thereafter. If for some reason Landlord or
any Mortgagee is not collecting the monthly payments and paying the
Impositions, Tenant will pay the Impositions which are payable by Tenant
itself directly to the taxing authorities, and in such event, Tenant agrees
to furnish Landlord within ten (10) days after the date when any Imposition
would have become delinquent, receipts or other proper evidence of payment
of the Impositions. Tenant's liability and obligation to pay Impositions
which are payable by Tenant shall not be released or diminished and
Landlord shall not assume the obligation to pay Impositions by Landlord
exercising Landlord's option under this Section 4.07 to collect the
payments provided for in this Section, excepting only to the extent of the
amount of such payments Tenant has placed in Landlord's or any Mortgagee's
hands timely; provided, however, so long as no Event of Default exists,
Landlord shall be responsible for any interest, fines or penalties imposed
by law for late payment of Impositions (if Landlord is at fault in paying
late) for any installment thereof for which Tenant has placed sufficient
funds timely in Landlord's or any Mortgagee's hands with which to pay the
installment and unless an Event of Default exists, Tenant shall have the
right of offset for any Impositions not so paid by Landlord or any
Mortgagee which threatens to result in loss of Tenant's Lease rights.
Section 4.08. In the event of a conveyance of the title to the
Demised Premises or transfer of Landlord's interest in the Overleases by
Landlord as to a Leasehold Property, or a transfer by Landlord of the title
to or interest in any individual Shopping Center of which the Demised
Premises constitutes a component, the grantee or transferee, as the case
may be, shall assume the obligations of the Landlord described in Section
4.07 with regard to the collection from Tenant of the Impositions and the
payment of Impositions.
Section 4.09. If for any reason Landlord or any Mortgagee is not
collecting the payments from Tenant as provided in Section 4.07 and Tenant
is paying the Impositions directly to the taxing authorities, Tenant shall
bill Landlord for the amount of any Impositions that are payable by
Landlord to Tenant pursuant to the provisions of this Section 4.09.
Otherwise, subject to Article II, Landlord shall pay to Tenant Landlord's
Share of such Impositions within five (5) days after the Impositions have
been paid in full by Tenant or Tenant shall receive a credit for Landlord's
Share against the next due installment of Basic Rent; provided, however, in
any case Landlord shall not be obligated to pay Tenant earlier than ten
(10) days before the Imposition is required to be paid to the tax
authority. If the Demised Premises is the only leasable storerooms on a
Shopping Center, Tenant shall pay all of the Impositions on that Shopping
Center without any reimbursement from Landlord. As to those Shopping
Centers which have Landlord's Buildings in addition to the Demised Premises
thereon, subject to Article II, Landlord shall pay to Tenant Landlord's
Share of all of the Impositions payable by Tenant which are attributable to
periods subsequent to the date of this Lease. Landlord shall not be liable
to pay a share of any Impositions payable for any periods prior to the date
of this Lease. Whether or not data can be ascertained from the assessment
records or by letter from the assessor or the taxing authority as to the
assessed value of the Demised Premises apart from other buildings on such
Shopping Center and apart from the Land, subject to Article II Landlord
shall reimburse Tenant by paying Landlord's Share of Impositions as defined
in clause 18 in "Definitions" and as described in this Section 4.09. It is
the intent of this Lease that Tenant will pay to Landlord all the
Impositions payable to the tax authorities for the Shopping Centers,
subject to Landlord reimbursing Tenant for Landlord's Share thereof as
provided herein.
Notwithstanding any dispute which may arise between Landlord and
Tenant concerning either the amount of Impositions payable by Tenant or
Landlord or Tenant's or Landlord's obligation to pay Impositions, subject
to Section 4.06, Tenant shall pay and continue to pay to Landlord or any
Mortgagee the Impositions as required by this Lease, but subject later to
refund, if any, to which Tenant may be subsequently determined to be
entitled pursuant to the applicable provisions contained in this Lease.
Section 4.10. If any Shopping Center is located in any State where
Impositions are payable in arrears, in all cases, the Impositions payable
by Tenant or by Landlord to Tenant for any year or other period involved
shall mean the amounts of those Impositions which are payable with respect
to the Shopping Center during that current calendar year notwithstanding
that the bill rendered from the taxing authority is for the Impositions for
the prior year but payable during the then current calendar year.
ARTICLE V
Insurance
Section 5.01. Tenant, at its sole cost and expense as additional
rent, but subject to certain reimbursement from Landlord pursuant to
Section 5.13, shall keep all the Improvements on all the Shopping Centers
insured for the mutual benefit of Landlord and Tenant with Landlord as
additional named insured (and also with both Landlord and the Insurance
Trustee hereinafter described as loss payees for all proceeds to pay a
claim over One Hundred Fifty Thousand Dollars ($150,000.00)), insuring
against loss or damage by an "All-Risk" insurance policy without any
special exclusions or special conditions, including therein, without
intending to limit the nature of the risks to be insured against by such a
policy, insurance against risks of fire, lightning, as well as other risks
embraced by coverage of the type known as the special form of extended
coverage, and riot and civil commotion, collapse, vandalism and malicious
mischief, and the other risks as from time to time covered by an All-Risk
insurance policy and covering demolition and increased cost of construction
due to enforcement of then current building codes and other laws; provided,
however, if an "All-Risk" policy is not available at commercially
reasonable rates and no Mortgagee objects, then Tenant shall maintain fire
and extended coverage or a named peril policy, whichever shall provide the
broadest coverage; provided further, however, if there shall be any
Landlord's Building at a Shopping Center, then the Landlord shall maintain
the aforesaid property insurance (and at Landlord's option, any or all of
the insurance set forth in Section 5.02 (a), (b), (c) and (e)) with respect
to that Shopping Center, but subject to certain reimbursement from Tenant
pursuant to Section 5.13, and Landlord shall be the sole loss payee for all
insurance proceeds (unless such proceeds exceed One Hundred Fifty Thousand
Dollars ($150,000.00), in which case the proceeds shall be paid to Landlord
and the Insurance Trustee). It is understood that if Tenant no longer is
the Responsible Party, Tenant will not be required to insure the
Improvements of the Common Areas. The insurance shall be in amounts
sufficient to prevent Landlord or Tenant from becoming a co-insurer under
the terms of the applicable policies, but in any event in an amount not
less than one hundred percent (100%) of the then full replacement cost of
the Improvements (exclusive of the cost of excavations, foundations, and
footing below the lowest basement floor) without deduction for physical
depreciation, evidenced by a replacement cost endorsement. The aforesaid
property insurance policy shall be maintained with not more than an
aggregate amount for all manner of losses of Three Hundred Thousand Dollars
($300,000.00) for all the buildings on the Land of each Shopping Center as
a deductible from the loss payable for any one casualty to such buildings,
which deductible amount may be increased in any Extension Term (not during
the Initial Term) to such greater amount as is reasonable and customary,
but not more than Five Hundred Thousand Dollars ($500,000.00). The party
that maintains the property insurance shall cause the Improvements to be
appraised to determine their value for the insurance purposes hereunder at
least once every three (3) years. The appraiser shall be selected by the
party that maintains the insurance subject to the other party's reasonable
approval. Tenant shall pay for the appraisal, which may be done by
appraising a representative sample of the Improvements at fifteen (15)
Shopping Centers. Any dispute as to the selection of the appraiser or the
identity of which shall be the representative fifteen (15) Shopping Centers
shall be determined by arbitration pursuant to Article XXI. Landlord and
Tenant shall accept appraisals performed by their respective insurance
companies.
Section 5.02. Tenant, at its sole cost and expense, and for the
mutual benefit of Landlord and Tenant, with Landlord and its managing agent
as an additional named insured, shall maintain:
a. Commercial general liability insurance including contractual
liability on an "occurrence basis" for the Demised Premises and, so long as
it is the Responsible Party, the Common Areas, if any, and every part
thereof against claims for personal injury, including bodily injury, death
or property damage occurring upon the Demised Premises, such insurance to
afford immediate protection at the time of the inception of this Lease and
at all times during the term of this Lease, and to have a combined single
limit of Ten Million Dollars ($10,000,000.00) or such greater limits as
Landlord shall reasonably require. Tenant may maintain such policy with not
more than Three Hundred Thousand Dollars ($300,000.00) deductible for each
occurrence; and
b. Boiler and pressure vessel insurance, including air tanks,
pressure piping and major air conditioning equipment if the Improvements
contain equipment of the nature ordinarily covered by such insurance and
for an amount not less than Five Million Dollars ($5,000,000.00) or such
larger sum as Landlord may reasonably require, and with not more than Ten
Thousand Dollars ($10,000.00) deductible from the loss payable for any
casualty; and
c. Rental value or business interruption insurance, naming
Landlord as an additional named insured and loss payee, on an actual loss
sustained basis against loss or damage by all risks in an amount equal to
the Basic Rent and Impositions under this Lease of not less than one (1)
year's Basic Rent plus one (1) year's Impositions and CAM Costs, endorsed
to provide a three hundred sixty day (360) extended period of indemnity.
The net proceeds of any such insurance paid by the insurer to Landlord and
Tenant, when received by Landlord or Tenant, less the cost of collecting
such proceeds including necessary attorneys' fees, to the extent available,
shall be applied to pay the Basic Rent and other Rent then due and
thereafter becoming due; and
d. Flood insurance for any Shopping Center, equal to the full
replacement cost of the Improvements located thereon or the maximum amount
then available, if any of the buildings on any Shopping Center is in a
flood hazard zone, so designated and participating in the National Flood
Insurance Program; and
e. Such other insurance, and in such amounts, as may from time
to time be reasonably required by Landlord against the same or other
insurable hazards which at the time are commonly insured against in the
cases of premises similarly situated in the vicinity of the Shopping
Center.
Section 5.03. All insurance provided for in this Article and in
Article XV shall be effected under valid and enforceable policies issued by
insurers of recognized responsibility, the insurance policies and the
insurers to be satisfactory to Landlord in Landlord's reasonable judgment
and, to the extent the Overlease so requires, the Overlandlords, which
insurers shall have a then current financial ability and standing
equivalent to Best's Financial Rating and Policyholders' Rating of at least
A:VII and which are authorized to transact fire and casualty and liability
insurance in each of the States where the Demised Premises are situated. On
signing of this Lease and thereafter not less than fifteen (15) days prior
to the expiration date of each policy, the original of each policy required
to be furnished pursuant to this Article or Article XV or a binding
certificate of the insurer reasonably satisfactory to Landlord shall be
delivered by Tenant to Landlord; provided, however, such renewal policy or
certificate shall be delivered not less than thirty (30) days prior to the
expiration date of each such policy if any Mortgagee so requires. At
Landlord's request, Tenant shall deliver to Landlord a true and complete
copy of Tenant's insurance policies required to be carried by Tenant in
this Lease.
Each policy procured by Tenant pursuant to Section 5.01 and
paragraphs (b), (c), (d) and (e) of Section 5.02 shall contain, if
obtainable, (i) a waiver by the insurer of the right of subrogation against
Landlord, and (ii) a statement that the insurance shall not be invalidated
if any insured waives in writing, prior to a loss, any or all right of
recovery against any party for loss accruing to the property described in
the insurance policy.
Section 5.04. Tenant shall not take out separate insurance concurrent
in form or contributing in the event of loss with that required in this
Article or Article XV to be furnished by Tenant unless Landlord is named as
an additional named insured therein, with loss payable as provided in
Section 5.05. Tenant shall immediately notify Landlord of the purchase of
any such separate insurance and shall cause the original policies in
respect thereof or certificates therefor to be delivered as required by
Section 5.03.
Section 5.05. If Tenant maintains the policies of insurance provided
for in Section 5.01 and paragraphs (b), (c), (d) and (e) of Section 5.02,
then such policies may provide for loss thereunder to be adjusted by and
payable to Tenant with respect to any particular casualty resulting in
damage or destruction not exceeding One Hundred Fifty Thousand Dollars
($150,000.00) in the aggregate; and with respect to any particular casualty
resulting in damage or destruction exceeding One Hundred Fifty Thousand
Dollars ($150,000.00) in the aggregate, the loss to be adjusted by Landlord
and Tenant and payable to both Landlord and the Insurance Trustee; the
insurance proceeds to be disbursed by the Insurance Trustee as provided in
Sections 5.11 and 16.02. Tenant agrees to use the insurance proceeds as
trust money to effectuate the repairs required by this Lease.
Section 5.06. Each such policy or certificate therefor issued by the
insurer shall contain (a) a provision that no act or omission of Tenant
which would otherwise result in forfeiture or reduction of the insurance
therein provided shall affect or limit the obligation of the insurance
company so to pay, in accordance with Section 5.05 of this Lease, the
amount of any loss sustained, (b) an agreement by the insurer that such
policy shall not be canceled or modified in any manner without at least
fifteen (15) days' prior written notice by registered mail, return receipt
requested, to Landlord; provided, however, such written notice shall be
delivered not less than thirty (30) days prior to such cancellation or
modification if any Mortgagee so requires; and (c) a provision that such
insurance is primary insurance as regards any other insurance that may be
carried by Landlord.
Section 5.07. Tenant shall likewise observe and comply with the
requirements of all policies of public liability, fire and other policies
of insurance at any time in force with respect to the Demised Premises and
Tenant shall perform and satisfy the requirements of the companies writing
such policies. Tenant shall, in the event of any violations or attempted
violations of the provisions of this Section by any permitted subtenant,
take steps, immediately upon knowledge of such violation or attempted
violation, to remedy or prevent the same as the case may be.
If, at any time during the term of this Lease, Landlord shall request
that the amount of insurance provided by Tenant, as required by the
provisions of this Article and paragraph (f) of Section 15.01 be increased
on the ground that such coverage is inadequate properly to protect the
interest of Landlord, or if Landlord shall require other insurance pursuant
to the provisions of paragraph (e) of Section 5.02, and Tenant shall refuse
to comply with such request, Tenant shall obtain the insurance nevertheless
and the dispute shall be submitted to and decided by arbitration as
provided in Article XXI. Landlord and Tenant shall be bound by the findings
of such arbitration proceeding except that in no event shall such insurance
be less than (and the arbitrators shall not have the authority to decide
less than) the amounts reasonably required by Landlord pursuant to this
Article or paragraph (f) of Section 15.01. Landlord acknowledges and agrees
that it will not be unreasonable in exercising any right under this Lease
to require Tenant to modify, alter or supplement insurance policies or
coverages or in exercising any rights Landlord may have with respect to
Tenant's insurance.
Section 5.08. Upon the expiration or earlier termination of this
Lease, unearned premiums upon any of such insurance policies which, at
Landlord's option, are transferred to and taken over by Landlord shall be
apportioned, provided that if an Event of Default shall exist, the portion
of such unearned premiums to which Tenant would otherwise be entitled shall
belong to Landlord and shall be applied first to cure such Event of
Default.
Section 5.09. Any insurance provided for in this Article may be
effected by a policy or policies of blanket insurance and may be continued
in such form; provided, however, that the amount of the total insurance
allocation to the Demised Premises shall be such as to furnish protection
in the equivalent of separate policies in the amounts herein required, and
provided further that in all other respects, any such policy or policies
shall comply with the other provisions of this Lease. In any such case it
shall not be necessary to deliver the original of any such blanket policy
to Landlord, but Tenant shall deliver to Landlord a binding certificate
issued by the insurance company that issued the insurance policy and a
duplicate of such policy, both of them in form and content acceptable to
Landlord.
Section 5.10. For any loss exceeding One Hundred Fifty Thousand
Dollars ($150,000.00), Landlord shall designate a bank or other financial
institution to receive, hold and disburse insurance proceeds in accordance
with this Lease ("Insurance Trustee"). If, but only if, the proceeds of any
insurance policies provided for in this Article are paid to the Insurance
Trustee, the following provisions shall be applicable. The Insurance
Trustee is hereby made and constituted a trustee for the benefit of
Landlord and Tenant to hold such proceeds and to deposit such proceeds and
to pay out such proceeds as provided in this Lease. The Insurance Trustee
shall cause the insurance proceeds received by it to be held in one or more
separate interest bearing money-market type accounts with a federally
insured national or state-chartered bank, savings bank, or savings and loan
association, and any interest earned on such insurance proceeds shall be
added to and become part of the proceeds to be disbursed in accordance with
this Lease. The Insurance Trustee shall not be obligated hereunder in any
manner except to receive and pay out any money that is received by it as
such trustee, together with interest thereon, if any. As between Landlord
and Tenant, such interest on trust funds shall be deemed to be the income
of Tenant, to be held by the Insurance Trustee subject to the terms and
conditions of the trust and this Lease. The Insurance Trustee is authorized
to retain from the trust fund the necessary expenses incidental to the
collection of any such funds, and a reasonable amount for its services in
connection with the trust.
Subject to the provisions of this Lease, all insurance money received
by the Insurance Trustee shall be held by the Insurance Trustee to secure
the performance by Tenant of its obligation under this Lease to repair,
replace or reconstruct any Improvements that have been damaged or
destroyed, or to pay any Rent or charges hereunder. If at any time after
the happening of any casualty it appears, in the sole and absolute
discretion of Landlord, that the insurance money and other money, if any,
held in the trust will not be sufficient to pay fully for the work of
reconstruction or repair, Tenant on demand from Landlord shall deposit such
shortage or deficit with the Insurance Trustee and any money so deposited
shall be held and used by the Insurance Trustee in the same manner and upon
the same conditions as those provided with respect to insurance money.
As Tenant proceeds with the work of repair or reconstruction of the
Improvements, the insurance money held by the Insurance Trustee shall be
paid in accordance with Article XVI.
If any Event of Default by Tenant results in the termination of this
Lease, all insurance policies and all proceeds thereof and all other money
then in the insurance trust shall be promptly delivered by the Insurance
Trustee to Landlord as Landlord's sole property to be applied toward curing
the Event of Default. If this Lease is terminated for any reason other than
the default of Tenant, the Insurance Trustee shall pay the proceeds from
the insurance policies and other money in the insurance trust to Landlord
as Landlord's sole property.
Section 5.11. Tenant may not self-insure against the risks provided
for in this Article V, excepting only to the extent expressly stated to be
allowed in Section 5.01 (that is, carry a deductible). Tenant shall be
responsible for all losses and damage by casualty so long as Tenant is
responsible to carry the insurance. Landlord and Tenant agree that as
between Tenant and its insurance company, but not binding on Landlord, the
insurance policies to be maintained by Tenant under this Lease may provide
for greater deductibles than the deductibles permitted by this Lease, so
long as the certificates of insurance with respect to such policies certify
only the maximum deductibles permitted by this Lease, so that Tenant's
insurance companies insure for or against all amounts in excess of the
maximum permitted under the applicable provisions of this Article V.
Tenant's failure to maintain policies of insurance with the deductibles
required by this Lease shall not constitute an Event of Default so long as
said certificates are furnished and remain in full force and effect,
without notice of cancellation.
Section 5.12. The provisions contained in this Article V are subject
to the provisions contained in each of the Overleases relating to insurance
coverage and insurance policies and the insurance proceeds therefrom.
Tenant agrees to perform and comply with and observe faithfully all the
provisions and requirements of the Overleases and Title Agreements
regarding such insurance provisions. Tenant agrees to name each Mortgagee
and the Overlandlords as loss payees and additional insureds as their
interests may appear when requested and shall obtain an endorsement
providing that the insurance company agrees to give the Mortgagees and the
Overlandlords at least thirty (30) days (or such lesser notice period as
shall be acceptable to the Mortgagees and the Overlandlords, but in no
event less than fifteen (15) days) advance notice of any cancellation or
reduction of coverage, the amount insured or other material change and that
the policy will not have coverage impaired due to any act or omission of
Landlord of Tenant as an insured party.
Section 5.13. Subject to Article II, Landlord shall reimburse Tenant
for the actual premiums paid by Tenant for all the insurance required to be
carried in this Article V by paying to Tenant Landlord's Share. In
determining Landlord's Share, the amount of any premiums for insurance paid
for by a Space Tenant under a Collateral Lease who carries its own
insurance and pays the premiums to the insurance, and the square footage of
the space occupied by such subtenant shall both be excluded in determining
Landlord's Share. In case blanket insurance is carried by Tenant, the
actual premiums for the Demised Premises shall be the premiums paid to the
insurance company divided by the total number of square feet of buildings
covered by the insurance or as may be otherwise reasonably allocated in the
policy.
Whenever any Landlord's Building exist at a Shopping Center, and also
upon the occurrence of an Event of Default, Landlord shall have the right
instead of Tenant to obtain and carry the insurance policies required to be
carried by Tenant under this Lease, and in such case Tenant shall be named
as an additional insured on the commercial general liability policy or
policies. Landlord shall give Tenant at least thirty (30) days prior notice
of exercise of such right, but Landlord shall endeavor to notify Tenant not
less than forty-five (45) days prior to exercise of such right. If Tenant
sustains a loss of premium refund by not receiving a full premium refund
due to early cancellation of its existing policies due to Landlord taking
over the insurance obligations and substituting the insurance coverage,
Landlord shall reimburse Tenant or credit Tenant against the installments
of Basic Rent next coming due for the difference between a pro rata refund
and the premium short-rate refund received by Tenant. If Landlord elects to
and obtains and carries the insurance as just described, Tenant shall
reimburse Landlord, as additional rent, for the Landlord's cost thereof on
demand for Tenant's Share thereof, and in such case where Landlord carries
the insurance, if Landlord elects to do so, Landlord may collect all
proceeds from all losses and perform all repairs and restoration pursuant
to Article XIV, instead of Tenant. In determining Landlord's Share, the
amount of any premiums for insurance paid for by a Space Tenant under a
Transferred Lease who carries its own insurance and pays the premiums to
the insurance company directly and the square footage of the space occupied
by such Space Tenant shall both be excluded in determining Tenant's Share.
Section 5.14. As of the date of this Lease, Landlord hereby approves
of the identity of the insurance carrier or carriers and policy limits
described on Exhibit "L" attached hereto; provided, however, nothing
contained in this Section shall: (a) restrict or limit Landlord's rights
under this Lease to require additional insurance or higher policy limits in
the future; or (b) construed as or imply that the aforesaid policies meet
any of the other requirements of this Lease, and Landlord hereby reserves
any rights it may have hereunder to enforce such other requirements. At
Landlord's option, Tenant shall use its best efforts to obtain a
"cut-through endorsement" to its property insurance coverage so that 100%
of the coverage is insured by a carrier rated AA by Standard & Poors, such
endorsement to be issued at Landlord's sole cost and expense.
ARTICLE VI
Use of Demised Premises; Use of Common Areas
Section 6.01. All the provisions contained in this Article VI shall
be subject to any restrictions or limitations or covenants contained in any
Covenants, Overleases and other leases, Space Leases and other subleases,
licenses or REAs or in any other documents of record, or in any documents
to which Tenant is a party or by which Tenant is bound, and also shall be
subject to all zoning laws and other laws; provided, however, Tenant may,
if it is able to do so, obtain a waiver or variance of any prior
restriction or limitation imposed by any of the foregoing. Tenant may only
use the Demised Premises for the operation of a furniture store business
and, except as provided elsewhere in this Lease, no other purposes
whatsoever. Subject to the foregoing, and subject to any Permitted
Cessation (as hereinafter defined), if Levitz is no longer using any
portion of a Levitz Building (other than the Redevelopment Properties and
the stores to be named by Tenant pursuant to Article 2) for the conduct of
its furniture business, or any permitted subtenant or assignee is not using
any portion of a Levitz Building for a use permitted by this Lease, and
such unused portion contains at least Thirty-Five Thousand (35,000) square
feet of Floor Area, then Landlord shall have the right (but not the
obligation) to recapture the unused portion of such Levitz Building (or the
entire Levitz Building if Tenant or a permitted subtenant or assignee is no
longer using the entire Levitz Building), such recapture to be effected in
accordance with Section 6.02. Levitz shall be considered "using" a portion
of a Levitz Building if such portion of the Levitz Building is: (a)
continuously used to store a commercially reasonable quantity of inventory
for Tenant's furniture business; and (b) open for business with the public
during such days and hours as Levitz shall determine, but for at least
forty (40) hours each week, as a furniture store business; in either case
under the trade name "Levitz" or such other trade name under which a
majority of Levitz' stores or all stores within three hundred (300) miles
of such store (but in no event less than six (6) such stores) operate. The
term "Permitted Cessation" means any temporary cessation of use occasioned
by Unavoidable Delays or which is reasonably necessary in order to permit
Levitz to make repairs, alterations, improvements, replacements, or
additions to any Levitz Buildings as permitted or required herein,
provided, that Levitz shall not cease using any portion or all of any
affected Levitz Buildings for a period longer than (i) one (1) year, for
the purpose of making repairs or replacements made necessary by
Condemnation, fire or other casualty; or (ii) one hundred eighty (180)
days, with respect to any other repairs, alterations, improvements,
replacements or additions to any Levitz Building permitted or required
herein; unless, in either instance, a longer period is reasonably required,
in which event the parties shall endeavor in good faith to agree upon a
reasonable extension of such one (1) year or one hundred eighty (180) days
(as the case may be) limitation. If the parties shall fail to agree upon
whether or the extent to which any such extension is reasonable or is
necessary, the dispute shall be determined by arbitration. Within ten (10)
days after the commencement of any Permitted Cessation, Tenant shall send
written notice (the "Permitted Cessation Notice") to Landlord specifying
the precise nature of the Permitted Cessation and the date when Tenant
reasonably anticipates recommencement of use in accordance with the second
sentence of this Section 6.01. Furthermore, if an Overlease, a Space Lease,
an REA or any Covenant, or any other document by which Tenant is bound,
obligates Tenant to stay open, continuously operate its business, use the
Demised Premises for a particular purpose, operate under a particular trade
name or prohibits Tenant from ceasing business operations or leaving actual
occupancy of the Demised Premises or any part thereof, Tenant hereby agrees
to faithfully comply and perform such obligations even though such
documents may impose a greater burden than the second sentence of this
Section 6.01, and this shall apply as well to any case where Tenant is not
so obligated but pursuant to such documents its ceasing operation would
cause Landlord to be subject to a purchase option by a third party or a
forfeiture of Landlord's interest to any extent or impose any monetary
obligation or damages on Landlord if in existence on the date of this
Lease; or if any Space Lease, REA, Covenant or other document confers a
remedy on the holder thereof in the event Tenant ceases operations in the
Levitz Building (such as an abatement of rent, right to terminate, etc.),
then Tenant shall fully compensate Landlord to the extent Landlord sustains
any loss or damage resulting from Tenant's cessation of operations. Tenant
shall not use the Demised Premises for any other use without the prior
written consent of Landlord, which consent may be granted or denied in
Landlord's sole and absolute discretion. Tenant will not use or permit to
be used any part of the Demised Premises for any unlawful, dangerous,
noxious or offensive trade or business and will not cause or allow any
nuisance on the Demised Premises. Tenant assumes the risk of any law,
ordinance, rule or regulation either now in effect or hereafter enacted or
in any document of record or to which it is a party as of the date of this
Lease applying to the Demised Premises which prohibits or limits Tenant's
contemplated use of the Demised Premises. Landlord shall have no liability
or responsibility in connection therewith, and the existence of such law,
ordinance, rule or regulation or provision in any such document shall not
permit Tenant to surrender this Lease or relieve Tenant to any extent from
its obligation to pay the full Basic Rent and other Rent payable under this
Lease or from any of its other obligations under this Lease.
Section 6.02. If Landlord elects to recapture the portion of the
Demised Premises that Tenant is not using and terminate this Lease solely
with respect to such unused portion, then Landlord shall give Tenant
written notice of its election to do so, such notice to be given, if at
all, prior to the date Tenant recommences using such portion; and this
Lease shall remain in full force and effect as to the remaining portions of
the Demised Premises. The date of recapture shall be no earlier than thirty
(30) days and no later than ninety (90) days after the date Tenant receives
the Landlord's notice. If Landlord elects to recapture the portion of the
Demised Premises that Tenant is not using and terminate this Lease solely
with respect to such unused portion, then commencing on the date of
termination or the date Tenant entirely vacates and surrenders the portion
of the Demised Premises with respect to which this Lease has been
terminated, whichever is later, the annual Basic Rent shall be reduced in
an amount equal to the product of the annual Basic Rent multiplied by a
fraction, the numerator of which is the Liquidation Value of the portion of
the Demised Premises with respect to which this Lease has been terminated
and the denominator of which is the Total Liquidation Value, and the unused
portion which is recaptured shall be added to Landlord's Share for all
purposes under this Lease; provided, however, if the recaptured portion of
the Demised Premises consists of only a portion of a Levitz Building, then
the Liquidation Value relating to such portion shall be determined by
multiplying the Liquidation Value of the Levitz Building within which such
portion is located by a fraction, the numerator of which is the fair rental
value of such portion, and the denominator of which is the fair rental
value of the entire Levitz Building within which such portion is located.
If the parties cannot agree upon the fair rental value of the particular
Levitz Building or the portion thereof so recaptured, then the fair rental
value shall be determined by appraisal pursuant to Article XXI. For
example, if Landlord recaptures 50,000 square feet in the Mesa, AZ Levitz
Building, then assuming the fair rental value of the 50,000 square feet in
the Mesa, AZ Levitz Building is $250,000 per year and the fair rental value
of the entire Mesa, AZ Levitz Building is $1,000,000 per year, the annual
Basic Rent shall be reduced by $52,030 (i.e. $7,273,020 x $1,936,000 /
$67,656,000 x $250,000 / $1,000,000) with respect to the 50,000 square feet
at the Mesa, AZ Levitz Building.
Section 6.03. Landlord grants to Tenant (for the benefit of Tenant,
its employees, agents, invitees, licensees and customers), in common with
Landlord, Landlord's employees, agents, invitees, licensees and customers,
and all others granted such rights by Landlord in Shopping Centers that
include Landlord Buildings, throughout the term of this Lease the
non-exclusive right and privilege to use, for the purposes for which they
are intended, all Common Areas as they are constituted from time to time
during the term of this Lease, including the parking areas and sidewalks
within the boundaries of the Shopping Centers on which the Demised Premises
are situated, and also all other common areas neither owned or leased by
Landlord nor part of the Shopping Centers, but which Landlord now or in the
future is permitted to use, if any, adjoining the Shopping Centers by
reason of rights Landlord holds under REAs. The rights hereby granted with
regard to the Common Areas shall constitute rights appurtenant to the
Demised Premises. Tenant agrees Landlord may change the design or layout,
reduce or enlarge the size or alter the Common Areas in exercising
Landlord's right to develop Landlord's Buildings, subject to Tenant's
consent which Tenant agrees it will not unreasonably withhold or delay, and
agrees that any dispute as to its reasonableness may at Landlord's option
be determined by arbitration. (See also Section 15.04.).
Section 6.04. If a Landlord's Building is located at a particular
Shopping Center where a portion of the Demised Premises also is located,
then Landlord will not use or sublease all or any part of the Landlord's
Buildings or Common Areas at that particular Shopping Center for any
unlawful, dangerous, noxious or offensive trade or business, including any
furniture business that does not: (a) maintain a commercially reasonable
amount of inventory or merchandise on the premises; or (b) advertise its
goods to the public in, on or through one or more newspapers, radio or
television stations, direct mailings and/or the internet, and not
materially less in frequency within the market place served by that
Shopping Center, as Tenant's then existing advertising program (assuming
Tenant is not then in bankruptcy), but taking into account the number of
store locations of such operator of the premises as compared to the number
of stores operated by Tenant.
ARTICLE VII
Surrender and Right to Remove Trade Fixtures
Section 7.01. On the last day of the term or on any earlier
termination of this Lease, or upon any re-entry by Landlord upon the
Demised Premises pursuant to Article XX, or upon surrender due to
termination of an Overlease , Tenant shall surrender to Landlord the
Demised Premises in good and safe order, condition and repair, reasonable
wear and tear excepted, free and clear of all occupants, liens and
encumbrances, and in compliance with the Overleases to the extent such
leases apply to the premises being surrendered, excepting the Permitted
Exceptions (as defined in the Contract of Sale) and any other matters which
Landlord causes to be placed against the title, or which Landlord consents
to in writing to be placed of record against the title after the date of
this Lease. If the Tenant continues to occupy the Demised Premises or any
portion thereof) after the expiration of the term of this Lease or any
earlier termination thereof without having obtained the Landlord's written
consent thereto, then without altering or impairing any of the Landlord's
rights under this Lease or applicable law and without further notice: (a)
such occupancy shall be construed to create a tenancy from month-to-month
at one hundred fifty percent (150%) of the Rent herein specified (prorated
on a monthly basis) and shall otherwise be on the terms and conditions
specified in this Lease so far as applicable; and (b) the Tenant shall
surrender possession of the Demised Premises to the Landlord immediately on
the Landlord's having demanded the same. Nothing in the provisions of this
Lease shall be deemed in any way to give the Tenant any right to remain in
possession of the Demised Premises after such expiration or termination,
regardless of whether the Tenant has paid any such Rent to the Landlord.
Section 7.02. All of Tenant's Trade Fixtures shall be removed by
Tenant provided, however, that the removal of Tenant's Trade Fixtures by
persons or entities having a security interest therein and who are entitled
by law to remove such Tenant's Trade Fixtures for purposes of taking
possession thereof shall be only permitted provided Tenant first undertakes
directly to Landlord to be responsible for any damage and for restoration
of the Demised Premises resulting from exercise of the secured party's
rights and Tenant gives Landlord security or assurances reasonably
satisfactory to Landlord for such purposes. In any case Tenant shall with
due diligence, and without expense to Landlord, cause any part of the
Demised Premises damaged by any removal of Tenant's Trade Fixtures,
inventory or other personal property to be promptly repaired and restored
to substantially the same condition as existed prior to the removal.
Section 7.03. Any of Tenant's Trade Fixtures, inventory or other
personal property which shall remain on the Demised Premises for thirty
(30) days after the termination of this Lease may, at the option of
Landlord, be deemed to have been abandoned by Tenant and may, at Tenant's
sole cost and expense, either be removed from the Demised Premises and
disposed of or retained by Landlord as its property without accountability
to Tenant in such manner as Landlord may see fit, and Tenant shall promptly
reimburse Landlord for the cost of removing and disposing of Tenant's Trade
Fixtures, inventory or other personal property and repairing and restoring
any damage to the Demised caused by such removal.
Section 7.04. Landlord hereby waives its right, if any, to a lien on
or distraint on any Tenant's Trade Fixtures, inventory or other personal
property of Tenant to the rights of any seller or lessor of Trade Fixtures
or lender who holds a security interest in Tenant's Trade Fixtures,
inventory or other personal property of Tenant. Landlord shall deliver to
Tenant, if requested, a written confirmation in favor of such seller,
lessor or lender provided the form of the waiver is satisfactory to
Landlord in its reasonable judgment.
Section 7.05. The provisions of this Article shall survive the
expiration or termination of this Lease.
ARTICLE VIII
Landlord's Right to Perform Tenant's Covenants
Section 8.01. In addition to any other rights and remedies available
to Landlord, and not in substitution or derogation thereof, if Tenant fails
to make any payment or perform any act on its part to be made or performed
within the time permitted by this Lease, then, after the occurrence of an
Event of Default and ten (10) days' written notice to Tenant (or in case of
emergency which would result in imminent danger to persons or property or
other like circumstances, on such shorter notice or without notice, as in
each such case is reasonable under the circumstances) without waiving or
releasing Tenant from any obligation and without assuming any liability to
Tenant or anyone else, Landlord may (but shall not be required to) make
such payment or perform such act on Tenant's part, unless Tenant has paid
such amount during the notice period or commenced to perform such act on
Tenant's part to be performed. Landlord may enter any applicable portion of
the Demised Premises for such purpose and take all actions as may be
necessary or appropriate.
Section 8.02. All payments, costs and expenses incurred by Landlord
in connection with the performance of any such act, together with interest
thereon at the lower of either twelve and three-quarters percent (12 3/4%)
per annum or the maximum legal rate permitted by applicable law, accruing
from the respective dates of Landlord's making of each such payment or
incurring of each such cost or expense) shall constitute additional rent
payable by Tenant under this Lease and shall be paid by Tenant to Landlord
on demand. As to failure to comply with the insurance provisions in this
Lease, Landlord shall not be limited, in the proof of any damages which
Landlord may claim against Tenant arising out of or by reason of Tenant's
failure to provide and keep in force insurance required by this Lease, to
the amount of the insurance premiums not paid or incurred by Tenant and
which would have been payable upon obtaining such insurance, but Landlord
shall also be entitled to recover as damages the uninsured amount of any
loss (to the extent of any deficiency in the amount or type of insurance
coverage required by the provisions of this Lease), and the damages, costs
and expenses of suit, including reasonable attorneys' fees, suffered or
incurred by reason of damage to, or destruction of, the Demised Premises,
occurring during any period when Tenant shall have failed or neglected to
provide insurance as aforesaid.
ARTICLE IX
Compliance With Laws and Insurance Policies
Section 9.01. Tenant, at its sole cost and expense, subject to
Section 9.02, shall promptly comply, and cause its tenants and subtenants
to comply with all present and future laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal
governments, courts, departments, commissions, boards, and officers, and
shall comply with and observe the provisions of all of Tenant's insurance
policies and the companies issuing such policies and will require all
tenants or subtenants to so comply, and shall comply with any national or
local Board of Fire Underwriters, or any other body exercising functions
similar to those of any of the foregoing, foreseen or unforeseen, ordinary
as well as extraordinary, including Environmental Laws (as hereinafter
defined), the Americans with Disabilities Act (collectively referred to as
"Requirements"), which may be applicable to the Demised Premises, or to the
Common Areas or any part thereof (so long as Tenant is the Responsible
Party), including the buildings, the parking lot, sidewalks, curbs, tunnels
and vaults of the Demised Premises or to the use or manner of use of the
property of the owners, tenants or occupants thereof, whether or not such
Requirement shall necessitate structural changes or improvements, or the
removal of any encroachments or projections on or over the streets adjacent
to the Demised Premises or the Shopping Center, or on or over other
property contiguous or adjacent to the Demised Premises or the Shopping
Center, provided, however, it is understood that if the necessity to make a
change or addition to the Demised Premises is required solely because
Tenant is conducting some kind of activity and Tenant chooses to cease such
activity, which then obviates Tenant's need to make the change or addition,
Tenant may cease the activity and thus comply with such Requirement.
Section 9.02. Provided no Event of Default exists, Tenant shall have
the right to contest by appropriate proceedings diligently conducted in
good faith, without cost or expense to Landlord, the validity or
application of any Requirements. If compliance with any such Requirement
may legally be delayed pending the prosecution of any such proceeding
without the incurrence of any lien, charge or liability of any kind against
the Demised Premises or Tenant's interest therein and without subjecting
Tenant or Landlord to any liability, civil or criminal, or jeopardizing
Landlord's interest in the Demised Premises for failure so to comply
therewith, Tenant may delay compliance therewith until the final
determination of such proceeding provided that (i) Tenant first furnishes
to Landlord security, satisfactory in form and amount to Landlord, against
such fine, lien, charge or civil liability, and (ii) Tenant shall be solely
responsible for payment of such fine, lien, charge or civil liability and
shall indemnify, defend and hold Landlord harmless with respect thereto.
Landlord shall not be required to join in any proceedings referred to in
this Section unless the applicable law requires such proceedings be brought
in the name of Landlord, in which event Landlord shall join in the
proceedings or permit the same to be brought in its name if Tenant shall
pay all expenses in connection therewith. However, Landlord, at its
expense, also shall have the right to contest the validity or application
of any Requirements.
Section 9.03. Tenant, at its expense, shall promptly and diligently
comply with, observe and perform any Overleases, Transferred Leases (but
only as to obligations that arose while Tenant was the landlord under such
Transferred Lease), Collateral Leases, Covenants, agreements and other
instruments, whether or not of record, which affect at the date of this
Lease or which in the future Tenant agrees shall affect the Demised
Premises or the Shopping Centers or any part thereof or which affect the
use, operation or maintenance thereof, including complying with all REAs
(including making such payments and performing such acts or refraining from
such acts as are required and which are required to be paid, performed or
omitted from doing whether by Landlord or Tenant under the REAs), licenses,
concession agreements, and all covenants and agreements with respect to
maintaining and repairing the Demised Premises and, so long as Tenant is
the Responsible Party, the Common Areas and operating or maintaining
automobile parking, malls, landscaping and walkways; provided, however, as
to any Space Leases which constitute a Transferred Lease or a Space Lease
which Landlord enters into with a tenant or subtenant after the date of
this Lease, applying to space in Landlord's Buildings, Tenant shall not be
responsible to comply with the Overlease or to perform the Landlord's
duties under such Space Lease; provided further, however, a default by
Tenant as landlord under a Collateral Lease shall not, in and of itself,
constitute an Event of Default hereunder.
Section 9.04. If Landlord sells or refinances all or any portion of
the Shopping Centers, then, unless Tenant is contesting the Requirements
pursuant to Section 9.02, Tenant agrees that it shall furnish Landlord with
copies of such permits, orders, certificates or other documents as might be
reasonably requested by Landlord to evidence compliance with Requirements
applicable to the Demised Premises, and Tenant will endeavor to furnish the
aforesaid items within ten (10) days after Landlord's written request
therefor.
ARTICLE X
Mechanics' Liens; Other Liens; Mortgages
Section 10.01. Tenant shall not permit to remain, and shall promptly
discharge, at its cost and expense, all liens (including perfected liens,
liens which have been filed of record and any other kind of liens caused by
Tenant or Tenant's tenants or subtenants), encumbrances and charges (other
than those created by Landlord or tenants of Landlord's Buildings, if any,
or any other person claiming by, through or under Landlord, except Tenant,
and those claiming by, through or under Tenant) upon the Demised Premises
or any part thereof, whether for furnishing labor, materials or services to
improve or alter the Demised Premises at the request of Tenant or Tenant's
tenants or subtenants and including any and all such liens, encumbrances or
charges whether placed, asserted, filed or claimed, or whether the work,
labor or services were furnished, prior to the date of this Lease or during
the term of this Lease. Further, Tenant shall not permit to remain, and
shall promptly discharge, at its cost and expense, all such liens,
encumbrances and charges filed against the Shopping Centers or any part
thereof arising out of any act or omission or request for services, labor
or material by Tenant or Tenant's tenants or subtenants or anyone claiming
or acting by, through or under Tenant. Provided no Event of Default exists
under this Lease, Tenant shall have the right to contest the validity or
amount of any lien or claimed lien so long as Tenant acts promptly in good
faith and continues with due diligence, but only if Tenant first gives to
Landlord such security as Landlord reasonably requires to assure payment
thereof and prevent any sale, foreclosure or forfeiture of the Demised
Premises or any portion thereof by reason of such nonpayment. The guaranty
or assurance of a title company satisfactory to Landlord or bonding of the
lien by Tenant for one hundred twenty-five percent (125%) of the amount of
the lien shall be satisfactory security, provided Landlord is satisfied the
assurance or bond will be sufficient to cover the lien plus interest
thereon and Landlord's reasonable legal fees. On final determination of the
claim for lien, Tenant shall immediately pay any judgment rendered with all
costs and charges and shall have the lien released or judgment satisfied at
Tenant's own expense, and if Tenant shall fail to do so, Landlord may at
its option pay any such final judgment and clear the Demised Premises
therefrom. If Tenant shall fail to contest with due diligence the validity
or amount of any such lien or claimed lien or remove the lien, or fail to
give Landlord security as hereinabove provided, all within thirty (30) days
after written notice thereof, Landlord may, but shall not be required to,
contest the validity or amount of any such lien or claimed lien, or settle
or compromise the same without inquiring into the validity of the claim or
the reasonableness of the amount thereof.
Section 10.02. If any lien is filed against the Demised Premises or
any action affecting the title thereto be commenced, including all such
that arise out of facts or circumstances occurring prior to the date of
this Lease or during the term of this Lease, or any such lien is filed
against the Shopping Centers or any part thereof, Tenant shall give to
Landlord written notice thereof as soon as notice of such lien or action
comes to the knowledge of Tenant and Tenant agrees to defend and indemnify
Landlord against all damages, losses, expenses, costs and claims arising as
a result of such lien or action, unless such lien is caused by Landlord's
or Landlord's tenants' (other than Tenant), or their respective agents'
action or omission.
Section 10.03. Tenant agrees to give prompt notice to Landlord of the
commencement of any work or alteration or improvement on the Demised
Premises the cost of which is in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00) in the aggregate with regard to one (1) project or
with regard to all projects at the Demised Premises to be commenced within
one (1) year of the commencement of construction of all the others, and
Tenant hereby grants to Landlord the right to post notices of
non-responsibility on the Demised Premises and record verified copies
thereof in connection with all work of any kind upon the Demised Premises.
Section 10.04. Tenant shall not mortgage or otherwise encumber either
(i) its interest in this Lease or any portion thereof, or (ii) its interest
in the Demised Premises or any portion thereof, or (iii) its interest in
any Space Lease or any other lease or sublease of the Demised Premises.
ARTICLE XI
Repairs and Maintenance; Common Area
Maintenance and Common Area Charges
Section 11.01. Tenant agrees, without cost to Landlord, to take good
care of the entire Demised Premises, and in addition shall take good care
of the Common Areas so long as Tenant is the Responsible Party and each and
every part thereof (whether on, below or above the surface), including the
Improvements (including the roofs, foundations, walls, heating, ventilating
and air conditioning systems, plumbing, electric and other utility systems,
windows and doors and their frames and apparatus, floors, storefronts,
signs and landscaping thereof; but excluding the Landlord's Buildings, if
any), the sidewalks, curbs, roadways, parking areas and fences, and Tenant
agrees to keep all of the same in good, clean and safe order and condition,
and shall promptly, at Tenant's own cost and expense, make all repairs, fix
all potholes, resurface parking areas when necessary, all whether interior
and exterior, structural and nonstructural, ordinary as well as
extraordinary, foreseen as well as unforeseen, in order to keep the Demised
Premises and the Common Area in good repair, good condition, safe, clean
and sanitary condition, provided, however, if under another agreement,
lease, license or an REA a third party (e.g. the fee owner of a Leasehold
Property or the owner of an adjacent shopping center) is obligated to care
for the parking areas or the other areas, Tenant need not do so, provided
Tenant diligently and promptly and in good faith enforces the obligation of
the third party to do so and Tenant does so in case of a default by such
third party, if permitted. When used in this Article or elsewhere in this
Lease, the word "repairs" shall include replacements when needed, but
Tenant may repair an item rather than replace it if repairing it will serve
to keep the item running properly and in good order. All such repairs
(including replacements) made by Tenant shall be at least equal in quality
and class to the original work.
Section 11.02. Landlord shall not be required to furnish any services
or facilities or to make any repairs or alterations in or to the Demised
Premises or with respect to the Common Areas so long as Tenant is the
Responsible Party, or spend any money, Tenant hereby assuming the full and
sole responsibility for the condition, operation, repair, replacement,
maintenance and management and carrying charges of the Demised Premises and
subject to being entitled to Landlord's Common Area charges, the Common
Area of the Shopping Centers. Tenant expressly waives any right to make
repairs at the expense of Landlord which might be provided for in any law
now or hereafter in effect, subject to being entitled to Landlord's Common
Area Charge. As to those portions of the Demised Premises occupied by
another tenant or subtenant under a Space Lease which is a Collateral
Lease, Tenant shall use diligent efforts promptly and in good faith to
cause such tenants or subtenants to comply with its maintenance and repair
obligations.
Section 11.03. Except where a third party, such as an adjacent
property owner pursuant to an REA performs CAM tasks, or except if pursuant
to Section 11.12 Landlord elects to perform the CAM tasks, Tenant agrees
that from and after the date of this Lease and throughout the term of this
Lease, Tenant shall be the Responsible Party and assume responsibility for
maintenance, repair and replacement, and the payment of all costs relating
thereto of the Common Areas located on or serving each and all of the
Shopping Centers (such tasks herein referred to collectively, the "CAM"),
all in compliance with this Lease and in accordance with customary
standards for comparable shopping centers in the area in which the Shopping
Center is located. So long as Tenant is the Responsible Party, then
Landlord, in the manner hereinafter provided, agrees, pursuant to Section
11.08, to reimburse to Tenant either by payment or by crediting Tenant
against the next due installments of Basic Rent, during the term of this
Lease, Landlord's Share of the CAM Costs with respect to each of the
Shopping Centers ("Landlord's Common Area Charge"). The Responsible Party
shall perform common area maintenance and repairs and other duties with
respect to any adjoining property to the extent that the owner of the
Shopping Center is required to do so under any REA, and any costs incurred,
to the extent not reimbursed by other parties, shall be included in CAM
Costs.
Without limiting the foregoing, the expression "CAM Costs" shall
include the total of all costs and expenses actually incurred for, and in
connection with, the operating, repair, service, maintenance or
replacements, of lighting facilities, all portions of the Common Areas, and
allocated to the calendar year on the cash method of accounting. Any
capital expenditure which would exceed Fifty Thousand Dollars ($50,000.00)
for any one Shopping Center in any twelve (12) month period shall be
amortized on a straight-line basis over their useful life and only such
amortized portion shall be included in CAM Costs each year regardless of
who is the Responsible Party. Such CAM Costs shall include the following:
the amortizing amount of the capital expenditures referred to in the first
sentence of this paragraph, charges for electricity for lighting of the
Common Areas; the cost of repairing, maintaining, replacing and operating
the Common Areas, including electrical and storm sewer systems; the wages
of non-management personnel employed as security personnel or parking
attendants, in cleaning sidewalks and parking areas, removal of snow, ice
and trash and similar work; fixing of potholes, resurfacing and/or repaving
the parking lot drives and entrances and exits; repairing and/or replacing
sidewalks; cost of general supplies and materials consumed in the
maintenance and operation of the Common Areas; the cost of maintaining
and/or replacing landscaping in the Common Areas, cutting and feeding grass
and shrubs and caring for and replacing landscaping when required with
similar landscaping; the cost of rental of machinery and equipment used in
operation and maintenance; the cost of commercial general liability and
property damage insurance with respect to the Common Areas; the cost of
miscellaneous repairs to the Common Areas and to signs; compliance with
Requirements with respect to the Common Areas; and payments, if any, to
adjacent owners under REAs for the privilege of using that owner's access
or areas or for common area maintenance performed by such adjacent owner.
Neither Tenant nor Landlord in performing the duties of the Responsible
Party shall be entitled to any fee or charge from the other for its
administrative, home office or overhead services or expenses. The
Responsible Party shall have the right to contract out to independent
contractors all or any aspect of the work or services. With respect to
insurance premiums to be included in CAM Costs, if any insurance for the
Common Areas is carried by a blanket policy, the premiums to be included in
CAM Costs in which Landlord is to share shall be calculated on the premiums
actually paid for the entire blanket policy coverage for all the properties
(including those, if any, which are not Shopping Centers) divided by the
aggregate square feet of buildings situated on all of the properties
covered by the blanket policy in order to obtain a per square feet premium
cost, which then would be applied to the number of square feet in
Landlord's Buildings to determine Landlord's Share, or in the Demised
Premises to determine Tenant's Share, as the case may be, as to any
particular Shopping Center. Notwithstanding the above, upon the occurrence
of an Event of Default, Landlord shall have the right from time to time to
elect to have either Landlord or Tenant provide commercial general
liability insurance for the Common Areas but until further notice, Landlord
hereby directs Tenant to carry such commercial general liability insurance
for the Common Area. In the event Landlord does not elect to have Tenant
provide commercial general liability insurance for the Common Area,
Landlord shall procure and maintain such commercial general liability
insurance for the Common Area whereupon Tenant shall share in the cost and
expense to Landlord for obtaining and carrying such insurance to the extent
of Tenant's Share. Notwithstanding any provision contained in this Lease to
the contrary, the party responsible for carrying general liability
insurance shall also carry insurance coverage for owned, hired and
non-owned automobiles.
Section 11.04. In performing any construction at a Shopping Center,
Landlord and Tenant agree that they will use their reasonable efforts to
cause such activities to be conducted in a manner that will minimize
interference with the other's business operations and with the business
operations of other tenants and subtenants.
Section 11.05. Notwithstanding anything in this Lease to the
contrary, if Landlord, in connection with the construction of any future
Landlord's Building, or Tenant, in connection with the construction of any
expansion of the Demised Premises if permitted by Landlord, as the case may
be, paves previously unpaved areas to enlarge the parking field or
undertakes other capital improvements to the Common Areas, to the extent
that such paving or capital improvements are required solely as a result of
the construction of such future permitted Landlord's Building, or permitted
expansion of a Demised Premises, such cost shall be borne by the
constructing party, and the same shall not be deemed a part of CAM Cost,
except when and to the extent such improvements become part of the Common
Areas. In addition, the Responsible Party shall not include as a CAM Cost
any expenditures for traffic control personnel or similar functions without
first obtaining the non-Responsible Party's prior written consent.
Section 11.06. The Responsible Party shall have the right to
promulgate and enforce reasonable rules and regulations governing the
conduct of customers and invitees in their use of the Common Areas in the
Shopping Centers, so long as such rules and regulations are applied and
enforced uniformly and without discrimination, and do not increase
Landlord's or Tenant's obligations or burdens or require the expenditure of
any money by Landlord or Tenant. As part of CAM, the Responsible Party will
clear the snow and ice and trash from in front of all vacant storerooms in
the Shopping Centers (even if the vacant storerooms are in the part of the
Shopping Center not within the Demised Premises) including the sidewalks so
long as such storerooms remain vacant; but Tenant shall not be required to
clean snow, ice or trash from the sidewalks in front of storerooms in the
Shopping Centers that are leased to and occupied by other tenants unless
the Space Leases require the Landlord thereunder to perform same (in which
case Tenant shall perform same unless Landlord is the Responsible Party).
Section 11.07. It is agreed that if there are no Landlord's Buildings
in a Shopping Center, one hundred percent (100%) of the CAM Costs for such
Shopping Center shall be borne and paid for by Tenant without reimbursement
from Landlord, and until such time as there shall exist Landlord's
Buildings in such Shopping Center, Tenant shall bear and pay one hundred
percent (100%) of the CAM Costs for that Shopping Center without receiving
from Landlord any share or any other reimbursement.
Section 11.08. Starting on the date of this Lease (prorated for a
partial month at the beginning, if any), and throughout the remainder of
the term of this Lease, the non-Responsible Party agrees to reimburse each
month to the Responsible Party for each of the Shopping Centers its share
of CAM Costs, the amount based on the square foot of Floor Area of the
Demised Premises or Landlord's Buildings, as the case may be, in the
applicable Shopping Centers; provided, however, the Floor Area of the
Demised Premises shall include the entire Floor Area of the Redevelopment
Properties and the five (5) non-Redevelopment Properties (even though
Tenant may have terminated this Lease as to a portion of such Levitz
Buildings pursuant to Sections 2.02, 2.03 and 2.04) until such time as the
adjustment to the Floor Area of the Demised Premises is required to be made
pursuant to Section 2.05; provided further, however, that this clause shall
not apply if there are no Landlord's Buildings in a Shopping Center. The
non-Responsible Party shall remit to the Responsible Party this amount
which represents the non-Responsible Party's contribution to the cost of
maintenance and operation of the Common Areas on a monthly basis as billed
throughout the term of the Lease and any renewals or extensions thereof. If
the non-Responsible Party fails to remit to the Responsible Party the
non-Responsible Party's share of CAM Costs within thirty (30) days from
receipt of an invoice therefor, then following such thirty (30) day period
the unpaid portion of such non-Responsible Party's share of CAM Costs shall
bear interest at the annual rate of twelve and three-quarters percent (12
3/4%) or the maximum rate permitted by applicable law, whichever is lower,
until paid. If Tenant is the Responsible Party and it obtains a final and
unappealable money judgment against Landlord for Landlord's share of CAM
Costs, then Tenant may offset the amount of the judgment against the Basic
Rent payable to Landlord under this Lease
Within ninety (90) days after the end of each calendar year, the
Responsible Party shall furnish the non-Responsible Party with an annual
statement in reasonable detail of the Responsible Party's actual
expenditures for CAM Costs during said year, and if said statement shows
that the aggregate of the non-Responsible Party's monthly payments
theretofore paid by the non-Responsible Party during such year was less
than such non-Responsible Party's share, the non-Responsible Party shall
pay the balance due to the Responsible Party (without interest) within
thirty (30) days after receipt of said statement; and if the statement
shows that said aggregate exceeds the non-Responsible Party's share, the
Responsible Party with delivery of said statement shall refund a payment
(without interest) for the excess. Landlord may pay Landlord's Share or
credit Tenant against the next due installments of Basic Rent. The
Responsible Party shall furnish the non-Responsible Party with copies of
all invoices, paid receipts and other backup documents within twenty (20)
days of the non-Responsible Party's written request, and the
non-Responsible Party shall have the right at that party's expense to audit
the Responsible Party's records regarding CAM Costs for the Shopping
Centers for the calendar year just ended at reasonable times and on
reasonable advance prior notice for twelve (12) months following the
non-Responsible Party's receipt of the annual statement for such calendar
year just ended.
Section 11.09. Notwithstanding any provision to the contrary, in the
Shopping Centers where there are Landlord's Buildings it is agreed that
sewer, water, electric, gas or other similar utility lines, pipes, wires,
equipment, facilities, apparatus or systems which are located outside of
Landlord's Buildings or outside of the Demised Premises and which serve
exclusively either Landlord's Buildings or the Demised Premises, as the
case may be (hereinafter referred to collectively as "Outside Utility
Apparatus") shall not be the responsibility of the Responsible Party as
part of CAM, but shall be the responsibility of the party whose building is
exclusively served, so that Landlord or its tenants in Landlord's Buildings
(if the Outside Utility Apparatus services Landlord's Buildings
exclusively) shall be solely responsible, or Tenant (if the Outside Utility
Apparatus services the Demised Premises exclusively) shall be solely
responsible from the point where such Outside Utility Apparatus services
either the Demised Premises exclusively or Landlord's Buildings exclusively
(as the case may be), notwithstanding that such Outside Utility Apparatus
is located in the Common Areas. CAM Costs shall not include (i) Landlord's
cost of any utility or other service, if any, separately sold by Landlord
to Tenant or other tenants, (ii) costs incurred by Landlord or Tenant for
alterations, if any, for other tenants, (iii) depreciation of the Shopping
Center buildings or components, and (iv) debt service or indebtedness of
Landlord or Tenant. If such Outside Utility Apparatus services the Demised
Premises and Landlord's Buildings through common lines, such Outside
Utility Apparatus shall be the responsibility of the Responsible Party as a
part of CAM Costs. Further, but subject to Section 2.07, if any Outside
Utility Apparatus is added to the Shopping Center after the date of this
Lease by either Landlord or Tenant for the purpose of servicing either
Landlord's Buildings or any of the Demised Premises exclusively (as the
case may be), the cost of the initial construction and installation and of
the subsequent maintenance, repair and replacement thereof shall be borne
by the party (i.e. either Landlord or Tenant) whose building is serviced
exclusively. However, any installation or construction of Common Area
improvements which serve both the Landlord's Buildings and the Demised
Premises or which serve the Common Areas which is necessitated by
applicable laws, rules, regulations or orders of the governmental agencies
having jurisdiction, shall be deemed to be part of CAM Costs.
Section 11.10. Landlord agrees that Tenant shall enjoy, jointly and
severally together with Landlord and others designated by Landlord, the
access, parking, easement and right to receive services benefits that inure
to the Landlord under all REAs, concerning such access, parking, easement
rights or the right to receive services thereunder, excluding: (a) the
right with respect to such matters to cure defaults of either the other
party to the REA responsible for the common area maintenance or the owner
of the remainder of the shopping center of which a Shopping Center is a
part; and (b) the right to enforce performance of its (or their)
obligations thereunder unless Landlord shall expressly delegate such right
for a specific purpose. Landlord hereby reserves unto itself the rights of
enforcement of all of the REAs, and also reserves unto itself all rights,
privileges and benefits that are not of an access, parking, easement, or
right to receive services nature. Landlord shall not modify or terminate
any REA without Tenant's prior written consent which Tenant agrees not to
unreasonably withhold or delay if the same would not materially adversely
affect Tenant; provided, however, if an REA affecting a Shopping Center and
adjacent land requires that the owner of the adjacent land make payments to
the lessee or operator of the Shopping Center for CAM Costs, then Landlord
and Tenant shall cooperate to cause such payments to be made to the
Responsible Party for that Shopping Center involved, and such Responsible
Party shall apply such payments first to pay CAM Costs for that Shopping
Center, before Landlord and Tenant calculate their respective Landlord's
Share and Tenant's Share out of the net. Any excess of such payments by the
adjacent landowner over and above the CAM Costs for that Shopping Center
for the particular year involved shall be paid to Tenant and Landlord
according to their respective Landlord's Share and Tenant's Share for that
Shopping Center. If, with respect to a failure to maintain the Common
Areas, Tenant cures a default or enforces performance by the other owner or
other party in accordance with an REA and in doing so spends money, or in
the event that at the time in question Tenant is performing the common area
maintenance under that REA and the adjacent owner fails to pay its share of
expenses, Landlord grants Tenant, to the extent granted under the REA, the
right to collect reimbursement of Tenant's Share from the adjacent owner or
the other party to said REA, provided, however, no offset against Landlord
under this Lease shall be available to Tenant against Basic Rent, other
Rent or any other charges. To the extent Tenant is entitled to
reimbursement for such expenditures from the other owner or other party
under the REA, Tenant, to the extent allowed by law, shall be subrogated to
Landlord's rights (including the right, if necessary to bring suit, to sue
in Landlord's name) to collect such amount (i.e. Tenant's Share), and in
furtherance thereof, Landlord shall deliver to Tenant, on Tenant's
reasonable request, an assignment or confirmation of rights of collection
for such amount. If any REA applicable to a Shopping Center requires
Landlord to exercise a renewal option in order to extend the term thereof
prior to the expiration of the term of this Lease as it applies to such
Shopping Center, Landlord shall renew that REA.
Section 11.11. In the event Tenant alone remains open on any Shopping
Center at any time for business any time before 8:00 AM or after 10:00 PM
on any day including Sunday and legal holidays or after 11:00 PM from (but
excluding) Thanksgiving Day to Christmas Day (hereinafter referred to as
"After Hours"), then Tenant shall bear the cost of the entire electric
bills for electricity used to light the Common Areas on that Shopping
Center which are attributable to such After Hours. If more stores than just
Tenant alone remain open on that Shopping Center, so that another store (or
stores) remains open with Tenant for all or part of the After Hours time
that Tenant remains open, then for the time Tenant remains open with the
others, Tenant (instead of bearing the entire cost) will bear a share of
the cost of the After Hours lighting in the same ratio that the square
footage size of the building on the Demised Premises bears to the square
footage of all of the stores on that Shopping Center that are open After
Hours during the same time with Tenant. In the event Tenant does not remain
open After Hours but other tenants on the Shopping Center remain open After
Hours, then Tenant under this Lease shall not be responsible to pay any
share of such After Hours lighting. It is understood and agreed that
parking lot lighting and other Common Area lighting customarily kept lit
After Hours for security purposes or other similar purpose common to the
benefit of the Shopping Center as a whole, even when no stores are open,
shall be deemed to be part of the CAM Costs, and the foregoing After Hours
provisions with respect to the tenants' sharing shall not relate to such
lighting.
Section 11.12. Notwithstanding any provision contained in this Lease
to the contrary, Landlord shall have the right to cause Tenant to be the
Responsible Party for any or all of the Shopping Centers. Tenant shall have
the right to cancel Tenant's designation as the Responsible Party with
respect to any or all of the Shopping Centers in which event Landlord shall
become the Responsible Party, unless Landlord chooses not to be, in which
event the provisions of Section 11.13 shall apply. Notwithstanding any
provision contained in this Lease to the contrary (other than Article V,
which shall have priority over this sentence), if no Event of Default then
exists, Landlord shall have no right to become the Responsible Party with
respect to a particular Shopping Center, and Tenant shall remain the
Responsible Party, if: (a) there is no Landlord's Building at the
particular Shopping Center; or (b) the Floor Area occupied by Tenant at the
particular Shopping Center exceeds the Floor Area of the Landlord's
Building at the particular Shopping Center.
Section 11.13. In the event Landlord elects to become the Responsible
Party, Landlord shall have the right to be the Responsible Party for any or
all the Shopping Centers. Landlord may give Tenant at least thirty (30)
days advance written notice of such election and on the effective date of
Landlord's assuming the role of Responsible Party, Landlord shall function
as the Responsible Party in the same manner as otherwise called for in this
Lease, and Tenant shall pay to Landlord Tenant's Share of CAM Costs. Thus,
the roles of manager of the Common Areas and passive contributor of the
Common Area Charge, between Landlord and Tenant shall be reversed with
respect to the Shopping Center as to which Landlord has so elected.
Therefore, Tenant's annual proportionate share of CAM Costs shall be
Tenant's Share. If Landlord thereafter shall commit a material default in
performing the CAM and fails to cure within thirty (30) days after receipt
of written notice from Tenant, or Landlord elects not to be the Responsible
Party and does not re-designate Tenant as the Responsible Party, then
Landlord and Tenant immediately shall mutually agree upon an outside,
experienced person, firm or corporation who will act as manager and perform
such functions, and within fifteen (15) days after notice Landlord shall
designate an outside, experienced person, firm or corporation to act as
manager and perform such functions, subject to Tenant's approval, which
approval shall not be unreasonably withheld or delayed. If Tenant shall not
object to a manager designated by Landlord by giving written notice to
Landlord within seven (7) days following receipt of Landlord's notice to
Tenant, it shall be deemed that Tenant shall have approved said manager.
Landlord and Tenant each shall pay its respective Landlord's Share and
Tenant's Share of CAM Costs, but in such case there shall be added to the
CAM Costs the management fees reasonably charged by such manager. Tenant
agrees that it shall always be responsible to fill any gap in time where
there would be no Responsible Party until a person is found to assume such
role. For example, if Landlord shall elect to dismiss Tenant as the
Responsible Party, then until an outside manager assumes such role, if
Landlord has elected not to be the Responsible Party, Tenant shall be the
Responsible Party during such gap period, and any other like situations. If
the Responsible Party neglects or fails to perform any CAM on any occasion
or occasions during the term of this Lease, then the non-Responsible Party
may give written notice thereof to the Responsible Party, and if the
Responsible Party does not correct the condition within the time stipulated
in this Lease but in no event in less than thirty (30) days (except in an
emergency), the non-Responsible Party may itself correct the condition or
cause the condition to be corrected, using outside contractors, if
appropriate, and the Responsible Party's share of any costs and expenses
incurred by the non-Responsible Party together with interest thereon at the
annual rate of twelve and three-quarters percent (12 3/4%) or the maximum
rate permitted by applicable law, whichever is lower, shall be paid to the
non- Responsible Party by the Responsible Party within thirty (30) days
from receipt of an invoice.
ARTICLE XII
Right of Landlord to Inspect and Repair
Section 12.01. Tenant will permit Landlord and its authorized agents
and representatives to enter the Demised Premises during reasonable
business hours for the purpose of inspecting and, upon the occurrence of an
Event of Default, making any necessary repairs and performing any other
work that may be necessary by reason of Tenant's failure to make any such
repairs or perform any such work therein or thereon or Tenant's failure to
commence the same after reasonable written notice from Landlord. Landlord
will, so long as circumstances do not require other notice, give Tenant
five (5) days' advance written notice of Landlord's intention and having
given Tenant the opportunity to make the repairs or perform the work, as
provided in Article XX. If Landlord performs the repairs or work, Landlord
will use reasonable efforts to minimize interference with Tenant's
business. Nothing shall imply any duty on Landlord's part to do any such
work, and performance thereof by Landlord shall not constitute a waiver of
Tenant's default in having failed to perform the same or an assumption of
liability or obligation with respect thereto. Landlord shall not be liable
for inconvenience, annoyance, disturbance, loss of business or other damage
of Tenant by reason of making such repairs or the performance of any such
work, or on account of bringing materials, tools, supplies or equipment
into or through the Demised Premises during the course thereof and the
obligations of Tenant under this Lease shall not be affected thereby.
Nothing herein shall limit or change the provisions of Article VIII
(Landlord's Right to Perform).
Section 12.02. Landlord shall have the right to enter the Demised
Premises at all reasonable times during reasonable business hours for the
purpose of exhibiting the same to prospective purchasers, mortgagees or
other persons. Landlord shall give Tenant at least five (5) days prior
written notice of such inspection, and shall not interfere with the conduct
of Tenant's business during its visits.
ARTICLE XIII
Indemnifications
The indemnifications that follow in the next two Sections shall only
apply to the extent the indemnified party is not covered and indemnified by
insurance.
Section 13.01. Excepting if caused solely by the negligence or
willful acts of Landlord or its agents, employees or subtenants (other than
Tenant or any one claims by, through or under Tenant, including any tenant
occupying pursuant to a Collateral Lease), Tenant agrees to defend,
indemnify and save harmless Landlord against and from any and all claims by
or on behalf of any person or persons, firm or firms, corporation or
corporations arising from conduct or management of or from any work or
thing whatsoever done in or about the Demised Premises and the Common Areas
so long as Tenant is the Responsible Party, and will further indemnify and
save Landlord harmless against and from any and all claims by or on behalf
of any person or persons, firm or firms, corporation or corporations,
arising during the term of this Lease from any condition of any building,
structure or improvement on the Demised Premises or the Common Areas so
long as Tenant is the Responsible Party, or any street, curb or sidewalk
adjoining the Demised Premises or the Common Areas so long as Tenant is the
Responsible Party, or of any passageways or spaces therein or appurtenant
thereto, or arising from any Event of Default under this Lease or any other
agreement between Landlord and Tenant, or arising from any act of
negligence of Tenant, or any of its agents, contractors, servants,
employees, sublessees or licensees, or arising from any accident, injury or
damage whatsoever caused to any person, firm or corporation occurring
during the term of this Lease, in, on or about the Demised Premises or
occurring in the Common Area of the Shopping Centers so long as Tenant is
the Responsible Party, and from and against all costs, reasonable counsel
fees, expenses and liabilities incurred about any such claim or action or
proceeding brought thereon; and in the event any action or proceeding be
brought against Landlord, Tenant agrees to defend Landlord in such action
or proceeding by counsel reasonably satisfactory to Landlord.
Section 13.02. Excepting if caused solely by the negligence or
willful acts of Tenant or its agents or employees, Landlord agrees to
defend, indemnify and save harmless Tenant against and from any and all
claims by or on behalf of any person or persons, firm or firms, corporation
or corporations arising from conduct or management of or from any work or
thing whatsoever done in or about Landlord's Buildings and so long as
Landlord is the Responsible Party, the Common Areas, and will further
indemnify and save Tenant harmless against and from any and all claims by
or on behalf of any person or persons, firm or firms, corporation or
corporations, arising during the term of this Lease from any condition of
any building, structure or improvement on Landlord's Building or, so long
as Landlord is the Responsible Party, the Common Areas, or any street, curb
or sidewalk adjoining Landlord's Building or the Common Areas so long as
Landlord is the Responsible Party, or of any passageways or spaces in
Landlord's Building, or arising from any breach or default on the part of
Landlord in the performance of any covenant or agreement on the part of
Landlord to be performed pursuant to the terms of this Lease or any other
agreement between Landlord and Tenant, or arising from any act of
negligence of Landlord, or any of its agents, contractors, servants,
employees, sublessees or licensees, or arising from any accident, injury or
damage whatsoever caused to any person, firm or corporation occurring
during the term of this Lease, in, on or about Landlord's Building or
occurring in the Common Area of the Shopping Centers so long as Landlord is
the Responsible Party, and from and against all costs, reasonable counsel
fees, expenses and liabilities incurred about any such claim or action or
proceeding brought thereon; and in the event any action or proceeding be
brought against Tenant, Landlord agrees to defend Tenant in such action or
proceeding by counsel reasonably satisfactory to Tenant.
ARTICLE XIV
Light, Heat and Power, etc.
Section 14.01. Tenant agrees to pay, or cause to be paid, all charges
which are incurred by Tenant, or which may be incurred by any subtenant of
Tenant, which might be a charge or lien against the Demised Premises or for
which Landlord may be held liable or with respect to the Common Areas so
long as Tenant is the Responsible Party, for any utility or service,
including gas, water, electricity, light, heat or power, telephone or other
communication service installed, used, rendered or supplied upon or in
connection with the Demised Premises, and Tenant agrees to defend,
indemnify and save Landlord harmless from and against any liability or
damages on such account. Tenant shall also procure, or cause to be
procured, without cost to Landlord, any and all necessary permits, licenses
or other authorizations required for the lawful and proper installation and
maintenance upon the Demised Premises of wires, pipes, conduits, tubes and
other equipment and appliances for use in supplying any such service to and
upon the Demised Premises. Landlord shall not be required to furnish any
utilities or services; however, Landlord shall grant such utility easements
as may be reasonably necessary for the operation of Tenant's business in
the Demised Premises.
ARTICLE XV
Changes, Alterations and New Construction
Section 15.01. Except if expressly otherwise provided in this Lease,
Tenant shall not demolish, raze or remove any Improvements or add any new
buildings (see also Article XIX). Tenant shall have the right at any time
and from time to time during the term of this Lease to make, at its sole
cost and expense, any (structural or non-structural) changes, additions and
alterations (hereinafter collectively referred to as a "Change" or
"Changes") to the Improvements which are part of the Demised Premises
without Landlord's consent, provided Tenant complies with each of the
following, which in all cases Tenant covenants to observe and perform:
a. No Change shall be undertaken until Tenant procures and has
paid for all permits and authorizations of all government or departments or
subdivisions having jurisdiction. Landlord shall join in the applications
whenever necessary, provided Landlord incurs no liability or expense in
connection therewith.
b. Any Change which constitutes either (i) a reduction of the
square footage of a Levitz Building, or (ii) an expansion of the square
footage of a Levitz Building, or (iii) the razing of and new construction
of a Levitz Building shall not be in any of those instances commenced or
done until Tenant shall have obtained Landlord's written approval which
approval Landlord may grant or deny in Landlord's sole and absolute
discretion. It shall not be unreasonable for Landlord to deny consent if
expansion would prevent or hinder any future development or construction of
the Shopping Centers (including expansion of Landlord's Building or
building on the Common Areas by Landlord).
c. Any Change shall not, when completed, be of such a character
as to either reduce the value of the Levitz Building or any other portion
of the Demised Premises below its value immediately before such Change, nor
impair the structural strength or structural integrity thereof.
d. Any Change shall be made promptly (Unavoidable Delays
excepted) and in a good and workmanlike manner and in accordance with all
applicable permits and authorizations and Requirements.
e. Tenant shall comply with the provisions of Article X, and
shall satisfy Landlord that if the Change involves in the aggregate more
than Two Hundred Fifty Thousand Dollars ($250,000.00) of cost to any one
Levitz Building, that Tenant proves to Landlord it has the financial
ability to pay for it so as to avoid mechanics' liens against the Demised
Premises or any liability on Landlord's part in the event of non-payment,
which may be satisfied by Tenant furnishing Landlord with a payment and
completion bond in advance of the work. No payment and completion bond
shall be required for any non-structural Changes incidental to installing
Tenant's Trade Fixtures of the Levitz Building.
f. During the period of construction of any Change in, to or of
the Improvements, Tenant shall maintain or cause to be maintained the
following insurance:
(1) The commercial liability and property damage insurance
provided for in Section 5.02(a) for the mutual benefit of Landlord and
Tenant as named insureds;
(2) All-risk, including fire and any other applicable
insurance provided for in Article V, which policy by endorsement, if not
then covered, shall also insure any Change, under a broad form all risks
builders' risk completed value form or equivalent thereof; and
(3) Workers' compensation insurance covering all persons
employed in connection with the work, with statutory limits as then
required under the laws of the state in which the Demised Premises is
situated.
g. Upon Landlord's written request, Tenant shall provide
Landlord with copies of all plans and specifications relating to any
Changes.
Section 15.02. Landlord hereby acknowledges that the closure of the
warehouse portions of the Redevelopment Properties will necessitate the
making of certain Changes to such Redevelopment Properties, and Landlord
agrees not to unreasonably withhold its consent to such Changes.
Section 15.03. All changes, additions and alterations (other than
Tenant's Trade Fixtures and other personal property) to the Demised
Premises and all restoration, repair and replacement of the Improvements
pursuant to any of the provisions of this Lease (including Articles XV and
XVI) or otherwise shall immediately become and remain the property of
Landlord without any compensation.
Section 15.04. Subject to the provisions contained in Overleases,
REAs, Covenants, and subject also to the provisions of Section 6.03,
Landlord shall have the exclusive right without Tenant's consent to
develop, build, construct, expand and maintain and lease and alter or raze
any Common Areas or alter, expand or raze any of Landlord's Buildings of
which Landlord is the owner or which Landlord leases and is not leased to
Tenant under this Lease at the time in question, and Landlord shall have
the exclusive right to create, develop, construct and maintain new
buildings and improvements thereon. (See also the last sentence in Section
6.03.) In performing any activities authorized by this Section 15.04,
Landlord shall comply with all Requirements and shall not impair the
structural integrity of the Levitz Building as a result of any construction
and shall not unreasonably interfere with Tenant's business activities at
the Shopping Center. Furthermore, Landlord hereby agrees that it will do
none of the following without Tenant's prior consent (such consent not to
be unreasonably withheld, conditioned or delayed): (1) change the Common
Areas if such change would have a material adverse effect upon: (a) the
flow of vehicular traffic within the Shopping Center; (b) access to the
Shopping Center; or (c) the ratio of parking spaces to Floor Area at the
Shopping Center; (2) construct any new building or addition to an existing
Levitz Building if the footprint of the new building or addition would be
located in any existing parking area within the Shopping Center (provided,
however, Landlord may construct a parking deck structure in any existing
parking area if the location of the parking deck does not adversely affect
the access to, or visibility of, the Levitz Building); or (3) subject to
Articles XVI and XVIII, demolish any existing improvements unless Landlord
plans to: (a) complete the construction of new improvements in the same
general location within eighteen (18) months after the completion of such
demolition; or (b) pave and/or landscape the area where the improvements
were located within one hundred eighty (180) days after the completion of
such demolition so that the area is left in a reasonably safe and sightly
condition. Landlord shall notify Tenant at least ten (10) days prior to the
commencement of any such work, and once commenced, such work shall be
diligently prosecuted.
Section 15.05. In each case where any Landlord's Building exists at a
Shopping Center, Landlord shall have the right, at Landlord's sole cost and
expense, to replace any existing exterior signage at that Shopping Center
of whatever nature and wherever located, with new signage, which new
signage shall be shared by Tenant and Landlord in the same ratio that the
amount of Floor Area within their respective buildings bears to the total
Floor Area in the particular Shopping Center. For example, if Tenant
occupies 40,000 square feet of Floor Area at the particular Shopping Center
and the Floor Area of the Landlord's Building at the particular Shopping
Center is 60,000 square feet, then forty percent (40%) of the sign panel
may be used by Tenant and sixty percent (60%) of the sign panel may be used
by Landlord or its designees. Any shared signage to be erected by Landlord
shall be subject to the approval of Tenant, such approval not to be
unreasonably withheld, conditioned or delayed. The party with the larger
percentage of Floor Area at the Shopping Center shall have the right to
occupy the top position within the sign panel.
ARTICLE XVI
Destruction and Restoration
Section 16.01. Subject to the provisions of Section 16.04, in case of
any damage to or destruction of the Improvements which constitute the
Demised Premises by fire or any other cause or any Partial taking (as
hereinafter defined), Tenant, at Tenant's sole cost and expense, whether or
not the insurance proceeds, if any, shall be sufficient for the purpose,
and irrespective of the amount of any loss, shall restore, repair, replace,
rebuild or alter the same (collectively referred to as "Restoration") as
nearly as possible to their value, condition and character immediately
prior to such damage, destruction or Partial Taking or with such reasonable
changes or reasonable alterations as may be desired by Tenant for sound
business reasons, but in conformity with and subject to the conditions of
Article XV. Such Restoration shall be commenced and prosecuted with due
diligence in good faith. In case of damage to or destruction of any of the
Improvements in the Shopping Centers by fire or other cause, Tenant shall
promptly give written notice thereof to Landlord.
Section 16.02. All insurance money paid as provided in Section 5.05
for damage or destruction and all Net Awards in respect of any Partial
Taking, less the actual costs, fees and expenses, if any, incurred in
connection with the adjustment of the loss, in an amount up to One Hundred
Fifty Thousand Dollars ($150,000.00), shall be paid to Tenant, and if over
One Hundred Fifty Thousand Dollars ($150,000.00), shall be paid to the
Insurance Trustee, held in trust in all cases (including whether held by
Tenant or over One Hundred Fifty Thousand Dollars ($150,000.00) and held by
the Insurance Trustee), and applied to the payment of the cost of the
aforesaid Restoration, including cost of demolition and temporary repairs
and for the protection of property pending the completion of permanent
Restoration paid out from time to time to Tenant or in accordance with any
Insurance Trustee's directions, as Restoration progresses on the written
approval of Landlord, which shall not be unreasonably withheld, and the
written request of Tenant which shall be accompanied by the following:
a. A duplicate original copy of all the construction contracts
and all supporting documents relating to a request for money and
certificate signed by Tenant's regular Vice President, dated not more than
thirty (30) days prior to such request, setting forth the following:
(1) That the sum then requested either has been paid by
Tenant, or is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered services or
furnished materials for the Restoration therein specified, the names and
addresses of such persons, a brief description of such services and
materials, the several amounts so paid or due to each of said persons in
respect thereof, that no part of such expenditures has been or is being
made the basis in any previous or then-pending request for the withdrawal
of insurance money or Net Awards or has been made out of the proceeds of
insurance or Net Awards received by Tenant, and that the sum then requested
does not exceed the cost of the services and materials described in the
certificate;
(2) That, except for the amount, if any, stated in such
certificate to be due for services or materials and except for any amount
to be withheld pursuant to a directly related construction contract and
except for any amount being contested by Tenant pursuant to Section 10.01,
there is no outstanding indebtedness known to Tenant, after due inquiry,
which is then due and payable for labor, wages, materials, supplies or
services in connection with such Restoration which, if unpaid, might become
the basis of a vendor's, mechanic's, laborer's or materialman's statutory
or similar lien upon such Restoration or upon Tenant's leasehold interest
in the Demised Premises; and
(3) That the cost, as estimated by Tenant, of the
Restoration required to be done subsequent to the date of such certificate
in order to complete the same, does not exceed the insurance money or Net
Awards, as the case may be, plus any amount deposited by Tenant to defray
such cost and remaining in the hands of the recipient designated in Section
5.05 after payment of the sum requested in such certificate.
b. If requested by Landlord, evidence reasonably satisfactory
to Landlord to the effect that there has not been filed with respect to the
Demised Premises or Tenant's leasehold interest any vendor's, mechanic's,
laborer's, materialman's or other similar lien, which has not been
discharged of record, except such as will be discharged by payment of the
amount then requested. In the event that any such Restoration involves
expenditures in excess of Two Hundred Fifty Thousand Dollars ($250,000.00),
the certificate required by paragraph (a) of this Section shall be a
certificate signed by the architect or engineer in charge of the
Restoration, selected by Tenant and reasonably satisfactory to Landlord.
If the insurance money or Net Awards, as the case may be, at the time
held by the recipient designated by Section 5.05, less the actual costs,
fees and reasonable expenses, if any, incurred by Landlord in connection
with the adjustment of the loss, shall be insufficient in the reasonable
judgment of Landlord to pay the entire cost of such Restoration, Tenant
shall pay the deficiency to said recipient, prior to commencement of
construction, or, if construction is underway, prior to continuation of the
construction and before the next requisition for insurance moneys or Net
Awards, as the case may be, need be honored.
Upon the receipt by said recipient of satisfactory evidence, of the
character required by the foregoing provisions of this Section 16.01, that
the restoration has been fully completed and paid for in full and that
there are no liens of the character referred to therein, and there is no
Event of Default by Tenant under this Lease, any balance of the insurance
money at the time held by said recipient shall be paid to Tenant, and if
there is then existing an Event of Default, paid to Landlord to be applied
to cure the Event of Default.
Section 16.03. Except as set forth in Section 16.04, no destruction
of, or damage to the Demised Premises or the Shopping Centers or any part
thereof, by fire or any other cause shall permit Tenant to surrender this
Lease or shall relieve Tenant from its obligations to pay the full Basic
Rent and other Rent or relieve Tenant from any of its other obligations
under this Lease; and to the extent not prohibited by applicable law,
Tenant waives any rights now or hereafter conferred upon it by statute or
otherwise to quit or surrender this Lease or the Demised Premises or any
suspension, diminution, abatement or reduction of rent on account of any
such destruction or damage.
Section 16.04. If any Levitz Building shall be: (a) totally
destroyed; or (b) damaged during the last three (3) years of the term of
this Lease and the cost of Restoration is reasonably estimated by a
licensed architect or licensed engineer (selected by Tenant and reasonably
approved by Landlord) to exceed thirty percent (30%) of the replacement
cost of the particular Levitz Building, or (c) damaged during the last year
of the term of this Lease and the cost of Restoration is reasonably
estimated by a licensed architect or licensed engineer (selected by Tenant
and reasonably approved by Landlord) to exceed fifteen percent (15%) of the
replacement cost of the particular Levitz Building; then Tenant may
terminate this Lease solely with respect to the particular Levitz Building
so damaged or destroyed by written notice to Landlord within thirty (30)
days after the occurrence of such damage or destruction, such termination
date to be no less than forty-five (45) days and no more than sixty (60)
days after the occurrence of such damage or destruction; and this Lease
shall remain in full force and effect as to the remaining portions of the
Demised Premises. If Tenant elects to terminate this Lease solely with
respect to a damaged or destroyed Levitz Building as aforesaid, then Tenant
shall include in its notice of termination (i) the date of termination,
(ii) an assignment to Landlord of Tenant's entire right, title and interest
in and to all insurance proceeds relating to such damage or destruction
(but not as to any insurance proceeds relating to Tenant's Trade Fixtures
or personal property), and (iii) any deductible due under such policy; and
no notice of termination shall be effective unless the items referred to in
clauses (i), (ii) and (iii) are included in the termination notice.
Commencing on the date of termination or the date Tenant entirely vacates
and surrenders the damaged or destroyed Levitz Building with respect to
which this Lease has been terminated, whichever is later, the annual Basic
Rent shall be reduced in an amount equal to the product of the annual Basic
Rent multiplied by a fraction, the numerator of which is the Liquidation
Value of the Shopping Center in which the damaged or destroyed Levitz
Building with respect to which this Lease has been terminated is located
and the denominator of which is the Total Liquidation Value.
Notwithstanding anything contained in this Article XVI to the contrary, if
any applicable Overlease, REA or Covenant requires the Restoration of any
damaged or destroyed portion of the Demised Premises, then Tenant may not
terminate this Lease with respect to such damaged or destroyed portion of
the Demised Premises unless the period between the proposed date of
termination and the deadline for completing the Restoration is at least
three hundred sixty-five (365) days. If any Overlease permits the Landlord
to terminate such Overlease upon the occurrence of any damage or
destruction, and all or any portion of the premises demised pursuant to the
Overlease are then demised to Tenant pursuant to this Lease, then Landlord
shall not terminate such Overlease without first obtaining Tenant's
consent, such consent not to be unreasonably withheld, conditioned or
delayed. If Tenant grants such consent and Landlord terminates the
Overlease, or if the Overlease permits the landlord under the Overlease to
terminate the Overlease upon the occurrence of such damage or destruction,
then the Basic Rent shall be adjusted as provided in the third sentence of
this Section 16.04.
Section 16.05. In the event any of Landlord's Buildings is damaged or
destroyed by casualty, and if Landlord does not restore the building,
Landlord shall promptly clear all debris remaining from the damage and
either repair and put the remaining building in a sightly condition or raze
the building remains and keep the area of the former building sightly at
its own expense.
ARTICLE XVII
Quiet Enjoyment
Section 17.01. Landlord agrees that, upon paying the Rent and all
other charges herein provided for and observing and keeping all covenants,
agreements and conditions of this Lease on its part to be observed and
kept, Tenant shall quietly have and enjoy the Demised Premises during the
term of this Lease without hindrance or molestation by Landlord, subject,
however, to the provisions of this Lease and to all matters which now
affect the Demised Premises including the Overleases and all matters
affecting title to the Demised Premises, whether or not of record, and the
rights and interests of persons and tenants in possession.
ARTICLE XVIII
Eminent Domain
Section 18.01. In the event that a Shopping Center or Shopping
Centers or any portion thereof shall be taken in condemnation proceedings
or by exercise of any right of eminent domain or by agreement between
Landlord and Tenant and those authorized to exercise such right
(hereinafter referred to as "condemnation proceedings" or a "taking"),
Landlord shall be entitled to collect from any condemnor the entire
compensation that may be awarded in any such proceedings for the Shopping
Center or Shopping Centers so taken, including the fee title (as to Fee
Title Properties), the Improvements, Landlord's reversion and all leasehold
interests, without deduction therefrom for any estate hereby vested in or
owned by Tenant or any estate vested in any other tenant or subtenant,
subject, however, to the rights of Tenant as set forth in this Article.
Tenant agrees to execute any and all further documents that may be required
in order to facilitate collection by Landlord of any and all such awards.
Section 18.02. If at any time during the term of this Lease there
shall be a total taking (as hereinafter defined) of all or a portion of the
Demised Premises situated on a particular Shopping Center, then this Lease
shall terminate and expire only with respect to the particular portion of
the Demised Premises so taken on the date of surrender of possession to the
condemning authority of the particular portion of the Demised Premises on
that Shopping Center so taken as a result of such total taking. In the
event this Lease terminates as to a particular portion of the Demised
Premises on that Shopping Center as the result of a total taking, Tenant
shall continue to pay in full the Rent hereunder and, shall in all other
respects, keep, observe and perform all the terms, covenants, agreements,
provisions, conditions and limitations of this Lease to be kept, observed
and performed by Tenant until the date of such surrender. Thereafter, that
particular portion of the Demised Premises shall be deleted from this Lease
and not be a part of the Demised Premises and the annual Basic Rent shall
be reduced in an amount equal to the product of the annual Basic Rent
multiplied by a fraction, the numerator of which is the Liquidation Value
of the particular portion of the Demised Premises with respect to which
this Lease has been terminated and the denominator of which is the Total
Liquidation Value; and this Lease shall remain in full force and effect as
to the remaining portions of the Demised Premises. As used herein "total
taking" shall mean (a) a taking of the whole of the Demised Premises on
that single, individual Shopping Center, or (b) a taking of less than the
whole of the Demised Premises on that single, individual Shopping Center,
but, the taking is of such a substantial part of that Shopping Center that
it results in the portion of the Demised Premises on that Shopping Center
remaining after such taking (even if Restoration were made) being
economically infeasible for the use of that particular portion of the
Demised Premises on that Shopping Center. A taking of a portion or portions
of areas of a single, individual Shopping Center being utilized for parking
purposes shall not constitute a total taking unless there is taken twenty
percent (20%) or more of the area of the Land of that particular Shopping
Center which is used or useable for parking and Landlord does not provide
an adequate alternative parking area or facility for such use (including
areas to which an REA, if any, applies).
Section 18.03. In the event of a total taking affecting one or more
of the Shopping Centers as aforesaid, then and in such event the proceeds
of the entire award for such taking which are left after paying all
reasonable legal fees and other reasonable expert fees and other reasonable
expenses of collection and after the Overlandlord receives the proceeds, if
any, to which it is entitled ("Net Award") shall be paid to Landlord as
Landlord's property, and Tenant shall not be entitled to any portion of the
award for the value of Tenant's leasehold interest in the Shopping Center
taken or otherwise. No claim or demand of any kind shall be made by Tenant
against Landlord or against an Overlandlord or the condemning authority or
any other party by reason of such termination or taking.
Section 18.04. If at any time during the term of this Lease there
shall be a taking of only a part of a particular Shopping Center which is
not a total taking as defined in Section 18.02 (which said taking is
hereinafter called a "Partial Taking"), this Lease shall not terminate as
to such Demised Premises on that Shopping Center and Tenant shall promptly,
except for Unavoidable Delays, in compliance with the provisions of Article
XVI of this Lease, repair any damage to the Demised Premises or the
Shopping Center resulting from such partial taking, and of the Improvements
so damaged so as to render the same as nearly as possible a complete and
satisfactory architectural unit of the same type and class immediately
preceding such taking, unless Landlord elects as to Landlord's Buildings
not to restore or replace Landlord's Buildings, as stated in clause (b) of
this Section 18.04.
In the event of a Partial Taking as aforesaid, as compensation for
the respective interests of Landlord and Tenant taken as aforesaid the Net
Award, subject to the Overleases shall be allocated, applied and
distributed as follows and in the following order of priority:
(a) So much thereof as shall be reasonably necessary to repair any
damage to the Shopping Center, or any part thereof, resulting from such
Partial Taking, and to demolish, alter, restore, replace or repair the
portion of the Improvements so damaged so as to render the same as nearly
as possible a complete and satisfactory architectural unit of the same type
and class immediately preceding such Partial Taking as provided above,
shall be made available to Tenant for the purposes aforesaid substantially
in the same manner and subject to the same conditions as those set forth in
Article XVI with respect to insurance proceeds and other moneys; and
(b) Landlord shall be entitled to retain the entire remainder of the
Net Award as compensation for its interest in the Shopping Center thus
taken. In the event the cost of said repairs, demolitions, alterations,
restoration, replacement or rebuilding of the Demised Premises shall exceed
the Net Award, Tenant shall pay the deficiency. Landlord shall not be
obligated to restore or replace or shall not be entitled to have Tenant
restore or replace any Landlord's Buildings unless Landlord elects to do so
at Landlord's expense, but to the extent Landlord receives and retains the
Net Award Landlord shall restore or rebuild the Common Areas remaining
after the taking.
Notwithstanding the occurrence of a Partial Taking, the Basic Rent
payable in the amounts as provided in Sections 3.01 and 25.02 shall
continue and shall not be suspended, waived, diminished or reduced or the
payment thereof interrupted, delayed or deferred, excepting that if
Landlord shall actually receive and retain as its own funds any remainder
of the Net Award pursuant to clause (a) or, remaining after Landlord spends
money to restore Landlord's Buildings, retained pursuant to clause (b)
above, the annual Basic Rent shall be reduced in an amount equal to the
product obtained by multiplying ten and three-quarters percent (10.75%) by
the amount of the Net Award actually received and retained by Landlord, if
any, after Landlord has applied and distributed the Net Award for the
repair of the remaining Shopping Center in accordance with clause (a) in
Section 18.04.
Section 18.05. In the event of any dispute between Landlord and
Tenant as to whether a total taking within the meaning of this Lease shall
have occurred (including an assertion by Tenant that is has the right to
terminate this Lease as to the particular Shopping Center affected pursuant
to Section 18.02, clause (b) therein), or as to the amount of the
Restoration fund, such matters shall be determined by arbitration as
provided in Article XXI of this Lease.
Section 18.06. If all or any portion of the Demised Premises is taken
by the exercise of the right of eminent domain for governmental occupancy
for a limited period for less than the term then remaining ("Temporary
Taking"), this Lease will not terminate and Tenant will continue to perform
all of Tenant's obligations as though such taking had not occurred (except
to the extent that Tenant is prevented from doing so by reason of such
taking; provided, in no event will Tenant be excused from the payment of
Rent and all other charges required to be paid by Tenant under this Lease).
In the event of such Temporary Taking, Tenant will be entitled to receive
the entire amount of any award made for such taking (whether paid by way of
damages, rent or otherwise) and Landlord hereby assigns such award to
Tenant, unless the period of governmental occupancy extends beyond the end
of the term of this Lease, in which case the award will be equitably
apportioned between Landlord and Tenant on a per diem basis. To the extent
possible, Tenant agrees to restore the Improvements to the condition which
existed prior to such Temporary Taking at Tenant's expense at the
termination of any such governmental occupancy. If a Temporary Taking
occurs and the condemning authority provides Landlord and Tenant with a
written certification within thirty (30) days after the commencement of
Temporary Taking indicating that such Temporary Taking is reasonably
estimated to terminate during the last year of the term of this Lease, then
such Temporary Taking shall be treated as a Partial Taking (if only a
portion of the Demised Premises are the subject of the Temporary Taking) or
a total taking (if all of the Demised Premises are the subject of the
Temporary Taking).
Section 18.07. Nothing herein contained shall prevent Tenant from
maintaining or prosecuting its own independent action in such condemnation
proceeding for a separate damage award for the value of any Tenant's Trade
Fixtures and other removable personal property or for relocation expenses
and damages for interruption of Tenant's business; provided, however, that
no such award to Tenant shall reduce, affect or compromise the amount of
Landlord's award pursuant to Section 18.01 or 18.03, which shall have
priority, and if it would reduce Landlord's benefits and compensation for
the fee title, if any, of Landlord or the leasehold value, Tenant shall not
make such claim for those damages.
ARTICLE XIX
Assignments and Subleases; Leasehold Properties; Space Leases
Section 19.01. All the provisions contained in this Article XIX shall
be subject to Overleases, Covenants, REAs or any other documents of record
or in any documents to which Tenant is a party or is bound, and shall be
also subject to all laws. Except as hereinafter otherwise provided, Tenant
may not sublet all or any portion of the Demised Premises without the prior
written consent of Landlord, such consent to be granted or denied in
Landlord's sole and absolute discretion. Notwithstanding the foregoing
subletting restriction, after the Optional Termination Period, if no Event
of Default then exists, Tenant may sublet all or any portion of a Levitz
Building in accordance with the following provisions: If Tenant intends to
sublease all or any portion of a Levitz Building (a "Proposed Subletting"),
then Tenant shall notify Landlord in writing (the "Sublease Notice") of
such Proposed Subletting, and shall include in the Sublease Notice a floor
plan of the proposed premises to be sublet (the "Proposed Sublet
Premises"), which floor plan shall identify the rentable and usable square
footage of the Proposed Sublet Premises and all existing and proposed
demising walls, entrances and exits relating thereto. Tenant may not cause
or permit any Demised Premises within a single Levitz Building to be
demised or divided into more than two (2) separate premises (regardless of
whether the sublease is fashioned as a unitary sublease or otherwise), and
the Proposed Sublet Premises shall be configured in a manner so as not to
diminish the utility or value of the balance of the Demised Premises within
the same Levitz Building. Landlord shall have ninety (90) days after its
receipt of the Sublease Notice (the "Recapture Period") to elect to
terminate this Lease with respect to the entire Proposed Sublet Premises
and recapture same by giving Tenant written notice of its election to do so
("Recapture Notice"), such Recapture Notice to be given, if at all, prior
to the expiration of the Recapture Period; provided, however, if Tenant's
Sublease Notice includes a bona fide fully executed letter of intent or
conditional sublease between Tenant and a non-affiliate of Tenant with
respect to the Proposed Sublet Premises, then the Recapture Period shall be
reduced to forty-five (45) days. If the Proposed Sublet Premises consist of
more than one Levitz Building, then Landlord may elect to recapture a
portion of the Proposed Sublet Premises; provided, however, such recaptured
portion shall not be less than the entire Proposed Sublet Premises at any
particular Levitz Building; provided further, however, if the Sublease
Notice indicates that a single subtenant intends to sublease all of the
Proposed Sublet Premises (whether pursuant to a unitary sublease or
otherwise), then Landlord may not recapture less than the entire Proposed
Sublet Premises if, following such partial recapture, the Proposed Sublet
Premises will consist of less than six (6) separate premises. For example,
if the Proposed Sublet Premises consist of twenty-five thousand (25,000)
square feet in each of eight (8) Levitz Buildings (i.e. 200,000 square feet
in the aggregate), then Landlord has the right to recapture all of the
Proposed Sublet Premises (i.e. 200,000 square feet) or all of the Proposed
Sublet Premises at any two of the particular Levitz Buildings (i.e. 50,000
square feet). As a further example, if the Proposed Sublet Premises
consists of two (2) seventy-five thousand (75,000) square foot spaces in
each of three (3) Levitz Buildings and one (1) seventy-five thousand
(75,000) square foot spaces in a fourth Levitz Building (i.e. 525,000
square feet in the aggregate), then Landlord has the right to recapture all
of the Proposed Sublet Premises (i.e. 525,000 square feet) or the
seventy-five thousand (75,000) square feet in the fourth Levitz Building.
The date of termination with respect to the Proposed Sublet Premises shall
be set forth in the Recapture Notice and shall be no earlier than thirty
(30) days and no later than ninety (90) days after the date Tenant receives
the Recapture Notice. Subject to the provisions of the next paragraph, if
Landlord fails to give a Recapture Notice within the Recapture Period, then
Landlord shall be deemed to have waived its recapture right with respect to
the Proposed Sublet Premises and Tenant may sublet the Proposed Sublet
Premises. The subtenant's proposed use of the Proposed Sublet Premises
shall be any retail use permitted under applicable law that does not
violate or conflict with any current or future exclusive use enjoyed by any
other occupant at the same Shopping Center.
If: (a) Landlord does not elect to recapture the Proposed Sublet
Premises; and (b)(i) Tenant does not enter into a bona fide sublease for
all of the Proposed Sublet Premises within two hundred ten (210) days after
the expiration of the Recapture Period; or (ii) Tenant enters into a bona
fide sublease for all of the Proposed Sublet Premises within two hundred
ten (210) days after the expiration of the Recapture Period, but the
subtenant fails to take occupancy within ninety (90) days of execution of
the sublease; or (iii) the sublease expires or terminates; then, in such
event, Landlord's recapture right shall continue, and Tenant may not
sublease or re-sublease the Proposed Sublet Premises unless Tenant provides
a new Sublease Notice to Landlord in accordance with the prior paragraph.
If Landlord elects to recapture the Proposed Sublet Premises, then
the Basic Rent shall be reduced by an amount equal to the product of the
annual Basic Rent multiplied by a fraction, the numerator or which is the
Liquidation Value of the Proposed Sublet Premises and the denominator of
which is the Total Liquidation Value; provided, however, if the Proposed
Sublet Premises consists of only a portion of a Levitz Building, then the
Liquidation Value relating to such portion shall be determined by
multiplying the Liquidation Value of the Levitz Building within which such
portion is located by a fraction, the numerator or which is the fair rental
value of such portion, and the denominator of which is the fair rental
value of the entire Levitz Building within which such portion is located.
If the parties cannot agree upon the fair rental value of the particular
Levitz Building or the portion thereof to be sublet, then the fair rental
value shall be determined by appraisal pursuant to Article XXI. For
example, if Tenant proposes to sublease the entire Fresno, CA Levitz
Building and 50,000 square feet in the Mesa, AZ Levitz Building, and
Landlord elects to recapture such space, then assuming the fair rental
value of the 50,000 square feet in the Mesa, AZ Levitz Building is $250,000
per year and the fair rental value of the entire Mesa, AZ Levitz Building
is $1,000,000 per year, the annual Basic Rent shall be reduced by $109,865
(i.e. $7,273,020 x $1,022,000 / $67,656,000) with respect to the Fresno, CA
Levitz Building and $52,030 (i.e. $7,163,155 x $1,936,000 / $66,634,000 x
$250,000 / $1,000,000) with respect to the 50,000 square feet at the Mesa,
AZ Levitz Building.
Tenant may in any or all of the Levitz Buildings enter into
agreements for concessions and licenses relating to uses and purposes
consistent with the operation of a furniture store and other uses permitted
under Article VI.
Tenant may assign or transfer its entire interest in this Lease (but
not less than its entire interest) without Landlord's consent if the
assignee has delivered to Landlord an unqualified opinion indicating that
the assignee has an audited tangible net worth of at least Fifteen Million
Dollars ($15,000,000.00). However, Tenant shall always remain fully and
primarily liable under this Lease notwithstanding any assignment, and the
assigned Lease shall not derogate from the fact or operate to change the
fact that every Shopping Center affected by Tenant's assignment remains
covered by this Lease, a single, unitary Lease covering all the Shopping
Centers.
No sale, assignment or transfer of this Lease by Tenant shall be
effective until there shall have been delivered to Landlord a duplicate
original of such assignment containing an agreement, in recordable form,
executed by the assignor and the proposed assignee whereby such assignee
assumes the Lease and the assignee shall agree, expressly for the benefit
of Landlord, to keep and perform and be bound, subject to the foregoing, by
each and all of the covenants, conditions, restrictions and provisions in
this Lease contained on the part of Tenant, and any such sale, assignment
or transfer shall be subject to each and all of such covenants, conditions,
restrictions and provisions. Any purported sublease, sale, assignment or
transfer by Tenant which is not in conformity with the terms of this Lease
shall be void and of no force or effect whatsoever.
Notwithstanding the foregoing, Landlord shall not have the right to
recapture the Proposed Sublet Premises or any portion thereof pursuant to
Section 6.02 or this Section 19.01 if: (a) the Proposed Sublet Premises
consist of at least six (6) Levitz Buildings within a three hundred (300)
mile radius; (b) the sublease only permits the subleased premises to be
used as a furniture store business; (c) the sublease contains a provision
comparable to the third sentence of Section 6.01; and (d) the subtenant has
delivered to Landlord an unqualified opinion indicating that the subtenant
(or any guarantor of the subtenant's obligations under the sublease) has an
audited tangible net worth of at least Fifteen Million Dollars
($15,000,000.00).
Section 19.02. Tenant agrees that each sublease entered into by
Tenant during the term of this Lease will contain a provision whereby the
subtenant, at the option of Landlord, agrees to attorn to Landlord in the
event of the termination of this Lease whether such subtenant holds a
non-disturbance agreement or not. Within ten (10) days after written
demand, but not more often than four (4) times each year, Tenant will
furnish to Landlord a schedule, certified as correct by Tenant, setting
forth all leases and subleases then in effect including the names of the
tenants thereunder, a description of the sublet demised premises and the
amount of annual rent and other payments (with a copy of the sublease, if
requested) payable by each subtenant thereunder. It is understood that
Landlord's consent or Tenant's right to sublet shall neither (expressly or
by implication) obligate Landlord to grant any non-disturbance rights to
the subtenant, or any other rights from Landlord to the subtenant, except
as expressly stated in this Lease, nor grant the subtenant any right of
possession, use or occupancy for a term lasting beyond the end of the term
of this Lease (whether it ends by effluxion or early termination), except
as otherwise agreed to in a non-disturbance agreement given to such
subtenant, if any, nor grant the subtenant any rights to awards in eminent
domain or other moneys beyond the Tenant's rights relating to such awards
under this Lease, and such subleases shall be subject and subordinate to
and the subtenant bound by this Lease.
Section 19.03. (a) Contemporaneously with the making of this Lease,
Tenant, as landlord, has unconditionally assigned to Landlord Tenant's
entire right, title and interest in and to all Space Leases covering
portions of the Shopping Centers which are in effect at the date of this
Lease, each such assignment dated the same date as this Lease (herein
sometimes referred to as "Transferred Leases"), a true and correct list of
which in set forth in Exhibit "G" attached hereto and made a part hereof.
Tenant also will assign to Landlord, as additional security to Landlord for
Tenant's liability under this Lease, its interest as landlord under all
future subleases hereafter entered into by Tenant and all such future
subleases shall be called "Collateral Leases" under this Lease; the
assignments to be used, both the unconditional and conditional, shall be
prepared by Landlord's attorney, subject to Tenant's reasonable approval;
and the conditional assignments may be structured as a present assignment
with a license to assignor to collect rents under the Collateral Leases
provided Tenant is not in default hereunder.
(b) Intending for Landlord to retain the security interest in
the Collateral Leases described in Section 19.03(a) and without
relinquishing, diminishing or impairing such security interest in and to
the Collateral Leases, Tenant hereby assumes and agrees to perform and
observe the landlord's obligations under each and all the Collateral Leases
and agrees to defend, indemnify Landlord and hold Landlord harmless from
and against all liabilities and obligations relating to or arising out of
all of the Collateral Leases and any and all future subleases entered into
by Tenant, and Tenant shall have all the liabilities and obligations as the
landlord arising out of said Collateral Leases and said future subleases,
including all brokerage commissions or fees, if any, associated with any of
said Collateral Leases or future subleases; provided, however, a default by
Tenant as landlord under a Collateral Lease shall not, in and of itself,
constitute an Event of Default hereunder. If an Event of Default under the
Lease occurs and is continuing, Landlord shall have the right immediately
to receive and retain the rent, issues and profits from the Collateral
Leases and shall apply same (after deducting costs of collection) towards
curing Tenant's default, but any collection of rent shall not be deemed to
be a recognition or non-disturbance agreement in favor of the tenant or
subtenant.
(c) Landlord and Tenant will, upon signing this Lease and
thereafter from time to time, cause the appropriate UCC-1 and UCC-3
Financing Statements to be signed and filed and re-filed to perfect the
lien and maintain the priority of the collateral assignment of the
Collateral Leases. Tenant will execute and deliver a separate instrument of
collateral assignment prepared by Landlord's lawyer, if requested by
Landlord, for each Collateral Lease as well as for each Transferred Lease.
Section 19.04. If a proposed subtenant of at least thirty-five
thousand (35,000) square feet of contiguous Floor Area in a Levitz Building
desires a non-disturbance agreement from Landlord as a prerequisite to
entering into the sublease for such space, then Tenant shall notify
Landlord in writing accompanied by the proposed sublease and information
regarding the proposed subtenant, its business, operations and financial
condition, and any Changes, new structures or other alterations or
improvements as may be proposed and other information Landlord reasonably
requests. Landlord shall not be obligated to grant a non-disturbance
agreement with respect to a sublease of at least thirty-five thousand
(35,000) square feet of contiguous Floor Area in a Levitz Building, except
if each and all the following conditions precedent are satisfied:
(a) the proposed sublease form shall contain commercially
reasonable terms and shall provide for the subtenant to pay a fixed, basic
rent (separate from the additional rent payments such as for common area
maintenance, taxes, insurance and the like) equivalent to the fair rental
value then prevailing in the city or town where the Levitz Building is
located for similarly situated premises, and the proposed sublease, in
addition to meeting the requirements just mentioned, shall be a net lease
and shall contain and be on terms, provisions and conditions at least as
favorable to Landlord as contained in this Lease including the foregoing,
and also the provisions contained in Section 27.06; to determine what is
fair rental value, all money or other consideration, if any, (such as a
lump sum payment) to be paid by or on behalf of the tenant in addition to
fixed, basic rent (hereinafter referred to as the "Gross Premium") shall be
divided by the number of years in the initial term of the sublease (without
counting renewal options) and the resultant number (hereinafter called the
"Annual Premium") for the balance of the term shall be added to the annual
fixed, basic rent, and it shall be an irrebuttable presumption that the
total of the fixed, basic rent stated in the lease plus the Annual Premium
is the fair rental value, and either the sublease shall be amended to
provide that the subtenant shall pay the higher annual fixed, basic rent
(which includes the Annual Premium), or Landlord shall be paid the entire
Gross Premium in which case the sublease need not be amended; any dispute
on the issue of whether the sublease contains commercially reasonable terms
or whether the rent due under the sublease is the fair rental value for the
premises shall be determined by expedited arbitration; and
(b) the subtenant's proposed use of the Levitz Building shall
be any retail or warehouse use permitted under applicable law that does not
violate or conflict with any current or future exclusive use enjoyed by any
other occupant at the same Shopping Center; and
(c) the proposed subtenant shall have delivered an unqualified
opinion indicating that the proposed subtenant (or any guarantor of the
subtenant's obligations under the sublease) has an audited tangible net
worth of at least Fifteen Million Dollars ($15,000,000.00); and
(d) any proposed Change, new structure or other change or
alteration shall comply in all respects with this Lease; and
(e) following an Event of Default, the sublease shall be
absolutely "net" to the landlord thereunder and shall provide in addition
to said fixed, basic rent that the subtenant's payments of Impositions and
insurance premiums and payments toward all repairs and maintenance of the
Shopping Center and other Rent shall not be less than a proportionate share
based on the ratio of the subtenant's building's square footage to the
square footage of the entire buildings (including the subtenant's
building's square footage) on the property where the subtenant's building
is situated, and that no payments or rent will be paid more than one (1)
month in advance, and the sublease shall provide that modification or
cancellation of the sublease without Landlord's prior written consent shall
not be binding on Landlord; and
(f) the sublease shall be expressly subject and subordinate to
this Lease and the length of the entire term of the sublease including
options will not extend beyond the Initial Term and the subtenant
thereunder shall agree to be bound, as to the space demised under the
sublease, by all the provisions of this Lease (other than the provisions of
this Lease which make this Lease a unitary lease and other than the Rent
payments provided for in this Lease); and
(g) Tenant shall pay Landlord's reasonable attorneys' fees for
review of Tenant's documents, negotiations, if any, and other services in
regard to such subletting.
If both the subtenant and the sublease meet all of the foregoing
conditions, Landlord shall provide the proposed subtenant with a
non-disturbance agreement in the form attached as Exhibit "H" within thirty
(30) days after Landlord's receipt of a fully executed sublease; and any
dispute regarding the contents of the non-disturbance agreement shall be
determined by expedited arbitration.
If Tenant enters into or modifies a sublease, Tenant shall deliver to
Landlord an executed counterpart of such sublease or any subsequent
amendments or modifications thereof, within ten (10) days after Tenant
entered into such sublease, amendment or modification.
Section 19.05. The following provisions in this Section 19.05 shall
apply specifically to each of those Shopping Centers which is a Leasehold
Property, and shall apply, regardless of the identity of the Overlandlord.
Because this Lease is a sublease as to each of the Leasehold Properties,
clauses (a) through (o) of this Section 19.05 inclusive shall be applicable
only to a Leasehold Property. The following provisions are in addition to
the other provisions of this Lease which apply to all of the Shopping
Centers, including the Leasehold Properties, and these following provisions
shall not substitute for or replace the other provisions in this Lease,
except to the extent the following provisions conflict with the other
provisions in this Lease, in which case these following provisions shall
govern as to a Leasehold Property:
(a) No Leasehold Property shall be used or occupied, or
permitted or suffered to be used or occupied, by Landlord or Tenant or any
party claiming by or through Landlord or Tenant for any use, purpose or
activity which is not permitted by the Overlease for such Leasehold
Property.
(b) Tenant, insofar as applicable to the Demised Premises, and
Landlord insofar as applicable to Landlord's Buildings, shall at its sole
expense, (i) comply with the Overleases, and with all applicable legal
requirements pursuant to the Overleases, and (ii) shall comply pursuant to
the Overleases with the requirements of all policies of insurance of
whatsoever nature which Landlord or Tenant is required to maintain pursuant
to the Overleases.
(c) Tenant acknowledges that this Lease, and Tenant's and
Landlord's occupancy on a Leasehold Property, are subject to and
subordinate to the Overleases. Tenant agrees that the terms, covenants,
provisions and conditions of the Overleases applying to Landlord as the
tenant thereunder, to the extent said Overleases apply to the Demised
Premises, shall apply directly to Tenant, and Tenant hereby does and shall
assume and perform fully all the duties, obligations, liabilities and
undertakings of Landlord as the tenant under each and all of the
Overleases, including as additional rent under this Lease, payment of all
the fixed, basic rents and additional rents and other payments to be made
pursuant to the Overleases, whether arising before, on or after the date of
this Lease even though the Overlease may cover both Demised Premises and
Landlord's Buildings, such payments to be made to Landlord at the same time
as Basic Rent and shall be paid by Tenant in addition to the Basic Rent and
shall be made by wire transfer of immediately available Federal funds to
the same bank account designated by Landlord for the payment of Basic Rent.
In the event of any inconsistency between the terms, covenants, provisions
and conditions of any such Overlease and the terms, covenants, provisions
and conditions of this Lease as applies to the Demised Premises or, so long
as Tenant is the Responsible Party, as applies to Common Areas, on a
Leasehold Property, in that the Overlease imposes an obligation or
liability on the tenant thereunder (and therefore on Tenant under this
Lease by virtue of Tenant's assumption thereof) which is stricter or
broader or more onerous or not covered by this Lease, then, even though the
subject matter may be one which is the same in both the Overlease and this
Lease, the terms, covenants, provisions and conditions of the Overlease
with respect to such obligation or liability shall control and be complied
with by Tenant except if expressly stated in this Lease otherwise.
Notwithstanding the foregoing, Tenant shall not be liable for, and Landlord
hereby agrees to pay, Landlord's Share of CAM Costs, any fixed rent under
an Overlease allocated to Landlord's Buildings pursuant to this Lease, and
any percentage rent due under an Overlease with respect to gross sales
generated in Landlord's Buildings by Landlord's other tenants, subtenants,
licensees and concessionaires (as distinguished from gross sales generated
in the Demised Premises by Tenant and Tenant's subtenants, licensees and
concessionaires).
Tenant and Landlord each agrees that it will not do, or cause or
suffer to be done, any act (whether of commission or omission) which would
result in a breach of or default under any term, covenant, provision or
condition of any Overlease.
Tenant agrees to furnish reports of sales and all other data which
Tenant or Landlord is obligated to furnish the Overlandlord under the
Overleases with respect to the Demised Premises. Landlord agrees to furnish
reports of sales and all other data which Landlord is obligated to furnish
the Overlandlord under the Overleases with respect to the Landlord's
Buildings.
(d) Except if specifically and expressly stated otherwise in
this Lease, Landlord shall have no responsibility or liability to provide
any services to Tenant with respect to either the Demised Premises, or for
performing any of the duties, obligations, liabilities or undertakings of
any landlord or tenant under any Overlease as it applies to the Demised
Premises or to the Shopping Center. Landlord agrees, however, that in cases
where Landlord's cooperation is necessary to enforce rights of the tenant
under any of the Overleases, Landlord will use its reasonable efforts to
cause the Overlandlords to perform their duties, obligations, liabilities
and undertakings thereunder, provided Tenant agrees to and does bear the
expense and reimburse Landlord for any and all expenses including
reasonable experts and attorneys' fees incurred by Landlord in connection
therewith. To the extent that to do so does not prejudice or impair the
rights and remedies intended to be enjoyed by Landlord under this Lease and
does not in any manner or to any degree increase the duties, obligations,
liabilities or undertakings of Landlord and does not modify or terminate an
Overlease, Landlord agrees to otherwise cooperate with Tenant so that all
of the rights and benefits of the Overleases intended to be enjoyed by the
prime tenants thereunder shall be available to Tenant, except Tenant shall
not have or enjoy any options to cancel or terminate an Overlease, or
surrender the premises covered by an Overlease, or to renew or to extend an
Overlease, or to purchase the fee title, or to exercise rights of first
refusal, or have any rights to encumber, assign or sublet the interest of
the tenant under the Overleases, or rights to build additional buildings.
Apart from assisting Tenant, at Tenant's full cost and expense and without
expense to Landlord, there shall be no effect on this Lease, no liability
imposed on Landlord and no adverse circumstances to Landlord for Tenant's
or Landlord's failure to obtain any non-disturbance agreement from the
Overlandlord for any reason; Landlord not covenanting or warranting
Landlord's or Tenant's ability to obtain such agreement or that Landlord
itself will become a party to such agreement if one can be obtained.
(e) In addition to other indemnification provisions by Tenant
in this Lease, and not in limitation thereof, Tenant hereby agrees to and
shall defend, indemnify and save Landlord (in its capacity as tenant under
the Overleases and assumer of the Overleases only) harmless from and
against any and all liabilities, claims, demands, actions, suits, losses,
damages, costs and expenses (including experts' and attorney's fees),
arising before or on or after the date of this Lease, that may be based on
or asserted or alleged to be based on any breach by Tenant of any term,
covenant, provision or condition of any Overlease.
(f) In the event of any damage or destruction, or in the event
of any taking as a result of or in lieu of condemnation or eminent domain
of all or part of any Leasehold Property, the terms, covenants, provisions
and conditions of the Overlease for such Leasehold Property shall not be
the controlling instrument as between Landlord and Tenant, but the
provisions of this Lease relating to such event shall control exclusively
between Landlord and Tenant; that is, insofar as Landlord or Tenant is not
prevented by the terms of the Overlease or the consequences of the casualty
or the taking arising out of the provisions of the Overleases applicable to
the casualty event, and Landlord is able to carry out the terms of this
Lease in such cases. Landlord shall not be required to assign any of
Landlord's rights as tenant under, or to pay over any amounts to Tenant
received by Landlord pursuant to, any of the Overleases by reason of any
award or other payment relating to such damage, destruction or taking.
(g) Landlord shall not modify any Overlease without Tenant's
consent, which Tenant agrees not to unreasonably deny or delay unless such
modification has a material adverse affect upon the rights or obligations
of Tenant hereunder. Landlord shall not voluntarily terminate such
Overlease for any reason without Tenant's written consent. If Landlord
defaults under an Overlease, then Tenant (upon reasonable advance written
notice to Landlord and each Mortgagee, unless the Overlease is in imminent
danger of termination, in which case notice that is feasible under the
circumstances shall be given to Landlord and said Mortgagee) may cure such
default if after the notice Landlord fails to take steps to effect such
cure, and if Tenant validly cures on Landlord's behalf and obtains a final
and unappealable money judgment for the reasonable cure expenses incurred
by Tenant, then Tenant may offset such judgment against the Basic Rent
payable to Landlord under this Lease.
(h) Subject to clause (d) of this Section 19.05, the
performance by Overlandlord of Overlandlord's obligations in accordance
with any of the Overleases, shall, for all purposes, be accepted by Tenant,
and shall be deemed to be the performance of such obligations by Landlord
under the provisions of such Overlease and also under this Lease to the
extent the obligations are the same, and in such case Tenant shall neither
look to Landlord for performance of such obligations nor seek to hold
Landlord liable for performance of such obligations or for the manner of
performance of such obligations or for any default in performance or
non-performance of such obligations;
(i) Whenever, by reason of Tenant's assumption of all the
obligations contained in an Overlease as provided in clauses (b) and (c) of
this Section 19.05 or otherwise, any provision of the Overlease requires
the tenant thereunder to make any payment of any money, including the
fixed, base rent payable thereunder, or requires such tenant to take any
action within a certain period of time (whether with or without notice),
then, notwithstanding that a provision in this Lease calls for such payment
to be made or action to be taken at a different time, Tenant shall make
such payment to Landlord or take such action, as the case may be, within
the time specified in the Overlease; and if such payment or taking such
action is required to be paid or done within a specified time period after
notice or receipt of an invoice, then upon such notice or upon receipt of
such invoice, Tenant shall make such payment or take such action, as the
case may be, no later than five (5) business days prior to last day of such
time period (excluding, however, installments of fixed, base rent under the
Overleases which upon receiving such payments from Tenant shall be paid by
Landlord to the Overlandlord pursuant to the Overlease, Tenant being
obligated to pay to Landlord in this Lease, as additional rent, an amount
which always shall equal the fixed, base rent and other rent payments and
money payments payable under the Overlease (except if applicable to
Landlord's Buildings pursuant to the provisions of this Lease));
(j) Whenever any provision of an Overlease requires the
Overlandlord to give notice or submit an invoice to the tenant thereunder
and Landlord has received such notice or invoice but Tenant has not been
given such notice or invoice by the Overlandlord directly, then Landlord
shall notify Tenant by sending Tenant a copy of said notice or invoice.
Such notification by Landlord to Tenant of said Overlandlord's notice or
invoice shall for all purposes hereunder be deemed timely given if sent to
Tenant within five (5) business days after receipt by Landlord of the
notice from Overlandlord;
(k) Whenever any provision of an Overlease requires the tenant
under the Overlease to obtain the Overlandlord's consent for any purpose,
including obtaining consent prior to the undertaking of an act or proposed
act, and Tenant desires such consent, such provision shall for all purposes
hereunder be deemed to require the prior written consent of both
Overlandlord and Landlord; provided, however, if Landlord is willing to
consent, Landlord, at Tenant's expense, shall cooperate to a reasonable
extent with Tenant to obtain the Overlandlord's consent provided Tenant
pays all Landlord's expenses in Landlord's extending such cooperation; and
(l) In the event Tenant contends that Overlandlord is not
observing, complying with or performing its obligations under the Overlease
(thereby perhaps contending that Landlord has similarly failed to observe,
comply with or perform its obligations under this Lease), or that the other
party to an REA is not observing, complying with or performing its
obligations under the REA, Tenant shall have the right to notify Landlord
of a default of the Overlandlord or the REA Party, as the case maybe, which
notice shall specify the nature of such default. Within five (5) business
days after its receipt of such notice, Landlord shall give written notice
to Overlandlord or such other party to an REA (in the manner required by
the Overlease or REA, as the case may be), which notice shall specify the
nature of such claimed default in the same manner as was specified in
Tenant's notice to Landlord. Landlord further agrees to extend assistance
to and cooperate with Tenant in order to effectuate a cure of any alleged
default, provided that all costs and expenses in connection therewith are
borne by Tenant. If Tenant shall have given written notice to Landlord of
such default by the Overlandlord or the REA Party, as aforesaid, and if the
Overlease allows withholding of such payments from the landlord under the
Overlease and if Landlord consents in writing, Tenant shall also have the
right to have Landlord withhold payments of that portion of the Overlease
rent payable to the Overlandlord which is payable by Landlord at that time
under the Overlease in accordance with the applicable provision, if any, of
the Overlease allowing such withholding of rent, provided, however, if
Landlord then withholds such Overlease rent, Tenant agrees to defend,
indemnify and hold Landlord harmless from and against any and all loss,
cost, expense or liability as a result of the giving of such notice of
default to Overlandlord by Landlord, the curing of such default by Tenant
and the withholding of rent under the Overlease. Without limiting the
generality of the foregoing indemnity, it is expressly understood and
agreed that in the event the Overlease is lawfully terminated by
Overlandlord as a result of proceedings arising out of the operation of the
provisions of this clause and the Overlandlord claims against Landlord
damages that Landlord is liable for the loss of Overlandlord's rent, Tenant
shall indemnify Landlord from and against and shall be liable to Landlord
for all the damages that Landlord is liable for to Overlandlord.
(m) With respect to the Demised Premises, Tenant, and with
respect to the Landlord Buildings, Landlord, shall each respectively comply
with or cause the same to be in compliance with all obligations of the
tenant under the Overlease.
(n) If any provision in this Lease is the same as a provision
in the Overlease, then if in legal or arbitration proceedings between
Landlord and Tenant there is an interpretation or construction of that
provision in the Overlease by a Court or by an arbitrator or arbitrators,
that will be the interpretation or construction that will apply to that
same provision in this Lease.
(o) Whenever in this Lease rights or privileges are granted to
Landlord or Tenant with respect to any matter or thing, such rights or
privileges shall be exercisable by the Landlord insofar as the same are not
inconsistent with, or in violation of, the terms, covenants and conditions
of the Overlease with respect to the same matter or thing and the terms,
rights and privileges granted to the Landlord and Tenant herein, but where
the rights and privileges granted by the Overlease to the tenant thereunder
exceed the rights and privileges granted in this Lease to Landlord or
Tenant, then Landlord or Tenant shall exercise such rights and privileges
only to the extent expressly permitted herein if the result of exercising
the greater rights or privileges in the Overlease would be detrimental to
the other party hereto.
ARTICLE XX
Default and Remedies
Section 20.01. In case any of the following events shall happen:
(a) Tenant shall at any time fail to pay Basic Rent, additional
rent or any other Rent or any monetary obligation or shall fail to meet its
duty as to the delivery of any insurance policy required by this Lease, and
any such failure continues for ten (10) days after written notice thereof
to Tenant; or
(b) Tenant shall at any time fail, whether by action or
inaction, to perform or observe or be in default in any representations,
warranties, covenants or agreements contained herein (besides those
specified in the immediately preceding clause (a) above or clauses (c),
(d), (e) or (f) below) or the Contract of Sale, and such failure or default
shall continue for thirty (30) days after written notice thereof to Tenant
specifying the default; provided, however, in the case of failure or
default referred to in this clause (b) is such that by its nature it cannot
with due diligence and in good faith be cured within said thirty (30) day
period, Tenant's period of time to cure shall be extended for such period
as shall be reasonably necessary to remedy the same using all due diligence
and good faith, and it shall be a default if Tenant fails to proceed
promptly and with all due diligence in good faith to cure the same; or
(c) Except for the Bankruptcy Cases, Tenant shall file a
voluntary petition in bankruptcy or shall file any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under
any present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors or Tenant is
adjudicated as bankrupt or insolvent; or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its property, or of any or all
of the royalties, revenues, rents, issues or profits thereof, or shall make
any general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due; or
(d) A court shall enter an order, judgment or decree approving
a petition filed by third parties against Tenant seeking any
reorganization, dissolution or similar relief under any present or future
federal, state or other statute, law or regulation relating to bankruptcy,
insolvency or other relief for debtors, and such order, judgment or decree
shall remain unvacated and unstayed for an aggregate of ninety (90) days
from the first date of entry thereof; or any trustee, receiver or
liquidator of Tenant or of all or any substantial part of its property, or
of any or all of the royalties, revenues, rents, issues or profits thereof
shall be appointed without the consent or acquiescence of Tenant and such
appointment shall remain unvacated and unstayed for an aggregate of ninety
(90) days; or
(e) Tenant assigns this Lease or sublets the Demised Premises
in violation of Article XIX; or
(f) Tenant fails to comply with the covenants contained in
Article XXX; then upon the occurrence of any of such events referred to in
clauses (a), (b), (c), (d), (e) or (f) (an "Event of Default") in addition
to any and all other rights or remedies available to Landlord by this Lease
and/or by law, Landlord shall have the right to terminate this Lease and
Tenant's possessory rights hereunder (except for any default by Tenant
which is not a monetary default and is an act of commission or omission
solely in the performance by Tenant of Tenant's duties as the Responsible
Party; for this kind of default Landlord shall not have a right to
terminate this Lease based solely on such default), by giving Tenant a
written notice declaring the termination and specifying the date on which
the Lease will terminate, and on the date so specified, this Lease will end
as fully and completely as if that were the date specified for the
expiration of the Lease, and Landlord shall have the right to re-enter the
Demised Premises and take possession thereof, and, except to the extent
Landlord may have agreed otherwise in writing as to any persons, Landlord
may remove all persons therefrom, and Tenant shall have no further claim
under this Lease. All of Landlord's rights and remedies are cumulative and
non-exclusive of each other and Landlord may exercise any or all of such
rights, as well as any other rights or remedies available, without
releasing Tenant from any liability or diminishing Tenant's liability
arising out of this Lease and notwithstanding any termination of this Lease
or the exercise of any remedies by Landlord, Tenant's liabilities and
indemnities shall survive and Tenant shall remain liable for damages as
hereinafter provided. Should Landlord elect to terminate this Lease or
re-enter as herein provided, or should Landlord take possession pursuant to
legal proceedings or any notice provided for by law, Landlord may recover
from Tenant:
(i) the amount of the unpaid Rent which is due, owing and
unpaid by Tenant to Landlord at the time of termination; and
(ii) all other amounts necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things are
likely to result therefrom, including all costs (including reasonable
attorneys' fees) of repossession, removing persons or property from the
Demised Premises, repairs, brokerage commissions for and expenses incurred
in reletting and reasonable alterations of the Shopping Center in
connection with reletting, if any; and
(iii) at Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to
time by applicable law.
(iv) Landlord shall always have the right to not terminate
this Lease and hold Tenant liable on the Rent payment days for all Rent
payments as they become due; and in connection with the remedy under this
clause (iv), Landlord shall have the right to take exclusive possession of
the Demised Premises (without having terminated the Lease) and re-renting
for Tenant's account to another tenant while holding Tenant liable
nevertheless; provided, however, at its option in its exclusive discretion,
Landlord shall have the continuing right at any time before or after any
re-letting, to terminate this Lease for the previous default or for any
subsequent default as well.
In the alternative to damages described in clause (iv) above in this
Section 20.01, Landlord shall have the right to recover from Tenant, as
damages, the value at the time of award of damages of the amount by which
the unpaid Rent which would have come due had the Lease not been terminated
as aforesaid and had instead expired on the last day of the term of this
Lease then remaining immediately prior to termination exceeds the amount of
rental loss that Tenant proves Landlord has avoided by actually having
rented the Demised Premises to another tenant, or could have been
reasonably avoided if Landlord could have mitigated Tenant's damages by
signing a lease with another tenant. Computations of the amounts of Rent
payable by Tenant prior to the award of damages shall be computed by
allowing interest thereon at the lower rate of either twelve and
three-quarters percent (12 3/4%) per annum or such other rate as may be the
maximum amount of interest then permitted to be charged under the law of
the state whose laws govern this Lease as to the maximum rate of interest
that may be charged. The value at the time of the award of the Rent that
would have been payable after the date of the award had the Lease not been
terminated shall be computed by discounting the amount otherwise
recoverable by Landlord at the discount rate of the Federal Reserve Bank of
New York at the time of the award of damages. Landlord shall be entitled to
recover from Tenant all costs of maintenance and preservation of the
Demised Premises, and all costs of re-letting and all costs, including
reasonable attorneys' and receiver's fees, incurred in connection with
re-giving possession, enforcing its remedies, entering into a new lease or
leases, suing to collect the Rent and in connection with the appointment of
and performance by a receiver to protect the Demised Premises and
Landlord's interest under this Lease. If Landlord obtains possession of the
Demised Premises, then Landlord shall use reasonable efforts, consistent
with good commercial real estate practice, to relet the Demised Premises.
Section 20.02. Nothing herein shall be deemed to affect the right of
Landlord under Article XIII of this Lease to indemnification for liability,
arising prior to the termination of the Lease, for personal injuries or
property damage. No expiration or termination of the term of this Lease
pursuant to Section 20.01 or by operation of law, or otherwise, and no
repossession of the Demised Premises or any part thereof pursuant to
Section 20.01, or otherwise, shall relieve Tenant of its liabilities and
obligations hereunder, all of which shall survive such expiration,
termination or repossession. In the event of any termination of this Lease
pursuant to Section 20.01 or any repossession of the Demised Premises
pursuant to Section 20.01, Tenant, so far as permitted by law, waives (a)
any notice to quit, of re-entry or of the institution of legal proceedings
to that end, (b) any right of redemption, re-entry or repossession, (c) any
right to a trial by jury in any proceeding or in any matter in any way
connected with this Lease, and (d) the benefits of any laws now or
hereafter in force exempting property from liability for rent or for debt.
Section 20.03. Except to the extent that Landlord may have otherwise
agreed in writing, no waiver by Landlord of any breach by Tenant of any of
its obligations, agreements or covenants hereunder shall be deemed to be a
waiver of any subsequent breach of the same or any other covenant,
agreement or obligation; nor shall any forbearance by Landlord to seek a
remedy for any breach by Tenant be deemed a waiver by Landlord of its
rights or remedies with respect to such breach.
Section 20.04. No remedy herein or otherwise conferred upon or
reserved to Landlord shall be considered exclusive of any other remedy, but
the same shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by
statute, and every power and remedy given by this Lease to Landlord may be
exercised from time to time and as often as occasion may arise or as may be
deemed expedient.
Section 20.05. The rights herein given to receive, collect, sue for
or distrain any rent or rents, moneys or payments, or to enforce the terms,
provisions and conditions of this Lease, or to prevent the breach or
nonobservance thereof, or the exercise of any such right or of any other
right or remedy hereunder or otherwise granted or arising, shall not in any
way affect or impair or toll the right or power of Landlord upon the
conditions and subject to the provisions in this Lease expressed to
terminate Tenant's right of possession because of the occurrence of an
Event of Default in or breach of any of the covenants, provisions or
conditions of this Lease.
Section 20.06. No receipt of money by Landlord from Tenant, after the
termination of Tenant's right of possession or after the service of any
notice or after the commencement of any suit or after final judgment for
possession of the Demised Premises, shall renew, reinstate, continue or
extend the right of Tenant to remain in possession of the Demised Premises,
or affect any such notice, demand or suit.
Section 20.07. (a) It is expressly agreed that this Section 20.07
(arbitration procedure) shall not be available to Tenant as to any failure
by Tenant to timely furnish an insurance policy or insurance certificate as
required by this Lease or any default under an Overlease or to any failure
by Tenant to pay Basic Rent or any other Rent (including Impositions) or
any other payment of money which is owed by Tenant or which is due and
payable by Tenant under this Lease. If Tenant shall in good faith dispute a
notice given to Tenant by Landlord as a result of Tenant's failure to
observe, perform or satisfy any (non-monetary, non-insurance
policy/certificate and non-Overlease covenant, condition or requirement on
Tenant's part to be observed, performed or satisfied under Articles XI
(Repairs), IX (Compliance with Laws and Insurance Policies), V (Insurance)
other than the obligation to deliver insurance policies or certificates, XV
(Changes), VI (Use), XII (Entry by Landlord), XVI (Damage or Destruction),
XVII (Condemnation), XXVI (Hazardous Substances) or XIX (Assignment and
Subletting) of this Lease, then the failure of Tenant to perform or observe
the term, covenant or condition which was the subject matter of Landlord's
notice relating to the Articles just listed (but not any other Articles of
this Lease) shall not constitute an Event of Default by Tenant for which
Landlord may terminate this Lease if (i) Tenant shall dispute in good faith
the existence of such default and promptly (in no event later than five (5)
business days after the giving of such notice) notifying Landlord of such
good faith dispute, the notice expressly invoking and referring to this
Section 20.07 and the same does not create a default under an Overlease, or
(ii) this Lease provides with respect to any matter so in dispute that a
dispute as to such matter shall be determined by the Arbitration
Proceeding, provided neither Landlord's estate nor the Demised Premises
shall be in imminent danger of forfeiture and Landlord shall not be subject
to criminal liability, and Tenant, as provided in Section 23.03, shall,
within five (5) business days after giving Landlord notice of its dispute,
commence the Arbitration Proceeding to determine whether a default in fact
has occurred by making a Demand for Arbitration pursuant to the "Quick
Filing Directions" (as set forth in the then applicable Commercial
Arbitration Rules (the "Rules") of the American Arbitration Association
("AAA")), and Tenant shall diligently, expeditiously and in good faith
prosecute the Arbitration Proceeding in such a manner so as to effect a
final determination, and no other Event of Default shall exist under any
Article or Section of this Lease; provided further, however, that in the
event Tenant shall dispute a default in accordance with the provisions of
this Section more than two (2) times in any twelve (12) calendar month
period during the term of this Lease and the decision or award in the
Arbitration Proceeding in each such case determined that Tenant was in
default or if the arbitrator appointed in accordance with the Arbitration
Proceeding shall in any decision or award determine that Tenant was acting
in bad faith, then, in such event, this Section 20.07 shall no longer be in
effect and Tenant shall have no further right under this Section 20.07 to
dispute a notice of default. When and if a decision or award shall be made
in the Arbitration Proceeding to the effect that Tenant is in default,
then, for purposes of determining whether any applicable grace period shall
have expired, Tenant shall be deemed to have been given notice thereof for
the first time on the date of the issuance of such decision or award.
Failure by Tenant to strictly comply with the time schedules set forth in
this Section 20.07 shall cause a waiver of Tenant's right to utilize this
procedure, as time is of the essence.
(b) The arbitration referred to in this Section 20.07 is
intended to mean in each instance when Tenant avails itself of this Section
20.07 the dispute or matter shall be determined by arbitration under the
Expedited Procedures provisions for the Rules of the AAA or its successor;
provided, that with respect to any such arbitration, (i) the list of
arbitrators referred to in the applicable Rule shall be returned within
five (5) business days from the date received, (ii) the parties shall
notify the AAA by telephone, within five (5) business days of any
objections to the arbitrator appointed and will have no right to object if
the arbitrator so appointed was on the list submitted by the AAA and was
not objected to in accordance with the second sentence of the Rule, (iii)
the Notice of Hearing referred to in the Rules shall be five (5) business
days in advance of the hearing, (iv) the hearing shall be held within seven
(7) business days after the appointment of the arbitrator and (v) the
arbitrator shall have no right to award damages. Except as set forth in the
next sentence, in any instance when Tenant invokes this Section 20.07,
Landlord may send a notice within three (3) days of receipt of Tenant's
notice that Landlord desires the issue to be decided in a court of law
instead of by arbitration, and in such case Landlord (or Tenant, if it
wishes) may bring an action at law or equity and Tenant shall not be in
default until the grace period applicable to such default has expired
without Tenant having cured; the date of the final, unappealable decision
of the court being deemed the date Tenant received the default notice for
the first time. With respect to any dispute between Landlord and Tenant
relating to a whether a Proposed Subletting under Article XIX (Assignment
and Subletting) where Tenant has invoked this Section 20.07, Landlord may
not elect to have the issue decided in a court of law instead of by
arbitration unless Landlord has commenced its action in a court of law: (a)
at least forty-five (45) days after the dispute arose; and (b) before
Tenant has invoked this Section 20.07.
Section 20.08. Landlord shall have the right to select which State or
States in which to bring any action at law or in equity to enforce any
provisions contained in this Article XX or other provisions of this Lease,
and Tenant hereby consents to the jurisdiction of the proper court in any
State or States Landlord selects provided such States be either a State in
which any one of the Shopping Centers is situated or the Commonwealth of
Pennsylvania. Landlord and Tenant hereby agree that the substantive laws of
the Commonwealth of Pennsylvania shall govern and apply to all questions or
issues or disputes arising from the interpretation of this Lease or the
application of substantive laws to this Lease and this Lease shall be
interpreted under such laws of the Commonwealth of Pennsylvania. As to
cases in which Landlord starts legal action involving recovery of
possession of the Demised Premises or any part thereof, the procedural law
of the State where such lawsuit is commenced shall govern. In case of an
Event of Default, or to enforce the provisions of this Lease or in any
legal action arising out of the provisions of this Lease, Landlord at its
option may bring one legal action in one court or may bring separate legal
actions, all at the same time or different times and in the same State or
in the different States where the Shopping Centers are situated.
ARTICLE XXI
Arbitration and Appraisal
Section 21.01. If at any time, or from time to time during the term
of this Lease, any dispute shall occur between Landlord and Tenant as to
which (but only as to which) Landlord and Tenant have specifically and
expressly agreed in this Lease to the settlement of such dispute by
arbitration, such dispute shall be settled promptly by arbitration in
Philadelphia, Pennsylvania by the American Arbitration Association in
accordance with the Rules and the law of the state in which the Demised
Premises (or such portion thereof to which the dispute relates) is
situated, and judgment upon the award rendered in such arbitration may be
entered in any court having jurisdiction thereof; provided, however, the
foregoing sentence shall not apply to disputes covered by Section 20.07(a)
and (b), as Section 20.07 spells out its own arbitration provisions for
certain special circumstances. However, it is agreed that if Landlord has
demanded money in accordance with this Lease and Tenant refuses to pay all
or any part of the amount demanded based on Tenant's dispute of such amount
or based on Tenant's denial of Landlord's right to payment, Tenant
nevertheless shall pay the amount that Tenant concedes is due, or if Tenant
denies the whole amount, Tenant shall pay the whole amount, to the AAA, to
be held in a separate interest bearing escrow account, pending the decision
of the arbitration, and any amount that Tenant did not pay because it
disputed Landlord's entitlement thereto shall be resolved in the
arbitration, and if Tenant is successful in the determination in obtaining
a refund, the AAA shall pay the funds in the escrow account with interest
thereon at the rate declared by the arbitrators. Similarly as to any
insurance policy required, if Tenant disputes its duty, Tenant shall
deliver the policy first and arbitrate afterward. By paying or delivering
the policies (as the case may be) first, Tenant's rights of dispute shall
not be diminished.
Section 21.02. If it shall become necessary, for purposes of Section
19.01 to seek an independent determination of the fair market rental value
of the Demised Premises or any portion thereof, or the amount of an
allocable and distributable share of a Net Award in a condemnation as
specified in Section 18.03, or with respect to an insurance policy
appraisal under Section 5.01, as the case may be, either party may, by
notice to the other, appoint a disinterested person who is a Member of the
American Institute of Real Estate Appraisers (or if such Institute is not
in existence at the time in question, a member of a similar or successor
organization) (an "M.A.I.") and whose office is located in a radius of
fifty (50) miles from the particular Shopping Center of the Demised
Premises which is the subject of the question, as one of the appraisers.
Within twenty (20) days thereafter the other party shall, by written notice
to the party appointing the first appraiser, appoint another disinterested
person who is an M.A.I. and whose office is located in a radius of one
hundred (100) miles from that Shopping Center, and such two appraisers
shall appoint another disinterested person who is an M.A.I. and whose
office is located in a radius of one hundred (100) miles from that Shopping
Center, and such three appraiser shall as promptly as possible determine
the value; provided, however, that:
(a) if the second appraiser shall not have been appointed as
aforesaid, the first appraiser shall proceed to determine such value; and
(b) if, within twenty (20) days after the appointment of the
second appraiser, the two appraisers appointed by the parties shall be
unable to agree upon the appointment of a third appraiser, they shall give
written notice of such failure to agree to the parties, and, if the parties
fail to agree upon the selection of such third appraiser within ten (10)
days after the appraisers appointed by the parties gave notice as
aforesaid, then within ten (10) days thereafter either of the parties upon
written notice to the other party hereto may apply for such appointment to
the AAA (if the dispute is being arbitrated) or the highest Court of
jurisdiction for the county in which that Shopping Center is located or if
none, to any other court having jurisdiction and exercising functions
similar to those now exercised by the Court for such county.
Landlord and Tenant shall each be entitled to present evidence and
argument to the appraisers and to be represented by counsel.
The determination of the majority of the appraisers or of the sole
appraiser, as the case may be, shall be conclusive upon the parties and
judgment upon the same may be entered in any court having jurisdiction
thereof. The appraisers shall give written notice to the parties stating
their determination, and shall furnish to each party a copy of such
determination signed by them.
The costs and expenses of such appraisal, including the fees of the
appraiser or appraisers, shall be divided equally between Landlord and
Tenant.
In the event of the failure, refusal or inability of any appraiser to
act, a new appraiser shall be appointed in his stead, which appointment
shall be made in the same manner as hereinbefore provided for the
appointment of the appraiser so failing, refusing or unable to act.
Section 21.03. The arbitrator or arbitrators or appraiser or
appraisers may not change any of the terms of this Lease or deprive any
party to this Lease of any right or remedy expressly or impliedly reserved
in this Lease. No matter, subject or dispute shall be submitted to
arbitration or appraisal except if it is specifically agreed to and so
directed in this Lease.
Section 21.04. In any litigation or arbitration between the parties
regarding this Lease, the losing party shall pay to the prevailing party
all reasonable expenses and arbitration or court costs, including
reasonable attorneys fees incurred by the prevailing party. A party shall
be considered the prevailing party if: (a) it initiated the litigation or
arbitration and substantially obtains the relief it sought, either through
a judgment or the losing party's voluntary action before arbitration (after
it is scheduled), trial or judgment; (b) the other party withdraws its
action without substantially obtaining the relief it sought; or (c) it did
not initiate the litigation and judgment is entered for either party, but
without substantially granting the relief sought.
ARTICLE XXII
Estoppel Certificates; Financial Statements
Section 22.01. At any time and from time to time, Landlord, on at
least twenty (20) days' prior written request by Tenant, and Tenant, on at
least twenty (20) days' prior written request by Landlord, will deliver a
statement in writing certifying that this Lease is unmodified and in full
force and effect (or if there shall have been modifications that the same
is in full force and effect as modified and stating the modifications) and
the dates to which the rent and any other payments, deposits or charges
have been paid and stating whether or not, to the best knowledge of the
party executing such certificate, the party requesting such statement is in
default in the performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such default of which
the executing party may have knowledge, and such other information as it is
reasonable for the requesting party to request.
Section 22.02. During the term of this Lease, Tenant shall deliver to
Landlord promptly upon their becoming available, copies of all financial
statements and reports which Tenant sends to its stockholders or files with
the SEC.
ARTICLE XXIII
Invalidity of Particular Provisions
Section 23.01. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
ARTICLE XXIV
Notices
Section 24.01. Whenever Landlord or Tenant shall desire to give or
serve upon the other any notice, demand, request or other communication
with respect to this Lease or with respect to the Shopping Center each such
payment, notice, demand, request or other communication in order to be
legally effective shall be in writing and shall be given or served by
mailing the same to such party or parties by registered mail or by
certified mail, postage prepaid, return receipt requested, or by overnight
independent courier service, either Federal Express or UPS, addressed as
follows:
If to Landlord:
See Exhibit "K"
c/o Klaff Realty, L.P.
111 West Jackson Boulevard
Chicago, IL 60604-3501
Attention: Mr. Hersch Klaff
and
Lubert-Adler Management, Inc.
The Belgravia Building, 8th Floor
1811 Chestnut Street
Philadelphia, PA 19103
Attention: Mr. Dean Adler
Copy to (if given before 7/4/99):
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
1401 Walnut Street
Philadelphia, PA 19102
Attention: Stephan L. Cutler, Esquire
Copy to (if given after 7/4/99):
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
260 S. Broad Street
Philadelphia, PA 19102
Attention: Stephan L. Cutler, Esquire
If to Tenant:
Levitz Furniture Corporation
7887 N. Federal Highway
Boca Raton, FL 33487
Attention: Edward Zimmer, General Counsel
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022-3897
Attention: Richard R. Kalikow, Esquire
or at such other address or addresses as Landlord or Tenant may from time
to time designate for itself by notice given in the manner aforesaid.
Every notice, demand, request or communication hereunder shall be
deemed to have been given or served as of the day of actual delivery as
shown by the addressee's registry receipt.
ARTICLE XXV
Options to Extend; Extended Term Basic Rent
Section 25.01. Provided no Event of Default exists under this Lease,
Tenant shall have three (3) options (each called a "Unitary Lease Extension
Option") to extend the term of this Lease, for all (and not less than all)
the Demised Premises (as it then exists), beyond the Initial Term by means
of three (3) additional separate and consecutive 5-year periods. Such
options may be exercised by Tenant one or more at a time by giving
irrevocable written notice to Landlord not less than twelve (12) months
("Option Deadline Date" or "Deadline Date") prior to the expiration of the
then current term of this Lease; time being of the essence. Each such
extension period shall be referred to herein as an "Extended Term". If an
Overlease would need to be extended by Landlord exercising an extension
option in that Overlease in order to match Tenant's exercise of extension
of this Lease, and if the Overlease provided for a specified period of
advance notice to the Overlandlord which is less than eleven (11) months
before the date of Tenant's twelve (12) month notice, then Tenant must give
notice of extension in this Lease not less than forty-five (45) days before
the last day which Landlord has pursuant to the Overlease to validly
exercise its extension option under the Overlease, as a condition for
Tenant's extension option to be validly exercised in this Lease; time being
of the essence.
As to each Leasehold Property, Landlord, subject to the proviso in
the next sentence and subject also to the other provisions and conditions
in this Article XXV, shall exercise Landlord's rights to the extent
necessary and to the extent available to Landlord, in order to extend the
term of the Overlease applicable to that Leasehold Property until at least
the end of the Initial Term of this Lease. During the Initial Term of this
Lease, Tenant shall not be required to give Landlord any notice that
Landlord's right to extend the term of an Overlease must be exercised,
provided, however, Landlord need not exercise its extension rights if on
the date Landlord's notice of extension of the Overlease is to be given to
the Overlandlord, an Event of Default on the part of Tenant then exists
under this Lease. If such an Event of Default exists, Landlord may or may
not, at Landlord's option, exercise the extension right in question.
As to any period before the end of the Initial Term of this Lease,
Tenant shall have the right to notify Landlord by sending Landlord a
written notice stating expressly that Tenant desires Landlord not to
exercise an extension option under an Overlease and that Tenant desires the
Overlease to expire. The notice must be received by Landlord not less than
three hundred sixty (360) days before the last day on which Landlord is
required to exercise its extension option under the Overlease; time being
of the essence. If Landlord receives such notice, Landlord may either
intentionally fail to exercise the Overlease extension option and permit
the Overlease to expire, or Landlord may exercise its extension option for
Landlord's own account. In either case, the Overlease shall cease as of the
end of the then current term of said Overlease for the purpose of this
Lease, and the Leasehold Property to which the extension option applied
shall be deleted from being part of the Demised Premises and Tenant shall
surrender to Landlord that portion of the Demised Premises which is located
on that Leasehold Property, but this Lease shall continue in full force and
effect as to the remaining Demised Premises and the there shall be
nevertheless no reduction or other change in the Basic Rent, additional
Rent or other payments by Tenant under this Lease other than the payments
which were required to be made by Tenant to Landlord as additional rent for
the rents pursuant to that Overlease; provided, however, if: (a) Tenant
timely sends Landlord a notice stating expressly that: (i) Tenant desires
Landlord not to exercise an extension option under the Overlease relating
to the La Puente, CA Levitz Building (the "La Puente Overlease"); and (ii)
Tenant desires that the La Puente Overlease expire at the end of the then
current term of the La Puente Overlease; and (b) Tenant vacates the La
Puente, CA Levitz Building on or before the expiration of the then current
term of the La Puente Overlease; and (c) no Event of Default then exists
hereunder; then upon the expiration of the then current term of the La
Puente Overlease, the Basic Rent shall be reduced in an amount equal to the
product of the annual Basic Rent multiplied by a fraction, the numerator or
which is the Liquidation Value of the La Puente, CA Levitz Building and the
denominator of which is the Total Liquidation Value.
As to any period beyond the end of the Initial Term of this Lease,
provided Tenant gives Landlord Tenant's extension notice timely in advance
as set forth in the first paragraph of this Section 25.01, when Tenant
validly exercises its right to extend the Initial Term or any subsequent
Extended Term under this Lease, Landlord will, in turn if necessary and if
options are available to Landlord, then exercise its options to extend the
Overlease for each of those Leasehold Properties in order to correspond
with Tenant's extension notice given to Landlord to extend this Lease. It
is understood that in the event that Landlord is not required to exercise
an extension right to extend the term of an Overlease, because Tenant
failed to exercise validly its option pursuant to this Article XXV,
Landlord need not, but nevertheless may, exercise any such right for its
own account; and further, Tenant agrees that Landlord need not in any
instance exercise any option available to Landlord to extend the term of an
Overlease if the term of the Overlease, as to be extended by Landlord would
end more than thirty (30) days after the end of the proposed Extended Term
of this Lease following Tenant's exercise of its options.
When Landlord sends a notice to an Overlandlord extending the term of
the Overlease, Landlord will send a copy of that notice to Tenant. Within
thirty (30) days after receipt by Landlord of a notice from Tenant
extending this Lease in accordance with and subject to the provisions and
conditions in the above first three paragraphs of this Section 25.01,
Landlord will send its own extension notice to the Overlandlord (when
extension is necessary) extending the Overlease. If Tenant does not receive
from Landlord the copy of Landlord's extension notice to the Overlandlord
by the 30th day after the date Tenant had sent its own valid extension
notice to Landlord and also has not received a notice from Landlord
disputing Landlord's duty to exercise an option to extend the Overlease,
then in such case Tenant itself may exercise the extension option under the
Overlease, on Landlord's behalf and acting in place and stead of Landlord,
by notice to the Overlandlord.
If any Overlease does not contain sufficient extension options for
Landlord (as tenant thereunder) to be able to keep granting Tenant
extensions thereof as to any Leasehold Property to match the term of this
Lease or Tenant's exercise of an extension option in accordance with this
Lease, and the leasehold estate of that Leasehold Property shall therefore
expire before the then current term of this Lease will have expired, then
in each such case that particular Leasehold Property shall no longer be
part of the Demised Premises under this Lease, and, without liability to
Landlord, this Lease shall terminate as to said expired Leasehold Property,
but this Lease shall continue in full force and effect as to the remaining
Shopping Centers and annual Basic Rent shall be reduced in an amount equal
to the product of the annual Basic Rent multiplied by a fraction, the
numerator of which is the Liquidation Value of the Levitz Building with
respect to which this Lease has been terminated and the denominator of
which is the Total Liquidation Value.
Section 25.02. Each Extended Term shall be upon the same terms and
conditions as are set forth herein for the Initial Term, except that:
(a) the Basic Rent payable for each year during the first
Extended Term shall be an annual amount equal to one hundred five percent
(105%) of the annual Basic Rent payable by
Tenant in the last twelve (12) months of the Initial Term, that is, June 8,
2018 through June 7, 2019, payable in equal monthly installments during the
first Extended Term; and
(b) the Basic Rent payable for each year during the second
Extended Term shall be an annual amount equal to one hundred five percent
(105%) of the annual Basic Rent payable by Tenant in the last twelve (12)
months of the first Extended Term, that is, June 8, 2023 through June 7,
2024, payable in equal monthly installments during the second Extended
Term; and
(c) the Basic Rent payable for each year during the third
Extended Term shall be an annual amount equal to one hundred five percent
(105%) of the annual Basic Rent payable by Tenant in the last twelve (12)
months of the second Extended Term, that is, June 8, 2028 through June 7,
2029, payable in equal monthly installments during the third Extended Term.
Section 25.03. Any exercise of any option to extend, and the Extended
Term which would be created by such exercise, shall cease to be of any
force or effect if, prior to the date upon which such Extended Term would
otherwise commence, the term of this Lease shall have been terminated as
provided in Article XX.
ARTICLE XXVI
Hazardous Substances
Section 26.01. Tenant agrees that all operations or activities on or
use or occupancy of the Demised Premises or use of the Shopping Center and
all portions thereof by Tenant in this Lease, and all of Tenant's tenants,
subtenants or occupants shall comply with all Environmental Laws, as such
term is hereinafter defined. Landlord agrees that all operations or
activities on or use or occupancy of the Landlord's Buildings or use of the
Shopping Center and all portions thereof by Landlord shall comply with all
Environmental Laws.
Section 26.02. Tenant agrees to not permit to be present on the
Demised Premises, or contained in any transformers or other equipment, or
in the Common Areas so long as Tenant is the Responsible Party, any PCBs or
any asbestos (including any structures, fixtures, equipment or other
objects or materials containing asbestos); provided, however, Tenant shall
be permitted to use and maintain (but not replace unless any replacements
are free of PCBs and asbestos) those transformers and other equipment
containing PCBs and permitted to use and maintain the portions of any
structures or materials containing asbestos located at the Demised Premises
on the date of this Lease, so long as removal is not required by
Environmental Laws. ("PCB" shall include all substances includible under
the definition of PCB in 40 CFR Section 761.3.) Landlord agrees to not
permit to be present on the Landlord's Buildings, or contained in any
transformers or other equipment, or in the Common Areas so long as Landlord
is the Responsible Party, any PCBs or any asbestos (including any
structures, fixtures, equipment or other objects or materials containing
asbestos); provided, however, Landlord shall be permitted to use and
maintain (but not replace unless any replacements are free of PCBs and
asbestos) those transformers and other equipment containing PCBs and
permitted to use and maintain the portions of any structures or materials
containing asbestos located at the Landlord's Buildings on the date of this
Lease, so long as removal is not required by Environmental Laws.
Section 26.03. In the event any investigation or monitoring of site
conditions or any clean-up, containment, restoration, removal or other
remedial work is required under any Environmental Laws or other laws or in
order to comply with the terms of this Lease, including the provisions of
Section 26.06 (collectively, the "Remedial Work"), the party required to
perform the Remedial Work shall perform same (such performance being herein
sometimes referred to as "Remediation" and the act of remediation being
sometimes referred to herein as "Remediate") in compliance with such
Environmental Laws or other laws and otherwise in compliance with this
Lease; provided, however, that the party required to perform the Remedial
Work shall have the right to contest by appropriate proceedings diligently
conducted in good faith the requirement for any such Remedial Work under
Environmental Laws. Remedial Work shall be performed by contractors who
have all necessary licenses and expertise, selected by the party required
to perform the Remedial Work. Where Tenant is the party required to perform
the Remedial Work, the contractor shall be approved in advance in writing
by Landlord (not to be unreasonably withheld), and the contractor shall
perform the Remedial Work under supervision of an environmental consulting
engineer (the "Tenant's Consultant") selected by Tenant and approved in
advance in writing by Landlord (not to be unreasonably withheld), all
performed at Tenant's expense. In the event the party required to perform
the Remedial Work shall fail to timely commence or fail to diligently
prosecute to completion such Remedial Work, then the other party may, but
shall not be required to, cause such Remedial Work to be performed, and all
reasonable costs and expenses thereof incurred in connection therewith
shall be payable on demand by the party required to perform the Remedial
Work.
Section 26.04 (a) All Remedial Work shall be satisfactory to
Landlord, in Landlord's reasonable judgment; provided, however any remedial
Work that meets the requirements of applicable Environmental laws shall be
deemed satisfactory to Landlord. Landlord shall have the right at any time
and from time to time, at Landlord's expense, to cause its own contractor
and consulting engineer ("Landlord's Consultant") to conduct an
environmental inspection in order to confirm Tenant's compliance with this
Article XXVI and to determine whether or not any Hazardous Substances are
present in quantities sufficient to require further Remedial Work (each, an
"Inspection").
(b) The determination as to whether Remedial Work required to
be performed by Tenant has been completed in accordance with this Lease and
in compliance with all Environmental Laws and other applicable laws, shall
be evidenced by a certificate of compliance issued by Tenant's Consultant
and Landlord's Consultant (the "Certificate of Compliance").
(c) Landlord shall use reasonable efforts to cause any
Inspection to be conducted in a manner which minimizes interference with
the business of Tenant or any tenant or subtenant. Nothing contained in
this Section 26.04 shall be deemed or construed to amend, modify or replace
any other obligation of Tenant set forth in this Article XXVI.
Section 26.05. The obligations of the parties as set forth in Article
XXVI, shall survive the expiration or sooner termination of this Lease, and
are in addition to any surviving obligations of the Tenant under the
Contract of Sale. This Article XXVI shall be fully operative and each
party's obligations shall not be diminished by the fact that the other
party may have knowledge at any time, whether before or after the date of
this Lease, of any Release, or that either party caused Phase I or Phase II
investigations to be done.
Section 26.06. (a) Notwithstanding any provision contained in this
Lease to the contrary, the provisions of this Section 26.06 shall govern
and supersede any conflicting provisions contained in this Lease.
(b) Tenant acknowledges the existence of the Environmental
Conditions (as defined in the Contract of Sale) at the Demised Premises
and/or the Shopping Centers in which the Demised Premises are located.
(c) Tenant agrees that Tenant shall be solely responsible, at
Tenant's sole cost and expense, for the Environmental Conditions, the
Remediation of the Environmental Conditions, all liabilities and claims of
third parties (including tenants at the Shopping Centers) relating to the
Environmental Conditions and all Costs relating thereto.
(d) Without limiting the generality of the foregoing, Tenant
shall: (i) pay all Costs relating to, or arising from or in connection
with, the Environmental Conditions; and (ii) pay all Costs to Remediate the
Environmental Conditions.
(e) Tenant agrees to indemnify, defend (by attorneys reasonably
satisfactory to Landlord) and hold Landlord, and Landlord's directors,
officers, shareholders, employees and agents, harmless from and against all
claims (including third party claims for personal injury or damage to
property), actions, administrative proceedings, judgments, damages
(including punitive damages), penalties, fines, costs, liabilities
(including sums paid in settlement of claims), expenses, losses (including
reasonable attorneys' and experts' fees and disbursements and fees and
expenses incurred in enforcing this Lease or collecting any sums due
hereunder), and all other costs and expenses of any kind or nature
(collectively, the "Costs") that arise directly or indirectly from or in
connection with (i) the Environmental Conditions (whether or not caused by
Tenant and whether or not located within the Demised Premises) and/or (ii)
the Release of any Hazardous Substance at, on, about, under, over or within
the Demised Premises, or any portion thereof or any portion of the Shopping
Center which was used by Tenant or by Tenant's subtenants prior to or
during the term of this Lease, and in particular (without limiting the
generality of the foregoing) any so-called TBA space which is or in the
past was, before the date of this Lease or at any time, so occupied by
Tenant or its subtenants even though such TBA space may be space that
Landlord takes over by a Transferred Lease and is not part of Tenant's
Demised Premises except, in the case of clause (ii) only, to the extent
(but only to the extent) such claims result solely from Landlord's active
negligence or willful misconduct or solely from the acts of Landlord's
tenants who occupy Landlord's Buildings and the claim first arises after
the date of this Lease and after the space became part of Landlord's
Buildings in the Demised Premises and/or the Shopping Center. Tenant shall
pay Landlord on demand the total of all such Costs suffered or incurred by
Landlord. Without limiting the generality of the foregoing, the
indemnification provided by this Section 26.06 shall specifically cover
Costs incurred in connection with any investigation or monitoring of site
conditions, any clean-up, containment, remedial, removal or restoration
work (including capital expenditures and operating and maintenance costs)
required or performed by any Governmental Authority because of any Release
and/or Environmental Conditions, as well as claims of third parties for
loss or damage due to such Environmental Conditions and/or any Release. In
the event a claim, action or proceeding is brought against Landlord for
which Tenant shall have an indemnification obligation under this Section
(an "Indemnified Matter"), Landlord shall give Tenant notice thereof.
Tenant shall have the right to engage independent counsel reasonably
acceptable to Landlord to defend Landlord against any claims, actions,
suits or proceedings (an "Action"), the costs and expenses thereof shall be
paid by Tenant. Nothing contained in this Section shall restrict Landlord's
right thereafter to retain, at Landlord's expense (so long as the attorney
selected by Tenant and approved by Landlord is continuing Landlord's
defense), separate legal counsel during the pendency of any Action. On
receipt of written notice of a claim relating to an Indemnified Matter,
Landlord shall give Tenant prompt written notice; provided, however, the
failure to give such notice shall not relieve Tenant of any liability
hereunder. Landlord and Tenant shall diligently keep each other fully
informed, and each shall fully cooperate with the other and its attorneys
at all stages of any Action.
Section 26.07. Definitions:
(a) "Environmental Laws": Any applicable statute, regulation,
rule, ordinance, code, license or order of any Governmental Authority (as
such term is hereinafter defined) and all applicable judicial and
administrative and regulatory decrees, judgments and orders, relating to
the protection of public health, public safety or the environment,
including, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Sections 9601 et seq., as amended by
the Superfund Amendments and Reauthorization Act of 1986; the Resource
Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq.; the Clean
Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution
Control Act, 42 U.S.C. Sections 1251 et seq.; the National Environmental
Policy Act, 42 U.S.C. Sections 4321 et seq.; the Refuse Act, 33 U.S.C.
Sections 401 et seq.; the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. Sections 136 et seq.; the Emergency Planning and Community
Right to Know Act, 42 U.S.C. Sections 11001 et seq.; the Occupational
Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; the Hazardous
Materials Transportation Act, as amended by the Hazardous Materials
Transportation Authorization Act of 1994, 49 U.S.C. Sections 5101 et seq.;
the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. Sections 2701 et seq.; as each of these
may be amended from time to time; and any state or local analogues to any
of these statutes.
(b) "Existing Reports": The environmental reports delivered by
Tenant to Landlord or its agents and identified in Exhibit "I" hereto.
(c) "Governmental Authority": Any municipal, county, state and
federal and foreign governments, agencies, departments, authorities, both
public and quasi-public, courts, boards, bureaus, commissions and officers
of any of the foregoing.
(d) "Hazardous Substance": Any material, substance, compound,
solid, liquid or gas, or any radiation, emission or release of energy in
any form, whether naturally occurring, man-made or the product of any
process (1) which is or may under certain conditions be toxic, harmful,
hazardous or acutely hazardous to public health, public safety or the
environment, (2) which is or may be defined or regulated as a "hazardous
waste," "hazardous substance," "toxic substance," pollutant or contaminant
under any Environmental Law, (3) the use, handling, management, release,
treatment, storage, transportation or disposal of which is or may be
regulated under any Environmental Law or (4) the removal, remediation or
abatement of which is required under any Environmental Law. Hazardous
Substances include asbestos, polychlorinated biphenyls, mercury, lead,
petroleum and petroleum products and derivatives, urea formaldehyde foam
insulation and radon and other radioactive materials.
(e) "Release": Any condition, situation, circumstance or event,
relating to or arising from the release (or threatened release) of a
Hazardous Substance to the environment, or from the presence of a Hazardous
Substance at or about the Demised Premises or Common Areas, which could
serve as the basis for or element of any claim or liability under any law
or regulation or under any common law or equitable theory of recovery,
including, the presence of underground storage tanks.
(f) "Costs": Any and all damage, loss (including any diminution
in the value of the Demised Premises and/or any Shopping Center), liability
and expense (including fees incurred for the services of attorneys,
consultants, engineers, contractors, experts, laboratories, accountants and
nay other service providers) arising from or in connection with any
Environmental Law, including the following:
(1) any and all response costs, clean-up costs, repair
costs, costs of demolition and costs of rebuilding, and all other costs
incurred in connection with the investigation, clean-up, remediation or
monitoring of any Release, or violation of any Environmental Law, including
the preparation of any work plans, remedial investigations, feasibility
studies or reports, or the performance of any clean-up, remediation,
removal, abatement, containment, closure, restoration or monitoring work
required by any Governmental Authority, or reasonably necessary to make
full economic use of the Demised Premises and/or the Shopping Center or to
protect human health or the environment, or otherwise expended;
(2) any and all claims, costs and expenses of investigation
and defense of any claims, costs of satisfying a judgment on any claims,
and costs incurred settling any claims (whether or not any such claim is
ultimately upheld);
(3) any and all personal injuries or injuries to the
environment, property or natural resources occurring upon or off the
Demised Premises and/or any Shopping Center;
(4) any and all judgments, damages (including incidental,
consequential and punitive damages) lost income, foregone profits, expenses
(including litigation expenses) attorneys' fees, disbursements, expert
witness expenses, consultant fees, losses, penalties, fines, liabilities
(including strict liability and liability to any person to indemnify such
person for costs expended in connection with any Environmental Conditions
or violation of Environmental Laws), encumbrances, and liens; and
(5) any and all costs incurred in complying with any
directives of any Governmental Authority that are in whole or in part
incurred, sustained, filed, borne or brought at any time in connection with
the existence of: (i) any Environmental Conditions; or (ii) any violation
or alleged violation of Environmental Laws by any tenant or Tenant.
ARTICLE XXVII
Miscellaneous
Section 27.01. If on any occasion or occasions all or any portion of
the Rent is not paid within five (5) days after the date the same is due,
then Tenant shall pay Landlord a late charge equal to five percent (5%) of
the amount not so paid when due, such late charge to be deemed Rent for all
purposes under this Lease. Furthermore, all Rent and all other sums which
may from time to time become due and payable by Tenant to Landlord under
any of the provisions of this Lease shall, unless a different rate of
interest is specifically stated as to such obligation elsewhere in this
Lease, bear interest accruing from and after the due date thereof at the
rate of twelve and three-quarters percent (12 3/4%) per annum or at the
highest legal rate permitted under applicable law, whichever is the lower
rate.
Section 27.02. In all cases, the language in all parts of this Lease
shall be construed according to its fair meaning to carry out the parties'
intent and not interpreted strictly for or against either Landlord or
Tenant. Unless the context otherwise requires, words of any gender used in
this Lease shall be held and construed to include any other gender and
words in the singular shall be held to include the plural. Use of the terms
"hereby", "herein", "hereof" and "hereunder" shall refer to this Lease as a
whole, inclusive of the Exhibits, and not merely to the Article, Section,
paragraph or clause where such word appears, except when noted otherwise.
The word "any" means "any and all." The words "include" and "including"
shall be deemed to contain the phrase "without limitation."
Section 27.03. Subject to the provisions of this Lease, this Lease
shall be binding upon and shall inure to the benefit of the parties hereto
and their respective legal representatives, permitted successors and
assigns, and wherever a reference in this Lease is made to either of the
parties hereto such reference shall be deemed to include also, wherever
applicable and unless the intent be expressed otherwise, a reference to the
legal representatives, permitted successors and assigns of such party, as
if in every case so expressed. If Tenant consists of more than one person
or entity, the representations, warranties, covenants and obligations of
such persons and entities hereunder shall be joint and several. A separate
action may be brought or prosecuted against any such person or entity
comprising Tenant, regardless of whether the action is brought or
prosecuted against the other persons or entities comprising Tenant, or
whether such persons or entities are joined in the action. Landlord may
compromise or settle with any one or more of the persons or entities
comprising Tenant for such sums, if any, as it may see fit and may in its
discretion release any one or more of such persons or entities from any
further liability to Landlord without impairing, affecting or releasing the
right of Landlord to proceed against any one or more of the persons or
entities not so released.
Section 27.04. This Lease shall not be recorded in the public
records. A Short Form of Lease (Memorandum of Lease) referring to this
Lease shall be executed by Landlord and Tenant and may be recorded by
Tenant at its expense or if Landlord wishes to record it, Landlord may do
so at its own expense in the office of the County Recorder of the counties
in which the Demised Premises are located. The Short Form Lease shall
contain only such provisions as are required by local state law to give
sufficient notice to third parties, and all appropriate language permitted
by local state law to exculpate Landlord and the Shopping Center from
persons furnishing labor, materials or services to the Shopping Center
filing mechanics' liens and to insulate against such lien rights. Tenant
shall pay any transfer taxes, stamp taxes, recording taxes and similar
taxes payable solely in connection with the making of this Lease or the
recordation of any Memorandum of Lease and not attributable to any of
Landlord's financing.
Section 27.05. This instrument may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 27.06. Notwithstanding anything contained in this Lease,
Tenant and its successors and assigns agree that it shall look solely to
the estate and property of Landlord in the Land and Improvements for the
collection of any claims, judgments (or other judicial process) or
liabilities requiring the payment of money by Landlord or its successors or
grantees in the event of any default or breach by Landlord or with respect
to or arising out of this Lease or any of the terms, covenants and
conditions of this Lease to be observed or performed by the Landlord, and
no other assets of Landlord or Landlord's successors or Landlord's parent
corporation or Affiliates shall be subject to levy, execution or other
procedures for the satisfaction of Tenant's remedies, provided, however, if
Tenant obtains a judgment for money against Landlord which is final and
unappealable and Landlord fails to pay the judgment, Tenant shall have the
right to set off the amount of the judgment against the Basic Rent payable
by Tenant hereunder.
Section 27.07. Landlord and Tenant each covenant, represent and
warrant to the other that: (a) they did not engage or deal with any broker,
finder or any other person entitled to any fee, compensation, commission or
other remuneration or reimbursements for expenses in bringing out,
introducing or causing this Lease, the sale/leaseback transaction or any
other aspect of this Lease to be done, (b) there are no claims for
brokerage commissions or finder's fees in connection with the execution of
this Lease, the sale/leaseback transaction or any other aspect of this
Lease, and (c) each party agrees to indemnify the other against, and hold
the other harmless from, all liabilities arising from any such claim
(including the cost of counsel fees in connection therewith).
Section 27.08. In any instance where the Demised Premises shares a
party wall with an adjacent store in Landlord's Building, both Landlord and
Tenant shall share equally in the repair and replacement of such party wall
should the same be damaged by any casualty, each, however, having the
obligation to keep and repair in good order its own side of such party
wall.
Section 27.09. Headings and captions throughout this Lease and the
table of contents are inserted only as a matter of convenience and are not
to be given any effect whatsoever in construing this Lease. All exhibits,
attachments, annexed instruments and addenda referred to herein shall be
considered a part of this Lease for all purposes. Unless the context
specifically provides otherwise, all internal references to Articles,
Sections, clauses and Exhibits, shall be deemed to refer to the Articles,
Sections, clauses and Exhibits of this Lease.
Section 27.10. All indemnity and/or reimbursement obligations of the
parties under this Lease shall survive the expiration or termination of
this Lease.
Section 27.11. In any litigation or arbitration between the parties
regarding this Lease, the losing party shall pay to the prevailing party
all reasonable expenses and court costs including attorneys fees incurred
by the prevailing party. A party shall be considered the prevailing party
if: (a) it initiated the litigation or arbitration and substantially
obtains the relief it sought, either through a judgment or the losing
party's voluntary action before arbitration, trial or judgment; (b) the
other party withdraws its action without substantially obtaining the relief
it sought; or (c) it did not initiate the litigation or arbitration and
judgment is entered for either party, but without substantially granting
the relief sought.
Section 27.12. All times, wherever specified herein for the
performance by Landlord or Tenant of their respective obligations
hereunder, are of the essence of this Lease.
Section 27.13. This Lease and the Contract of Sale contain the entire
agreement between the Landlord and the Tenant and, cannot be amended or
modified except by written instrument executed by both parties hereto.
Section 27.14. No entity comprising Tenant shall be deemed to be
doing business in a state solely as a result of its execution of this Lease
if such entity is not in fact otherwise doing business and authorized to do
business in such state.
ARTICLE XXVIII
Subordination
Section 28.01. Landlord and/or any entity comprising Landlord may, at
its sole option at any time or times on or after the date of this Lease,
mortgage or grant a deed of trust (a "Mortgage) with respect to its fee
interest or its leasehold interest in the Demised Premises or the Shopping
Center or any part thereof, and the holder of the equity interest in
Landlord and/or any entity comprising Landlord may, at its sole option, at
any time or times on or after the date of this Lease, pledge its equity
interest in Landlord and/or any entity comprising Landlord, as security for
a loan (the holder of such Mortgage or pledge being herein referred to as a
"Mortgagee"), in either or any case in such amounts and on such terms as
Landlord, in Landlord's sole discretion, determines; provided, however,
that in no event shall this Lease be subject and subordinate at any time to
the lien, operation or effect of any Mortgage or any other similar
encumbrance created originally by Landlord, and any modification, extension
and renewal thereof, which may hereafter be executed by Landlord affecting
the Demised Premises or any part thereof unless Tenant has consented or
agreed to the placing of such Mortgage, modification or renewal, except
that if the proposed Mortgagee is an institutional lender (i.e. a bank,
insurance company, corporate pension fund or the like), Tenant agrees to
subordinate its interest in this Lease so long as the Mortgagee agrees to
enter into a subordination, attornment and non-disturbance agreement with
Tenant substantially in the form of such instrument attached hereto as
Exhibit "J". Any such proposed Mortgagee shall agree to enter into a
subordination, non-disturbance agreement with Tenant's subtenants who have
received or who are in the future entitled to receive a subordination,
non-disturbance agreement from Landlord pursuant to Article XIX, which
shall be in form and substance substantially similar to the non-disturbance
agreement (see Exhibit "H") delivered by Landlord previously to those
subtenants, if any, who qualify under Article XIX of this Lease as being
entitled to receive the same from Landlord.
ARTICLE XXIX
Transfer of Landlord's Interest;
Landlord's Severance Rights; Limitation of
Landlord's Liability
Section 29.01. Notwithstanding the unitary nature of this Lease,
nothing contained in this Lease is intended to prevent or restrict Landlord
from, assigning, transferring or otherwise conveying all or less than all
of Landlord's right, title or interest in and to the Shopping Centers or
this Lease. In the event of any conveyance or transfer of any Fee Title
Property or Leasehold Property by the Landlord originally named in this
Lease, and in case of any subsequent conveyances or transfers thereof by
the then Landlord, each grantor or transferor shall be automatically freed
and relieved, from and after the date of his or its transfer or conveyance,
of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to
be performed in respect of such Fee Title Property or Leasehold Property,
as the case may be, provided the grantee or transferee assumes in writing
the obligations of Landlord which will arise under this Lease from and
after the date of the transfer in respect of such Fee Title Property or
Leasehold Property, as the case may be. Any money in the hands of the
transferring Landlord at the time of such transfer in which moneys Tenant
has an interest, such as a security deposit, the payments for Impositions
pursuant to Section 4.07, if any, or insurance proceeds pursuant to Section
5.05 shall, if there not be an Event of Default by Tenant existing at the
time, be turned over (directly or indirectly) to the grantee or transferee,
it being intended that the covenants and obligations contained in this
Lease on the part of Landlord shall, with respect to any Fee Title Property
or Leasehold Property, subject as aforesaid, be binding upon Landlord and
its successors and assigns only during and in respect of their respective
successive periods of ownerships of such Fee Title Property or Leasehold
Property, as the case may be; provided, however, if the aforesaid moneys
are not turned over (directly or indirectly) to the grantee or transferee,
then the transferor shall remain liable hereunder but only to the extent of
such moneys that it has failed to turn over.
Section 29.02. Landlord may at any time and from time to time cause
this Lease to be severed as to any particular Shopping Center or Shopping
Centers so conveyed or transferred (each, a "Severed Property", and
collectively, the "Severed Properties") whether in connection with a sale
of such Severed Property or Severed Properties or otherwise. If Landlord
shall desire to sever this Lease pursuant to this Section, Landlord shall
deliver written notice (each, "Severance Notice") to Tenant not less than
ten (10) days prior to the date (each, a "Severance Date") that this Lease
shall be severed pursuant hereto with respect to the Severed Property or
Severed Properties identified in the Severance Notice. The Severance Notice
shall specify the Severed Property or Severed Properties and the Severance
Date or Severance Dates. Effective upon a Severance Date, the applicable
Severed Property shall no longer be part of the Demised Premises demised
hereunder and each such Severed Property shall be deemed to be, and shall
be, demised by Landlord to Tenant pursuant to a separate lease (a "Severed
Lease") upon the same terms and conditions as this Lease (except such
provisions as by their terms are not applicable to such Severed Property).
Effective upon the Severance Date, the Rent payable in respect to each
Severed Property severed pursuant hereto on such Severance Date shall no
longer be payable by Tenant under this Lease and shall instead be payable
under the Severed Lease applicable to such Severed Property, and the
parties shall enter into an amendment of this Lease to reflect the
severance of each Severed Property from the Demised Premises and the
reduction in Rent under this Lease equal to the Rent then payable in
respect to each Severed Property under the Severed Lease applicable to such
Severed Property. For so long as (and only for so long as) the Landlord
under this Lease shall be the landlord under a Severed Lease, any default
under such Severed Lease shall be a default under this Lease and any
default under this Lease shall be a default under such Severed Lease. The
provisions of this Section shall be effective without further action by
Landlord or Tenant. However, Landlord may and at the written request of
Tenant shall, prepare a Severed Lease with respect to each Severed Property
consistent with the provisions of this Section and the parties agree to
execute and deliver the same within ten (10) days after the later to occur
of: (a) the date the Severed Lease conforming to the requirements of this
Section is delivered to Tenant; and (b) the Severance Date. Tenant shall
cooperate with Landlord and shall execute and deliver such instruments,
agreements, certificates, returns and other documents as Landlord, any
Overlandlord, Mortgagee, any sublessee, or any other party with an interest
in the Severed Property may reasonably request in connection with the
transactions contemplated in this Section, provided the same do not
materially increase Tenant's obligations or materially decrease any
Tenant's rights under this Lease or any Severed Lease.
Section 29.03. Tenant acknowledges and agrees that the liability of
each individual or entity comprising Landlord under this Lease shall be
limited to such individual's or entity's interest in the Shopping Centers
and any judgments rendered against Landlord shall be satisfied solely out
of the proceeds of sale of its interest in the Shopping Centers. No
personal judgment shall lie against any individual or entity comprising
Landlord upon extinguishment of such individual's or entity's rights in the
Shopping Center and any judgment so rendered shall not give rise to any
right of execution or levy against Landlord's assets. The provisions hereof
shall inure to Landlord's successors and assigns including any mortgagee.
The foregoing provisions are not intended to relieve Landlord from the
performance of any of Landlord's obligations under this Lease, but only to
limit the personal liability of Landlord in case of recovery of a judgment
against Landlord; nor shall the foregoing be deemed to limit Tenant's
rights to obtain injunctive relief or specific performance or to avail
itself of any other right or remedy which may be awarded Tenant by law or
under this Lease. If Tenant claims or asserts that Landlord has violated or
failed to perform a covenant of Landlord not to unreasonably withhold or
delay Landlord's consent or approval, Tenant's sole remedy shall be an
action for specific performance, declaratory judgment or injunction and in
no event shall Tenant be entitled to any money damages for a breach of such
covenant and in no event shall Tenant claim or assert any claim for any
money damages in any action or by way of set off, defense or counterclaim
and Tenant hereby specifically waives the right to any money damages or
other remedies.
ARTICLE XXX
Limitation on Levitz's Debt
Section 30.01. Tenant hereby covenants that during the two (2) year
period (the "Restriction Period") following the date the Bankruptcy Court's
order approving the Plan of Reorganization (as defined in the Contract of
Sale) becomes a Final Order (as defined in the Contract of Sale) (the
"Reorganization Date"), no entity composing Tenant, including its parent
corporation, Levitz Furniture Incorporated (each a "Levitz Entity" and
collectively, the "Levitz Entities"), shall incur, through the Plan of
Reorganization or otherwise, unsecured funded debt ("Unsecured Debt") in
excess of Fifty Million Dollars ($50,000,000.00) (the "Unsecured Debt
Limit"); provided, however, in the event of a merger or consolidation
between any one or more of the Levitz Entities and another company (the
"Other Company") which does not result in a reduction in the pro-forma
audited tangible net worth of the company that survives the merger or
consolidation (the "Surviving Company") (which pro forma audited tangible
net worth shall be computed according to generally accepted accounting
principles consistently applied) relative to the Levitz Entities' audited
tangible net worth immediately prior to the merger or consolidation (which
audited tangible net worth shall be computed according to generally
accepted accounting principles consistently applied), the Unsecured Debt
Limit of the Surviving Company shall be increased, but only to the extent
that the ratio between the Surviving Company's EBITDA (as hereinafter
defined) and interest expense (which interest expense shall include any new
interest expense that, according to generally accepted accounting
principles consistently applied, must be reflected on the Surviving
Company's financial statements), both of which shall be calculated on a
pro-forma basis for the effects of the merger or consolidation (including
interest on any incremental debt that is acquired or proposed) for the
twelve (12) month period immediately preceding the merger or consolidation
would exceed 2:1. Tenant further covenants that neither the Plan of
Reorganization nor any loan documents evidencing the Unsecured Debt shall:
(i) obligate any Levitz Entity or the Surviving Company to repay any
principal with respect to the Unsecured Debt during the three (3) year
period following the Reorganization Date; or (ii) obligate any Levitz
Entity or the Surviving Company to pay interest at a rate in excess of
thirteen percent (13%) per annum; or (iii) obligate any Levitz Entity or
the Surviving Company to pay any interest during the first six (6) months
of the Restriction Period. Tenant further covenants that neither the
Surviving Company nor any Levitz Entity shall pay any dividends on any of
its capital stock during the Restriction Period, other than any existing
dividend obligations of the Other Company that are retained by the
Surviving Company. For purposes of this Section, Unsecured Debt shall not
include the Levitz Entities' secured working capital facility or the
Tenant's obligations under capital leases (other than this Lease, if this
Lease is determined to be a capital lease). For purposes of this Section,
"EBITDA" shall mean earnings before interest, taxes, depreciation and
amortization expenses, as determined in accordance with generally accepted
accounting principles consistently applied. Any Levitz Entities' failure to
comply with the covenants contained in this Article shall constitute an
immediate Event of Default hereunder.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the date first set forth on page 1.
LANDLORD:
LEVITZ SL HARTFORD, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
______________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PARAMUS, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
_____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL ST. PAUL, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
_____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL OXNARD, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
_____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MODESTO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PORTLAND - JOHNSON, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL PORTLAND - SCHOLLS, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SEATTLE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SACRAMENTO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL ROOSEVELT FIELD, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL WOODBRIDGE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MESA, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL MINNEAPOLIS, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL CHERRY HILL, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL FARMINGDALE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL WILLOWBROOK, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL NORTHRIDGE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL REDONDO BEACH, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SAN FRANCISCO, L.L.C., a
Delaware limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL SAN LEANDRO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL FRESNO, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
LEVITZ SL LA PUENTE, L.L.C., a Delaware
limited liability company
By: /s/ Alan R. Saposnik
____________________________________
Name: Alan R. Saposnik
Title: Vice President
ATTEST: TENANT:
LEVITZ FURNITURE CORPORATION, a Florida
corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE REALTY CORPORATION,
a Florida corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LEVITZ FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: Vice President
[corporate seal]
LEVITZ FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ Edward P. Zimmer
____________________________________
Name: Name: Edward P. Zimmer
Title: Title: President
[corporate seal]
LIST OF EXHIBITS
Exhibit "A" - Plans showing Demised Premises (Definition 9)
Exhibit "B" - Schedule of Fee Title Properties (Definition 10)
Exhibit "C" - Schedule of Leasehold Properties (Definition 19)
Exhibit "D" - Legal Description of the Land (Definition 14)
Exhibit "E" - Schedule of all Levitz Buildings Indicating the Liquidation
Values, Market Values, Floor Areas of
Warehouse/Retail/Transferred Leases for each Levitz
Building (Definitions 21 and 22)
Exhibit "F" - Schedule of Overleases (Definition 25)
Exhibit "G" - Schedule of Space Leases (Definition 30 and Section 19.03)
Exhibit "H" - Form of Non-Disturbance Agreement (Section 19.04(g))
Exhibit "I" - Schedule of Existing Reports (Section 26.07(b))
Exhibit "J" - Form of Subordination, Attornment and Non-Disturbance
Agreement (Section 28.01)
Exhibit "K" - List of Entities Comprising Landlord and the Portion of the
Demised Premises Owned by Each; List of Entities Comprising
Tenant
Exhibit "L" - Summary of Tenant's Insurance
Exhibit "A"
Plans showing Demised Premises
(Definition 9)
Exhibit "B"
Schedule of Fee Title Properties
(Definition 10)
Group #1 Redevelopment Properties:
o Portland, 13631 S. E. Johnson Rd., Milwaukie, OR 97222-1295
Group #2 Redevelopment Properties:
o Hartford, 55 Graham Place, Southington, CT 06489-1594
o Oxnard, 2420 N. Oxnard Blvd., Oxnard, CA 93030-2090
Group #3 Redevelopment Properties:
o Modesto, 1604 Sisk Rd., Modesto, CA 95350-2501
o Seattle 2, 20111 46 Ave. West, Lynnwood, WA 98036-6694
Non-Redevelopment Properties:
o St. Paul, 3201 Country Dr., St Paul, MN 55117-1096
o Portland 2, 9770 S. W. Scholls Ferry Rd.,
Tigard, OR 97223-4303
o Paramus, 545 Route 17 South, Paramus, NJ 07652-3093
Exhibit "C"
Schedule of Leasehold Properties
(Definition 19)
Group #1 Redevelopment Properties:
o Woodbridge, 429 Route 1 South, Iselin, NJ 08830-3009
o 6489-1594 o Fresno, 4525 West Shaw Ave., Fresno,
CA 93722-6208
Group #2 Redevelopment Properties:
o Cherry Hill, 1001 Church Road, Cherry Hill, NJ 08002-1299
o Northridge, 19350 Nordhoff Street, Northridge,
CA 91324-2492
Group #3 Redevelopment Properties:
o Roosevelt Field, 895 East Gate Blvd., Garden City E,
NY 11530-2199
o Minneapolis, 12301 Dupont Avenue South, Burnsville,
MN 55337-1689
o Redondo Beach, 1601 Kingsdale Ave., Redondo Beach,
CA 90278-3928
o San Francisco, 900 Dubuque Ave., San Francisco,
CA 94080-1890
Non-Redevelopment Properties:
o Farmingdale, 90 Price Parkway, Farmingdale, NY 11735-1394
o Willowbrook, 531 Route 46, Fairfield, NJ 07004-1907
o Mesa, 225 South Dobson Road, Mesa, AZ 85202-2009
o San Leandro, 3199 Alvarado St., San Leandro, CA 94577-5790
o Sacramento, 4741 Watt Ave., North Highlands, CA 95660-5515
o La Puente, 17520 E. Castelton St., City of Industry,
CA 91744-1701
Exhibit "D"
Legal Description of the Land
(Definition 14)
Exhibit "E"
Schedule of all Levitz Buildings Indicating the Liquidation Values,
Market Values, Floor Areas of Warehouse/Retail/Transferred Leases/Aggregate
for each Levitz Building
(Definitions 21 and 22)
Exhibit "F"
Schedule of Overleases (Definition 25)
Exhibit "G"
Schedule of Space Leases
(Definition 30 and Section 19.03)
MINNEAPOLIS, 12301 DUPONT AVENUE SOUTH, BURNSVILLE, MN 55337-1689
A. Sublease Agreement dated 1/15/97, by and between Levitz
Furniture Company of the Midwest, Inc. (Sublessor) and
Iron Mountain Records Management of Minnesota (Sublessee)
PARAMUS, 545 ROUTE 17 SOUTH, PARAMUS, NJ 07652-3093
A. Lease Agreement dated 4/30/98, by and between Levitz
Furniture Corporation (Landlord) and Baby Superstore, Inc.
(Tenant)
Exhibit "H"
Form of Non-Disturbance Agreement
(Section 19.04(g))
Exhibit "I"
Schedule of Existing Reports
(Section 26.07(b))
Exhibit "J"
Form of Subordination, Attornment and Non-Disturbance Agreement
(Section 28.01)
Exhibit "K"
List of Entities Comprising Landlord and the Portion of
the Demised Premises Owned by Each
Name Shopping Center
- ---- ---------------
Levitz SL Hartford, L.L.C. Hartford, 55 Graham Place,
Southington, CT 06489-1594
Levitz SL Paramus, L.L.C. Paramus, 545 Route 17 South,
Paramus, NJ 07652-3093
Levitz SL St. Paul, L.L.C. St. Paul, 3201 Country Dr., St Paul,
MN 55117-1096
Levitz SL Oxnard, L.L.C. Oxnard, 2420 N. Oxnard Blvd., Oxnard,
CA 93030-2090
Levitz SL Modesto, L.L.C. Modesto, 1604 Sisk Rd., Modesto,
CA 95350-2501
Levitz SL Portland - Scholls, L.L.C. Portland 2, 9770 S. W. Scholls Ferry
Rd., Tigard, OR 97223-4303
Levitz SL Portland - Johnson, L.L.C. Portland, 13631 S. E. Johnson Rd.,
Milwaukie, OR 97222-1295
Levitz SL Seattle, L.L.C. Seattle 2, 20111 46 Ave. West,
Lynnwood, WA 98036-6694
Levitz SL Sacramento, L.L.C. Sacramento, 4741 Watt Ave., North
Highlands, CA 95660-5515
Levitz SL Roosevelt Field, L.L.C. Roosevelt Field, 895 East Gate Blvd.,
Garden City E, NY 11530-2199
Levitz SL Woodbridge, L.L.C. Woodbridge, 429 Route 1 South,
Iselin, NJ 08830-3009 06489-1594
Levitz SL Mesa, L.L C. Mesa, 225 South Dobson Road, Mesa,
AZ 85202-2009
Levitz SL Minneapolis, L.L.C. Minneapolis, 12301 Dupont Avenue
South, Burnsville, MN 55337-1689
Levitz SL Cherry Hill, L.L.C. Cherry Hill, 1001 Church Road,
Cherry Hill, NJ 08002-1299
Levitz SL Farmingdale, L.L.C. Farmingdale, 90 Price Parkway,
Farmingdale, NY 11735-1394
Levitz SL Willowbrook, L.L.C. Willowbrook, 531 Route 46, Fairfield,
NJ 07004-1907
Levitz SL Northridge, L.L.C. Northridge, 19350 Nordhoff Street,
Northridge, CA 91324-2492
Levitz SL Redondo Beach, L.L.C. Redondo Beach, 1601 Kingsdale Ave.,
Redondo Beach, CA 90278-3928
Levitz SL San Francisco, L.L.C. San Francisco, 900 Dubuque Ave.,
San Francisco, CA 94080-1890
Levitz SL San Leandro, L.L.C. San Leandro, 3199 Alvarado St.,
San Leandro, CA 94577-5790
Levitz SL Fresno, L.L.C. Fresno, 4525 West Shaw Ave., Fresno,
CA 93722-6208
Levitz SL La Puente, L.L.C. La Puente, 17520 E. Castelton St.,
City of Industry, CA 91744-1701
List of Entities Comprising Tenant
Levitz Furniture Corporation, a Florida corporation
Levitz Furniture Realty Corporation, a Florida corporation
Levitz Furniture Company of the Midwest, Inc., a Colorado corporation
Levitz Furniture Company of the Pacific, Inc., a California corporation
Levitz Furniture Company of Washington, Inc., a Washington corporation
Levitz Furniture Company of Washington Realty, Inc., a Washington corporation
Levitz Furniture Company of the Midwest Realty, Inc., a Colorado corporation
Exhibit "L"
Summary of Tenant's Insurance
EXHIBIT 99.01
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - x
In re :
Chapter 11
Levitz Furniture :
Incorporated, et al., Case No. 97-1842 (MFW)
:
Jointly Administered
Debtors. :
- - - - - - - - - - - - - - - x
ORDER, UNDER 11 U.S.C. SECTIONS 363, 365 AND
1146(c) AND FED. R. BANKR. P. 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
Upon the motion dated April 20, 1999 (the "Motion"), the above-
captioned debtors and debtors-in-possession (the "Debtors")(1) moved for an
order under sections 363, 365 and 1146(c) of chapter 11 of title 11 of the
United States Code, 11 U.S.C. sections 101-1330 (as amended, the "Code"),
and Fed. R. Bankr. P. 6004 and 6006 (I) approving (a) the sale of the
Debtors' fee interest in certain owned properties (the "Fee Parcels"), (b)
the sale, assumption and assignment of the Debtors' leasehold interest in
certain nonresidential real properties further described in Exhibits 2 and
3 of the Agreement (the "Leases" and together with the Fee Parcels, the
"Real Estate") and (c) the sale of the personal and intangible property
located at the Real Estate (together with the Real Estate, the "Property")
to Klaff Realty, LP, Lubert-Adler Capital Real Estate Fund II, L.P.,
Lubert-Adler Real Estate Fund II, L.P., and Lubert-Adler Parallel Fund II,
L.P. or their designee(s) (collectively, the "Klaff-Adler") pursuant to a
certain contract of sale with the Debtors, attached as "Exhibit A" to the
Motion, as modified (the "Agreement"), free and clear of all liens, claims,
encumbrances, restrictions and interests, (II) authorizing the Debtors to
enter into a unitary lease with respect to the Property with Klaff-Adler
(the "Levitz Lease" and together with the Agreement, the "Sale-Leaseback
Documents") and (III) determining that the transaction pursuant to the
Sale-Leaseback Documents (the "Sale-Leaseback Transaction") is exempt from
any stamp, transfer, recording, or other similar tax; and upon a review of
the objections to the Motion filed by Continental Assurance Company, State
Farm Life Insurance Company, Aetna Life Insurance Company, State Street
Bank and Trust Company, the Estate of James Campbell, and Noridge
Associates; and after being advised of the informal objection by Fur-Fre
Associates and Fur-Cal Associates (collectively, the "Objections"); and
upon the record in these cases and the hearing on the Motion; and after due
deliberation thereon; and good and sufficient cause appearing therefor; it
is hereby
(1) Unless otherwise defined herein, all capitalized terms shall have the
meanings ascribed to them in the Agreement.
FOUND THAT:
A. Due and proper notice of the Motion has been given and no
other or further notice is required;
B. Each of the Debtors (i) is a corporation, duly organized,
validly existing and in good standing under the laws of its respective
state of incorporation and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction where a parcel of the Property is
located and (ii) subject to Court approval, has the requisite corporate
power and authority and the legal right to own, pledge, mortgage and
operate its properties, to sell (or assign the leasehold interest in) the
Property, to enter into the Agreement and the Levitz Lease;
C. The execution, delivery and performance by the Debtors of
each of the documents as part of the Sale-Leaseback Transaction are within
the corporate powers of the Debtors, have been duly authorized by all
necessary corporate action and do not (i) conflict with or result in a
breach of, or constitute a default under (except to the extent waived by
any of the Debtors' post-petition lenders), any material indenture, loan
agreement, mortgage or deed of trust or any material lease, agreement or
other instrument binding on any of the Debtors or any of their properties,
or (ii) result in or require the creation or imposition of any lien upon
any of the property of the Debtors;
D. One or more of the Debtors are the owners of the Property
and the Debtors have good, marketable and insurable fee or leasehold title
to all of the Property (subject only to the Permitted Exceptions, as
defined in the Agreement);
E. One or more of the Debtors hold the leasehold interests in
the Leases and the Leases are in full force and effect (including any
options to purchase) and no default exists thereunder with respect to any
material term, condition, covenant, payment obligation, or other
obligations thereunder, whether pre-petition or post-petition in nature, on
the part of any of the Debtors, except any event of default which exists as
a result of the filing of these bankruptcy cases and which event of default
may and shall be cured at closing of the Sale-Leaseback Transaction (the
"Closing");
F. The Levitz Lease is a "true" lease and is not a disguised
financing or other arrangement.
G. The rights to purchase certain of the properties under the
Leases have not been terminated or waived, are transferrable and may be
exercised in accordance with the terms of the respective Leases;
H. Through marketing efforts and an auction process (the
"Bidding Procedures"), the Debtors afforded interested potential purchasers
a full, fair and reasonable opportunity to make a higher and better offer
to purchase the Debtors' interests in the Property, but no higher and
better offer has been made;
I. The Debtors have exercised sound business judgment in
deciding to sell and/or assume and assign their interests in the Property
to Klaff-Adler;
J. Klaff-Adler is not an "insider" of any of the Debtors, as
that term is defined by Code section 101;
K. The Debtors and Klaff-Adler negotiated the Sale-Leaseback
Documents in good faith, without collusion, and at arm's length;
L. The purchase price (the "Purchase Price") offered by Klaff-
Adler for the Property is fair and reasonable;
M. Each entity having a security interest in the Debtors'
interest in the Property: (i) has consented to the sale of the Debtors'
interest or is deemed to have consented to the sale; (ii) holds a security
interest that is a lien and the price at which such property is being sold
is greater than the aggregate value of all liens on such property; or (iii)
each entity could be compelled in a legal or equitable proceeding to accept
a money satisfaction of such interest; and, particularly, the Term Lenders
and BT Commercial Corporation, as agent to the Lenders under the DIP
Facility, have each expressly consented to the Debtors' entering into the
Sale-Leaseback Transaction;
N. The sale and/or assumption and assignment of the Property
will reduce the Debtors' secured indebtedness and thereby facilitate the
formulation and confirmation of a reorganization plan;
O. The Debtors have, to the extent necessary, satisfied the
requirements of Code sections 365(b)(1) and 365(f) in connection with the
sale, assumption and assignment of the Leases;
P. The Debtors and Klaff-Adler have, to the extent necessary,
provided adequate assurances of future performance of the Leases, within
the meaning of Code sections 365(b)(1)(C) and 365(f)(2), by, among other
things, (i) agreeing under the Agreement that Klaff-Adler will take an
assignment of the Leases (subject to the terms of the Leases unless
otherwise modified by this Order) and (ii) requiring the Debtors to perform
the obligations under the Leases under the Levitz Lease;
Q. No default of the type described in Code section
365(b)(2)(D) exists under any of the Leases;
R. Upon the assumption and assignment of the Leases, Klaff-
Adler shall succeed to all the right, title and interest of the Debtors
under the Leases and the Debtors shall be released from any liability or
further performance under the Leases; provided, however, the Debtors will
be bound by the terms of the Levitz Lease;
S. The "Space Leases" described in exhibit 9 to the Agreement
are each in full force and effect, no Space Lease has been modified or
supplemented except (if at all) as set forth on exhibit 9 to the Agreement,
no rent has been paid more than one month in advance by any tenant, and no
tenant is entitled to any current defense, credit, allowance or offset
against rental and the information set forth in exhibit 9 to the Agreement
is true, correct and complete;
T. No "Concession Agreement" described in exhibit 10 to the
Agreement has been modified or supplemented except (if at all) as set forth
on exhibit 10 to the Agreement, no licensee is entitled to any current
defense, credit, allowance or offset against rental;
U. No tenant under a Space Lease, landlord under a Lease, party
to a Title Agreement (as that term is defined in the Agreement), or other
person has any option, right of first refusal, redemption right, or other
right to purchase any of the Property or any part thereof or interest
therein and no landlord under any Lease has any right to cancel or
terminate same or increase the rent payable thereunder by reason of any of
the transactions set forth in the Sale-Leaseback Documents;
V. The Leases described as "Overleases" in exhibit 6 to the
Agreement comprise all the Leases presently existing for any parcels
constituting the Property and each is in full force and effect, no Lease
has been modified or supplemented, except (if at all) as set forth in
exhibit 6 to the Agreement, the Debtors have delivered to Klaff-Adler true,
correct and complete copies of each instrument constituting any Lease, no
rent has been paid more than one (1) month in advance by the Debtors, and
all rent and/or additional rent due to date under any Lease has been paid,
the information set forth in exhibit 6 to the Agreement is true, correct
and complete;
W. The Debtors' entering into the Levitz Lease is an exercise
of their sound business judgment and is in the best interest of their
estates and creditors; and
X. The relief requested in the Motion is necessary and
appropriate to assist the reorganization of the Debtors' business and in
the best interests of the Debtors, their estates and their creditors;
Y. The Objections having been resolved by the Debtors and the
respective objecting parties either withdrawn or settled pursuant to this
Order; and it is therefore,
ORDERED, ADJUDGED AND DECREED THAT:
1. The Motion is granted in all respects, and the terms and
conditions of the Sale-Leaseback Documents are hereby approved.
2. One or more of the Debtors is the tenant under the Leases
and the Leases are in full force and effect.
3. The lessors under the respective Leases, having been
provided due and sufficient notice of the Motion and the terms of the
Agreement and the Levitz Lease, are hereby forever estopped from asserting
(i) that the rights and obligations under the Leases are other than as set
forth in the Leases, as identified in exhibit 6 to the Agreement, and (ii)
that one or other of the Debtors may not remain as a tenant under the terms
and conditions set forth in the Levitz Lease.
4. Pursuant to Code sections 363(b) and 365, the Debtors are
hereby authorized to sell and/or assume and assign their interest in the
Property to Klaff-Adler in accordance with the terms and conditions of the
Agreement.
5. Pursuant to Code section 363(b), the Debtors are hereby
authorized to enter into the Levitz Lease in accordance with the terms
thereof.
6. Pursuant to Code section 363(f), upon the closing under the
Agreement, Klaff-Adler's interest in the Property shall be free and clear
of (a) all mortgages, security interests, conditional sale or other title
retention agreements, pledges, liens, judgments, demands, encumbrances,
easements, restrictions, including operating covenants and financing
restrictions, rights of first refusal or charges of any kind or nature, if
any, including, but not limited to, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of
ownership (collectively, "Interests"), and (b) all debts arising in any way
in connection with any acts, or failures to act, of the Debtors or the
Debtors' predecessors or affiliates, claims (as that term is defined in the
Code), obligations, demands, guaranties, options, rights, contractual
commitments, restrictions, interests and matters of any kind and nature,
whether arising prior to or subsequent to the commencement of these cases,
and whether imposed by agreement, understanding, law, equity or otherwise
(collectively, the "Claims"), with all such Interests and Claims to attach
to the proceeds of the sale and/or assumption and assignment of the
Property in the order of their priority, with the same validity, force and
effect that they now have as against the Property, subject to any claims
and defenses the Debtors may possess with respect thereto; provided,
however, that notwithstanding anything contained herein, only Section
5.1(a) of the lease with The Estate of James Campbell ("Campbell") dated
March 1, 1979 (including the Rider and any amendments thereto, the "La
Puente Lease") shall be amended upon the assumption and assignment of the
La Puente Lease to Klaff-Alder or its designee and only to the extent of
striking and deleting "under the trade name 'Levitz Furniture'" in the
first sentence of Section 5.1(a) and the La Puente Lease shall not be
further amended, modified or changed by this Order. The Debtors shall not
be responsible to Klaff-Adler or its designee for the payment of the Cost
Reimbursement or other costs as a result of the provisio added to this
paragraph with respect to the amendment to Section 5.1(a) of the La Puente
Lease.
7. As part of the adequate assurances of future performance
under section 365(b)(1)(C) to be provided to Campbell in connection with
the assumption and assignment of the La Puente Lease and to Noridge
Associates ("Noridge") in connection with the assumption and assignment of
the lease with Noridge Associates (the "Noridge Lease"), Lubert-Adler Real
Estate Fund II, L.P. or the related entity which was represented at the
hearing as having committed capital and credit of approximately
$300,000,000 (the "Guarantor") shall issue to each of Noridge and Campbell
a guaranty, which guaranty shall (i) run through the end of the respective
current terms of the La Puente Lease and the Noridge Lease, (ii) be in a
form reasonably acceptable to the respective parties, and (iii) guaranty
the obligations under the respective Leases up to $5,000,000.
8. Pursuant to Code section 1146(c), the making, delivery,
filing or recording of any deeds, assignments or other transfer documents
(the "Transfer Instruments") of the Property, including but not limited to
the Levitz Lease, shall not be taxed under any law imposing a recording
tax, stamp tax, transfer tax or similar tax, including, without limitation,
any transfer or recordation tax applicable to deeds and/or security
interests. All filing and recording officers are hereby directed to accept
for filing or recording, and to file or record immediately upon
presentation thereof, the Transfer Instruments without payment of any such
taxes. This Court retains jurisdiction to enforce the foregoing direction.
9. Klaff-Adler is a good-faith purchaser entitled to the
protection of Code section 363(m) in the event that this Order is revised
or modified on appeal.
10. The Purchase Price for the Property is fair and reasonable
and may not be avoided under Code section 363(n);
11. Pursuant to Code section 365(k), upon the assumption and
assignment of the Leases by the Debtors to Klaff-Adler, the Debtors and
their estates shall be relieved from any and all liability for any breach
of the Leases occurring after the assignment to Klaff-Adler; provided,
however, that the Debtors will remain obligated under the terms of Levitz
Lease.
12. Other than the Court approval granted herein and,
notwithstanding anything to the contrary in any of the Leases or any other
documents or statements related to the Leases, the Debtors are hereby
authorized to enter into the Levitz Lease and the assignment and sublease
of the Property to the Debtors by Klaff-Adler under the Levitz Lease is
hereby deemed valid and enforceable against the Debtors, Klaff-Adler, all
landlords to the Leases and all other affected third parties; provided,
however, that with respect to the Leases on the Redondo Beach and Fresno
store locations respectively, the Levitz Lease (i) shall not serve to
extend the term of occupancy beyond that prescribed by the Redondo Beach
and Fresno Leases, including any option periods, and (ii) shall not permit
the Debtors or Klaff-Adler to take any action to create any mortgage, lien,
encumbrance or charge on, pledge of, or conditional sale with respect to
the leased premises in contravention of the terms of the Redondo Beach and
Fresno leases; provided further, however, that notwithstanding anything to
the contrary in this Order or in any of the documents implementing the
transactions under this Order, the Levitz Lease or any other sublease of
the premises located at 19350 Nordhoff Avenue, Northridge, California (the
"Northridge Property") shall be expressly subject to the terms and
provisions of the Lease and Sublease Agreement with Noridge Associates
dated May 1, 1972 and any amendments or modifications thereto (the "Noridge
Lease"); and provided further that nothing contained in this Order or any
of the documents implementing the transactions under this Order shall
release the Debtors from any liability they will have or may have to
Noridge Associates under applicable state law as a result of their becoming
a subtenant under the Noridge Lease pursuant to the Levitz Lease and/or as
a result of their occupancy of the Northridge Property.
13. The Debtors and Klaff-Adler and their respective officers,
employees, and agents, are hereby authorized to execute such documents and
do such acts as are necessary or desirable to carry out the transactions
contemplated by the terms and conditions of the Agreement, the Levitz Lease
and this Order, including making any necessary changes to the Sale-
Leaseback Documents so as to effectuate the modifications and alterations
set forth in this Order or as specified on the record on the hearing on the
Motion.
14. The State Farm Objection has been resolved and the Debtors
are hereby authorized to pay State Farm an amount equal to the principal
and accrued contract interest due as of the closing date for the Sale-
Leaseback Transaction (which amount is projected to be $1,948,722.75 as of
the June 2, 1999 closing date) and to set aside $265,000 from the proceeds
of the Sale-Leaseback Transaction to be held in escrow pending a resolution
of any dispute regarding the amount of State Farm's claim for accrued
default interest and attorneys' fees and costs and any funds remaining
after such resolution shall be paid to BTCC, as defined below.
15. The Debtors are authorized and directed to remit all Net
Cash Disposition Proceeds (as defined in the DIP Facility) from the
transactions authorized herein in the following order and priority: first,
to the holders of term loans (the "Term Lenders") under the Debtors'
debtor-in-possession financing agreement (the "DIP Facility") to completely
pay down and satisfy all of the Debtors' obligations (including, without
limitation, reasonable attorneys' fees and costs as provided in the DIP
Facility and any amendments thereto) under the term loans under the DIP
Facility (the "Term Loans")(the amount of such obligations to be confirmed
with and agreed to by BTCC in good faith and in accordance with the DIP
Facility), pursuant to the tenth amendment to the DIP Facility (the "Tenth
Amendment") (it being understood that such payment is to be made against
receipt by the Debtors from the Term Lenders of a fully executed "payoff"
letter in substantially the form provided by BTCC to the Term Lenders as of
the date hereof and reasonably acceptable to BTCC) and, second, to the
extent Net Cash Disposition Proceeds are remaining after satisfying the
Term Loans, to BT Commercial Corporation ("BTCC"), as agent for the lenders
under the DIP Facility, to be applied in accordance with its terms, as
amended by the Tenth Amendment. BTCC's and the Majority Term Lenders'
release of liens on and security interest in the Debtors' interest in the
Property and the Term Lenders' consent to the consummation of the Sale-
Leaseback Transaction is expressly conditioned upon the complete
satisfaction of the Term Loans, first, and BTCC's receipt of such remaining
net proceeds.
16. So long as any particular Lease is not in default with
respect to any of the obligations and covenants pursuant to the subject
Lease beyond any applicable grace periods thereunder, each fee mortgagee
for the property covering such Lease is hereby deemed to have consented to
or agreed for itself and for its successors in interest and for any
purchaser of the underlying fee interest upon a foreclosure of the
mortgage, that the tenant's possession of the premises as described in such
Lease, as said term may be extended pursuant to the terms of the Lease or
said premises may be expanded as specified in the Lease, and that the
successor in interest to the rights and obligations of the landlord
thereunder will abide by the provisions of the Lease, notwithstanding any
other provisions of such fee mortgage.
17. Upon consummation of the Sale-Leaseback Transaction, Klaff-
Adler or its designee shall have the ability to exercise any purchase
rights under the Leases in accordance with the terms of the respective
Leases.
18. All parties that have been given notice of the Motion,
including but not limited to all lessors to the Leases, parties to any
Space Leases or Concession Agreements and brokers, are hereby forever
estopped from asserting any rights contrary to the findings or provisions
set forth in this Order.
19. In the event the roof work and environmental remediation
work set forth in sections 4.8 and 4.9 of the Agreement are not completed
prior to the date of confirmation of a reorganization plan in these cases
(the "Plan"), the Plan shall provide that Klaff-Adler has an allowed super-
priority administrative claim (to the extent provided for in sections 4.8
and 4.9 of the Agreement) which claim, if any, shall have priority over any
and all administrative expenses of the kind specified in Code sections
503(b) or 507(b), except that such claims shall be subordinate to any
super-priority administrative claims of the Bank Group.
20. This Court shall retain jurisdiction to decide any disputes
arising between Klaff-Adler, all landlords under the Leases, the Debtors
and any other affected parties with respect to the Agreement, the Levitz
Lease or this Order.
Dated: Wilmington, Delaware
May 19, 1999
/s/ Mary F. Walrath
-----------------------------------
Honorable Mary F. Walrath
United States Bankruptcy Judge
