<PAGE>
Exhibit 10.50
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (the "Agreement") is made as of
March 8, 2005, by and between Levitz SL,
L.L.C. (the "Company") and Acadia
Levitz, LLC (the "Investor"). Capitalized
terms used herein but not otherwise
defined have the meaning set forth in the
Operating Agreement (as defined
below).
BACKGROUND
A.
The Company was
formed under Delaware Law on May 21, 1999.
B. The
Company operates pursuant to an operating agreement dated
May 21, 1999, as amended on June 21, 2002,
and as further amended on April 30,
2004 (collectively, the "Existing Operating
Agreement").
C. The
Investor desires to acquire a preferred membership
interest in the Company in accordance with
the term hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
contained herein, the receipt and
sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. The
Investor shall contribute $20 million to the Company in
exchange for a preferred equity interest
(the "Preferred Interest") in the
Company to be governed in accordance with
the Third Amendment to Existing
Operating Agreement (the "Third Amendment
to Operating Agreement") in the form
attached hereto as Exhibit "A". The
Existing Operating Agreement and the Third
Amendment to Operating Agreement are
collectively, the "Operating Agreement".
2.
Authorization and Closing.
(a)
Authorization. The Company has authorized the
issuance and sale to the Investor of the
Preferred Interest having the rights,
terms, covenants and preferences set forth
in the Third Amendment to Operating
Agreement.
(b) Issuance
of Preferred Interest; Contribution. Upon
the terms and subject to the conditions set
forth herein, the Company shall
issue to the Investor the Preferred
Interest in exchange for an aggregate
contribution to the Company of Twenty
Million Dollars (U.S. $20,000,000) (the
"Contribution Amount").
(c) Closing.
The closing of the contribution and
acquisition of the Preferred Interest (the
"Closing") shall take place at the
office of Klaff Realty, LP, 122 S. Michigan
Avenue, Suite 1000, Chicago, IL
60603-6116, March 8, 2005, or at such other
place or such other time or date as
the Investor and the Company may designate
(the "Closing Date"), which Closing
may be accomplished by mail.
(d) Investor
Closing Deliveries. At or prior to the
Closing, the Investor will deliver to the
Company:
<PAGE>
(i) The
Contribution Amount by wire transfer of
immediately available funds to an account
designated by the Company.
(ii)
The Third Amendment to Operating Agreement,
duly executed by the Investor.
(iii) The
Indemnity Agreement in the form attached
hereto as Exhibit "B", duly executed by
Acadia Realty Limited Partnership, and
made in favor of the L-A Members and Klaff
Realty.
(iv)
Certified resolutions from the Board of
Trustees of Acadia Realty Trust authorizing
the entering into and execution of
this Agreement by the Investor and all
other documents to be delivered in
connection with the Closing and the
transactions herein contemplated.
(v) Opinion of
counsel reasonably satisfactory
to the Company concerning due authorization
and acquisition of the Preferred
Interest by the Investor.
(vi)
Such other documents and instruments as
shall be reasonably required in order for
the Investor to consummate this
transaction in accordance with the terms
and conditions of this Agreement.
(e) Company
Closing Deliveries. At or prior to the
Closing, the Company will deliver to the
Investor:
(i) The Third
Amendment to Operating Agreement,
duly executed by the Continuing
Members.
(ii)
The Guaranty in the form attached hereto as
Exhibit "C", duly executed by the L-A
Member and the Klaff Member, and made in
favor of the Investor.
(iii)
Certified resolutions from the Voting
Members authorizing the entering into and
execution of this Agreement by the
Company and all other documents to be
delivered in connection with the Closing
and the transactions herein
contemplated.
(iv)
(1) A certified copy of the Certificate of
Formation, the limited liability company
agreement, and a good standing
certificate, each dated within thirty (30)
days of the Closing Date, with
respect to the Company and each Subsidiary
that owns or leases the following
properties: Northridge, CA, Oxnard, CA, St.
Paul, MN, Farmingdale, NY,
Milwaukie, OR and Woodbridge, NJ (each a
"Material Property" and collectively,
the "Material Properties"), and a (2) copy
of the Certificate of Formation or
Certificate of Limited Partnership, as
applicable, and the limited liability
company agreement or limited partnership
agreement, as applicable, with respect
to each other Subsidiary.
(v) A sworn
statement from an authorized
signatory on behalf of the Company made
under oath and under penalties of
perjury that the Company is not a "foreign
person" and containing such
information as shall be required by
Internal Revenue Code Section 1445(b)(2) and
the regulations issued thereunder.
2
<PAGE>
(vi)
A copy of the existing title insurance
policy for each Material Property (each, a
"Title Insurance Policy" and
collectively, the "Title Insurance
Policies"), together with an update (each, an
"Title Update" and collectively, the "Title
Updates") to each such Title Policy.
(vii) A
copy of the existing survey with respect
to each Material Property.
(viii) With
respect to each Property, all
environmental reports and any amendments or
supplements thereto (each, an
"Environmental Report" and collectively,
the "Environmental Reports").
(ix)
A
consent from the Levitz Lender (the
"Lender Consent") (1) certifying the
outstanding principal amount of the Levitz
Loan, and that to its knowledge no default
exists thereunder, and (2) consenting
to the admission of the Investor to the
Company and the other transactions
contemplated by this Agreement.
(x) Each of
the material loan documents (the
"Loan Documents") evidencing, securing or
guaranteeing the Loan and any and all
modifications or amendments thereto.
(xi)
[Intentionally Deleted].
(xii) A
true and complete copy of the Unitary
Lease and any and all other Leases (as
defined below) and any and all amendments
and modifications thereto.
(xiii) A true
and complete copy of each Overlease
and any and all amendments and
modifications thereto with respect to the
following properties: Woodbridge, NJ,
Sacramento, CA, Willowbrook, NJ, and San
Leandro, CA.
(xiv)
Opinion of counsel reasonably satisfactory
to the Investor concerning due
authorization and issuance of the Preferred
Interest by the Company.
(xv)
Such other documents and instruments as
shall be reasonably required in order for
the Company to consummate this
transaction in accordance with the terms
and conditions of this Agreement.
3.
Representations and Warranties of Company. The Company hereby
represents and warrants to the Investor
that:
(a)
Organization and Limited Liability Company Power. The
Company is a limited liability company duly
formed, validly existing and in good
standing under the laws of Delaware. Each
of the Company and the Subsidiaries
has all requisite limited liability company
power and authority or limited
partnership power and authority to own,
operate and lease its properties, to
carry on its business as currently
conducted and, subject to the Lender Consent
and the consents of the Continuing Members,
to execute and deliver this
Agreement, the Third Amendment to Operating
Agreement and any other instruments
to be delivered pursuant hereto, to carry
out the transactions contemplated by
each of this Agreement and the Third
3
<PAGE>
Amendment to Operating Agreement and to
perform all of its obligations under
this Agreement and the Third Amendment to
Operating Agreement. The copy of the
Company's Existing Operating Agreement and
the Company's Certificate of
Formation attached hereto as Exhibits "E-1"
and "E-2", respectively, are true,
correct and complete copies. The Existing
Operating Agreement has not been
altered or amended, except as shown in
Exhibit "E-1" and is in full force and
effect. There are no oral modifications,
amendments or waivers by or among the
members pertaining to the subject matter of
the Existing Operating Agreement.
The Company's obligations set forth in
Sections 4.8, 4.9 and 4.10 of the
Existing Operating Agreement have been
satisfied in full.
(b)
Authorization; No Breach. Subject to the Lender
Consent and the consents of the Continuing
Members, the execution, delivery and
performance of each of this Agreement and
the Third Amendment to Operating
Agreement have been duly authorized by the
Company. Subject to the Lender
Consent and the consents of the Continuing
Members, each of the Agreement and
the Third Amendment to Operating Agreement
constitutes valid and binding
obligations of the Company, enforceable in
accordance with its terms except as
may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar
laws relating to or limiting creditors'
rights generally and subject to the
availability of equitable remedies. Subject
to the Lender Consent and the
consents of the Continuing Members, the
execution and delivery by the Company of
this Agreement and the Third Amendment to
Operating Agreement, the offering,
sale and issuance of the Preferred Interest
hereunder and the fulfillment of and
compliance with the respective terms hereof
and thereof by the Company, does not
and shall not conflict with or result in a
breach of the terms, conditions or
provisions of, constitute a default under,
result in a violation of, or require
any authorization, consent, approval,
exemption or other action by any person or
notice to any court or administrative or
governmental body pursuant to, (1) the
organizational documents of the Company or
the Subsidiaries, (2) any law,
statute, rule or regulation to which the
Company or the Subsidiaries is subject,
or (3) any agreement, instrument, order,
judgment or decree to which the Company
or the Subsidiaries is subject, except, in
the case of subclauses (2) and (3)
above, for any conflict, result, default,
right or other requirement that could
not reasonably be expected to have a
material adverse effect on the transaction
contemplated hereby.
(c)
Capitalization and Related Matters. Exhibit" F"
attached hereto sets forth the Members of
the Company and each such Member's
Percentage Interest immediately following
the Closing. The Continuing Members
are the only Members of the Company as of
the date hereof and collectively own
100% of the Percentage Interests in the
Company.
(d)
Properties.
(i) The
Company or one of the Subsidiaries is
the sole owner of good, valid, fee simple,
marketable and insurable title to
each of those Properties listed on Exhibit
"G-1" attached hereto (collectively,
the "Fee Properties") and any and all
fixtures located at each Fee Property or
in the buildings, structures and other
improvements thereon, is in each case
free and clear of all Encumbrances, except
for Permitted Encumbrances (as
hereinafter defined). For purposes of this
Agreement, the term "Encumbrances"
shall mean any liens, mortgages, deeds of
trust, security agreements, security
interests, claims, options, rights of
4
<PAGE>
purchase or first refusal, encroachments,
rights-of-way, easements, operating
agreements, covenants, encumbrances,
reservations, orders, decrees, judgments,
leases, subleases, licenses, assignments,
agreements, charges, conditions,
restrictions, rights of others or other
matters affecting title to the
Properties after the date hereof. For
purposes of this Agreement, the term
"Permitted Encumbrances" means: (1) the
lien of current real property taxes,
ground rents, water charges, sewer rents
and assessments not yet due and
payable, (2) any matter set forth in a
Title Insurance Policy or Title Update
delivered by the Company to the Investor
pursuant to Section 2.1(e)(vi) hereof
or in the title policy for any other
Property, (3) the lien granted pursuant to
any of the Loan Documents, and (4) any
other matters described in Exhibit "H"
attached hereto affecting title to
Properties.
(ii)
(1) The Company or one of the Subsidiaries
is the holder of the lessee's interest in
each Property listed on Exhibit "G-2"
attached hereto (the "Leased Properties").
(2) The Company or one of its
Subsidiaries has a good, valid, marketable
and insurable leasehold interest in
each such Property, subject to the
Permitted Encumbrances. (3) Exhibit "G-2"
includes a description of each Overlease
and all amendments and modifications
thereto pursuant to which the Leased
Properties are leased. (4) Except for the
Permitted Encumbrances, the Company and the
Subsidiaries have not encumbered
their interests in any of the Overleases
and the Company has no actual knowledge
of any other encumbrance of such interests.
(5) Except as listed in Exhibit "I"
attached hereto, (x) to the Company's
actual knowledge, there exists no uncured
event of default by any Subsidiary or the
lessor under any Overlease, and (y)
the lessor under each Overlease has not
delivered to or received from any
Subsidiary notices of default with respect
to its Overlease which are presently
subject to a grace or cure period.
(iii)
Except for the Fee Properties listed on
Exhibit "G-1" and the Leased Properties
listed on Exhibit "G-2", and personal
property incidental to the use and
operation thereof, to the extent such
personal property is owed by the applicable
Subsidiary, the Company and the
Subsidiaries own no other property, real or
personal, tangible or intangible.
(iv)
With respect to each Property for which a
Title Insurance Policy has been delivered
pursuant to Section 2.1(e)(vi) hereof,
to the Company's actual knowledge, there
has been no material adverse change in
the state of title since the date of such
Title Insurance Policy, except as
disclosed in the Title Update for such
Property.
(v) To the
Company's actual knowledge, except as
forth in Exhibit "J" attached hereto, (1)
no part of any Property and no
improvement thereon has been damaged by
fire or other casualty or (2) is the
subject of, or is affected by, any
condemnation or eminent domain proceeding
currently instituted or pending.
(vi)
Except as set forth in the Environmental
Reports delivered to the Investor, the
Company has no actual knowledge of the
existence, deposit, storage, removal,
burial or discharge of any "Hazardous
Material" on, under or about any Property.
Hazardous Material shall mean (1)
asbestos and any chemicals, flammable
substances or explosives, any radioactive
materials (including radon), any other
hazardous wastes or substances which
have, as of the date hereof, been
determined under any applicable Federal, State
or local government law to be hazardous,
toxic or waste by the U.S.
Environmental
5
<PAGE>
Protection Agency, the U.S. Department of
Transportation, and/or any
instrumentality now or hereafter authorized
to regulate materials and substances
in the environment which has jurisdiction
over the Property ("Environmental
Agency"), (2) any oil, petroleum or
petroleum derived substance, any drilling
fluids, produced waters and other wastes
associated with the exploration,
development or production of crude oil, (3)
PDBs, (4) lead, and (5) infectious
materials, which materials listed under
items (1), (2), (3), (4) and (5) above
cause the Property (or any part thereof) to
be in material violation of any
applicable environmental laws or the
regulations of any Environmental Agency so
as to require remediation.
(vii)
Except for the Permitted Encumbrances or as
set forth in Exhibit "K" attached hereto,
no person has an option to purchase or
rights of refusal to purchase any Property
or the buildings, structures or other
improvements thereon or any part thereof or
interest therein, except as provided
herein and in the Operating Agreement.
(e) Debt.
(i) (1) With
respect to the Properties subject
to the Levitz Loan, there is no
indebtedness with respect to any such Property
or any excess cash flow or any residual
interest therein, whether secured or
unsecured, other than Permitted
Encumbrances and the permitted indebtedness
described in Section 6.8 of the original
loan agreement for the Levitz Loan. (2)
With respect to the property held by
Portland-Johnson (the "Portland-Johnson
Property"), there is no indebtedness with
respect to such property or any excess
cash flow or any residual interest therein,
whether secured or unsecured, other
than Permitted Encumbrances and Permitted
Indebtedness (as such term is defined
in Section 5.22 of the loan agreement for
the Portland-Johnson Loan).
(ii)
(1) To the Company's actual knowledge, none
of the Subsidiaries that are subject to the
Levitz Loan are in default of any of
the terms, covenants and conditions set
forth in the Levitz Loan documents, and
the Company has no actual knowledge of any
facts or circumstances which, with
the passage of time or notice or both,
would reasonably be likely to constitute
such a default. (2) To the Company's actual
knowledge, Portland-Johnson is not
in default of any of the terms, covenants
and conditions set forth in the
Portland-Johnson Loan documents, and the
Company has no actual knowledge of any
facts or circumstances which, with the
passage of time or notice or both, would
reasonably be likely to constitute such a
default.
(f) Other
Material Contracts and Commitments. Attached
hereto as Exhibit "L" is a true and
materially complete list of all contracts,
agreements, commitments and other
instruments that are in excess of One Hundred
Thousand ($100,000) Dollars in each
instance and to which the Company or any of
the Subsidiaries is a party or by which any
or all of them is or are bound as of
the date hereof (collectively, the
"Material Contracts"), including all
amendments thereto and modifications
thereof. To the Company's actual knowledge,
no party is in default in any material
respect under any of the Material
Contracts or (to the extent that it might
cause liability from and after the
Closing Date) any prior Material Contracts
to which the Company was a party or
by which it was bound (including, without
limitation, any contracts of sale and
deeds of real property).
6
<PAGE>
(g) Books and
Records. The books of account and other
records of the Company and the Subsidiaries
are in all material respects
complete and correct and have been
maintained in accordance with good business
practices.
(h) Tax
Returns. All Tax Returns (as hereinafter defined)
required by law to be filed by the Company
or the Subsidiaries on or prior to
the date of this Agreement have been filed,
and all such Tax Returns are
correct, accurate and complete in all
material respects. To the Company's actual
knowledge, the Company has paid all Taxes
(as hereinafter defined) shown on such
Tax Returns, except for any contested
Taxes, as set forth in Exhibit "M"
attached hereto. For purposes of this
Agreement (1) "Tax" or "Taxes" shall mean
any or all federal, state, local or foreign
taxes (whether in the nature of
income, franchise, transfer, gains,
profits, sales or use, withholding,
employee, excise, personal property,
customs, gross receipts or other taxes or
duties of any kind whatsoever) (other than
real property taxes, or transfer and
recording taxes, if any, payable by the
Company in connection with the
transactions contemplated by this
Agreement) and penalties, interest and fines,
with respect thereto and (2) "Tax Return"
or "Tax Returns" shall mean any
report, return or other information or
statement, or any amendment thereof,
required to be supplied in connection with
any Tax. The Company has not filed
with any governmental authority any
agreement amending the period for the
assessment of Taxes for which the Company
or its Subsidiaries may be liable. To
the actual knowledge of the Company, no
audit of any of the tax returns or
reports filed by the Company or the
Subsidiaries is in progress or is
contemplated by any governmental
authority.
(i) Insurance.
Attached hereto as Exhibit "D" are true
and correct copies of certificates with
respect to polices of property, fire,
casualty, liability, life, and/or workmen's
compensation insurance maintained by
the Company and/or the Subsidiaries. All
such policies (1) are fully paid for,
to the Company's actual knowledge, and in
full force and effect; and (2) are, to
the Company's actual knowledge, sufficient
for compliance by the Company and the
Subsidiaries, as the case may be, with all
requirements of law and with the
requirements of all agreements to which the
Company and/or the Subsidiaries are
parties. The Company has no actual
knowledge that any of the provisions of any
such insurance policy have been violated
and the Company and the Subsidiaries
have not received any notice or request
from any insurance company or Board of
Fire Underwriters (or organization
exercising functions similar thereto) that
was not complied with requiring the
performance of any work or alteration with
respect to the Properties, or any part
thereof or improvement or structure
thereon, or canceling or threatening to
cancel any of said policies or to
increase the premiums therefor.
(j)
Litigation; Bankruptcy.
(i) To the
Company's actual knowledge, except as
set forth in Exhibit "N" attached hereto,
there are no actions, suits, claims,
arbitrations, litigation, proceedings or
investigations pending against the
Company or the Subsidiaries, which, if
adversely determined, might materially
adversely affect the condition (financial
or otherwise) of business of the
Company, any Subsidiary or the condition or
ownership of any Property.
(ii)
None of the Company or any of the
Subsidiaries is now or has ever been a
debtor under any case commenced under the
United States Bankruptcy Code, or any
predecessor thereof, or any state
insolvency law, or are any such parties
taking any steps to
7
<PAGE>
commence any such bankruptcy or insolvency
proceeding nor, to the Company's
actual knowledge, is any creditor preparing
or threatening to commence any
involuntary bankruptcy or involving case
against the Company or against any
Subsidiary.
(k) Compliance
with Applicable Laws. Except as set forth
in Exhibit "O" attached hereto or in the
Environmental Reports, to the Company's
actual knowledge, the Company and the
Subsidiaries are in material compliance
with all statutes, laws, ordinances,
regulations, rules, determinations,
requirements, orders, judgments and
decrees, applicable to it or to its assets,
properties or business, including, without
limitation, all applicable federal
and state securities laws and regulations,
and all federal, state and local
statutes, laws, ordinances, regulations,
rules, requirements, orders, judgments
and decrees, including without limitation,
those pertaining to the maintaining,
operating, ownership or management of real
property, pertaining to employment
and employment practices, terms and
conditions of employment, and wages and
hours, and pertaining to safety, health,
fire prevention, environmental
protection, building standards, zoning and
other matters. Except as set forth in
Exhibit "O" or the Environmental Reports,
none of the Company or the
Subsidiaries has received any written
notice that is still outstanding from any
governmental authority having jurisdiction
over any Property to the effect that
a Property is not in compliance with
applicable laws and ordinances, including
all applicable zoning and land use laws and
ordinances (provided that a notice
shall be deemed to be "outstanding" until
the Company has paid all amounts due
and owing as a result of such
non-compliance).
(l) Leases.
Attached hereto as Exhibit "P-1" is a true
and complete list of all agreements
pursuant to which any person uses or
occupies or has the right to use or occupy,
any part of any Property, including
all amendments thereto and modifications
thereof (the "Leases"). To the
Company's actual knowledge, all of the
Leases are valid, in full force and
effect and there are no monetary or
material non-monetary defaults thereunder on
the part of tenant or the landlord
thereunder except as disclosed on Exhibit
"P-2" attached hereto. To the Company's
actual knowledge, no tenant under any
Lease has any defense, set-off or claim or
any basis for any defense or claim
for reduction, deduction or set-off against
the landlord thereunder or the rent
under any such Lease or the other
obligations owed by such tenant under such
Lease. Except as disclosed on Exhibit
"P-2", no tenant under a Lease has given
the landlord thereunder written notice of
any intent to terminate its Lease
prior to the end of its stated term or
otherwise to cease the active conduct of
the tenant's business, and no tenant has
paid any rent, additional rent or other
charge of any nature for a period of more
than thirty (30) days in advance. To
the Company's actual knowledge, there are
no brokerage or finders commissions or
other compensation or fees payable after
the date hereof by reason of the Leases
or any extensions, expansions, renewals or
modifications thereof, or that could
be due in the future, all with respect to
amounts owing or owed to any exclusive
leasing agent or pursuant to any exclusive
leasing agreement with respect to the
Leases, except as set forth on Exhibit
"P-2".
(m) Financial
Statements. A true and complete set of
unaudited financial statements of the
Company and the Subsidiaries as of
December 31, 2004, has been delivered to
the Investor and, to the Company's
actual knowledge, such financial statements
present fairly the financial
condition of the Company and of the
Subsidiaries in accordance with generally
accepted accounting principals consistently
applied, as of the date thereof. To
the Company's actual knowledge, no material
adverse change has occurred in the
financial
8
<PAGE>
condition, operation, assets or liabilities
of the Company and of the
Subsidiaries since the date of such
financial statements.
(n) Real
Estate Taxes. To the Company's actual knowledge,
there are no unpaid or outstanding real
estate or other taxes or assessments on
or against the Properties, or any part
thereof, except for real estate taxes not
yet due and payable. To the Company's
actual knowledge, there are no unpaid or
outstanding charges for water, sewer or
other utilities except those not yet due
and payable.
(o) Taxation
as Partnership. The Company has been treated
as a partnership and that the Members of
the Company as of the date hereof are
taxed as partners for federal, state, local
and foreign income tax purposes. The
Company has not filed any election pursuant
to Treasury Regulation Section
301.7701 3(c) to be treated as an entity
other than a partnership. The Company
has not elected, pursuant to Code Section
761(a) or otherwise to be excluded
from the provisions of Subchapter K of the
Code. The Company has prepared and
filed with the IRS and other necessary
taxing authorities all documents, if any,
necessary to confirm and maintain its
status as a partnership.
(p) No
Employees. The Company and each Subsidiary have no
employees.
(q)
Subsidiaries. The Company owns a limited liability
company or limited partnership interest, as
the case may be, in those
Subsidiaries and their general partners
(the "General Partners"), as applicable,
all of which are set forth on Exhibit "Q-1"
attached hereto. The only
subsidiaries that the Company has an
ownership interest in are the Subsidiaries
and the General Partners listed on Exhibit
"Q-1". As of the date hereof, the
Company has good and valid title to an
ownership interest in the percentage set
forth on Exhibit "Q-1" with respect to each
Subsidiary and General Partner free
and clear of all liens, security interests,
options, rights of first refusal and
adverse claims to title of any kind or
character, and such interests are not
subject to any agreement (other than this
Agreement) providing for the sale or
transfer thereof, except as set forth in
Exhibit "Q-2". Each of the Subsidiaries
and General Partners is duly organized,
validly existing and in good standing
under the laws of the state of its
organization, has the full and unrestricted
power and authority, corporate and
otherwise, to own, operate and lease its
properties and to carry on its business as
currently conducted. Each
Subsidiary's and General Partner's
organizational documents are in full force
and effect. The Company is not in default
of any of its obligations under any of
the Subsidiary or General Partners
organizational documents and the Company has
no actual knowledge of any other party
thereto being in default of its
obligations thereunder, except as set forth
on Exhibit "Q-3" attached hereto.
(r) Preferred
Interest. The Preferred Interest is not
subject to any lien, pledge or encumbrance
of any nature whatsoever and the
Investor is acquiring same free of any
rights to same by any other party.
(s) Property
Information. The Company has made available
to the Investor true and correct copies of
all leases and environmental, title
and survey reports for the
9
<PAGE>
Properties (collectively with the Loan
Documents and the financial statements
referred to in Section 3(t) above, the
"Transaction Documents and Information").
(t) No
Brokers. The Company is not a party to or in any
way obligated to make any payment relating
to, any contract or outstanding claim
for the payment of any broker's or finder's
fee in connection with the origin,
negotiation, execution or performance of
this Agreement or the acquisition of
the Preferred Interest by the Investor
hereunder.
(u) Legal
Counsel. The Company has been duly represented
by legal counsel
