EXHIBIT 10.2
ASSUMPTION AND AMENDMENT AGREEMENT
This Assumption and Amendment Agreement (this "AGREEMENT") is made as
of this 9th day of December 1998, by NORTHWEST PLAZA LLC, a Delaware limited
liability company, WEA CRESTWOOD PLAZA LLC, a Delaware limited liability
company, ENFIELD SQUARE LLC, a Delaware limited liability company, PLAZA XXXXXX
LLC, a Delaware limited liability company, PLAZA WEST COVINA LLC, a Delaware
limited liability company, MID RIVERS MALL LLC, a Delaware limited liability
company, WEST PARK PARTNERS, L.P., a Missouri limited partnership, CAPITAL MALL
COMPANY, a Washington limited partnership (each of the foregoing a "NEW
BORROWER" and collectively, the "NEW BORROWERS"); FOX HILLS MALL LLC, a Delaware
limited liability company, XXXXXX PLAZA LLC, a Delaware limited liability
company, PARKWAY PLAZA LLC, a Delaware limited liability company, and OAKRIDGE
MALL LLC, a Delaware limited liability company (each, an "INITIAL BORROWER" and
collectively, the "INITIAL BORROWERS"); and THE CAPITAL COMPANY OF AMERICA LLC
(together with its successors and assigns, "LENDER").
RECITALS
WHEREAS, Lender and the Initial Borrowers entered into that certain
Loan Agreement dated as of October 30, 1998 (the "LOAN AGREEMENT") with respect
to a series of loans made and to be made by Lender, subject to the terms and
conditions contained therein, in the aggregate maximum amount of up to
$850,000,000, to each of the Initial Borrowers and each of the persons that
becomes a "Borrower" under the Loan Agreement pursuant to Section 2.1.2 of the
Loan Agreement;
WHEREAS, each of the New Borrowers desires to become a Borrower
pursuant to Section 2.1.2 of the Loan Agreement; and
WHEREAS, the Initial Borrowers and the New Borrowers (each a
"BORROWER" and collectively, the "BORROWERS") desire to amend certain provisions
of the Loan Agreement.
NOW THEREFORE, in consideration of the foregoing and the Loans made by
Lender to the New Borrowers respectively, the receipt and sufficiency of which
are hereby acknowledged, and in furtherance of the terms of the Loan Agreement,
Borrowers hereby agree as follows:
1. Definitions. Capitalized terms appearing herein and not otherwise
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defined shall have the meanings ascribed to such terms in the Loan Agreement.
The term "Loan Agreement" as used in any of the Loan Documents shall be deemed
to refer to the Loan Agreement as amended by this Agreement and as it may
hereafter be amended or modified from time to time.
2. Assumption by New Borrowers. Each of the New Borrowers hereby (a)
---------------------------
makes all of the representations, warranties and covenants applicable to a
Borrower under the Loan Agreement and (b) assumes and agrees to be bound by all
of the obligations, terms and conditions of the Loan
Agreement applicable to a Borrower thereunder. Without limiting the foregoing,
each New Borrower agrees that it shall be primarily liable for its Allocable
Share of the Obligations.
3. Amendment of Schedules. Schedules 4, 5, 6, 7, 9 and 11 of the Loan
----------------------
Agreement are hereby replaced by Schedules 4, 5, 6, 7, 9 and 11 to this
Agreement, and Schedule 13 to this Agreement is hereby added as Schedule 13 to
the Loan Agreement.
4. Additional Reserves. Article IV of the Loan Agreement is amended as
-------------------
follows: (i) the phrase "Parkway Reserve #2 Fund" in the ninth line of Section
4.10 is deleted and, in its place, the phrase "Additional Reserve Funds" is
inserted, (ii) the reference to "$1,615,000" in Section 4.12(a) is changed to
$3,156,791, and (iii) Section 4.17 is deleted in its entirety and, in its place,
the following new Section 4.17 is inserted:
"4.17 Additional Reserves.
-------------------
(a) On the date hereof each Borrower identified on Schedule 13 shall
deposit with Lender the amount of the Additional Reserve listed opposite
such Borrower's name on Schedule 13 (each such deposit, an "ADDITIONAL
RESERVE FUND"); provided, however, that in lieu of any Additional Reserve
Fund, the applicable Borrower may deliver to Lender a Letter of Credit (an
"ADDITIONAL RESERVE L/C") in a face amount equal to such Borrower's
required Additional Reserve Fund.
(b) After the date hereof any such Borrower shall have the option at any
time, provided no Event of Default then exists, to deliver to Lender a
Letter of Credit in a face amount equal to the amount then in such
Borrower's Additional Reserve Fund (also, an "ADDITIONAL RESERVE L/C").
Upon delivery to Lender of any such Additional Reserve L/C, Lender shall
return to the applicable Borrower the funds then on deposit in such
Borrower's Additional Reserve Fund.
(c) If at any time the issuer of an Additional Reserve L/C ceases to be an
Approved Bank, the applicable Borrower shall, within 30 days after request
by Lender, deliver to Lender a new Additional Reserve L/C issued by an
Approved Bank (or immediately available funds in such amount for deposit
into the applicable Additional Reserve Fund), whereupon Lender shall return
the original Additional Reserve L/C in question to the applicable Borrower.
(d) If a Borrower fails to comply with the provisions of Section 4.17(c),
or if at any time an Additional Reserve L/C is not replaced or renewed at
least 30 days prior to its date of expiration, Lender may draw on such
Additional Reserve L/C and the proceeds thereof shall be deposited into the
applicable Additional Reserve Fund.
(e) If for any reason an Additional Reserve L/C shall expire without a
replacement Additional Reserve L/C having been delivered to Lender, the
applicable Borrower shall, within 5 days after demand, deliver to Lender a
new Additional Reserve L/C (or immediately available funds in such amount
for deposit into the applicable Additional Reserve Fund).
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(f) (i) Additional Reserve No. 1 shall be released to Plaza West
Covina LLC ("COVINA BORROWER") within 30 days after Covina Borrower
delivers to Lender a request therefor accompanied by a written
confirmation from the Redevelopment Agency of the City of West Covina
(the "COVINA AGENCY") reasonably acceptable to Lender that no sums are
due from Covina Borrower to Covina Agency with respect to the matters
referred to in paragraph number 5 of the estoppel letter dated
November 24, 1998 from the Covina Agency, or that the amount due with
respect to such matters is equal to or less than the then amount of
Additional Reserve No. 1 (and, in the latter case, Lender may release
such reserve by making direct payment to the Covina Agency of the
amount due it and by disbursing any balance to Covina Borrower).
Notwithstanding the foregoing, Lender may, upon prior notice to Covina
Borrower, pay over Additional Reserve No. 1 to the Covina Agency at
any time when, in the judgment of Lender, the entitlement of Covina
Agency thereto is established.
(ii) Additional Reserve No. 2 shall be released to Covina Borrower
within 30 days after the delivery by Covina Borrower to Lender of a
request therefor accompanied by an Officer's Certificate certifying
that the amount of the requested disbursement is due and payable to
Xxxxxx'x pursuant to its lease and that the requested disbursement
will be used to make such payment (or to reimburse Covina Borrower if
it has theretofore made the payment to Xxxxxx'x).
(iii) Additional Reserve No. 3 shall be released to WEA Crestwood
Plaza LLC ("CRESTWOOD BORROWER") within 30 days after the delivery to
Lender of a request therefor accompanied by written confirmation from
Sears (or if Sears is not then a Credit Entity [which term shall be
deemed to mean an entity whose senior unsecured debt is rated BBB- or
higher by Standard & Poor's], from a Credit Entity) that Sears (or
such Credit Entity) is responsible for all environmental conditions
and hazardous substances relating to the 15 hydraulic lifts in the
premises demised to Sears.
(iv) Additional Reserve #4 shall be released to Northwest Plaza LLC
("NORTHWEST BORROWER") within 30 days after the delivery to Lender of
a request therefor accompanied by written confirmation from X.X.
Penney (or if X.X. Xxxxxx is not then a Credit Entity, from a Credit
Entity) that X.X. Penney (or such Credit Entity) is responsible for
all environmental conditions and hazardous substances relating to the
two hydraulic lifts in the premises demised to X.X. Xxxxxx.
(v) Additional Reserve #5 shall be released to Northwest Borrower
within 30 days after the delivery to Lender of a request therefor
accompanied by written confirmation from Sears (or if Sears is not
then a Credit Entity, from a Credit Entity) that Sears (or such Credit
Entity) is responsible for all
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environmental conditions and hazardous substances relating to the four
hydraulic lifts in the premises demised to Sears.
(vi) Additional Reserve #6 shall be released to Northwest
Borrower within 30 days after the delivery to Lender of a request
therefor accompanied by an Officer's Certificate certifying that the
amount of the requested disbursement is due and payable to Burlington
Coat Factory Warehouse under its lease and that the requested
disbursement will be used to make such payment (or to reimburse
Northwest Borrower if it has theretofore made the payment to
Burlington).
(vii) Additional Reserve #7 shall be released to West Covina
Borrower within 30 days after the delivery to Lender of a request
therefor accompanied by evidence reasonably satisfactory to Lender
that West Covina Borrower has been unconditionally and fully released
from any and all liability, contingent or otherwise, under or with
respect to Section 2 of that certain Agreement Re Debt Service Savings
and Sales Tax Guarantee dated as of June 27, 1996 (the "SALES TAX
AGREEMENT") between CenterMark Properties of West Covina, Inc.
(predecessor in interest to West Covina Borrower) and the
Redevelopment Agency for the City of West Covina (the "WEST COVINA
AGENCY"). West Covina Borrower represents and warrants to Lender that
the Sales Tax Agreement has not been modified or amended.
(viii) Additional Reserve #8 shall be released to Enfield Square LLC
("ENFIELD BORROWER") within 15 days after the delivery to Lender of a
request therefor accompanied by (i) an Officer's Certificate
certifying that (x) a Certificate of Occupancy (as defined below) has
been issued and is in full force and effect with respect to the
building (the "Xxxx Building") being constructed on the property
demised to Interstate Connecticut Corporation ("XXXX") and (y) Xxxx'x
obligation to pay "Basic Rent" under Section 4.1 of its lease has
commenced, and (ii) a copy of such Certificate of Occupancy; provided,
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however, that, notwithstanding compliance with the foregoing
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conditions, Lender shall not be obligated to release Additional
Reserve #8 until Enfield Borrower has delivered to Lender an Officer's
Certificate certifying that Xxxx has commenced payment of "Basic Rent"
under Section 4.1 of its lease. "CERTIFICATE OF OCCUPANCY" means
either (A) a permanent certificate of occupancy or (B) a temporary
certificate of occupancy containing no conditions other than
conditions requiring the completion of typical "punch-list" items of
construction and/or other conditions reasonably satisfactory to
Lender.
(g) Notwithstanding anything to the contrary contained in
Paragraph 4(f), in no event shall Lender have any obligation to
release any Additional Reserve at any time than an Event of Default is
continuing."
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5. Additional Covenants. The following sections are added at the end of
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Article VI of the Loan Agreement:
"6.23 Enfield Square.
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(a) Enfield Square LLC (the "ENFIELD BORROWER") shall use diligent efforts
to cause May Co. and X.X. Penney to execute and deliver an amendment to the
REA for the Enfield Borrower's Collateral Property as soon as reasonably
possible (but in any event by December 1, 1999), which amendment shall
reduce the required parking to 4.5 spaces per 1,000 square feet of gross
leasable area and otherwise be reasonably acceptable to Lender in form and
substance;
(b) Within 15 days after the issuance of the Certificate of Occupancy for
the Xxxx Building, Enfield Borrower shall (a) submit an application for,
and thereafter diligently and continuously pursue the issuance of, approval
for resubdivision of the Land Swap Parcels (as such term is defined in that
certain opinion letter dated on or about the date hereof issued to Lender
by the law firm of Xxxxxxxx & Xxxxxxxx (the "Zoning Opinion")) in the
fashion contemplated in the Zoning Opinion (the "Resubdivision") and (b)
complete such additional conveyances as are necessary to assure appropriate
merger of title, also as contemplated in the Zoning Opinion. Within 30
days after the issuance of the Resubdivision approval and the passage of
any applicable appeals periods, Enfield Borrower shall cause Xxxxxxxx &
Xxxxxxxx to reissue the Zoning Opinion without any exception with respect
to compliance of the Land Swap Parcels with applicable zoning or
resubdivision laws, and otherwise in form and substance reasonably
acceptable to Lender.
6.24 Environmental Matters. Each of the Borrowers shall promptly
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comply with the recommendations described in the summary of Remedial Work
contained in Schedule 4 (which recommendations are more fully described in
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the environmental reports applicable to such Borrower's Collateral Property
prepared by the environmental consultants identified on Schedule 4).
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Without limiting the foregoing, each Borrower shall prepare and implement,
within 180 days after the date hereof, any operations and maintenance plan
applicable to such Borrower's Collateral Property and referred to in
Schedule 4)."
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6.25 West Covina. West Covina Borrower shall use commercially
-----------
reasonable efforts to obtain on or before March 31, 1999 from the West
Covina Agency and the City of West Covina a written instrument executed by
the West Covina Agency and the City of West Covina fully and
unconditionally releasing West Covina Borrower from all liability,
contingent or otherwise, under or with respect to the Sales Tax Agreement.
6. Contracts. The references to "September 10, 1998" in Section 5.1.12
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of the Loan Agreement are hereby changed to "December 1, 1998".
7. Leases. Notwithstanding the provisions of Section 6.12.1 of the Loan
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Agreement, at the specific request of any "national tenant", Landlord may enter
into a lease with such tenant the attornment provision of which provides that a
"new owner" will take subject to offsets, defenses and
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counterclaims of such tenant written notice of which was given by such tenant to
Lender prior to the date of attornment.
8. Interest Rate Cap. At Lender's request, Borrowers shall, at no out-
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of-pocket cost or expense (i.e., costs or expenses payable to third parties) to
Borrowers, enter into an amendment to the Loan Agreement which caps the Interest
Rate at a rate designated by Lender. Lender shall have no obligation to make
any such request or to enter into any such amendment.
9. Certain Guaranties. Borrowers acknowledge that, pursuant to Section
------------------
11.25 of the Loan Agreement, JCP Realty, Inc. and Xxxxxxx Associates (the
"Additional Guarantors") executed and delivered limited guaranties of payment
with respect to the Loans (the "Additional Guaranties"). Each Borrower agrees
that its obligations under the Loan Documents shall not be released, reduced,
impaired or in any way affected by reason of (i) Lender's full or partial
release of the Additional Guarantors or either of them or of the Additional
Guaranties or either of them, or (ii) Lender's waiver or modification of, or
failure to enforce or delay in enforcing, either or both of the Additional
Guaranties or any provisions thereof. Each Borrower further agrees that (i) any
determination of the value of any Collateral Properties pursuant to either of
the Additional Guaranties shall not be binding on Lender for any purpose other
than the determination of liability of the Additional Guarantors under the
Additional Guaranties and (ii) no Borrower shall be entitled to raise as a
defense to its obligations arising under the Loan Documents any provision of
either of the Additional Guaranties or any action or inaction by Lender relating
to the Additional Guaranties or either of them.
10. Miscellaneous.
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(a) All of the terms and conditions of the Loan Agreement are incorporated
herein by reference as if all such terms and conditions were set forth
herein.
(b) Each of the New Borrowers hereby agrees to execute and deliver such
other instruments as Lender may reasonably request from time to time to
confirm its joinder in and assumption of all of its obligations under the
Loan Agreement.
(c) This Agreement may be relied upon by, shall run to the benefit of and
may be enforced by Lender and its successors and assigns.
(d) This Agreement shall be governed by the laws of the State of New York
applicable to agreements executed and to be performed in New York.
(e) This Agreement cannot be modified, changed, or discharged except by an
agreement in writing signed by Borrowers and Lender.
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IN WITNESS WHEREOF each of the undersigned has caused this Agreement
to be duly executed by its duly authorized representatives as of the day and
year first above written.
NORTHWEST PLAZA LLC, a Delaware limited liability
company
By: Northwest Plaza, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
WEA CRESTWOOD PLAZA LLC, a Delaware limited liability
company
By: Crestwood Plaza, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
ENFIELD SQUARE LLC, a Delaware limited liability
company
By: Enfield Square, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
PLAZA XXXXXX LLC, a Delaware limited liability company
By: Plaza Xxxxxx, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
PLAZA WEST COVINA LLC, a Delaware limited liability
company
By: Plaza West Covina, Inc., a Delaware corporation,
its managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
MID RIVERS MALL LLC, a Delaware limited liability
company
By: Mid Rivers, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Secretary
WEST PARK PARTNERS, L.P., a Missouri limited
partnership
By: West Park Shopping Center, Inc., a Delaware
corporation, its general partner
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
CAPITAL MALL COMPANY, a Washington limited partnership
By: Capital Shopping Center, Inc., a Delaware
corporation, its managing member
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
FOX HILLS MALL LLC, a Delaware limited liability
company
By: Fox Hills Mall, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
XXXXXX PLAZA LLC, a Delaware limited liability company
By: Xxxxxx Plaza, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
PARKWAY PLAZA LLC, a Delaware limited liability company
By: Parkway Plaza, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
OAKRIDGE MALL LLC, a Delaware limited liability company
By: Oakridge Mall, Inc., a Delaware corporation, its
managing member
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
ACKNOWLEDGED AND ACCEPTED:
THE CAPITAL COMPANY OF AMERICA LLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
SCHEDULE 4
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Required Repairs and Remedial Work
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MALL AMOUNT DESCRIPTION
Fox Hills Mall $143,125 Reseal asphalt; parking structure repairs;
building exterior repairs; roof repairs; replace
rooftop HVAC; replace exterior lighting fixtures;
replace carpet and floor tiles in bathrooms;
inspect and repair elevators.
Xxxxxx Plaza $ 1,500 Remove decorative lighting on roof.
Oakridge Mall $ 12,500 Repair cement walkways and clean drains.
Parkway Plaza $120,490 Parking lot repairs and miscellaneous site work.
Capital Mall $ 17,063 Miscellaneous painting.
Plaza West Covina $ 19,375 Reseal asphalt; replace hot water heaters;
perform study on electrical system.
Plaza Xxxxxx $ 9,375 Roof repair.
Enfield Square $165,025 Site repairs; exterior window repairs; roof
repairs; replace wiring; install insulation and
plumbing system; fire protection system upgrades.
Mid Rivers Mall $ 86,563 Parking lot repair; re-caulk building exterior;
electrical system repairs.
Crestwood Plaza $ 31,500 Repair cracked concrete; roof repairs; repair
expansion joint near Sears.
Northwest Plaza $ 63,169 Repair concrete; building exterior and roof
repair.
West Park Mall $199,748 Site repairs; miscellaneous painting; roof
coating; HVAC repair.
S4 - 1
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
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FOX HILLS MALL
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(1) The dates of construction for the Cal-FED Bank (5700 Xxxxxxxxx Blvd), X X $12,500
4-story office building (6090 Xxxxxxxxx Blvd.) and 4-level parking
structure were not documented by D&M. Aqua Terra recommends that the
age of these structures be determined, and if necessary, an asbestos
investigation should be conducted to determine whether suspect ACM are
located in these areas and the condition of the suspect ACM. According
to D&M, Westfield will prepare and implement an asbestos O&M program to
manage the on-site ACM. Cost estimated at $5,000-$10,000.
(2) Westfield should work with representatives of Fox Hills Mall to X X
coordinate the disposal of approximately 600-gallons of non-hazardous
material observed during the Phase I ESA which have lost their useful
shelf life.
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TOTAL $12,500
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XXXXXX PLAZA
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(1) With respect to the two diesel fuel ASTs associated with emergency X X $ 2,500
generators (the mall emergency generator and the emergency generator
owned by Mervyn's), Westfield should take the appropriate action
regarding the construction/installation of a secondary containment
system around the mall emergency generator AST and work with
representatives of Mervyn's regarding secondary containment around
their emergency generator AST.
(2) While no leaks or stains were observed on the concrete beneath the X X
central parking area passenger elevator or the LaSalle passenger
elevator, Westfield should coordinate the repair of the oil leaks
associated with the elevator motors and encourage mall representatives
to inspect hydraulic systems on a regular basis.
(3) Westfield should ensure that the tenants with photo processing systems X
are in compliance for wastewater disposal to the sewer and storage of
hazardous materials.
(4) Westfield should improve housekeeping practices in the trash compactor X
areas so that potential hydraulic oil leaks are more easily detected.
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TOTAL $ 2,500
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OAKRIDGE
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S4 - 2
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
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(1) Prepare and implement an Operations & Maintenance Plan to deal with X X $12,500
asbestos containing materials remaining on the subject property.
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TOTAL $12,500
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PARKWAY PLAZA
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(1) Bulk hazardous materials, such as the 55-gallon drums of diesel, need X X $ 1,250
to be stored within a secondary containment unit to prevent potential
leakage or spillage to the ground surface. Westfield needs to take the
appropriate action regarding the construction/installation of a
secondary containment system in the storage area.
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TOTAL $ 1,250
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PLAZA XXXXXX
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(1) Prepare and implement an Operations & Maintenance Plan to deal with X X $12,500
asbestos containing materials remaining on the subject property.
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TOTAL $12,500
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PLAZA WEST COVINA (MISSING D&M REPORT)
--------------------------------------
(1) The subject property and surrounding area are part of a USEPA NPL X
Region of known groundwater contamination. Volatile organic compounds
(VOCs) have been identified in local groundwater xxxxx. Given that the
subject property has not utilized VOCs on-site in the past and is
therefore not a potential source of contamination, and that the subject
property is not among the identified responsible parties for this NPL
Region, D&M concludes that it is not likely that the subject property
will be held responsible for any of the investigation and remedial
costs of the site. AquaTerra concurs but recommends that the owners of
the subject property remain in contact with the USEPA and monitor the
files regarding the investigation and remedial activities in progress.
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S4 - 3
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
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(2) Asbestos-containing materials were not addressed in this report. Given X $12,500
the construction date of buildings located on the eastern portion of
the subject property (1993), it is not likely that asbestos-containing
materials exist in these areas. However, the western portion of the
subject property was developed in 1975. AquaTerra recommends that an
asbestos survey be performed in these areas in order to identify
friable and non-friable asbestos-containing materials, to quantify the
materials and to evaluate their condition. According to D&M, Westfield
will conduct an asbestos survey for the portion of the mall constructed
in 1975 and also implement an asbestos O&M program to manage the
on-site ACM.
(3) Chemical staining was identified by D&M around the silver recovery unit X
by Ritz Camera. According to site representatives, this unit has
leaked in the past. D&M states that Westfield will contact the tenants
to clean the stained areas and repair the silver recovery unit to avoid
future leaks, spills and damage to lower level stores. Also, oil
staining was identified on the concrete floor around a hydraulic trash
compactor on-site. D&M states that Westfield will have the compactor
repaired.
(4) Pad-mounted transformers were identified on-site. According to D&M, X
these transformers are owned and the responsibility of Southern
California Edison (SCE), who has verified that the transformers do not
contain PCBs. However, minor oil staining was identified on the
concrete floor around one of the transformers on-site. According to
D&M, the mall manager will contact the utility company to repair or
replace the transformer.
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TOTAL $12,500
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ENFIELD SQUARE
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(1) Westfield should continue to monitor the status of the work being X X
performed on the adjacent gasoline station site.
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S4 - 4
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
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(2) The date of construction for the maintenance building was not X X $12,500
documented by D&M. AquaTerra recommends that the age of this structure
be determined, and if necessary, an asbestos investigation should be
conducted to determine whether suspect ACM are located in this building
and the condition of the suspect ACM. When the useful life of the
Hypalon roof is exhausted, the owners of the subject property will be
required to remove roofing materials to the steel deck and dispose of
the asbestos containing materials appropriately. When floor tile that
contains asbestos becomes damaged or renovations are planned, an
asbestos abatement contractor should be hired to perform appropriate
abatement. During the interim, an asbestos Operations & Maintenance
(O&M) Plan should be implemented whenever building operations may
impact asbestos containing materials. The estimated cost for the
preparation of an O&M Plan by D&M is between $5,000 and $10,000. The
estimate by Aqua Terra to implement an O&M program to manage the areas
of ACM in-place is $500.
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TOTAL $12,500
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CRESTWOOD PLAZA
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(1) Mall management needs to contact an elevator maintenance company and a X X
solid waste removal company to repair leaking hydraulic systems and
encourage mall representatives to inspect said hydraulic systems on a
regular basis as a part of an on-going maintenance program.
Additionally, AquaTerra recommends that the staining from the leakage
be cleaned.
(2) Used car batteries are stored on wooden pallets at the Sears Automotive X
Center on-site. According to D&M, the concrete floor was observed to
be pitted in this area. D&M did not observe soils in the area of the
battery storage area. AquaTerra recommends better housekeeping
practices be implemented to prevent the battery storage area from
developing into an issue of concern.
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(3) Prepare and implement an Operations & Maintenance Plan to deal with X X $12,500
asbestos containing materials remaining on the subject property.
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TOTAL $12,500
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MID RIVERS MALL (NO ENVIRONMENTAL ISSUES NOTED)
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TOTAL $ 0
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NORTHWEST PLAZA
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(1) On September 2, 1998, Sears submitted a work plan for corrective action X X
to MDNR, which was
S4 - 5
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
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approved. Westfield should monitor the progress/status of the work plan
being implemented by Sears.
(2) With respect to ASTs observed in the Firestone Service Center, X X $ 2,500
Westfield should work with representatives of Firestone regarding the
installation of secondary containment around their two ASTs.
(3) D&M observed staining beneath two of the six on-site trash compactors. X
D&M states that the compactors are located on concrete and the stained
areas are limited to the concrete surrounding the compactors.
AquaTerra recommends that better housekeeping practices be implemented.
(4) Prepare and implement an Operations & Maintenance Plan to deal with X X $12,500
asbestos containing materials remaining on the subject property.
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TOTAL $15,000
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S4 - 6
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[LOGO OF CAPITAL AMERICA APPEARS HERE] SCHEDULE 4 (CONTINUED) SUMMARY OF REMEDIAL WORK
DAMES AQUA
& XXXXX XXXXX AMOUNT
----------------------------------------------------------------------------------------------------------
WEST PARK MALL
--------------
(1) The storage protocols for the waste oil in the maintenance area should X X
be upgraded and existing spillage should be cleaned up.
(2) Prepare and implement an Operations & Maintenance Plan to deal with X X $ 12,500
asbestos containing materials remaining on the subject property.
----------------------------------------------------------------------------------------------------------
TOTAL $ 12,500
----------------------------------------------------------------------------------------------------------
CAPITAL MALL
------------
(1) The Puget Power electrical transformer located near the SWC of the mall X X $ 0
building appears to be leaking. Puget Power should be contacted to
confirm the transformer does not contain PCBs and to immediately repair
the transformer. Puget Power owns the transformer and is reportedly
responsible for the maintenance.
(2) Prepare and implement an Operations & Maintenance Plan to deal with X X $ 12,500
asbestos containing materials remaining on the subject property.
----------------------------------------------------------------------------------------------------------
TOTAL $ 12,500
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
GRAND TOTAL $118,750
----------------------------------------------------------------------------------------------------------
==========================================================================================================
S4 - 7
SCHEDULE 5
----------
Organizational Charts
---------------------
S5 - 1
[ORGANIZATIONAL CHART HAS BEEN OMITTED.
AVAILABLE UPON WRITTEN REQUEST OF THE COMPANY]
SCHEDULE 6
----------
Replacement Reserve Fund
------------------------
Fox Hills Mall $8,719/month
Xxxxxx Plaza $15,086/month
Oakridge Mall $13,273/month
Parkway Plaza $9,911/month
Capital Mall $8,389/month
Plaza West Covina $8,907/month
Plaza Xxxxxx $10,163/month
Enfield Square $30,721/month
Mid Rivers Mall $7,265/month
Crestwood Plaza $16,251/month
Xxxxxxxxx Xxxxx x00,000/xxxxx
Xxxx Xxxx Xxxx $18,201/month
S6 - 1
SCHEDULE 7
----------
Material Contracts
------------------
----------------------------------------------------------------------------------------------------
MALL TYPE OF CONTRACT TERMS OF CONTRACT EXPIRATION
----------------------------------------------------------------------------------------------------
Fox Hills Mall Merchants Building 30 days' written notice 2/18/99
Maintenance with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Centre Scapes 30 days' written notice 9/30/99
Landscaping (exterior) with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Professional Security 30 days' written notice. 10/6/00
Consultants
----------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxx Contract to be terminated 1/31/99
Elevator Maintenance in writing by owner and by
an officer and the
contractor
----------------------------------------------------------------------------------------------------
Xxxxxx Plaza Merchants Building 30 days' written notice 11/25/98
Maintenance with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Brookwood Landscape 30 days' written notice 1/1/99
Landscaping with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
EDCO Trash one year Renews every March 1st
----------------------------------------------------------------------------------------------------
Marcel's Power 30 days' written notice 1/1/99
Parking Lot Sweeping with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Oakridge Mall Shrine Maintenance Inc. 30 days' written notice 9/30/99
with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
S7-1
----------------------------------------------------------------------------------------------------
MALL TYPE OF CONTRACT TERMS OF CONTRACT EXPIRATION
----------------------------------------------------------------------------------------------------
Landscape Management 30 days' written notice 12/31/98
Landscaping (exterior) with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Crystal Springs 30 days' written notice 3/31/00
Landscape Company with 48 hours written
Landscaping (interior) notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Universal Sweep 30 days' written notice 3/31/00
Parking Lot Sweeping with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Parkway Plaza Merchants Building 30 days' written notice 2/23/99
Maintenance with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Brookwood Landscape 30 days' written notice 12/31/98
Landscaping (exterior) with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Professional Security 30 days' written notice. 9/25/00
Consultants
----------------------------------------------------------------------------------------------------
Universal Refuse City Contract no term
Removal
----------------------------------------------------------------------------------------------------
Crestwood Plaza Interstate Cleaning written notice of 1/14/2000
Corporation termination.
Maintenance
----------------------------------------------------------------------------------------------------
Professional Security may be canceled by either 1/14/00
Consultants party without cause by
giving 30 day notice of
cancellation in writing.
----------------------------------------------------------------------------------------------------
Xxxxxxx Controls 30 days' written notice. 12/31/98
Air Conditioning
Maintenance
----------------------------------------------------------------------------------------------------
BioLogix Cleaning 8/31/98
----------------------------------------------------------------------------------------------------
Enfield Square The Slanetz Corp - 1/31/99
Snow Removal
----------------------------------------------------------------------------------------------------
S7-2
----------------------------------------------------------------------------------------------------
MALL TYPE OF CONTRACT TERMS OF CONTRACT EXPIRATION
----------------------------------------------------------------------------------------------------
Interstate Cleaning may be canceled by either 1/31/00
Corporation - party without cause by
Maintenance giving 30 day notice in
writing
----------------------------------------------------------------------------------------------------
Spectaguard may be canceled by either 8/7/99
Acquisition party without cause by
LLC giving 30 day notice in
writing
----------------------------------------------------------------------------------------------------
Mid Rivers Mall The Xxxxxxxx Group 30 days' written notice 12/31/98
Landscape Maintenance
----------------------------------------------------------------------------------------------------
Interstate Cleaning 30 days' written notice 1/31/99
Corporation
Maintenance
----------------------------------------------------------------------------------------------------
Security 30 days' written notice 3/14/00
----------------------------------------------------------------------------------------------------
Property Services, Inc. 30 days' written notice 10/14/00
(snow removal)
----------------------------------------------------------------------------------------------------
Northwest Plaza ICC-Maintenance 30 day written notice of 1/31/00
termination
----------------------------------------------------------------------------------------------------
IPC International - month to month 1/31/99
Security
----------------------------------------------------------------------------------------------------
Xxxx Elevator/Escalator 30 days' written notice 8/23/99
Service
----------------------------------------------------------------------------------------------------
Xxxxxxxx Group 30 days' written notice 11/30/98
Exterior Landscaping
----------------------------------------------------------------------------------------------------
Plaza Xxxxxx Professional Security 30 days' written notice by 1/31/00
Consultants-Security either party
----------------------------------------------------------------------------------------------------
Interstate Cleaning may be canceled by either 9/30/99
Corporation - party without cause by
Maintenance giving 30 day notice in
writing
----------------------------------------------------------------------------------------------------
Brookwood Landscape, may be canceled by either 9/30/99
Inc.-Landscaping party without cause by
giving 30 day notice in
writing
----------------------------------------------------------------------------------------------------
Xxxxxxxxxx 10/31/00
Elevator/Escalator
Service
----------------------------------------------------------------------------------------------------
Plaza West Covina Professional Security Contractor shall promptly 3/7/00
Consultant-Security take all action necessary to
fully comply with the
terms within 24 hours
after written notice
----------------------------------------------------------------------------------------------------
S7-3
----------------------------------------------------------------------------------------------------
MALL TYPE OF CONTRACT TERMS OF CONTRACT EXPIRATION
----------------------------------------------------------------------------------------------------
Interstate Cleaning 30 days' written notice 6/30/99 and 6/30/00
Corporation
Maintenance
----------------------------------------------------------------------------------------------------
Centre Scapes, Inc. - Contractor shall promptly 5/31/99
Landscaping take all action necessary to
fully comply with the
terms within 24 hours
after written notice
----------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxx- month to month
Elevator/Escalator
Service
----------------------------------------------------------------------------------------------------
West Park Mall Cummins Contracting 5 days written notice by 6/30/99
(Landscaping) either party without cause.
----------------------------------------------------------------------------------------------------
MMANTEC, Inc. 30 day written notice of 11/30/98
Housekeeping termination with 48 hours
written notice of intent to
terminate
----------------------------------------------------------------------------------------------------
Capital Mall Xxxxxxxxxxx Building 30 days' written notice 12/99
Services-Maintenance with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Landscape Services 30 days' written notice 4/99
Landscaping (exterior) with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
Interiorscapes 30 days' written notice 4/99
Landscaping (interior) with 48 hours written
notice of intention to
exercise right of
termination.
----------------------------------------------------------------------------------------------------
S7-4
SCHEDULE 9
----------
Specified Agreements
--------------------
XXXXXXXX XXXX
Xxxx
XXXXXXX XXXXX
Xxxx.
XXXXXX XXXXX
0. Second Amended Disposition and Development Agreement dated 11/2/81
between the Redevelopment Agency of the City of San Diego and Xxxxxx
X. Xxxx, Inc. (predecessor in interest to Borrower), all subsequent
amendments and supplements thereto and various Implementation
Agreements related thereto.
2. Payment Agreement dated October 18, 1982 between the Redevelopment
Agency of the City of San Diego and EWH 1979 Development Company, L.P.
(predecessor in interest to Borrower), as amended 12/18/87, 6/10/93
and 11/21/95.
FOX HILLS MALL
1. Participation Agreement dated 8/19/96 between H, B-H Associates
(predecessor in interest to Borrower), Xxxxxx City Redevelopment
Agency and Broadway Stores, Inc. (now Macy's).
2. Participation Agreement dated 12/19/96 between H, B-H Associates
(predecessor in interest to Borrower) and Xxxxxx City Redevelopment
Agency.
3. Disposition and Development Agreement (Xxxxxxx-Xxxxxxxxx Redevelopment
Project) dated 6/26/72 between Xxxxxx City Redevelopment Agency and H,
B-H Associates (predecessor in interest to Borrower) and all
subsequent amendments and supplements thereto.
XXXXXXXX XXXX
Xxxx
XXXXXXX XXXX
Xxxx
X0-0
NORTHWEST PLAZA
None
CRESTWOOD PLAZA
None
ENFIELD SQUARE
None
MID RIVERS MALL
None
PLAZA XXXXXX
None
THE PLAZA AT WEST COVINA
Owner Participation Agreement dated as of April 9, 1990 between The
Redevelopment Agency of the City of West Covina (the "Agency") and CenterMark
Properties of West Covina, Inc. (predecessor in interest to Borrower) and all
subsequent amendments and supplements thereto.
Agreement Re: Debt Service Savings and Sales Tax Guarantee dated as of June 27,
1996 between the Agency and CenterMark Properties of West Covina, Inc.
S9-2
SCHEDULE 11
-----------
Undelivered Documents
---------------------
FOX HILLS MALL
X.X. Xxxxxx Separate Agreement.
XXXXXX PLAZA
None.
PARKWAY PLAZA
None.
OAKRIDGE MALL
Xxxxxxxxxx Xxxx
---------------
1. Letter Agreement dated as of June 24, 1986 from Xxxxxxx Xxxx to
Xxxxxxxxxx Xxxx.
2. Letter Agreement dated May 15, 1982.
NORTHWEST PLAZA
X.X. Penney
-----------
1. Letter Agreement dated December 11, 1987.
2. Letter Agreement dated May 3, 1996.
CRESTWOOD PLAZA
None.
ENFIELD SQUARE
None.
XXXXX XXXXXX XXXX
Xxxx.
XXXXX XXXX XXXXXX MALL
REA
---
Supplement to Management Agreement.
S11-1
MID RIVERS MALL
REA
---
May Company Supplemental Letter Agreement dated November 1, 1996.
WEST PARK MALL
REA
---
1. Guaranty dated March 20, 1982 from Developer's predecessor in interest
to SERSO.
2. Condemnation Award Agreement dated March 30, 1982 between SERSO and
Developer's predecessor in interest.
3. Agreement for Tax Payment dated March 30, 1982 between SERSO and
Developer's predecessor in interest.
4. Common Area Indemnity dated March 30, 1982 from SERSO to May
Department Stores, including Indemnity from Developer's predecessor in
interest to SERSO dated April 29, 1982.
5. Demand and Authorization for Tax Payment dated March 30, 1982 between
Developer's predecessor in interest and X.X. Xxxxxx.
CAPITAL MALL
None.
S11-2
SCHEDULE 13
-----------
Borrower Additional Reserve # Additional Reserve Amount
-------- -------------------- -------------------------
Plaza West Covina LLC No. 1 $1,100,000
Plaza West Covina LLC No. 2 $ 344,811
WEA Crestwood Plaza LLC No. 3 $ 225,000
Northwest Plaza LLC No. 4 $ 30,000
Northwest Plaza LLC No. 5 $ 60,000
Xxxxxxxxx Xxxxx XXX Xx. 0 x0,000,000
Xxxxx Xxxx Xxxxxx LLC No. 7 $2,900,000
Enfield Square LLC No. 8 $7,316,360
S13-1
