Eagle Food Ctr Bankruptcy NoticDAVID W. LEIFKER LAW OFFICES
IOWA OFFICE
DUBUQUE BUILDING
700 LOCUST ST STE 701
DUBUQUE, IOWA 52001-6824
TELEPHONE (563) 557-1354
FAX (563) 557-5086
WISCONSIN OFFICE
EAGLES BLUFF
1000 WHISPERING LANE
HAZEL GREEN, WISCONSIN 53811
TELEPHONE (608) 748-4740
Mayor Terry Duggan and
City Council Members
Dubuque City Council
City Hall
50 West 13th St
Dubuque, IA 52001
September 12, 2003
RE: Eagle's Closing Elm Street Store
Dear Mayor Duggan and Council Members:
Th~ closing of the Eagle's Elm Street Store will cause a
significant hardship for many of the residents of that area. A
lot of them do not have cars and usually have to walk to Eagles
for their groceries. There are also several facilities in the
Point and Northend areas where elderly persons reside, who do
their shopping at Eagle's Elm Street Store.
I would ask that the City staff use at least the same effort it
has in the past for various economic developments to secure a new
supermarket at the Elm Street site. I would also ask that you
try to get a first class operation rather then some type of bent
can/poor selection discount store. The people, who shop in the
area, deserve better than that.
Finally, while I live in Wisconsin now, I spent most of my
childhood living in the 18th Street neighborhood. Also, I still
shop at the 18th street storeon~ty/~Occa on.
David W. L~fker
1000 Whis~ring Ln
Hazel Green, WI 53811
608-748-4740
DWL:tak
cc: Telegraph Herald - Letters To Editor
IN THE UNITED STATES BANKRUPTCY COURT
FOR 'I'HE NORTHERN DISTRICT OF ILLINOIS
EASTERN DMSION
)
Inre: )
)
EAGLE FOOD CENTERS, INC., )
et .. )
)
Debtors. )
Case NoJ 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
Hearing Date: September 30, 2003
Hearing Time: 11:00 a.m. (CenWal Time)
Obj. Deadline: September 26, 2003
NOTICE OF MOTION
PLEASE TAKE NOTICE THAT, on September 30, 2003, we shall appear
before the Honorable Pamela S. Hoilis, United States Bankruptcy Judge, Everett McKinley
Dirksen Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, Courtroom 644, and
then and there present the Debtors' Motion for an Order (I) in Furtherance of Order
Pursuant to (i) 11 U.S.C. § 327 Authorizing and Approving the Retention of Grafe
Auction Company, Inc. as Liquidating Agent and (ii) 11 U.S.C. §§ 105 and 363 Approving
the Sale of Certain Furniture, Fixtures and Equipment Without Further Court Approval,
Entered on June 27, 2003, Approving Retention of Grafe Auction Company, Inc. to Serve
as Equipment Liquidating Agent for up to 12 Additional Stores (the "Motion").
PLEASE TAKE FURTHER NOTICE THAT, in accordance with the Order
Pursuant to 11 U.S.C. §§ 102 and 105(a), Bankruptcy Rules 2002(m) and 9007, and Local
Rules, 101,400, and 402 Establishing Omnibus Hearing Dates and Certain Notice, Case
Management and Administrative Procedures, dated April 7, 2003 (Docket No. 51) (the "Case
Management Order"), the deadline for filing and serving an objection to the Motion is
September 26, 2003. Any objection or other responsive pleading must be filed and served in
accordance with the Case Management order and if such responding party intends to introduce
evidence or witnesses, it must identify with reasonable particularity and provide appropriate
notice of its proposed evidence and witnesses in accordance with the Case Management order,
a copy of which can be retrieved at www.ilnb.uscour~s.gov or will be provided upon wr/tten
request to the Debtors' counsel.
Dated: September 19, 2003
Eagle Food Centers, Inc., et al.
John Wm. B-i-~, Jr.t(Al~)C No. 06209373)
George N. P~hiagakis (AP, DC No. 06205271)
Run Meisler (ARDC No. 06270262)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM (ILLINOIS)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606-1285
(312) 407-0700
Attorneys for the Debtors and
Debtors-in-Possession
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
et _. )
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
Heating Date: September 30, 2003
Hearing Time: 1 I:00 a.m. (Central Time)
Obj. Deadline: September 26, 2003
MOTION FOR AN ORDER (I) IN FURTHERANCE OF ORDER
PURSUANT TO (i) 11 U.S.C. § 327 AUTHORIZING AND APPROVING THE
RETENTION OF GRAFE AUCTION COMPANY, INC. AS LIQUIDATING
AGENT AND (ii) 11 U.S.C. §§ 105 AND 363 APPROVING THE SALE OF
CERTAIN FURNITURE, FIXTURES AND EQUIPMENT WITHOUT
FURTHER COURT APPROVAL, ENTERED ON JUNE 27, 2003,
APPROVING RETENTION OF GRAFE AUCTION COMPANY, INC. TO
SERVE AS EQUIPMENT LIQUIDATING AGENT FOR
UP TO 12 ADDITIONAL STORES
Eagle Food Centers, Inc. ("Eagle Foods") and four of its subsidiaries
and affiliates (the "Affiliate Debtors"), the debtors and debtors-in-possession in the
above captioned cases (collectively, the "Debtors"), hereby move (the "Motion") this
Court for entry of an order substantially in the form of the proposed order attached
hereto as Exhibit A, pursuant to Sections 105, 327 and 363 of Title 11 of the United
States Code, 11 U.S.C. §§101, et seq., as amended (the "Bankruptcy Code") and the
De Minimis Sale Order (as defined herein), in furtherance of Order Pursuant to (I) 11
U.S.C. § 327 Authorizing and Approving the Retention of Grafe Auction Company,
Inc. as Liquidating Agent and (1I) 11 U.S.C. §§ 105 and 363 Approving the Sale of
Certair~ Fumiture, Fixtures and Equipment Without Further Court Approval (the
"Gmfe Retention Order"), entered on June 27, 2003, approving the retention of Grafe
Auction Company, Inc. ("Grafe") to serve as equipment liquidating agent for up to 12
additional stores. In support of this Motion, the Debtors respectfullyrepresent as
follows:
BACKGROUND
The Chapter 11 Filings
1. On April 7, 2003 (the "Petition Date"), each of the Debtors filed a
voluntary petition in this Court for reorganization relief under chapter 1 t of title 11
of the United States Code, 11 U.S.C. §§ 101-1330 (as amended, the "Bankruptcy
Code"). The Debtors continue to operate their business and manage their properties
as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy
Code. The Court has entered an Order for joint administration of these chapter 11
cases.
2.
On April 15, 2003, the United States Trustee appointed an official
committee of unsecured creditors (the "Creditors' Committee") in these cases. No
trustee or examiner has been appointed.
3. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§
157 and 1334. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. This
matter is a core proceeding pursuant to 28 U.S.C. § 157(1>)(2).
4. The statutory predicates for the relief requested herein are sections
105, 327 and 363 of the Bankruptcy Code.
B. Current Business Operations of the Debtors
5. As of the Petition Date, Eagle Foods and four of its subsidiaries and
affiliates~ operated a regional supermarket chain consisting of 61 supermarkets in
northern and central Illinois and eastern Iowa, 60 of which operate under the trade
name "Eagle Country Market" and one which operates under the trade name
"BOGO's." The Eagle Country Markets offer a full line of groceries, meats, fresh
produce, dairy products, delicatessen and bakery products, health and beauty aids and
other general merchandise end, in certain stores, service seafood, prescription
medicine, video rental, floral service, in-store banks~ dry-cleaners and coffee shops.
The BOGO's store offers a limited assortment of approximately 2,000 stock-keeping
units of groceries, produce, meat, health and beauty aids, and general merchandise.
6. The Debtors' corporate headquarters and distribution center are
located in Milan, Illinois. The Debtors supply approximately 75% of their stores'
inventory from the distribution center, with the stores' remaining inventory delivered
directly from vendors.
7. As of the Petition Date, the Debtors employed approximately 3,550
people, 43% of whom are employed on a full-time basis. Approximately 3,300 of
the Debtors' employees are urnonized, represented by the Un/ted Food and
Eagle Foods also wholly owns Talon Insurance Company, Inc. ("Talon"), a
Vermont corporation, which was established as Eagle Foods' captive
insurance company. Talon is not a debtor in these cases.
3
Commercial Workers ("UFCW") and the International Brotherhood of Teamsters
("IBT") pursuant to 15 collective bargaining agreements (collectively, the "Collective
Bargaimng Agreements") with seven separate local tmions of the UFCW and IBT.
C. Events Leading to the Chapter 11 Filings
8. Eagle Foods emerged from chapter 11 approximately 3 years ago,
following the completion of a largely pre-negotiated financial restructuring. As a
result of that restructuring, Eagle Foods' capital structure is currently comprised of(i)
a $50 million revolving credit facility (the "Prepetifion Facility") with Congress
Financial Corporation (Central) ("Congress"), of which approximately $26 million is
outstanding as of the Petition Date, (ii) a $85,000,000 bond issue of 11% Senior
Notes that are due April 15, 2005 (the "Senior Notes"), of which approximately $64
million in principal is still outstanding and (iii) 3.1 million shares of common stock,
outstanding as of February, 2003.
9. Since its initial restructuring efforts, Eagle Foods has faced new
threats from increased competition, rising costs in connection with its unionized
labor, significant cash outlays to cover interest expense from its outstanding Senior
Notes, and recessionary economy. As a result, Eagle Foods' overall cost of doing
business increased and the company is now facing a liquidity crisis.
10. In addition, due to adverse conditions, during the third fiscal quarter
of 2002, Eagle Foods became concerned that it may violate a covenant under its
Prepetition Facility. In particular, the Prepetition Facility contains a financial
covenant requiring Eagle Foods to maintain an "Adjusted Net Worth" (as defined in
the Prepetifion Facility) of $3.0 million. As a precaution, Eagle Foods and Congress
entered into a limited waiver agreement, effective as of November I, 2002, which
waived the Adjusted Net Worth covenant until February 1, 2003, which was
subsequently extended to April 5, 2003 (the "Waiver"). Moreover, the'Debtors'
Senior Notes require an interest payment of approximately $3.5 million on April 15,
2003. Accordingly, the current liquidity crisis combined with the upcoming
expiration of the Waiver, the Debtors' onerous cost stmctnre, and the slow economic
climate has forced Eagle Foods to file for chapter 11 protection.
11. Since the Petition Date, the Debtors with the assistance of their
financial advisors, have evaluated their slxategic alternatives and with the approval of
the Creditors' Committee, embarked on a sale process. As a result of this decision,
on June 27, 2003 the Court entered the Order Under 11 U.S.C. §§ 105(a) and Fed. R.
Bankr. P. 2002, 6004, 6006 and 9014 Approving (A) Bidding Procedures, (B) the
Granting of Certain Bid Protections, (C) the Form of Asset Purchase Agreement and
Lease Ten-nination Agreement, (D) the Form and Manner of Notice of(i) the Sale of
Certain Assets, and (ii) the Assumption and Assignment of Certain Executory
Contracts and Unexpired Leases and (E) the Setting ora Sale Hearing (Docket No.
330) (the "Procedures Order") setting forth procedures pursuant to which the Debtors
were authorized to market and ultimately sell their stores.
5
12. Thereafter, the Debtors have worked with their financial advisors to
achieve the highest possible value for their assets. As a result of these efforts, the
Debtors have received numerous purchase agreements offering to buy many of their
stores. To date, the Bankruptcy Court has entered orders approving the sale of
twenty-three of the Debtors' stores to eight bidders. The Debtors are currently
negotiating with bidders in an attempt to sell the remaining stores.
RELIEF REQUESTED
13. By this Motion, the Debtors,/n furtherance of the Grafe Retention
Order, request the approval of their retention of Grafe as equipment liquidating agent
for the surplus furniture, fixtures and equipment (the "Surplus Store FF&E") at up to
12 additional stores (the "Stores").2
BASIS FOR RELIEF..
I. Selection of a Closing Store Agent
14. The Stores consist of the Debtors' fee owned properties that have not
been sold, as well as certain of the Debtors' leased properties that have neither been
assumed and assigned nor rejected.3 As part of their sale process, while the Debtors'
Stores 009, 012, 037, 039; 062, 070, 120, 228, 233, 299, 305 and 320.
By the Motion for an Order Pursuant to 11 U.S.C § § 105(a), 365(a)and
554(a) Authorizing Rejection of Certain Unexpired Nonresidential Real
Property Leases and Authorizing the Debtors to Abandon Certain Surplus
Furniture, Fixtures and Equipment, filed on September 15, 2003, the Debtors
are seeking authority to reject the leases corresponding to the Stores.
6
intend to continue to solicit interest in the Stores from prospective purchasers, it is
uncertain as to whether any of the Stores wilt be sold. To the extent that a Store is
not sold, it will likely be closed. The relief requested by th/s Motion will allow the
Debtors to maximize value by selling the Smplus Store FF&E contained in those
Stores that are not sold.
15. In order to facilitate the sale, as necessary, of the Surplus Store FF&E,
the Debtors seek to retain an equipment liquidating agent (the "Closing Store
Agent"). The Debtors previously retained Grafe in these cases to conduct store level
liquidation sales at. 14 other stores,4 and Grafe has substantially completed the sale of
surplus assets at a majority of those stores. The proceeds generated from the sales
that have taken place to date have exceeded the Debtors' budget, and the Debtors are
otherwise generally satisfied with the services provided by Grate.
16. With respect to the Stores, the Debtors solicited interest from Grafe as
well as several other liquidating companies in order to generate a competitive
bidding process for the selection of the Closing Store Agent. During the bidding
process, the Debtors received proposals from five parties, including Grafe. After
On June 27, 2003 the Court entered the Grafe Retention Order pursuant to
which the Debtors received authority to retain Grafe for proposes of
conducting sales at nine stores. Subsequently, on August 21, 2003 (the "Grafe
Extension Order") and September 11, 2003 (the "Second Grafe Extension
Order") this Court entered orders authorizing the Debtors to extend Grafe's
retention so as to allow orafe to sell surplus furniture, fixtures and equipment
at five additional stores.
reviewing each proposal, the Debtors decided, in their business judgment, that the
retention o£.Grafe as the Closing Store Agent is in the best interests of the estates.
17. The Grafe proposal contains terms and conditions substantially
similar to those that governed the prior retention of Grafe, with the exception that:
· The commission Grafe will receive from the gross proceeds of the
sale of the Suiplus Store FF&E is reduced from 15% to 10%.
18. The Debtors are in the process of negotiating a contractual agreement
(the "Agreement") with Grafe. Upon finalization of the Agreement, and prior to the
September 30, 2003 omnibus heahng, the Debtors will file a copy of the Agreement
with the Court and send a copy thereof to all parties on the Master Service List
19. In connection with Grafe's prior retention, Judd Grafe submitted an
affidavit on behalf of Grafe5 (the "Grafe Affidavit," a copy of which is attached
hereto as Exhibit B) which sets forth, among other things, the disinterestedness of
Grafe with respect to its retention as liquidating agent for the Debtors. The
accompanying third supplemental affidavit (the "Third Supplemental Grafe
Affidavit," attached hereto as Exhibit C) sets forth Grafe's continued reliance on the
disclosures contained in the Grafe Affidavit.
The Grafe Affidavit was twice supplemented in connection with Grate's
retention pursuant to the Grafe Extension Order and the Second Grafe
Extension Order.
20. Accordingly, through this Motion, the Debtors seek this Court's
approval to retain Grafe as the Closing Store Agent to sell the Surplus Store FF&E.
In the sound exercise of their business judgment, the Debtors believe that the
employment and retention of Grafe6 is In the best interests of the Debtors and will
add value to their estates.
III. Sale of Surplus FF&E
21. If the Debtors are not able to sell the Stores, the Debtors will be left
with Surplus Store FF&E, which includes, among other things, refrigeration systems,
shelving, interior and exterior signs, video security, fish cases,' deli equipment,
smokehonses, salad bars, telephone systems, tables, alarm systems, bakery
equipment, computers and other items that the Debtors utilized in their operations at
these locations, but that no longer serve any benefit to the Debtors' business.
Accordingly, the Debtors are seeking to monetize the Surplus Store FF&E in order to
maximize recoveries to creditors.
22. To this end, as set forth above, the Debtors are requesting authority to
retain Gmfe as Closing Store Agent to facilitate the sale, as directed by the Debtors,
of the Surplus Store FF&E l~om'the Stores.
Due to the form of Graf,e's engagement and the nature of the compensation
sought hereunder, notwithstanding the requirements of sections 330 and 331
of the Bankruptcy Code and the requirements of the Bankruptcy Rules and
U.S. Trustee guidelines, the Debtors request that any requirement that Grafe
file formal fee applications for compensation and reimbursement of expenses
be waived.
9
23. The Debtors anticipate that the proceeds to be realized fi:om the sale
of the Surplus Store FF&E will in most instances fall below $250,000 (on aper store
basis), which is the dollar limit for the sale of assets under the De Minimis Sale Order
previously entered in these cases.7 Under that order, the Debtors are authorized to
sell assets without further Court approval and subject to streamlined noticing
procedures. While the Debtors believe that in most cases the Surplus Store FF&E
can be sold or otherwise disposed of pursuant to the De Minimis Sale Order, because
the value to be realized fi:om the Surplus Store FF&E in the aggregate may exceed
the $250,000 limit, out of an abundance ofcanfion the Debtors are seeking the relief
provided herein.
24. The Surplus Store FF&E are subject to the lien(s) of the Debtors'-
debtor-in-possession lender, Congress Financial Corporation (Central) (the "DIP
Lender") pursuant to the terms of the debtor-in-possession financing agreements
(collectively, the "DIP Agreement") approved by this Court in a final order entered
on May 20, 2003 (the "Final DIP Order"). In addition, other creditors may have a
lien against certain of the Surplus Store FF&E (to the extent such liens are valid and
properly perfected, the "Other .Liens"). Any and all proceeds of sales of the Surplus
Store FF&E would be utilized consistent with the provisions of the DIP Agreement
Order, Pursuant to 11 U.S.C. §§ 105 and 363, Approving Procedures to Sell
Certain De Minimis Assets Free and Clear of Liens, Claims and
Encumbrances Without Further Court Approval (Docket No. 238) (the '~De
Minimis Sale Order"), entered by the Court on May 30, 2003.
I0
and the Final DIP Order entered in these cases and with respect to Other Liens, to the
extent permitted by the Bankruptcy Code.
25. The Debtors submit that this procedure will allow the Debtors to
maximize the value of the Surplus Store FF&E.
APPLICABLE AUTHORITY
26. Again, the Debtors expect that most transactions for the Surplus Store
FF&E will fail within the parameters of the De Minimis Sale Order. To the extent
that the De Minimis Sale Order does not grant the Debtors the necessary authority to
enter into a transaction for thc Surplus Store FF&E, the Debtors request authority to
consummate such a sale withont further Court approval.
27. Section 363Co)(1) of the Bankruptcy Code pemaits a debtor-in-
possession to use, sell or lease property of the estate, "other than in the ordinary
course of business," after notice and a hearing. Additionally, Bankruptcy Code
section 105(a) allows this Court to "issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of the [Bankruptcy Code]."
28. A debtor must demonstrate a sound business justification for a sale or
usc of assets outside the ordinarycourse of business. See, e.g., Fulton State Bank v.
Sctfipper (In re Schipper), 933 F. 2d 513, 515 (7th Cir. 1991); Committee of Equity
Sec. Holders v. Lionel Corp~ (In re Lionel Corp.), 722 F.2d 1063, 1070 (2d Cir.
1993). As described herein, sound business reasons exist to justify selling the assets
upon the terms set forth herein. Indeed, allowing the Debtors tO sell the Surplus
11
FF&E in this manner constitutes the most efficient and cost-effective means of
maximizing the value realized for these assets and thus is in the best interests of the
Debtors' estates.
29. For the foregoing reasons, the Debtors believe that the relief requested
herein is in the best interests of the estates and should be granted.
12
WHEREFORE, the Debtors respectfully request that the Court enter
an order substantially in the form attached hereto as Exhibit A, (i) authoriz'mg, in
furtherance of the Grafe Retention Order, the retention of Grafe as the Closing Store
Agent, (ii) authorizing the Debtors to sell Surplus Store FF&E without requesting
further Court approval and (iii) granting such other and further relief as is just and
proper under the circumstances.
Dated: Chicago, Illinois
September 19, 2003
Respectfully Submitted,
John Wm. 19~l~r, Jr. (AP~DC No. 06209373)
George N. Panagakis (AP, DC No. 06205271)
Ron E. Meister (ARDC No. 06270262)
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM 0LLrNOIS)
333 West Wacker Drive, Suite 2100
Ctficago, Illinois 60606-1285
(312) 407-0700
Attorneys for Debtors and
Debtors~in-Possession
374012.4~icagoS1A
EXHIBIT A
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTIt-ERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EXHIBIT A
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
mall. )
)
Debtors. )
Case No. 03-t5299 (PSH)
(Jointly Administered)
Chapter 11
Horn Pamela S. Hollis
ORDER IN FURTHERANCE OF ORDER PURSUANT TO (i) 11 U.S.C. § 327
AUTHORIZING AND APPROVING ~ RETENTION OF GRAFE AUC-
TION COMPANY, INC. AS LIQUIDATING AGENT AND (ii) 11 U.S.C. §§
105 AND 363 APPROVING THE SALE OF CERTAIN FURNITURE, FIX-
TURES AND EQUIPMENT WITHOUT FURTHER COURT APPROVAL,
ENTERED ON JUNE 27, 2003, APPROVING RETENTION OF GRAFE
AUCTION COMPANY, INC. TO SERVE AS EQUIPMENT LIQUIDATING'
AGENT FOR UP TO 12 ADDITIONAL STORES
Tiffs matter having come before the Court on the motion dated
September 19, 2003 (the "Motion"),~ of Eagle Food Centers, Inc. ("Eagle Foods")
and four of its subsidiaries and affiliates (the "Affiliate Debtors"), the debtors and
debtors-in-possession in the above captioned cases (collectively, the "Debtors"), for
entry of an order, pursuant to Se6fions 105, 327 and 363 of Title 11 of the United
States Code, 11 U.S.C. §§ 101, et se__q, as amended (the "Bankruptcy Code") (i)
authorizing the Debtors to retain Grate as the Closing Store Agent; and (ii) authoriz-
Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to them in the Motion.
EXItIBIT A
lng the sale of the Surplus Store FF&E without further Court approval; it appearing
to the Court that (i) it has jurisdiction over the matters raised in the Motion pursuant
to 28 U.S.C. §§ 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. §
157(b)(2); (iii) the relief requested in the Motion is in the best interests of the
Debtors, their estates and their creditors; (iv) the Debtors have (a) determined, in
their reasonable business judgement, which of the bids submitted was the highest or
otherwise best offer, and (b) properly rejected any and all bids that, in the Debtors'
sole discretion, were (x) inadequate or insufficient, (y) not in confom'fity with the
requirements of the Bankruptcy Code, or (z) contrary to the best interests of the
Debtors, their estates and their creditors; (v) proper and adequate notice of the
Motion and the hearing thereon has been given and that no other or further notice is
necessary;, and (vi) upon the record herein after due deliberation thereon good and
sufficient cause exists for the granting of the relief as set forth herein,
1T IS HEREBY ORDERED, ADIUDGED AND DECREED THAT:
1. The Motion is GRANTED.
2. The retention of Grafe as the Closing Store Agent pursuant to I 1
U.S.C. § 327 is hereby approved.
3. The Closing Store Agent is authorized, at the Debtors' direction, to
conduct liquidation sales at the Stores.
2
EXHIBIT 'A
4. Grafe shall not be required to file formal applications for approval of
compensation and reimbursement of expenses.
5. The Debtom are authorized to sell Surplus Store FF&E flee and clear
of all liens, claims, encumbrances and interests pursuant to section 363(1') of the
Bankruptcy Code.
6. The sale of Surplus Store FF&E conducted pursuant to the terms of
the Agreement are deemed to be arm's-length transaction entitled to the protections
of section 363(m) of the Bankruptcy Code and, subject to adherence to the terms of
the Agreement, the ultimate purchasers of the Surplus Store FF&E shall be deemed
to be good faith purchasers and shall be entitled to the protections afforded by section
363(m) of the Bankruptcy Code.
7. The Debtors and their officers, employees and agents are authorized to
perform all of their obligations, take whatever actions necessary, and issue, execute
and deliver whatever documents, purchase agreements, deeds and bills of sale as may
be necessary or appropriate to implement and effectuate the Agreement.
8. Any and all Net Proceeds (as defined in the Agreement) of sales of the
Surplus Store FF&E shall be utilized consistent with the provisions of the DIP
Agreement and the Final DIP Order entered in these cases and with respect to Other
Liens, if any, to the extent permitted by the Bankruptcy Code.
3
EXItlBIT A
9. The Court shall retain jurisdiction over any matter or dispute arising
from or relating to the implementation of this Order.
10. No further orders of this Court are necessary to effectuate the terms
set forth herein for transactions or related series of transactions completed in good
faith.
Dated: Chicago, Illinois
,2003
UNITED STATES BANKRUPTCY JUDGE
37402142hlcago SI^ 4
EXHIBIT B
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DMSION
)
In re: )
)
EAGLE FOOD CENT~,RS, INC., )
)
Debtors. )
AFFIDAVIT OF JUDD GRAFE
STATE OF MINNESOTA
COUNTY OF OLMSTEAD
)
)
L Judd Cvcafe, being duly sworn, deposes and says:
Case No. 03-15299 (PSH)
0ointly Administered)
Chapter £1
Hon. Pamela S. Hollis
I am president of Grafe Auction Company, Inc. ("Orafe"), which finn main-
talus offices at 1025 lnduslrial Drive, Spring Valley, Minnesota and 2040
Honey L0¢ast Drive, Algonquin, Illinois 60102, as well as other cities in the
United States.
Graft has been conducting successful commercial'equipment and real estate
auctions on a nationwide basis since t 959. Grate specializes in commercial,
industrial equipm~mt, and real estate sales. Grate conducls an average of over
120 auctions annually. Grafe is a natiofiwide company having conducted
sales jn over 40 states. One of Orafe's specialties is the food service industry;
including supermarkets, production bakeries, meat plans, dairies, restaarants,
food production facilities and distribution centers. These sectors of the
auction industry have been a mainstay of Grafe's operations. The ability to
rely on in-house expertise to quickly assess values and best course of action
foe clients to maximize returns on assets have made Grafe the nation's largest
tbod sca'vice liquidator.
I mn submitting this Affidavit on behalf of Grafe in support of the Agreement
attached a.q Ext:tibit I to the Order Pursuant to (l) 11 II.S.C. § 327 Authoriz-
ing and Approving the Retention of Grafe Auction Company, Inc. a.q Liqui-
dating Agent and (11) 11 II.S.C; §§ 105 and 363 ~,pproving the Sale of
Certain Furniture, Fixtures and Equipment Without Further Court Approval
(the 'FF&E Order").
The Debtors mod Grafe have negotiated the Agreement to assist the Debtors
to tkeilitat¢ the sale of personal property located at stores//090, 307, 313,
107, 327, 157, 309, 297 and 400.
Gr'atb has posted a blanket bond in the amount of $100,000.00 with the
United States Trustee. (See List of Bonded Auctioneers attached hereto as
Exh~it A.)
Neither I, Gmf~, nor any employee thereof, insofar as I have been able to
ascerta/n, (i) has any connection with the Debtors or their affiliates, eredilors,
the U.S. Trustee or any person employed in the office of the U.S. Trustee, or
any other party-in-interest, or their respe~'tive attorneys and accountants; (ii)
are "disinterested persons," as that term is defined in section 101(14) of
chapter 11 of title 11 of the United States Code [the "Bankruptcy Code"); and
(iii) hold or repr~ant any interest adverse to the estates in the matters upon
which Grafe is to be engaged.
Graft is not an insider of thc above-captioned debtors and debtors-in-posses-
sion (the "Debtors") and is a disinterested person in aceonlance with 1 l
U.S.C. §327(a).
i have r~wiewed the a list of the Debtom~ 50 largest creditors and other
significant part/es in interest in thc Debtors' cases and, based on such review,
I am not aware of any instance where Gral~ is currently engaged by any of
those pa*ties.
Neither I, Crrafe, nor any anployee thercof, is a creditor or an insider of the
Debtors. I do not own Eagle common stock, however, -certain G-raft employ-
ecs may own de minim£v 0xaounts of Eagle common stock.
2
Otafe does not h~v¢ an interes~ mat=dally adver;¢ to ~ ~[~ of~c
·rea or ~ relafi~p w, comecfion M~, or ~t~est in ~ Debtor.
at.bed ~ ~h~k 1 m ~e FF&~ ~d~.
IZ
13.
The foregohag oonstitules 0ae statement of ~ pm'm~;m~ 1~ Rule 2014 of the
F~eral Rul~ of B~nlcmptCy p~oeo:~e.
FIJR~
Ell AFF!AlqT SAYKI}I NOT
Exhibit A
List of Bonded Auctionee
Office of the United $tat~ Trustee
Northern District oflilinois-Eastern Oi¥1slon
Chica~o, lllfnots
T~e following Is u I~st of at.~;f, Jor~sens w~o, pursuant to-$tandinCl OrdUre ontared
~ the individual Un~d States Bankruptcy Ju~ge~ in ~he Northern Dtst~t of
Illinois, .Easmm Division, have po~ted blanket bonds, in the amount ~f
with ~he United steres Trustee. Pursuant to the Standing O~ler~,-au~om*em can
~her p~st a blanket bond for several caa~s or indMdtml I~onds for single
Trusts =nd ¢lebtar~ in possels~n am ~spor~ible for ~muring that th~
auctioneer Is adequately bonded for Ne pa~'l~ular auction,
Any.auction'~r who desires to be added to this list can do so by obtaining and
Ix~sting an alSpropdate blanket bond with the Uaitud States T~usteu. The United
States Trustee does not, as s po~-'y matter, recommend or entree {h~ u~ of
~ny specifi~ auetionuer. The United ~'mtms Trustee retelrm the right to object to
me emproymant, for cause, of any auctioneer including c~e an the following
any bankruptcy case.
In ~dltlon to the Star~ing umw, pis'see Ul~3 note'mat II~mO{a
legislation last year which imposes, ~r the (irst tirrm ~ our state,
mquirement~ on all auctianee~. The Ik~enalng f~cluirem*~3ts are fully applicable
to au~oneer~ who esr~e in b~nkrupt~ ca,es. Ar~ auctioneer who is listed above,
but who is r~t licensed ~th the stale, can obfain u tioense b¥-conta~ng the
UIInola Off,ce o¢ Banks and Real Ee~te at 217-7~3414. We would recommend
only using an uuctionsur who has compItad with the stetelicensing requimmants.
Februa~ 3, 2003
EXHIBIT C
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
THIRD SUPPLEMENTAL AFFIDAVIT OF JUDD GRAFE
STATE OF MINNESOTA )
) SS:
COUNTY OF OLMSTEAD )
I, Judd Grafe, being duly sworn, deposes and says:
1. I am president of Grafe Auction Company, Inc. CGrafe"), which
firm maintains offices at 1025 Industrial Drive, Spring Valley, Minnesota and 2040
Honey Locust Drive, Algonquin, Illinois 60102, as well as other cities in the United
States.
2. I am submitting this Third Supplemental Affidavit on behalf of
Grafe in support of the Motion in Furtherance of Order Pursuant to (I) I 1 U.S.C. §
327 Authorizing and Approving the Retention of Grafe Auction Company, Inc. as
Liqnidating Agent and [I0 11 U.S.C. §§ 105 and 363 Approving the Sale of Certain
Furniture, Fixtures and Equipment Without Further Court Approval, Entered on June
27, 2003, Approving Retention of Grafe Auction Company, Inc. to Serve as Equip-
ment Liquidating Agent for up to 12 Additional Stores (the "Motion"), and the
Agreement to be executed in connection therewith.
3. In connection with the retention of C-rare as equipment liquidat-
ing agent for up to 12 additional stores, I have reviewed and continue to rely, in alt
respects, on the disclosures made in the Affidavit I submitted to this Court in
conjunction with Grafe's initial retention as equipment liquidating agent for the
Debtors and which is attached as Exhibit B to the Motion.
2
The foregoing constitutes the statement of Grafe pursuant to Rule 2014 of the
Federal Rules of Bankruptcy Procedure.
S~rYETH NOT
Subscribed and swom before
this f ~th day of September, 2003
Notary Public
IN ~ UNITED STATES BANKRUPTCY COURT
FOR T]~E NORTHERN DISTRICT OF ILLINOIS
EASTERN DMSION
) Case No. 03-15299 (PSH)
In re: ) (Jointly Administered)
) Chapter t 1
EAGLE FOOD CENTERS, INC., ) Hon. Pamela S. Hollis
e_t ~__~ )
)
Debtors. )
CERTIIIICATE OF SERVICE
[, Pauline P. Chow, a non-attorney, do hereby ce~fy that on September 19,
2003, I caused the foregoing Motion for an Order (I) in Furtherance of Order
Pursuant to (i) I1 U.S.C. § 327 Authorizing and Approving the Retention of
Grafe Auction Company, In~ as Liquidating Agent and (ii) 11 U.S.C. §§ 105
and 363 Approving the Sale of Certnin Furniture, Fixtures and Equipment
Without Further Court Approval, Entered on June 27, 2003, Approving
Retention of Grafe Auction Company~ Inc. to Serve as Equipment Liquidating
Agent for 21 Additional Stores or, 019 in the Alternative, Authorizing the
Debtors to Retain a Different Auctioneer that Submits a Higher or Better Offer
as Equipment Liquidating Agent to be served on the parties set forth on the Master
Service List, attached hereto as Exh~it A, via UPS Overnight Mail or U.S. Express
Ma/l; on the 2002 Service List, attached hereto as Exln~bit B, via First Class US Mail;
on the Store Liquidation ScTvice List, attached hereto as Exh~it C, via UPS Over-
l~[ght Mail.
Subscn~oed and sworn to me before
~on the ~/day of September, 2003.
Pauline P. Chow
Exhibit A In re Eagle Food Centers, Inc., et al.
U.S. Bankruptcy Cou~t for the Northern District of Illinois
Master Service List Case No. 03-15299
NAME COMPANY ADDRESSI ADDRESS2 CITY 9TATE ZIPCt3DE PARTYFUNCTION
r
G~orgerPanagakls Skadden Arpa Slate Meagher & Flora 333 W. Wacker Drive Suite 2100 3hicago L 50606 Counsel to Debtor
Ron Melsler Skadden Arp$ Slate Meegher & Flom 333 W. Wacker Drive Suite 2100 3hlcago L 50606 Counsel to Debtor
Ro_._be~ Kelly President and CEO Eagle Food Centers, Inc. 801 1 st Street, East ~liran L 51264 Debtor
Randall M~Mu~rray Eagle Food Centers, Inc, 801 1st Street, East ~lilan L 51264 Debtor
William Fasel, Managing Director Huron Consulting Group, LLC 550 West Van Buren Street 8th Floor 3hicago L 50605 Financial Advisor
Kat_hleen M, Logan I~reeident Logan & Company, Inc. 546 Valley Road Jppar Montclair ~lJ 37043 Claims Ager~t
Gretchen Silver 3ffice of the United States Trustee 227 West Monroe Suite 3350 3hicago L 30606 US Trustee
Stev~ L;,,du,,,~,, Senior'S/Joe
P, rosident Congress Financial Corporation (Central) 150 S Wacker Drlve Suite 2200 3hicago L 50606 Prepetition Lender
Gerard C. Wordel, Vice President Congress Financial Corporation (Central) 150 S Warcker Dr!ye suite 2200 3hic~go L 30606 Prepetifion Lender
233 S. Wacker Drive, Sult~
Timothy A. Barnes. Latham & Welkins LLC 5800 Seara Tower .,hlcago" ' L 50606 Counsel to Congress
Noteholder
Mail Station: EX-MA- Trustee/Creditora'
Laura L, Moran, Vice President U.S. Bank Trust National Association One Federal Street 3rd Floor FED ~oston V~A 32110 Committee Member
3300 Wells Fargo Counsel to Noteh~Ider '
Clark T, Whltmom Maslon Edelman Borman & Brand LLP 90 South Seventh Street Center Vlinneepoils YIN 55402 Trustee
· Counsel to Navistar
Kathieen N. Siegel Navistar Financial Corporation 2850 West Golf Road ;~olilng Meadows L ~0008 Fina, ncial Corp.
W!lilam J McKenna Foley & Lardner ' 321 North Clark Street Suite 2800 Chicago L 0610 Counsel to Commrittee
Chri~stlne Sass Foley & Lardner 321 North Clark St~'eet Suite 2800 Chicago IL ~0610 Counsel to Committee
Jonathan E. Apa~rmanr Foley & Lardnr er 321 North Clark Street Suite 2800 Chicago iL .~0610 Counsel to Committee
Mark L Prager ...... Foley/& Lardner 32t North Clark Street Suite 2800 Chicago IL ' ~0610 Counsel to Committee
Territory Manager, Insolvency Territory .
~ internal Revenue Service 230 South Dearborn Street Mail Stop 50t0 CHI Chicago IL 30804 IRS
LfSra Madigan Attorney Ge,neral, Office of the Attorney Genera 100 west Randolph St Suite 12 Chicago IL 30601 IL Attorney General
J. udy Bear Topinka State Treasurer Office of the State Treasurer 219 State House Springfield iL 62706 IL State Treasurer
~(enneth V. Buzbee, Business Services
Dire,c,tor Office,of the S~cretary of S ate ., 2t 3 State Capitol Building Springfield IL 62756 IL Secretary of State,
Mary Keefe~ Regional Dire ,clot Securities end Exchange Commission 175 W. Jackson Blvd. Suite 900 Chicago IL 60604 IL and IA SEC
Exhibit A In re Eagle Food Centers Inc.. et al.
U.S. Bankruptcy Court for the Northern District of Illinois
Master Service List Case No. 0345299
NAME COMPANY ADDRESSf 4DDRESS2 CITY STATE ZIPCODE PARTYFUNCTION '
Ralph Metcalfe
~rancis Lyons, Regional Administrator Environmental Protection Agency 77 W Jackson Bird Federal Bldg Chfcago L 50604 ILEPA
T~nl, Miller, Attorney General Office of the Attorney General Hoover Building ;'nd Floor Des Molnes A 50319 IA Attorney General
Michael Fitzgerald, Treasurer Office of the State T[easurer S, tate Capitol Building Des Molnes A 50319 IA State Treasurer
Statehouse, E Ninth & Grand
Chester J. Culver, Secretary of State Office of the Secretary of State Ave Des Motnes A 50319 IA Secretary of State
DennlsGrams, ReglonalAdministrator EnvlmnmentalProtectlonAgency 901 North 5th Street KansasCity KS 56101 IAEPA
,?,an/el state Office
M. Jane Brady Attorney General Office of the Attorney Genera 820 N French Street E~ldg Wilmfngton DE 19801 DE Attorney General
540 S DuPont Highway, Suite~
Jack Marke[I ,State Treasurer Office of the Treasurer 4 Thomas Collins Bldg Dover DE 1990t DE State Treasurer
Ronnie Pletch Corporations Division Office of the Secretary of State 401 Federal Strset Suite 4 Dover DE 19901 DE Secretary of State
Wayne M. Carlin Regional Director Securities and EXchange Cpmmfsslon 233 Broadway ~3th Floor New York NY 10279 DE and VT SEC
Bradley M. Campbell Re~!lonal Admln. Envlronmenta Protect on A~enc}, 1650 Arch S reet , Philedel~hla PA 19103 DE EPA
; i ! ....................................... ~ ............................... ~ ............... ~ ...................... i Creditors' ~3ommittee
Austin NooneyriMcCormtck &Co. i211 SchIIlin~ Circle i [Hunt Valley iMD i21031 ;Member/Top 20 Cred tor
William Stem = ; ~ ~ ............ [ ............. i ' iCredltora (~ommlttee
Stern Brothers & Company 8000 Maryland Ave. [ ,St Louis [MO [63105 i Member
Midwest ~ce Cream Company i !22573 Network Place
i!,~ ............. [.6..0...6.'~;~ iTop 20 Creditor
Brad Crossman i Dean Spec a ty Foods Group 21077 Network P ace Ch ca o 'IL 60673 !Top 20 Creditor
,C.o.,c...a, .C..o..a...E..n,~.e..r.~ ~.s, ~?,. i 6011 Lemmon A~e i ; '
........................................................................................... . ...................................... iDallas !T.~ ........... i 7..5,;~0.9. ........... [Member/Top 20 Creditor
Representative for Coca
William Kaye JLL Consultants 31 Rose Lane East Rocka rWay ~IY 11518 Cola Enterprises, Inc.
Attn: Brian Smlth-Cqntroller ;lem[ng Companies, Inc. 7215 S~uth Topeka Bird Topeka ,(S 56619 Top 20 Creditor
~l~.:..l~.r,!~ ~..S. r~!!~t2(~ (~.t,r~!!.e.[ .................... =leming Companies, Inc. 6301 Waterford Blvd Dklahoma City DK 73118 Top 20 Creditor
,D..,e..z..e. ry..,..u..p..c..h..a...k...; ............................ i,E. DS 222 West Adams ~uite 2301 Chfcago · .,.L.,....; ....... .~..6..0.6. ............ Top 20 Creditor
Attn: Ron Paraday ~Edys Grand ce Craara 3863 Co ec on Center Drive iCh ca o ilL 60693 Top 20 Creditor
..................................................................... ~ ............................................................................ ~ ...................................................... = ....................................... ~ g
= ~ i i ' ................ i ....................... !Creditors' Committee i
Al Hartman ~ .....
i Earthgreins (Sara Lee Bakery Group) i 11.1 Corporate Office Drive [Suite 200 i Earth Cty iMO 63045 iMemb, er/'1~op 20 Creditor
; ~ ................ ~ ....................... iCrsditora' Committee
i ................. ~ ................................... i ........................................i i Lisle
Arlene E, Man~lino iChas. Lev,/Clrculatin~ !815 Ogden Avenue '
IMember/Top 20 Crsdltor
Exhibit A In re Eagle Food Centers. Inc.. et al,
U.S. Bankruptcy Court for tbe Northern District of Illinois
Master Service List Case No. 03-15299
~IAME · ICOMPANY IADDRESSI ' ]ADDRESS2 ICITY ]STATE ]ZIPCODE IPARTYFUNCTION
Megaware Inc. of California i il 230 Calla Suerte i iCamadllo iCA i93012 Top 20 Creditor
3redltors' Committee
Galen Walters Adptex Rhodes 650 Century P aza Dr ve Suite 120 Houston TX 77073 ~lember/Top 20 Creditor
.................................................................................. : ........................ ................ i · ~ ~reditors' Committee
Art Turtle iAmerlcan Greetings (G beon Greet ngs) One Amer can Road C eve and OH 44144 Member/Top 20 Creditor
~,ttn: John O'Rourke RJO Produce Marketing 11177 W Shaw Ave Fresno CA 93711 Top 20 Cred tor
~'?'~"~ ........................................ i ..................................... "'"?~?'~' ............................................. ~?~..n.!.~.!.~......... iChfcago r ~L 60.6.74 iTop 20 Creditor
Robert J. Bood
I!~ .............. [~.0,,.6.!..0. ........... [Member/Top 20 Creditor
~',itn: Paul Bersell
!American Bottlin,~ Co. ~Select} 21431 Network P ace i ich cago ill i60673 [Top 20 Creditor
McKesson Drug Co. 520 East North Avenue Carol Stream IL 30188 Secured Parties
~,lbe~ts, oh's I,nc. · 250 ParkCenter Ave. Boise ID ~3726 Secured Parties
AmerlCarn Bank Note (~ompan~' American Bank Note Company 2520 MetroPolitan Drive Trevose PA 1{~053 Secured Parties
United Science Industries United Science industries 6295 East IL' Hwy. 15 Woodlawn IL 32898 Secured Parties
. Counsel to Dean Foods Co.
Kristin T. Mlhelic Fagel Harber LLC 55 East Monroe Street 40th Floor 3hlcago IL 30603 ~nd Morning,tar Foods
Counsel to Albertsone, Inc.
Edward J. Lesniak Burke Warren MacKay & Serritella PC 330 N. Wabash Ave. 22nd Floor ~htcago IL ~0611 Store 228)
Paul A. Lucy Michael Best & Friodrich, LLC 100 E. Wisconsin Ave. Suite 3300 ~lilwaukse WI 53202 Counsel to McKesson
Alan I. Greene Michael Best & Frleddch, LLC 40t N. Michigan Ave. Suite 1900 3hlcago IL I ~0811 Counse to McKesson
Jason D. Altman Michael Best & Frledrich LLC 401 N. Michigan Ave. Suite 1900 3hlcago IL ~0811 Counsel to McKesson
Counsel to Schwan Food
Mark E. Leipold Gould &Ratner 222 N. LaSalle Street 8th Floor 3hlcago iL ~0601 Company
100 W. RandoIl~h St., 13th State of Illinois
Jim Newbold Illinois Department of Revenue Ftooi: Building 3hlcago IL 30606 IL Dept. ,of Revenue
:ounsel to Supreme Lobster
Richard Flmoff Robbins, Salomon & Part, Ltd. 25 E. Washington Street Suite 100 ,~hicago IL 30602 & Seafood Co.
Counsel to U.S. Bank NA
Barry Chatz Dorislee Jackson Arnstein & Lehr 120 S. Riverside Plaza Suite 1200 3hica!~o IL 30606 IStore 39)
Securities and Exchange
~,ngela Dodd Securities and Exchange Commission 175 West Jackson Blvd, Suite 900 Chicago IL 30604 Commiss, ion
Counsel to C.N.,~.
Jonathan W Youn~ Day d P. Va as WIIdman Harrpld Alien & Dixon 225 West Wacker Ddve Suite 3000 Chlca~]o IL 60806 , Companies
Exhibit A In re Eegle Food Centers. loc.. et al.
U.S. Bankruptcy Court for the No~lhern District of Illinois
Master Service List Case NO. 03-15299
YAME COMPANY ADDRESSf 4DDRESS2 CITY. STATE ZIPCODE PARTYFUNCTION
Union Planters Bank and
SouthTowne Plaza, LLG
Jason A. Newman Law Offices of Jason A, Newman /'7 West Washington Street Suite 13t3 Chicago IL 60602 (Stole 266)
Counsel to Deutsche Bank
(Store 233), Inland Real
Estate Corp, (Store 259),
Rehab Associates X, Inc.
(Store 81) and Valley Fair
~0nald R. Petersen Jenner & Block, LLC :)ne IBM Plaza Chicago iL 60611 LC (Store 93)
Counsel to Deutsche Bank
(Store 233), Inland Real
Estate Corp. (Store 269),
Rehab Associates X Inc,
(Store 81) and Valley Fair
Jeffrey Gansburg Jenner & Blook, LLC 3ne IBM Plaza Suite 3800 Chicago IL 60611 LC (Store 93)
Counsel to Deutsche B~nk
(Store 233), Inland Real
Estate Corp. (Store 269),
Rehab A~soclates X, Ino.
(Store 81) and Valley Fair
3a!herlne Stsege ,~enner & Bock, LLC :)ne IBM Plaza Suite 3800 Chicago IL 606t 1 LC (Store 93)
Office of Genera For Pension Benefii
Shemase Pratt Louis Pension Benefit Guaranty Corporation 1200 K Street, NW, Suite 340 Counsei Washfngton DC 20005 Corporation
Counsel t~3 [Jnlted Food and
3ruca Simon, Esq. Cohen, Welse and Simon LLP 330 West 42nd Street New York NY 10036 3ommemial Workers
Counsel to Topco
'{annah Mufson, Dean Gramlioh McDermott Will & Emery 227 West Monroe St, Chicago IL 60606 Associates LLC
' ~500 Thre~ First National Counsel for First Amerioan
~. Scott Alsterda Ungaretfi & Harris Plaza ' Chicago IL 60602 Bank, SSb
3501 Three First National Counsel for ~=lrst American
~,hristopher L. Rexmat Ungarettt & Harris =laza Chicago IL 60602 Bank, SSb
3501 Three First National Counsel for First American
Vl,elisse G. Melsher Ungaretti & Harris =laz~ Chicago IL 60602 Bank, SSb . .
~502 'l:hrse Ffist National Counsel for Flint American
.3regg E. Sziragyi Ungaretti & Harris =laza Chicago IL 60602 Bank, SSb
Counsel for Ocampo Dixon
LLC, Ocampo Belvidere,
Ocampo Dekalb, Okampo
Vedder, Prlca, Kaufman & Kammhoiz~ Garesburg and RD Hobson
Mi,cbael M. Eidelma, n, P.C. · . 222 Notth La Salle Street Suite 2600 Chicago IL 60601 Assoc.
Randall Plaza Center
Harold Moskowi~ Law Offices of Harold Mcakowltz 100 North LaSalre Street 24th Floor Chicago IL 60602 Associates
Counsel to Central States
Areas Health and Welfare
Ch~arles Lee Central Statse Law Department . 9377 W, Hig~lns Road Rosemont IL 60018 Fund and Pension Fund
Exhibit A in re Eagle Food Centers, Inn,. et al:
U.S. Bankruptcy Court for the Northern District of Illinois
Master Service List Case No. 03-15299
YAME , COMPANY IADDRESSf' IADDRESS2 ICiTY ISTATE IZiPCODE IPARTYFUNCTiON
h i i iAmboy Speolalty i ' ~
Urn: S annon Trimble i Dean Foods Co. (Milk) i PO BOx 71184 i Division . iChlcago {IL 60694 !Top 20 Creditor
~'e*'a'*n"F*'°""°~'"s*"*N'~;~'"C*'e"n**t*'r'a*!.!~*~ ...... '~ - * ................................ -* ................................. ~ ~i~.i~ii!i~.i i ...................... i'l~*.:*~:l*~ .................... i~l'~li~ ............ i*~J .......... *~;~l*~'i'~' Top 20 Crsd or
i i ............... i;~'E;~;~;'~*~ ~ ~ .......................................... i ................. i .......................
~)ean Foods Co. ~ !PO BOX 71184 iDivlsion iChicago hL i60694 iTop 20 Creditor
~'~ )~i~li~ ~i~i '~i~1~ ~i~'~i' ......................................... ~5~'~'~ ......................... i ....................................... ?~*~i~:;~l~' ................ ~ i~ .............. ~ ........... ~Top 20 Creditor
= em n~ W re Purchases ............. : ................................................. ~[5'~*"~'~i'~ ......................... . ........................................ '~**'~ .................... ;'::: ...................................
.... : ......................................... ~ ....................................................... ~ .................... ~...:..,.~ ............................ ; ~ p ~;5 ~66601 ~Top 20 Creditor
Utn Bran Smth-Contro er Femn Corn nles Inn : ........................................... =' ........................................................................ ~
;:;.~ .......... =.::. ............................................................. ~ ....... ~ .... ~ ......... [~ ~.~..:~'~ . Oklahoma C ~ OK !73126-0647 !Top 20 Crsd for
.,mcago/nnune ~ :P O SOX 631~ ........................ ; ........................................ ;*'"'; .......................... ~ ................. : ...................... ~
..................................................................... ¢ ........................................................................... .~ ............. ~. jChlcago ~IL ~60680-63t 5 ~Top 20 Creditor
=BG Service Corporation ~ ! P O SOX 2715
[,~i:i~;;~"~'l~'~f~'~,' ............... ' Omaha iNE i68103-2715 iTop 20 Creditor
P.O. Box 54~¥'(~15(~ ................. ~e~*~;&;~ ............... i~ ....................... ~:~ Secured Credltor~
Counsel for Government
3UrS A, Paloian Seyfarth Shaw 55 East Monroe Street Suite 4200 Chicago iL 60603 Employees Insurance Co.
Counsel for Government
.~rharles S Ri~cke Seyfarth Shaw 55 East Monroe Street Suite 4200 Chicago IL 60603 Employees Insurance Co,
Counsel for Benrnore
~tephen L. Geifman Bank One NA Bank One Plaza Mail Code IL1-0120 Chicago iL 60670' Company
Counsel for 11 th Street
Plaza, Store 316; Ocampo,
Stores 012, 038, O70; 073
Vedder, Price, Kaufman & Kammho!z, and 311; and RD Hobson,
~,llyson Russo P.C, 222 North La Salle Street Chicago IL 60601 Store 110
Counsel for Dorothy M.
Schlmanski, Julie and
3ennis Heim, Pstrlcla and
Robter O'Connell and Nancy
Clapp (as Administrator of
the Estate of Sharlls
Helphinstine and as
Executor of the Estate of
.arence G. Galla~lher Attorney at Law I11 East Wacker Drive Suite 2600 Chica~)o IL 60601 John Helphinsflne)
2002 Service List
In re Eagle Food Centers, Inc., et al.
U.S. Bankruptcy Court for the Northern District of Illinois
Case No. 03-15299
~illi~ Sorrell, A~, ~;'~i ................. ~f~'~l;'i~ ~"~l:::::::'::'i'~'~i~'~;~[ ........................ Pavilion office Building ::~;;ii~ ........... ~'"':: ................ ~= VT Attorney General
Jeb Sp9u!ding, State Treasurer Office of the Treasurer 133 State Street Second Floor ~Aoetpeller VT 0563-' VT Stets Treasurer
:)eborahMarkowttz, SecretaryofState dfficeoftheSecretaP/ofState 26 Terrace Straet, Drawer9 RodstoceBuilding ~1ontpelier 'vT 0560.c VTSecretgryofState
Robert Varney,.Reglonal Admin. Environmental Protaetlon Agency One Congress Street Suite 11 O0 Boston VIA I 021141 VT EPA
Sam: Rssenwald Black Equities Group, Ltd. 433 No. Camden Drive Suite 1070 Beverly Hills .~A 96210 For Black Equities Group
V~onlca L, Clark Oorsoy & Whitney LLP ~50 South 6th Street Suite 1500 Minneapolis YIN 55402 Oounsel to Schwan Food Co.
Raym~ne J. ~rbanik Munsch Hardt Kopf & Harr PC 1445 Ross Avenue Suite 4~00 Callas I'X 75202 Counsel to Sara Lee Bake~J Group
Vrary E. Gardner Kaaton & Associates PC 1278 W. Nort~west'~wy. Suite 903 Palatine L 60067 Counsel to Dole Fresh Fruit
'v;;Chae~ J. Keaton Keaton & Associates PC 1278 W, Northwest Hwy, Suite 903 Palatine L 60067 Counsel to Dole F'rssh Fruii '
: Counsel to C.H. Robinson Co. and
-tartley Martyn Mark Amendola Martyn & Associates 820 Superior Avenue, N.W. Ta,nth Floor Cleverand 3H 44113 Del Monte Fresh pr~rl,,~,, NA
Jason R. Patomson Yarbrough & Harlan 2401 20th Lubbock I'X 79411 Counsel to Prater Foods, Inc.
Counsel to Megaware, Ino, of
Steven Pin,kef Pinsker & Huribett 15 West Carrilro Street ' Suite 220 Santa Barbara ,CA 93101 Calffornia
",i~,.,'-,ae~D. Warner Wamer,Stevens&Doby LLP 301 CommeroeStreet t700CityCtr, Towerll FortWorth rx 76102 CounseltoKalloggCo
~,yala A. Hassell Electronic Data Systems Corp. 5400 Legacy Drive MS: H3-3A-05 Piano I'X 75024 For EDS Corporation
-iowa, rd Holler Kin PropertisoIInc: 16 N, Main Street Suite 384 New York ~IY 10956 For Kin Properties, loc. (Store 32)
~'larvin Schnss Markai Properties Ltd. 240 East Palisade Ave. · Suite 18C Englewocd qJ 07631 Fol; Markal Properties, Ltd.
RiChard Goldberg, Kimberly ~toker Shapiro Sher Guinet & Sandie;' 36 South Charles Street 20th Floor Baltimore VID 21201 Counsel to GEICO (Store 329)
Financial Advisors to the Creditors'
::)antalleTobin Emst&YoungCorporateFinanca 5TimssSquare NewYork NY 10036 Committee
Counsel to Union Planiers Bank,
N.A, and South Towne Plaza (Store
`christopher Tietz Tietz & Richardson 132 S Water Street Suite 444 Decatur L 62525 266)
Counsel to Carol Whlttle'-UL~1,
~. David Simpson HatteR/, Simpson & Wes!. . 402 Hill Arcde Garssburg L 61401 Janet MqEown
Heller Ehrman White & McAuliffe Counsel to Paul and Eleanor Sade,
~rl B. Johnson, Michssline H. Correa LLP 333 Bush Street San Francisco .3A 94104 Tr,
Trustee for the Paul and Eleanor
Mr. paul Sade 585 Point San Pedro Road ;an Rafael 3A 94901 Revocable Trust
Joel F: Crys, tal, ESQ Excel Realty Trust - ST, Inc. 1120 ArVen~e oi' the Americas lr2th Floor New York NY i 10036 Counsel to Excel Realty
Kenneth Miller, Esq. Reins E ,vans & Sssta~ovich 1924 Century Park East Suite 1600 los Angeles CA ~ 90067 Counsel for Para-Joy Realty
Gordon Brothers Retail Partners,
.~itchell H, Cohen LLC 40 Broad Street 11th Floor ,sston MA 021 O9! Fo~: Gordon Bro{hers Retail Partners
Rock is and County ~tate's Counsel to The County of Rock
Heidi Weller~ Assistant State's Attorney Attorney's Office 210 - 15th Street 'Rock Island IL 61201 sland, Illinois
Mars J. Kurzman Levett Rockwocd P C 33 Riverside AvenUe A/estport CT 0688(
[~antel J. Artz.r MacDonald Schuble & Artz LLP 325 North St. Paul Street ' Suite 2400 :)alrss TX ' 75201 .Counsel to J.W. P~rtners LLP
Karl A. Sz~manskl Attorney at Law 6377 Sebring Way .oyes Park I'L 61;I 11 ~ounsel to Evelyn B. Polsoastro
Exhibit C
Store Llouldation Service List
A I B I C I D [ E I FI G I H
1 NAME cOJ~/IpAN¥ ADDRESs.I ADDRESS2 ~,I'i;Y STATE ~iPCODE PARTYFUNCTION
2 Randy Fridkis Continental Plants Auction Group 1340 US Highway 1 Jupiter FL 33469
3 Steve Ravin Ravin Greenberg PC 101 Eisenhower Parkway Roseland NJ 07068
4 Judd Grafe Grafe Auction Company 1025 ndustrlal Drive Spring Valley MN 55975
5 , Scott Magnuson Hilco 5 Revere Drive Suite 430 Northbrook IL 60062
6 i Gary Gordsmith SB Capital Group 1973 Corvair Blvd. Columbus OH 43207
7, David Peress The Ozer Group 75 Second Avenue Hillsite Office Building Needham MA ~2494
8 Michael Eidelman ~/etter Price 222 N. LaSalle Street Suite 2600 Chicago IL 60601 Stores: 012, 038,
070, 073, 110
Store: 012 -~ 1890
Ocampo 350 West Hubbard, Suite N. Henderson,
9 Safesburg, LLC ~.ttn: Robert J. Bond 450 Chicago IL 60610 Galesburg, II 61401
Store: 012-- 1890
Jo-ann Stores, Inc. ~Jo Lisa Tatka, Real Estate N. Henderson,
10 {#527) Services 5555 Darrow Road Hudson OH 44236 Galesburg, II 61401
Thompson, Hine & Store: 012 -- 1890
Flory, attn: Samuel 3900 Society Ctr, 127 N. Henderson,
11 ~(nezevic Jo-ann Stores, Inc. (#527) Public Sq. Cleveland OH 44114 Galesburg, II 61401
Store: 012 -- I890
Yhe Farmers and N, Henderson,
12 ~echanics Bank ~Jo Greg Kistler 21 E. Main Street Galesburg IL 61401 Galesburg, II 61401
Store: 012-- 1890
Dcampo 350 West Hubbard, Suite N. Henderson,
13 Galesburg, LLC *Jo Jim Harrington 450 Chicago IL 60610 Galesburg, II 61401
Katz Randall & Store: 012 -- 1890
~Veinberg, attn: 333 W Wacker Drive, N~ Henderson,
14 =eter Hess Ocampo Galesburg, LLC Suite 1800 Chicago IL 60608 Galesburg, II 61401
Store: 012 -- 1890
Jo-ann Stores, Inc, N. Henderson,
,1, 5 ',#527) Attn; ReaI Estate Services 5555 Darrow Road Hudson OH 44236 Galesburg, II 61401
Store: 012 -- 1890
Farmers and N. Henderson,
1,6 Mechanics Bank Farmers and Mechanics Bank 21 E Main Street Galesburg IL 61401 Galesburg, II 61401
Store: 012 -- 1890
Ocampo American Nat'l Bank & Trust Co,, . N, Henderson,
17 Galesburg LLC AKA Trust #120937-04 33 N. Lasalle Street Chicago IL 60602 Galesburg, II 61401
Counsel for
Vedder, Price, Kaufman & OCAMPO ~ Store
18 Allyson Russo Kammholz, P.C. 222 North La Saile Street Chicago IL 60601 012
Tax Authority for
· 19 City of Galesbur~ Clt~, Clerk's Office - City Hall 55 W. Tompkins Street Galesburg IL H401 Store 12
Exhibit C
Store Liquidation SerVice List
A B C D E F G H
Tax Authority for
20 City of Galesburg Treasurer's Office 55 W. Tompkins Street Galesburg IL 51401 Store 12
Store: 037-- 1700
Sycamore Rd.,
21 Nai Hiffman American Nat'l. Bank & Trust Co. 33 North Lasalle Street Chicago IL 50602 Dekalb, II 60115
Store: 037-- 1700
Sycamore Rd.,
22 Richard McMahon Ranger Partners, XXV, LLC 4930 East State Street Rockford IL 51108 Dekalb, Il 60115
Store: 037-- 1700
Sycamore Rd.,
23 Thomas Lester · Hinshaw & Cu[bertson 100 Park Avenue Rockford IL 81105 Dekalb, 1160115
Tax Authority for
24 City of DeKalb City Clerk's Office 200 South F0udh Street Attn Dawn C Didier Dekalb IL 50115 Store 37
Tax Authority for
25 City of DeKalb City Clerk's Office 200 South Foudh Street Dekalb iL 80115 Store 37
City of DeKalb, 110 E Sycamore Street, Tax Authority for
26. Collector Attn Christine Johnson 4th Floor Sycamore IL 80178 Store 37
Store: 039 -- 1915
W. Modon Ave.,
US Bank National Jacksonville, II
27 Assoc (Firstar) c/o Jennifer Stone 601 Second Avenue South Minneapolis MN 55402 52650
Store: 039 ~- 1915
~V. Morton Ave.,
US Bank National 2751 Shepard Road - acksonville, II
28 Assoc (Ftmtar) US Bank National Assoc (Firstar) MNRB0186 St Paul MN 15116 52650
Store: 039 -- 1915
US Bank and ~V, Morton Ave.,
National Jacksonville, II
29 Association Firstar 601 Second Avenue South Minneapolis MN 55420 52650
Store: 039 -- 1915
~N. Morton Ave.,
Arnstein and Lehr, 120 S. Riverside Plaza Jacksonville, II
30 c/o Barry Chatz US Bank National Association Suite 1200 Chicago · IL 10606 52650
Tax Authority for
31 City of Jacksonville 200 West Douglas Jacksonville IL 82650 Store 39
Katz Randall & Store: 070 -- 1401
Weinberg, attn: 333 W. Wacker Drive, S. Fourth St.,
32 Peter Hess Ocampo Deka b, LLC Suite 1300 Chicago IL 50606 Dekalb, II 60115
Store: 070 -- 1401
Ocampo Dekalb, 350 West Hubbard; Suite S. Fourth St.,
33 LLC , Attn: Robert J. Bond 450 Chicago IL 50610 Dekalb, II 60115
Exhibit C
Store Liauidation Service List
A B C D E F G H
Store: 070 -- 1401
Ocampo Deka[b, 350 West Hubbard Street, S. Fourth St.,
34 LLC cio Jim Harrington Suite 450 Chicago IL 60610 Dekalb, II 60115
'ax Authority for
3.~5City of DeKalb City Clerk's Office 200 South Fourth Street Attn Dawn C Didier Dekalb IL 60115 ~tore 70
·Tax Authority for
36 City of DeKalb City Clerk's Office 200 South Fourth Street Dekalb IL 60115 Store 70
City of DeKalb, 110 E Sycamore Street,. Tax Authority for
37 3ollector ~,ttn Christine Johnson 4th Floor Sycamore IL 60178 Store 70
Counsel for
Cedder, Price, Kaufman & OCAMPO - Store
38 ~,llyson Russo Kammholz, P.C. 222 North La Salle Street Chicago IL 60601 070
Store: 120 -- 4011
Pinnacle Bank of ~,s Trustee Under Trust No, 50-78 Ave. Of the Cities,
39 ~he Quad Cities ¢ 1100 - 1st Avenue Silvis IL 61282 Moline, I1 61265
Store: 120 -- 4011
Pinnacle Bank of Ave. Of the Cities,
40 lhe Quad Cities c/o RRS Investments 400 John Deem Road Moline IL 61265 Mollne, II 61265
~" Pinnacle Bank of Store: 120 -- 4011
~he Quad Cities, Ave. Of the Cities,
41 attn Dr. V.R. Alia As Trustee UT No. 50-78-4 1100 - 1st Avenue Silvis IL 61282 Moline, II 61265
Mcghee, Olson,
Pepping, Balk & Store: 120 -- 4011
Pays, c/o Steven Ave. Of the Cities,
42 Balk RRS Investments 105 7th Street Silvis IL 61282 Moline, II 61265
City of Rock Island l'ax Authority for
4,3 Finance Dept. 1528 Third Ave. Rock Island IL 50201 Store 120
City of Rock Island i'ax Authority for
44 Clerk Office of City Clerk 1528 Third Ave. Rock island IL 50201 Store 120
Tax Authority for
45 City'of Moline Accountant's & Finance Office 1616 6th Avenue Moline IL 51265 Store 120
City of Moline Tax Authority for
44 Finance Dept. Acc0untant's & Finance Office 1616 6th Avenue Moline IL 61265 Store 120
Tax Authority for
47 City of Moline Finance Office 1616 6th Avenue Moline IL 61265 ;tore 120
Tax Authority for
48 City of Rock Island City Collector Office City Hall Rock Island IL H 201 Store 120
County of Rock CIO State Attorney's Office 0- Attn Rock island Courthouse Tax Authority for
49 island Heidi Weller 210 15th Street 4th Floor Rock Island IL: 61201 Store 120
City of Rock Falls . Tax Authority for
50 IL Cit~/Clerk's Office 603 West 10th Street Rock Falls IL 61071 .~tore 228
Exhibit C
Store Liauidation Service List
A B C D E F G H
City of Rock Falls, Tax Authority for
51 IL 1009 Seventh Street Rock Falls IL 61071 Store 228
County of --
Whlteslde Tax Authority for
52 Treasurer 200 East Knox Str~.~t~ Morrison IL 61270 Store 228
Store: 228 -- 928 -
1st Ave., Rock Falls
53 Albertson's Inc c/o Torrie Chaloupka 250 Parkcenter Ave Boise ID 83726 II 61071
Store; 233 -- 1000
Ethel Newman West 4th St., Milan,
54 Estate Trusts c/o Deutsche Bank 280 Park Avenue New York ',IY 10017 Il 61264
Ethel S. Newman Store: 233-- 1000
& Sidney Mandel, Y West 4th St., Milan,
55 Trustee cio Deutsche Bank 280 Park Ave New York N 10017 1161264
Store: 233 -- 1000
$. Sidney Mandel West 4th St., Milan,
56 Trustee S. Sidney Mandel Trustee 110 East 59th St 27th Floor New York NY 10022 II 61264
City of Rock Island Tax Authoi:ity for
57 Clerk Office of City Cierk 1528 Third Ave. Rock Island IL 60201 Store 233
Jenner and Block,
~ttn Jeffrey Store: 233 -- 1000
Sansberg, West 4th St,, Milan,
58 3atherlne Steege c/o Deutsche Bank One IBM Plaza Chicago IL 60601 II 61264
Tax Authority for
59 3i{y (~f Rock Island City Collector Office City Hall Rock Island IL 61201 Store 233
3ounty of Rock C/O State Attorney's Office 0- At't~ Rock Island Courthouse Tax Authority for
60 sland Heidl Weller 210 15th Street 4th Floor Rock Island IL 61201 Store 233
T Store: 299 ~- 1101
he Peoples Bank, N. Main St., Normal,
61 c/o Dave Fedor ~,tut No. 169 Dated 03/25/88 120 North Center Street Bloomington IL 61701 Il 61761
The Peoples Bank, Store: 299 -- 1101
c/o INB Mortgage 151 N Delaware St, Ste N. Main St., Normal,
62 Corp. lNG Banking Company M910 Indianapolis IN 46266 II 61761
Store: 299-- 1101
N. Main St., Normal,
63 The Peoples Bank Atut No. 169 Dated 03/25/88 120 North Center Street Bloomington IL 61701 II 61761
Store: 305 -- 1628
Georgetown Rd,
64 Southgate Partners c7o George Shapland 1203 S Mattis Avenue Champaign II 61821 Tilton, II 61832
Sunfield Co, Inc., ~
Susan & Sanford Store: 320 -- 2050
Sandelman BIvd. Janess Assoc as Trustees, c/o 185 NW Spanish River Jfk Road, Dubuque,
65 Assoc. K~n Properties Blvd, Box 500 E~oca Raton FL 33431 la 52001
Exhibit C
Store Liquidation Service List
A B C D E F G H
Sanfleld Co, Inc.,
Susan & Sanford Store: 320 -- 2050
Sandelman Blvd. 185 NW Spanish River Jfk Road, Du~buque,
~6 Assoc. c/o Kin Properties, Inc. Blvd, Box 500 Boca Raton FL 33431 la 52001
Store: 320 -- 2050
Dubuque Bank & Jfk Road, Dubuque,
67 Trust c/o Doug Stillings 1398 Central Avenue Dubuque IA 52001 la 52001
Store: 320 -- 2050
Jfk Road, Dubuque,
68 Kin Properties, Inc Kin Properties, Inc 1515 S Federal Highway Suite 302 Boca Raton FL 33432 la 52001
Store: 320 -- 2050
815 NW Spanish River Jfk Road, Dubuque,
69 Kin Properties, Inc. Kin Properties, Inc. Blvd Box 500 Boca Raton FL 33431 la 52001
Susan Sandelmar Store: 320 -- 2050
as Trustee of the 185 NW Spanish River Jfk Road, Dubuque,
70 Nasan Trust c/o Kin Properties, Inc BIvd, Box 500 Boca Raton FL 33431 la 52001
Susan Sandelman Store: 320 -- 2050
as Trustee of the 185 NW Spanish River Jfk Road, Dubuque,
71 Ester Jeffrey Trust c/o Kin Properties, Inc, Bl~/d, Box 500 Boca Raton FL 33431 la 52001
Sanford
Sandelman as Store: 320 -- 2050
Trustee of the 185 NW Spanish River Jlk Road, Dubuque,
72 Masue Trust c~o Kin Properties, Inc, Bird Box 500 Boca Raton FL 33431 la 52001
San ford
Sandelman as Store: 320 -- 2050
Trustee of Nasue 185 Nw Spanish River Jfl~ Road, Dubuque,
73 Trust c/o Kin Properties, Inc Bird Box 500 Boca Raton FL 33431 la 52001
Store: 320 -- 2050
National Boulevard 185 Nw Spanish River Jfk Road, Dubuque,
74 Associates C/o Kin Properties, Inc, Boulevard Box 500 Boca Raton FL 33431 la 52001
Store: 320 -- 2050
185 Nw Spanish River Jfk Road, Dubuque,
75 Janess Associates C/o Kin Properties, Inc. Boulevard Box 500 Boca Raton FL 33431 la 52001
San ford
Sandelman as Store: 320 -- 2050
Trustee of the 185 Nw Spanish River Jfk Road, Dubuque,
76 ~,lisue Trust ~Jo Kin Properties, Inc. Blvd Box 500 Boca Raton FL 33431 ia 52001
;usan Sandelman Store: 320 -- 2050
as Trustee of the 185 Nw Spanish R ver Jfk Road, Dubuque,
77 'vluffre¥ Trust *Jo Kin Properties, Inc. Blvd Box 500 Boca Raton FL 33431 la 52001
Exhibit C
Store Liquidation Service List
A B C D E F G H
Store: 320 -- 2050.
185 N.w. Spanish River Jfk Road, Dubuque,
78 ~(in Properties, Inc.~,ttn: Jeffrey Sandelman Blvd. Box 500 Boca Raton FL 33431 la 52001
Store: 320 -- 2050
· ~ 16 N. Main Street, Suite Jfk Road, Dubuque,
79 4~n Properties, Inc. Howard Heller 384 New York NY 109,~6 la 52001
Tax Authority for
80 City of Dubuque City Clerk's Office 50 W, 13th Street Dubuque IA 52001 Store 320
Tax Authority for
81 City of Dubuque City of Dubuque 50 W. 13th Street Dubuque IA 52001 Store 320
County of Dubuque Tax Authority roi'
82 Treasurer County of Dubuque Treasurer 720 Central Avenue Dubpque IA 52001 Store 320
83 Mark Naughton 3reat American Group · One Parkway North Suite 520 Deen~leld IL 60015
84 Ted Fleisner Badger Auction PO Box 247 Theresa WI 53091-0247
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTItERN DISTRICT OF ILLINOIS
EASTERN DMSION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
)
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
Hearing Date: September 30, 2003
NOTICE OF FILING
PLEASE TAKE NOTICE THAT, on September 24, 2003 we filed the
Auction Contract by and between Eagle Food Centers, Inc. and Grafe Auction
Company, Inc. ("Grafe"), in connection with the proposed retention of Grafe by the
above-captioned debtors and debtors-in-possession pursuant to the Motion for an Order
0) in Furtherance of Order Pursuant to (i) 11 U.S.C. § 327 Authorizing and
Approving the Retention of Grafe Auction Company, Inc.' as Liquidating Agent and
(ii) 11 U.S.C. §§ 105 and 363 Approving the Sale of Certain Furniture, Fixtures and
Equipment Without Further Court Approval, Entered on June 27, 2003, Approving
Retention of Grafe Auction Company, Inc. to Serve as Equipment Liquidating
Agent for up to 12 Additional Stores (the "Motion"). The Motion was filed on
September 19, 2003 and on September 30, 2003, we shall appear before the Honorable
Pamela S. Hollis, United States Bankruptcy Judge, Everett McKinley Dirksen Court-
house, 219 South Dearborn Street, Chicago, Illinois 60604, Courtroom 644, and then and
there present the Motion.
Dated: September 24, 2003
John Wm. Buffer, Jr. (ARDC No. 06209373)
George N. Panagakis (ARDC No. 06205271)
Ron Meisler [ARDC No. 06270262)
SKADDEN, ARPS, SLATE,
MEAGI-~ER & FLOM 0LLINOIS)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606-1285
(312) 407-07O0
Attorneys for the DebtorS and
Debtors-in-Possession
GRAFE AUCTION COMPANY
Nationwide since 1959
Licensed & Bonded
1025 Industrial Drive ~ Spring Valley, MN 55976 ~ (800) 328-5920
AUCTION CONTRACT
EAGLE FOODS
This Auction Contract ("Contract") is made and entered into as of
September 24, 2003, by and between Grafe Auction Company, Inc., Auctioneer,
(hereinafter "Grafe") and Eagle Food Centers, Inc., (hereinafter "Owner").
WHEREAS, Owner sought relief under Chapter 11 of Title I 1 of the
United States Code (the "Bankruptcy Code") by filing a case (the "Chapter 11 Case")
in the United States Bankruptcy Court for the Northern District of Illinois, Eastern
Division (the "Bankruptcy Court"); and
WHEREAS, pursuant to that certain Motion for an Order in
Furtherance of Order Pursuant to (I) 11 U.S.C. § 327 Authorizing and Approving the
Retention of Grafe-Auction Company, Inc. as Liquidating Agent and (fl) 11 U.S.C.
§§ 105 and 363 Approving the Sale of Certain Furniture, Fixtures and Equipment
Without Further Court Approval, Entered on June 27, 2003, Approving Retention of
Grafe Auction Company, Inc. to Serve as Equipment Liquidating Agent for up to 12
Additional Stores (the "Motion") filed by the Owner with the Bankruptcy Court on
September 19, 2003, Owner has requested Bankruptcy Court authority to liquidate, if
necessary, the personal property located at stores #009, 012, 037, 039, 062, 070, 120,
228, 233, 299, 305 and 320 (each, a "Store," and collectively, the "Stores"); and
WHEREAS, Grafe desires to facilitate the sale of such personal
property, upon the terms, covenants and agreements hereinafter provided, which
remains subject to Bankruptcy Court approval.
WHEREAS, Owner will continue to solicit interest in the Stores from
prospective purchasers and, as such, Grafe will only facilitate the sale of such
personal property, as directed by the Owner, at Stores that are not sold, if any.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter contained, it is hereby mutually agreed by and between Grafe
and Owner as follows;
1. Owner grants to Grafe the exclusive right to sell at public auction without reserve
the personal property located at the Stores.
2. Promptly following execution of this contract, Grafe shall complete an on-site
inventory, which will give bidders .specific model numbers and dimensions necessary in
preparing such bidders to buy the personal property at auction.
3. The auctions that the Debtors direct Grafe to conduct shall be conducted before
October 31, 2003; provided, however, subject to paragraph 18 below, Grafe shall ensure
that all items sold pursuant to such auctions shall be removed by the respective buyer (or
otherwise) no later than the end of the business day on October 31, 2003. Sales will
begin at 10:30 a.m. (central time). Previews days of sales shall begin at 8:30 a.m. (central
time) on the same day.
4. It is understood that Grafe will receive all proceeds of this sale, requiring all
checks to be drawn to the order of Grafe and will account for the proceeds of the auction
sale, holding them a sufficient length of time, not to exceed the Payment Date (as defined
herein) to insure all checks have cleared the bank upon which they were drawn. Proceeds
shall be sent to: Eagle Foods, Route 67 & Knoxville Rds., Milan, IL 61214.
5. Terms of the sale shall be cash or certified funds day of sale or credit as
authorized by Owner. If a buyer reneges on a bid, the auctioneer shall retain any sums
received by such buyer subject to release pursuant to a subsequent order of the
Bankruptcy Court and will seek to resell that item. Property shall be released to a buyer
only after fully settled for.
6. Owner makes no representation of warranty, express or implied, on the property
listed for sale as to its fitness for general or particular purpose, and the property is to be
sold "as is" and without recourse.
7. Grafe shall set up a crew to be on site 3 - 5 days in advance of an auction to
arrange set up, organize into appropriate categories and lot number the equipment. Grafe
shall provide a Sales force on-site on the morning of the sale, including 2 auctioneers,
ringman, clerks and cashiers. Grafe shall also provide the service of its in-house staff,
which shall include accounting and advertising personnel, data entry personnel,
nationwide hotline services and facilitate correspondence, including pre-sort mail. Grafe
shall also provide the auction headquarters.
8. Grafe shall provide Owner on each sale day with a computerized listing of every
lot sold, along with a description and selling price of each such lot. For each auction
conducted, Grafe shall also provide Owner, among other things, with an accurate figure
representing the total Gross Proceeds (as defined herein), a buyers' registration list and a
summary action report.
9. On or before the twelfth (12th) banking day following each auction date (the
"Payment Date"), Grafe shall deliver a check to Owner in amount equal to the gross
proceeds fi-om the sale of all items sold (exclusive of the Buyer's Premium described in
paragraph 17, the "Gross Proceeds") less (a) Advertising Expense (as defined herein), (b)
Removal Expense (as defined herein), (c) Commission (as defined herein) and (d) the
Utility Expense (as defined herein). (The term ?Net Proceeds" shall mean the mount of
the Gross Proceeds less (a), (b), (c) and (d) of this paragraph.) Grate shall provide Owner
with a itemized statement of Advertising Expense, Removal Expense and Utility Expense
on or prior to the Payment Date.
10. Owner agrees to pay Grate a commission often percent, (10%) of the gross
collected proceeds of such sale of which charge includes aucfioneering, clerking and
advice on sale preparations (the "Commission"). Owner further agrees that the
Commission, the Advertising Expense and the Removal Expense shall be deducted in full
from the Gross Proceeds after the conclusion of the sale. Grate shall provide Owner with
a complete listing of items sold and sale prices day of sale.
11. Owner authorizes Grate to advertise the auction sale as follows: Grafe shall
create and issue tailored advertising in order to market the Owner's personal property to
be sold at auction. The target market shall be Illinois, Indiana, Wisconsin and Missouri.
Grate shall issue and mail first-class over 3000 direct mail pieces to a targeted audience
of potential buyers, which pieces shall be delivered at least ten days prior to the relevant
auction dates. Grate shall also target nationwide dealers and users of supermarket
equipment using its peJmanent mailing list. Grate shall also write, design and cause the
publication of newspaper ads to select major cities in the states named above. The
newspaper display ads will vary in size, depending on the market, ranging from 1 column
by 4 inches to 2 columns by 4 inches. In addition, Grate shall also market the personal
property to be sold at auction on their website, www. grafeauction.com, which site shall
include a complete listing of personal property to be sold, a colored photo tour, maps and
company information. Grate's site shall be reasonably available and operational on a
round the clock basis. Owner shall be solely liable and responsible for all expenses
involved in such advertising, not to exceed $3,000 to 4,500 per store (the "Advertising
Expense"), and authorizes Grafe to deduct the Advertising Expense from the Gross
Proceeds of the auction. Grafe shall provide documentation to Owner of all amounts
actually spent on Advertising Expense.
12. Owner must insure that electrical and hvac are functioning for set-up and day of
sale. If they are not, Grate will make arrangements and deduct costs from the Gross
Proceeds of sale (any such costs paid by Grate, the "Utility Expense").
13. All personal property or leased items not subject to this Contract must be removed
(or moved so as to not interfere with the sale) before set-up.
14. Subject to Bankruptcy Court approval of the Motion, which is anticipated to occur
on September 30, 2003, Owner represents that it shall have full.power and authority to
sell such personal property and that such sales shalI be free and clear of all liens or other
encumbrances, with such liens and other encmbrances to attach to the Net Proceeds.
3
15. Everything will be sold as is, where is.
16. Grafe further agrees as follows: To obtain all licenses and permits required to
comply with local, county, municipal and state laws, and to supply auctioneers, set-up
personnel, ring men, cashiers and clerks. Grafe will collect and retain a 10% Buyer's
Premium from all buyers.
17. It is mutually agreed by and between Grafe and Owner that this Auction Contract
shall be binding upon them and upon their respective agents, employees, heirs, executors,
administrators, devises, legatees, assigns and successors in interest.
18. Upon completion of each Store sale, Grafe shall (a) cap all exposed electrical
lines, (b) cap all exposed water lines and (c) vacate each Store in broom-clean condition.
Each Store shall be vacated at dates to be determined by Owner, but in no event later than
October 31, 2003. In addition, subject to the instructions of Owner, Grafe shall conduct a
comprehensive removal of the unsold personal property at the Stores.. The cost of
removal of unsold personal property, if any, shall be (i) the lesser of actual cost to remove
the unsold items or $4,500 per Store plus (ii) Grafe's actual cost to remove unsold
refrigeration cases (which is estimated to cost $50.00 per case) and (iii) Grafe's actual
cost to remove unsold walk-in refrigeration units (which is estimated to cost $250 to $400
per unit) (collectively, the "Removal Expense"). Dumpsters shall be providedby Owner.
Grafe shall be responsible for any occupancy costs for Stores at which Grafe is instructed
to conduct sales that are incurred subsequent to October 31, 2003 primarily as a result of
Grafe's failure to remove unsold personal property fi'om such Stores, Grafe's failure to
cause buyers to remove personal property from such Stores, or Grafe's failure to
otherwise vacate such Stores in accordance with this Contract by October 31, 2003.
19. Owner reserves the right to sell any of the Stores to a third party, thus removing
such Store from those Stores which Grafe shall facilitate auctions, without any expense or
penalty to be incurred by Owne~ for such removal. Grafe shall facilitate the sale of
personal property, as directed by the Owner, at Stores that are not sold.
20. This Auction Contract may be executed in seveml counterparts, each of which
when so executed shall be deemed to be an original and such counterparts, together, shall
constitute one and the same instrument. Delivery by facsimile, of this Agreement or an
executed counterpart hereof shall be deemed a good and valid execution and delivery
hereof or thereof.
ER6,LE FOODS EXEC 8FFC Fax::S09-787-8840 Sep 215 20015 15:.59 F. tr2
IN Wr rNESS WHEREOF, thc parties have hereunto executed tkis
contract ~ duplicate on the date and at the place s~t above.
Grafe Auction Co.
By.'
Judd T. Orafe
1025 hdusWial Drive
Spring Valley, MN 55975
Owner: Eagle Food Centers, Inc.
Roht~ 67 & I~oxville Rd.
Milan, IL 61264
Lite. ed l]liaois Auetionee~s:
Judd Cwafe ]L Lic.~41000360
C~:a~e Auetio~ Compauy ~L Lie. # 044000164
Bob King IL lac. ~ 1000790
09/24/03 12:23 FAX ~073462466 GRAFE AUCTION ~06
IN WITNESS WHEREOF, the parties have hereunto executed this
contract in duplicate on the date and at the place set above.
Grate Auction Co. Owner:. Eagle Food Centers, Inc.
('" J udd/T:~raf?/~/~.
Robert J. Kelly
Rout0 67 & Knoxville Rd.
Mi!~. IL 61264
Licemed Illinois Auctioneers:
Judd Omfe IL Lic.#041000360
C~a~ Auction Company IL Lic.# 0~4000164
Bob King IL Lic. #041000790
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
et al., )
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
Heating Date: September 30, 2003
Heating Time: 11:00 a.m.
Obj. Deadline: September 26, 2003
NOTICE OF FILING
PLEASE TAKE NOTICE THAT on september 19, 2003, the above
captioned debtors and debtors in possession filed with the United States Bankruptcy
Court for the Northern District of Illinois, Eastern Division (the "Bankruptcy Court"),
that certain Acquisition Agreement, by and between Eagle Food Centers, Inc., a
Delaware Corporation, and Downtown Eagle Corporation, an Iowa corpora-
tion, attached as an Applicable Marked Agreement hereto as Exhibit A (the "Sale
Agreement"), with regard to the sale of the Debtors' assets related to stores 130 and
234 and in connection therewith the proposed Order Authorizing and Approving
(I) Sale of Certain of the Debtors' Assets Free and Clear of Liens, Claims and
Encumbrances, (IFF Assumption and Assignment of Certain Executory Con-
tracts and Unexpired Leases, and (Iii) Assumption of Certain Liabilities
attached hereto as Exhibit B (the "Proposed Sale Order")~. In accordance with the
Debtors' Procedures Order2, on September 30, 2003 at 11:00 a.m. (Prevailing Central
The marked Proposed Sale Order attached hereto reflects changes to the form of Sale Order
which waa filed aa Exlfibit I to the Motion for Orders Pursuant to 11 U.S.C. §§ 105(a), 363,
365 and 1146(e) and Fed. R. Bankr. P. 2002, 6004, 6006 and 9014 (I) Approving (A)
Bidding Procedures, (B) The Granting of Certath Bid Protections, (C) Form of Asset
Purchase Agreement and Lease Texmmation Agreement, (D) the Form and Manner of Sale
Notices, and (E) the Setting ora Sale Hearing, and (II) Authorizing and Approving (A) The
Sale of Certain of the Debtora' Assets Free and Clear of Liens, Claims and Encumbrances,
(B) the Assun~tlon and Assignment of Certsin Executory CanWacts and Unexpired Leases
and (Ct) The Assumption of Certain Liabilities (Docket No. 287).
Order under 11 U.S.C. §§ !05(a) and Fed. R. Bankr. P. 2002, 6004, 6006 and 901~ cv~
ing (A) Bidding Procedures, (B) the Granting of Certain Bid Protections, (C) the F~c~--~ of c.r~
Time) the Debtors shall appear before the Honorable Pamela S. Hollis, United States
Bankruptcy Judge, Everett McKinley Dirksen Courthouse, 219 South Dearborn
Street, Chicago, Illinois 60604, Courtroom 644, and then and there seek approval of
the Sale Agreement pursuant to the Debtors' Proposed Sate Order.
PLEASE TAKE FURTHER NOTICE THAT, in accordance with the
Procedures Order, the deadline for filing and serving an objection to the Proposed
Sale Order and/or Sale Agreement is September 26, 2003. Any objection or other
responsive pleading must be filed and served in accordance with the Order Pursuant
to 11 U.S.C. §§ 102 and 105(a), Bankruptcy Rules 2002(m) and 9007, and Local
Rules, 101,400, and 402 Establishing Onmibus Heating Dates and Certain Notice,
Case Management and Administrative Procedures, dated April 7, 2003 (Docket No.
61) (the "Case Management Order") and if such responding party intends to intro-
duce evidence or wi~esses, it must identify with reasonable particularity and provide
appropriate notice of its proposed evidence and witnesses in accordance with the
Case Management Order, a copy of which can be retrieved at www.ilnb.uscourts, ov
or will be provided upon written request to the Debtors' counsel.
Dated: September 19, 2003
Eagle Centgs, Ing~et al.
Joh~Wm. Butler, Jr. (ARDC No. 06209373)
George N. Panagakis (AP, DC No. 06205271)
Ron Meisler (ARDC No. 06270262)
SICADDEN, AP_PS, SLATE,
MEAGI-I~R & FLOM (ILLINOIS)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606-1285
(312) 407-0700
Attorneys for the Debtors and
Debtors-in-Possession
(...continued)
Asset Purchase Ag~ement and Lease Termination Agreement, (D) the Form and Manner of
Notice of(i) the Sale of Certain Assets, and (ii) the Assumption and Assigrm~et of Certain
Executory Conlxacts and Unexpired Leases and (E) the Setting of a Sale Hearing (Docket No.
330), entered by the Banlo'uptcy Court on June 27, 2003 (the "Procedmes Order").
ACQUISITION AGREEMENT
by and between
EAGLE FOOD CENTERS, INC.
as Seller,
and
[ ],
DOWNTOWN EAGLE CORPORATION.
as Purchaser
Dated as of[ ], 2003
9/19/2003 4:28 PM xxxiii
TABLE OF CONTENTS
Page
,?.T!CLE 1
£o¢fion 1.1 ...................................................................................................
Phce
......... NG
Ezzt:,zn 8.1 ................................. $u7.- va! ef~ ......... :^-~ nr ..... : ..... ~ a .....
9tl 9/2003 4:28 PM xxxvii
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, dated as of [ ], 2003 (the "Agreement"), is
made by and between EAGLE FOOD CENTERS, INC., a Delaware corporation (the "Seller'),
and [ l, a [ 1 [__DOWNTOWN EAGLE CQRPORATION. an Iowa
corporationJ (the "Purchaser"). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in Article IX.
WHEREAS, the Seller is engaged in the retail grocery business and operates grocery
stores;
WHEREAS, on April 7, 2003, the Seller, along with certain of its Affiliates, filed voluntary
petitions (the "Petitions") for relief commencing a case (the "Chapter I 1 Case') under Chapter 11
of Title 11 of the United States Code (the "B ' ' ·
ankruptcy Code ') ~n the Umted States Bankruptcy
Court for the Northern District of Illinois (the "Bankruptcy Court");
WHEREAS, the Seller, along with certain of its Affiliates, has continued in the
management and possession of its assets and business as debtor-in-possession in the Chapter 11
Case pursuant to Sections 1107 and 1108 of the Bankruptcy Code and subject to the terms and
conditions of this Agreement; and
WHEREAS, the Purchaser desires to purchase and acquire and the Seller desires to sell,
convey, assign and transfer, or cause to be sold, conveyed, assigned and transferred, to the
Purchaser, the Acquired Assets relating to the store locations identified on Schedule A hereto (the
"Store Locations"), and the Purchaser is willing to assume, and the Seller desires to assign and
delegate to the Purchaser, the Assumed Liabilities, all in the manner and subject to the terms and
conditions set forth, herein and in accordance with Sections 105, 363 and 365 of the Bankruptcy
Code.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants, and agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
Section ~.'L. Acquired Assets. On the terms and subject to the conditions set forth in this
Agreement and subject to approval of the Bankruptcy Court pursuant to Sections 105, 363 and 365
of the Bankxuptcy Code, at the Closing the Seller shall sell, assign, transfer, convey, and deliver, or
cause to be sold, assigned, transferred, conveyed and delivered, to the Purchaser and the Purchaser
shall purchase and accept from the Seller all right, title, and interest of the Seller in and to the
following (collectively, the "Acquired Assets"):
(a) the grocery, general merchandise, liquor, dairy, frozen foods, cigarettes,
health and beauty care, meat, produce, seafood, deli, bakery, floral and pharmacy inventory at each
Store Location (the "Inventory");
Co) all rights and incidents of interest of the Seller to the agreements, contracts
and arrangements that are listed or described on Schedule 1.1Co);
(c) all machinery, equipment, computers, furniture, furnishings, fixtures, office
supplies, tools, order entry devices, freezers, refrigerators, pharmacy equipment and all other
tangible personal property owned by the Seller that are used exclusively in the operation of the
Store Locations and located on any Owned Real Property or premises' subject to the Property
09/19,'D3 4:28 PM
Leases (collectively, the "Tangible Personal Property"), including without limitation, such of the
foregoing as are listed or described on Schedule 1 .l(c);
(d) to the extent transferable, all rights as of the Closing under all warranties,
representations and guarantees made by suppliers, manufacturers and contractors in connection
with the Acquired Assets;
(e) (i) the real property that is listed and described on Schedule 1.1(e)(i) (the
"Owned Real Property") and (ii) the real property leases that are listed or described on Schedule
1.t(e)(ii) (the "Property Leases");
(f) to the extent transferable, all Governmental Authorizations and all nendine
applications thereof or renewals thereof:
(~] all books and records (other than books and records relating to Taxes),
including, without limitation, fixture plans, construction drawings and specifications and
maintenance records of the Seller exclusively relating to the Tangible Personal Property, the
Owned Real Property or the Property Leases; and
(g!!O all the rights, properties or assets that are listed or described on Schedule
1.!(g!~_).
EXCEPT FOR SPECll:IC REPRESENTATIONS AND WARRANTIES CONTAINED
IN THIS AGREEMENT, THE ACQUIRED ASSETS ARE BEING SOLD ON AN "AS IS,"
"WHERE IS" BASIS AND SELLER DOES NOT MAKE ANY WARRANTIES, EXPRESS OR
IMPLIED, OF MERCHANTABILITY, FITNESS OR OTHERWISE WITH RESPECT TO THE
ACQUIRED ASSETS WHICH EXTEND BEYOND THE AFORESAID SPECIFIC
REPRESENTATIONS AND WARRANTIES.
Section 1.2 Excluded Assets. Notwithstanding anything contained in this Agreement to
the contrary, the following rights, properties and assets (collectively, the "Excluded Assets") will
not be included in the Acquired Assets:
(a) all cash, cash equivalents, checks in transit, credit card receipts, marketable
securities or accounts receivable arising out of the operation of the Store Locations existing on the
date hereof or arising after the date hereof and until 11:59 ~m Central Time the day before the
Closin~ Date. of the Seller;,
(b) all fights, properties and assets of the other operations (other than the Store
Locations) of Seller and any of its Affiliates;~
(c) all vendor-owned equipment, including without limitation the items listed
or described on Schedule 1.2(c);
(d) all of the agreements, con~'acts and arrangements that have terminated or
expired prior to the Closing in the ordinary course;
(e) any claims, demands, actions, rights or causes of action arising under
Sections 544 through 553, inclusive, of the Bankruptcy Code;
(f) any Tangible Personal Property transfe~'~'ed or disposed of in the ordinary
course prior to the Closing;
......... 54q463!D 2 9/19/2003 4.28 PM
(g) the company seal, minute books, charter documents, stock or equity record
books and such other books and records as pertain to the organization, existence or capitalization
of the Seller or any Affiliate of Seller as well as any other records or materials relating to the Seller
or any Affiliate of Seller generally and not exclusively involving or exclusively related to the
Acquired Assets or the operation of the Store Locations;
(h) any preferred cardholder records, customer lists or check-cashing lists;
all contracts of insurance;
(i)
(k)
any tight, property or asset that is listed or described on Schedule 1.20);
other than the sotlware licenses listed or described on Schedule lA(b), all
U.S: and other letter patent, patents, patent applications, soft'ware, know-how, trade names,
trademarks, registered copyrights, service marks, trademark registrations and applications, service
mark registrations and applications, copyright registra,!ions and applications, intemet domain
names and any licenses to use any of the foregoing (the Intellectual Property");
(1) all bank accounts or other banking arrangements relating to the Store
Locations (including all rights or incidents of interest with respect to the cash or cash equivalents
in such bank accounts);
(m) all prepaid items or deposits relating to the Store Locations;
(n) any right the Seller has with respect to any Tax refunds, credits or attributes,
and any claims therefor,
(o) all Tax Returns and books and records relating to Taxes; and
(p) any Seller Plan.
Section 1.3 Assumed Liabilities. On the terms and subject to the conditions set forth in
this Agreement, at the Closing, the Purchaser shall assume from the Seller and its Affiliates and
thereafter pay, perform or otherwise discharge in accordance with their terms, and shall hold the
Seller and its Affiliates harmless fi~om all of the liabilities and obligations (of any nature or kind,
and whether based in common law or statute or arising under written contract or otherwise, known
or unknown, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, real or
potential) of the Seller and its Affiliates: (i) with respect to, arising out of or relating to, the
ownership, possession or use of the Acquired Assets and the operation of the Store Locations on
and adler the Closing Date, including without limitation; all of the obligations and liabilities arising
under the ageements, contracts and arrangements included in the Acquired Assets; (ii)in
connection with or arising under Environmental Laws or Taxes relating to the Owned Real
Property or the real property subject to the Property Leases or ad valorem Taxes levied with
respect to the Acquired Assets or Store Locations~ but only to the extent that such taxes arise as a
result of Purchaser's oneration of the store locations on or after the Closine Date: and (iii) as listed
or described on Schedule _1.3
(collectively,
the "Assumed Liabilities").
Section 1.4 Excluded Liabilities. The Purchaser shall not assume or agree to pay,
perform or otherwise discharge any liabilities, obligations or expenses other than the Assumed
Liabilities.
9/19/2003 4.:28 PM 3
Section 1.5 Purchase Price.4- In consideration for the Acquired Assets, the Purchaser
shall, in addition to the assumption of the Assumed Liabilities, pay to the Seller at the Closing the
Cash Purchase Price in cash by wire transfer of immediately available funds to an account or
accounts designated by the Seller. The "Cash Purchase Price" shall be the sum of the Inventory
Amount and {;~-}Six-Hundred and Fifty Thousand Dollars ($[-~-}650,000).
Section 1.6 Inventory Amount. i-)Exhibit 1.6(a) sets forth the "Preliminary Inventory
Amount." The Preliminary Inventory Amount was determined in accordance with Exhibit 1.6(a)
on a store-by-store basis for each of the Store Locations.
Co) T',vc dayzAt 11:59 n.m. Central Time the day prior to Closing, one or more
third party inventory counting firms mutually agreed upon by the Seller and the Purchaser shall
perform a physical inventory of all Inventory at the Store Locations on a store-by-store basis.
................... r,,/ ............... ~ ....v .............................................. chall
............ ~ ................................... ~ ...........,~cc:,"rcfl. Seller and Purchaser shall
share the cost of the inventory counting firm(s) performing such physical inventory equally and
agree to execute a joint retention agreement(s) with the inventory counting firm(s) on usual and
customary terms. The procedures and policies to be followed In taking such physical inventory are
set forth in Exhibit 1.6(b). The day prior to the ClosIng, Seller shall prepare and deliver to
Purchaser a statement (the "Inventory Statement") that shall set forth the value of the Inventory as
of the date of the Inventory Statement (the "Inventory Amount"). The Inventory Amount shall be
determined based on (i) the physical inventory conducted in accordance with this Section 1.6 and
Exhibit 1.6('o) and the methodology, policies, principles and processes set forth In Exhibit 1.6(a)
and used to prepare the Preliminary Inventory Amount: minus (ii) the sum &the ~oss receints of
each Store Location on the last full business weekday nrecedine the Closin~ Date multiplied bY a
factor of 0.72.
(e) During the preparation of the Inventory Statement and the taking of the
physical inventory by the third party inventory counting firm(s), to the extent reasonably necessary
for the preparation of the Inventory Statement and the performance of the physical inventory, the
Seller shall, in accordance with the procedures and policies set forth in Exhibit 1.(fib), (i) provide
the Purchaser and the Purchaser's authorized representatives with reasonable access to books,
records, facilities and employees of the Seller and (ii) cooperate fully with the Purchaser and
Pumhaser's authorized representatives, including the provision on a timely basis of all information
that is reasonably available.
(d) If the Inventory Statement is prepared on the basis of the physical inventory
conducted in accordance with this Section 1.6 and Exhibit 1.6(b) and the Inventory Amount is
calculated using the methodology, policies, principles and processes set forth in Exhibit 1.6(a) and
used to prepare the Preliminary Inventory Amount, the Inventory Amount reflected on the
Inventory Statement delivered by the Seller shall be the Inventory Amount hereunder absent
manifest error. The Inventory Amount shall be final and binding on the parties and no
post-Closing adj~Lment shall be made or asserted by either party.
Section 1.7 Allocation of Purchase Price for Tax Purposes. The Seller and the
Purchaser agree that, for all Tax and other reporting purposes, the allocation of the Purchase Price
to the Acquired Assets shall be as set forth on Exhibit 1.7, which Exhibit 1.7 shall be completed
within fifty-five (55) days of the date of this Agreement and which, when eoropleted, will have
$ ........ 5-i~463, rx-2 9/I9/2003 4.28 PM 4
been arrived at by arm's length negotiation in compliance with Section 1060 of the Internal
Revenue Code of 1986, as mended. If the Inventory Amount differs from the Preliminary
Inventory Amount, the Seller and the Purchaser agree to make appropriate adjustments to the
allocation set forth in Exhibit 1.7. If the Seller and the Purchaser are unable to resolve any material
differences with regard to the allocation of the Purchase Price, then any disputed matters will be
finally and conclusively determined by an independent certified accounting firm or independent
appraisal firm (the "Allocation Arbiter"), which Allocation Arbiter shall be mutually agreed upon
by the Purchaser and the Seller, provided, however, that such agreement shall not be unreasonably
withheld or delayed. Promptly, but not later than fifteen (15) days after its acceptance of
appointment hereunder, the Allocation Arbiter will determine (based solely upon representations
of the Purchaser and the Seller and not by independent review) only those matters in dispute, and
will render a written report as to the disputed matters and the resulting allocation of the Purchase
Price, which report shall be conclusive and binding upon the parties. Such Allocation Arbiter's
fees and expenses shall be bom equally by the parties. Within fifieen (15) days after the
allocations have been determined, the Pumhaser will provide the Seller with copies of Form 8594
and any required exhibits thereto, consistent with the allocations of this Section 1.7 and Exhibit
1.7. Each of the Purchaser and the Seller shall (i) timely file all forms (Including Internal Revenue
Service Form 8594) and Tax Remrus required to be filed in cormection with such allocation, (ii) be
bound by such allocation for purposes of determining Taxes, (iii) prepare and file, or cause to be
prepared and filed, its Tax Returns on a basis consistent with such allocation and (iv) take no
position, or cause no position to be taken, inconsistent with such allocation on any applicable Tax
Return, in any audit or proceeding before any Taxing Authority, in any report made for Tax,
financial accounting or any other purposes, or otherwise. If the allocation set forth on Exhibit 1.7
is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly
notify the other party hereto concerning the existence and resolution of such dispute.
Section 1.8 Intellectual Property. It is expressly agreed that the Purchaser is not
purchasing acquiring or otherwise obtaining any right title or Interest in and to the Intellectual
Property, including without limitation the names "Eagle Food Centers", "Foodco", "BOGO Food
and Deals" or "Eagle Counlzy Markets" or any trade names, trademarks, identifying logos or
sen, ice marks related thereto or employing the words "Eagle Food Centers", "Foodeo'; "BOCK)
Food and Deals" or "Eagle Country Markets" or any part or variation of any of the foregoing or
any confusingly similar trade names, trademark or logo. Notwithstandine the above, the ~arti .es
a~ree to negotiate in ~ood faith the acauisition or licensim, of all the rimhts, title, or interest in the
name "Ea~,le Country Markets" and any trade names: trademarks, identifvin~ lo~os or service
works related thereto or emnlovine the words "Ea~,le Country Markets" or any t~art or variation
thereof, as those rjr. hts. title, or interests relate to the Store Locations
Section 1.9 Prorations. All rent. additional rent. real nrot~ertv taxes, ooeratine exnense~
and utility chard,es m/sIne nursuant to the terms of the Pronertv Leases and mmlicable to veriods
vrior to the Closine, Date shall be the rest>onsibilitv of Setter (and to the extent any such amounts
are then unknown, the same shall be reasonably estimated at the Closine based on vrior hills or
other rmrtinent evidencel. All such amounts which relate to r~eriods on or after the CIosin~ Date
shall be the resmmsibilitv of Purchaser. All such items shall be anvrot>riatelv vrorated by the
varties at the Closinm
ARTICLE II
THE CLOSING
Section _a4,.~. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Skadden, Arps, Slate, Meagher &
Flom (Illinois), 333 West Wacker Drive, Chicago, Illinois 60606 at 10:00 a.m. on the later of(i)
the third business day after the conditions set forth in Article VI shall have been satisfied or waived
and (ii) at such other time, date, and place as shall be fixed by agreement between the parties (the
date of the Closing being herein referred to as the "Closing Date"). For financial, acenunting and
tax purposes, the Closing shall be deemed conclusively to have occurred at 11:59 p.m. Central
Time on the Closing Date.
Section 2.2 Deliveries at Closing. (a) At the Closing, the Seller shall deliver to the
Purchaser:
(i) a duly executed bill of sale, substantially in the form of Exhibit
2.2(a)(i) attached hereto, transferring the Acquired Assets to the Purchaser;,
(ii) all other conveyance documents reasonably necessary to transfer to
the Purchaser the Acquired Assets, including special or limited warranty deeds (or
their local equivalent) regarding the Owned Real Property purchased by the
Purchaser;
(iii) a certificate confirming that the Seller is not a "foreign person"
within the meaning of Section 1445 of the Code;
(iv) the assignment and assumption agreement to be entered into
between the Seller and the Purchaser (the "Assignment and Assumption
Agreement") substantially in the form of Exhibit 2.2(a)(iv) attached hereto, duly
executed by the Seller evidencing the assignment and assumption by the Purchaser
of the Assumed Liabilities;
(v) the Acquired Assets by making the Acquired Assets available to the
Purchaser at their present locations;
(vi) all other prev/ously undelivered certificates and other documents
required to be delivered hereunder by the Seller to the Purchaser at orprior to the
Closing Date.-; and
(vif} A cony of the Section 363/365 Order.
At the Closing, the Purchaser shall deliver to the Seller:.
(i) the Cash Purchase Price by wire transfer in immediately available
fund~ to au. account or accounts designated by the Seller,
(ii) the Assignment and Assumption Agreement duly executed by the
Pu~haser;, and
(iii) all other previously undelivered certificates and other documents
required to be delivered by the Purchaser to the Seller at or prior to the Closing Date
in cormection with the transactions contemplated by this Agreement.
........ 53_546 },_D 2_ 9/19~2003 4.28 PM 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Except as disclosed in the written statement delivered by the Seller to the Purchaser at or
prior to the execution of this Agreement (the "Seller Disclosure Schedule") or in the Seller SEC
Documents, the Seller represents and warrants to the Purchaser as follows:
Section 3.1 Organization. The Seller is validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite power and authority to own, lease
and operate its properties and to carry on its business as it is now being conducted, except where
the failure to be so existing and in good standing or to have such power and authority would not
have a Material Adverse Effect. The Seller is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the nature of the business
conducted by it makes such qualification or licensing necessary, except where the failure to be so
duly qualified, licensed and in good standing would not have a Material Adverse Effect. The
Seller has heretofore made available to the Purchaser a complete and correct copy of the certificate
of incorporation and bylaws of the Seller, as currently in effect.
Section 3.2 Authority Relative to this Agreement
(a) Subject to the entry of the Section 363/365 Order, the Seller has the
corporate power and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery, and performance of this Agreement by the Seller and the
consummation by the Seller of the transactions contemplated by this Agreement have been duly
authorized by all requisite corporate action. This Agreement has been duly and validly executed
and delivered by the Seller, and upon the entry of the Section 363/365 Order (assuming this
Agreement constitutes a valid and binding obligation of the Purchaser), will constitute a valid and
binding agreement of the Seller, enforceable against the Seller in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally fi-om time to time in effect and to general equitable principle.
(b) Notwithstanding anyth/ng to the contrary contained herein, no provision of
this Agreement is binding upon the Seller unless and until this Agreement is approved by the
Bankruptcy Court and the Section 363/365 Order is entered by the Bankruptcy Court.
Section 3.3 Consents and~. Upon the entry of the Section 363/365 Order, no
consent, approval, or authorization of, or declaration, 'filing, or registration with, any
Governmental Entity will be required to be made or obtained by the Seller in connection with the
execution, delivery, and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, except (a) for filings pursuant to the Haxt-Scott-Rodino
,Anti.tr~.t Improvements Act of 1976, as amended (the "HSR Act"~ and ....... *
tegislation in any other applicable jurisdiction, (b) those alread o~tainedV~n~~'~'' to equivalent
Y (c) for consents,
approvals, authorizations, declarations, filings, or reg/strations, which, if not obtained, would not
have a Material Adverse Effect.
Section 3.4 Financial Information. Seller has delivered or made available to Parchaser
copies of statements of profit and loss with respect to each Store Location (such financial
information being collectively referred to herein as the "Summary Financial Information"). The
Summary Financial Information has not necessarily been prepared in accordance with Un/ted
States generally accepted accounting principles ("GAAP") and has not been audited by
independent accountants, but in the opinion of Seller, includes the adjustments necessary to make
the financial information contained therein not misleading. Certain financial information, footnote
5 !5!57 'r) 254546_3/D/2 9/19/2003 4:28 PM 7
disclosure and material adjustments required in financial statements prepared in accordance with
GAAP have been omitted from, or condensed in, the Summary Financial Information.
Section 3.5. No Violations. Assuming that the consents, approvals, authorizations,
declarations, and filings referred to in Section 3.3 have been made or obtained and shall remain in
full force and effect and the conditions set forth in Article VI shall have been satisfied, at the
Closing neither the execution, delivery, or performance of this Agreement by the Seller, nor the
consummation by the Seller of the transactions contemplated by this Agreement, nor compliance
by the Seller with any of the provisions hereof will (a) conflict with or result in any breach of any
provisions of the certificate of incorporation or bylaws of the Seller, (b) result in a violation, or
breach of, or constitute (with or without due notice or lapse of time) a default (or give rise to any
right of termination, cancellation, vesting, payment, exercise, acceleration, suspension or
revocation) under any of the terms, conditions or provisions of any contract, agreement or
arrangement that is included as an Acquired Asset or any material note, bond, mortgage, deed of
mast, security interest, indenture, license, contract, agreement, plan or other instrument or
obligation by which any of the Store Locations may be bound or affected or (e) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Seller or the Acquired Assets,
except in the case of clauses (b) or (c) for violations, breaches, defaults, t~mfinafions,
cancellations, accelerations, vestings, payments, exercises, impositions, suspensions or
revocations that (i) would not b: rca~cnaSly Ekzly tc have a Material Adverse Effect or (ii) are
excused by or unenforceable as a result of the filing of the Petitions or as a result of the entry of the
Section 363/365 Order.
Section 3.6· No Default; Compliance with Applicable Laws; Permits.
(a) TheTo the knowledge of Seller. the Seller is not in default or violation of
any term, condition or provision of(i) its certificate of incorporation or bylaws or (ii) with respect
to the Store Locations only, any statute, law, role, regulation, judgment, decree, order, arbitration
award, concession, grant, fi-anchise, permit or license or other governmental authorization or
approval applicable to the Seller, including applicable federal, state, local and foreign laws and
regulations relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land surface or subsurface strata);, but
excluding from the foregoing clause (ii), defaults or violations which ',;'~.'.:I~ nzt 5c rgv. zcn"~ly
;;~..~.. ,~ u .... · ~,~.~.~ · .~ .... ~cc~, ..... *';~' become applicable as a result of the business or
activities in which the Purchaser is or proposes to be engaged or as a result of any acts or omissions
by, or the status of any facts pertaining to, the Purchaser.
EffcctTo the knowledge of Seller. the Seller currently holds all v ........ ~: ......... *~^'~'~"^-'
........ ,P~mi~ necessary or proper for the cun'ent use, occupancy and operation of the
Acquired Assets held by the Seller, and all such Permits are in full force and effect, g-x-eept-as
Seller has not received any written notice from any Governmental Entity revoking, modifying or
refusing to renew any Permit or providing notice of violations under any Permit.
Section 3.7 Books and Records. The books, records and accounts of the Seller
maintained with respect to the Store Locations fairly reflect, in reasonable detail, the transactions
and the assets and liabilities of the Seller with respect to the Store Locations in all material
respects. The Seller has not engaged in any transactions with respect to the Store Locations,
maintained any bank account for the Store Locations or used any of the funds of Seller in the
conduct of the Store Locations except for transactions, bank accounts and funds which have been
and are reflected in the normally maintained books and records of the Seller.
Section 3.8 Title to Property. Upon the entry of the Section 363/365 Order, at the
Closing the Seller will sell, assign, transfer and deliver, as the case may be, to the Purchaser the
Acquired Assets, and the Acquired Assets will be sold, assigned, transferred or delivered, as the
case may be, free and clear of all liens, claims, encumbrances and security interests other than
Permitted Exceptions.
Section 3.9 Inventory. At the time of the physical inventory provided for in Section 1-6,
(i) the Inventory (A) shall be undamaged, of merchantable and standard quality, in compliance
with applicable product and labeling specifications, (B)will not be adulterated or misbranded
within the meaning of the Federal Food, Drag and Cosmetic Act of 1938 or applicable state or
local law, (C) will consist of items of a kind reasonably salable in the ordinary course of operation
of the Store Locations; and (ii) the retail shelf prices of the Inventory will be at their usual and
customary levels and will not have been increased in anticipation of the physical inventory
provided for in Section 1.6.
Section 3.10 Conduct of Business. From May 3, 2003 to the date hereof, the Seller has
not taken any action that, if taken after the date hereof, would violate Section 5.1 hereof.
Section 3.11 Property Leases· Upon the entry of the Section 363/365 Order, the Seller
will sell, transfer and assign to the Purchaser a valid leasehold interest with respect to each of the
Property Leases which is a lease (as opposed to a sublease) and a valid subleasehold interest with
respect to each of the Property Leases which is a sublease free and clear of all liens, claims,
encumbrances and security interests other than Permitted Exceptions. Schedule 1.1(eXii)
identifies instruments through which the Seller derives its leasehold interest in the Property Leases
(including all amendments thereto). Complete and correct copies of the Property Leases have been
delivered te, er ma~e a:'a~!able f~r inz~:ct~cn ~;.', the Purchaser and none of the Property Leases
have been modified in any material respect except to the extent that such modifications are
disclosed by the copies delivered to ~r marc aYa!la~Iz f~r Lnz~zcticn by the Purchaser.
Section 3.12 Real Property.
(a) To the knowledge of Seller, there are no proceedings, claims, disputes or
conditions affecting any of the Owned Real Property or the real property subject to the Property
Leases that might curtail or interfere with the use of such property in any material manner. To the
knowledge of Seller, neither the whole nor any portion of the Owned Real Property or the real
property subject to the Property Leases is subject to any governmental decree or order to be sold or
is being condemned, expropriated or otherwise taken by any public authority with or without
compensation therefor, nor, to the knowledge of Seller, has any such condemnation, expropriation
or taking been proposed.
· (b) Seller h~. n.ot receive.d any written notice of, or other writing referring to,
any reqmrements or recommendatmn by an msurance company that has issued a poli~y coveting
any part of the Owned Real Propen'y or the real property subject to the Property Leas~ or by any
board ~f .fire und.erwriters.or o.th~ body exercising _similar function, requiring or recommending
an,y.m~ten..al r?atrs or _wo~ to ~ O. one on .any part of the Owned Real Property or the r~al property
suoJect to me rmperty Leases, which repmr or work has not been completed. ~
Section 3.13 Environmental Matters.
(a) Seller is in compliance with all applicable Environmental Laws (which
compliance includes, but is not limited to, the possession by Seller of all pel'mits and other
governmental authorizations required under applicable Environmental Laws, and compliance with
the terms and conditions thereof), except where failure to be in compliance would not have a
Material Adverse Effect.
(b) There is no Environmental Claim against Seller pending or, to the
knowledge of Seller, threatened against Seller (with respect to the Stere Locations,
Section 3.14 Employee Relations. With respect to the operation of the business
conducted at the Store Locations, the Seller is in compliance with all applicable laws, roles and
regulations which relate to wages, hours, leaves of absence, discrimination in employment, union
organization and collective bargaining and is not liable for any arrears of wages for failure to
comply with any of the foregoing, except for such failures to be in compliance that would not I~
re.~cnably likely t.~ have a Material Adverse Effect. No labor strike, slowdown, stoppage or
lockout is pending, or to the knowledge of the Seller, threatened against or affecting the business
conducted at the Store Locations and during the past two years there has not been any such action.
To the knowledge of the Seller, no union organizing or election activities involving any non-union
employees have occurred in the past two years or are threatened as of the date hereof. The Seller is
in compliance with the requirements of the WARN Act and has no liabilities pumuant to the
WARN Act, except for such failures to be in compliance and such liabilities that would not l~e
reasonably l:&e!ybe exoected to have a Material Adverse Effect.
Section 3.15 Brokers. No Person is entitled to any brokerage, financial advisory,
finder's or similar fee or commission payable by the Seller in connection with the transactions
contemplated by this Agreemunt based upon arrangements made by or on behalf of the Seller,
except Huron Consulting Group, LLC, whose fees and expenses will be paid by the Seller in
accordance with its agreement with such firm.
Section 3.16 Subleases
(al Exhibit 3.16. the Sublease Schedule (which shall be undated as of thc
Closin~ Date/is a tree. accurate and comnlete list of the Subleases. a cony of ei~:h
ofxvhich has been delivered to the Purchaser. or shall be delivered to the Purchaser
no later than five days before the Closin~ Date. Excent as set forth in the Sublease
Schedule. no ~avments. credits, rebates, concessions or other amounts are
outstandin~ or are due to any of the subtenants.
(bt To the knowledge of Seller. all of the Subleases are in full fome and effect
and free from any default on the nart of the subtenants or the landlord thereunder,
None of the subtenants has made or asserted in writin~ any defense, get off or
counterclaim with resnect to its Subleases.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
Section 4.1 Organization. The Purchaser is a [corporation-], validly existing:and in good
standing under the laws of its jurisdiction of incorporation and has the [corporate] power and
authority and all necessary governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted. The Purchaser is duly qualified as a foreign
corporation to do business, and is in good standing, in each jurisdiction where the character of its
properties owned or h~Id under lease or the nature of its activities make such qualification
necessary.
Section 4.2 '~ Authority Relative to this Agreement. The Purchaser has the [corporate3
power and authority to enter into this Agreement and to carry out its obligations hereunder. The
5 ~5 ~5~ 'D'25~fi4_6.3fD(~ 9/19/2003 4:28 PM 1 0
execution, delivery, and performance of this Agreement by the Pumhaser and the consummation
by the Purchaser of the transactions contemplated by this Agreement have been duly authorized by
all requisite corporate actions. This Agreement has been duly and validly executed and delivered
by the Purchaser and (assuming this Agreement constitutes a valid and binding obligation of the
Seller) constitutes a valid and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally from time to time in
effect and to general equitable principles.
Section 4.3 Consents and Approvals. Except for consents, approvals, authorizations,
declarations, filings or registrations which may be required under the HSR Act and under
equivalent legislation in any other applicable jurisdiction, no consent, approval or authorization of,
or declaration, filing or registration with, any Governmental Entity is required to be made or
obtained by the Purchaser in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this Agreement.
Section 4.4 No Violations. Neither the execution, delivery or performance of this
Agreement by the Purchaser, nor the consummation by the Purchaser of the transactions
contemplated by this Agreement, nor compliance by the Purchaser with any of the provisions
hereof, will (a) conflict with or result in any breach of any provisions of the articles or certificate of
incorporation, as the case may be, bylaws or other organizational documents of the Purchaser, (b)
result in a violation or breach of, or constitute (with or without due notice or lapse of time) a
default (or give rise to any right of termination, cancellation, acceleration, vesting, payment,
exercise, suspension, or revocation) under any of the terms, conditions or provisions of any note,
bond, mortgage, deed of trust, security interest, indenture, license, contract, agreement, plan or
other instrument or obligation to which the Purchaser is a party or by which the Purchaser or the
Purchaser's properties or assets may be bound or affected or (c) violate any order, writ, injunction,
decree, statute, role or regulation applicable to the Purchaser or the Purchaser's properties or
assets, except in the case of clauses Co) and (c) for violations, breaches, defaults, terminations,
cancellations, accelerations, vestings, payments, exercises, suspensions or revocations that would
not individually or in the aggregate have a material adverse effect on the Purchaser.
Section 4.5 Brokers. No Person is entitled to any brokerage, financial advisory,
finder's or similar fee or commission payable by the Purchaser in connection with the h'ansactions
contemplated by this Agreement based upon arrangements made by or on behalf of a Purchaser;
Section 4.6 Financing. As of the date hereof and on the Closing Date the Purchaser will
have sufficient funds available to deliver the Cash Purchase Price to the Seller, consummate the
transactions contemplated by this Agreement and satisfy the Assumed Liabilities in the ordinary
course of busing.
ARTICLE V
COVENANTS
Section 5.1 Conduct of Business by the Seller Pending the Closln~. The Seller
covenants and agrees that, except (i) as contemplated by this Agreement, (ii) as disclosed in
Schedule 5.1, (iii) with the prior written consent of the Purchaser, (iv) as required by, arising out
of, relating to or resulting fi.om, the Petitions or otherwise approved by the Bankruptcy Court or (v)
to the extent required by the lenders in connection with the Financing, after the date hereof and
prior to the Closing Date: but orovided that at no time shall the actions or lack thereof of the Seller
nermitted hereunder cause a Material Adverse Effect:
5 !5 !52 'D 25454_6_3~p~2_ 9/I 9/2003 4:28 PM 1 I
(a) the Seller shall, and shall cause its Affiliates to, use commercially
reasonable efforts to conduct the business of the Store Locations only in the ordinary course; and
(b) the Seller shall not, and shall cause its Affiliates not to, take the following
actions with respect to the Store Locations and the Acquired Assets:
(i) pledge, mortgage, acquire, sell, lease or dispose of a material
portion of any Store Location,_aB_v T_~il~l~e__Personal Pro~_~.yt~: or the Acquired
Assets with respect thereto except in the ordinary course;
(ii) make any increases in, or additions to, the compensation payable to
any of the Transferred Employees, including pursuant to a Seller Plan, other than in
the ordinary course or pursuant to existing Seller Plans or arrangements;
(iii) fail materially to maintain books, records and accounts of the Seller
relating to the Acquired Assets or any S~ore Location in the ordinary course;
(iv) make a material change of any of the accounting methods used by
the Seller with respect to the Store Locations unless required by GAAP or
applicable law; and
(v) authorize or enter into an agreement to do any of the foregoing.
Section 5.2 Access and Information. Subject to applicable law and the reasonable
requirements of the Seller to protect competitively sensitive information, the Seller shall afford to
the Purchaser and to the Purchaser's financial advisors, legal counsel, accountants, consultants,
£mancing sources and other authorized representatives reasonable access during normal business
hours throughout the period prior to the Closing Date to the books, re?ords,, prope,~ .and
personnel of the Seller relating to or involved in the operation of the Store t.oeal~ons anu, uunng
such period, shall fimaish reasonably promptly to the Purchaser such information as the Purchaser
reasonably may request; provided, that all such access shall occur only following prior notice to a
person designated by the Seller and only if accompanied by a designee of the Seller.
Section 5.3 Approvals and Consents; Cooperation; Notification.
(a) The parties hereto shall use their respective reasonable best efforts, and
cooperate with each other, to obtain as promptly as practicable all approvals, consents or waivers
from Governmental Entities required in order to consummate the transactions contemplated by
this Agreement; provided, that the obligaflgns of the parties to obtain any consent, approval or
waiver from the Bankruptcy Court shall be governed exclusively by Section 5.3(c).
(b) The Seller and the Purchaser shall take all actions necessary to file as soon
as practicable all notifications, filings and other documents required to obtain all approvals,
consents or waivers from Governmental Entities (other than the Bankruptcy Court), including,
without limitation, under the HSR Act, and to respond as promptly as practicable to any inquiries
received from the Federal Trade Commission, the Antitrust Division of the Depmhaent of Justice
and any other Governmental Entity for additional information or documentation and to respond as
promptly as practicable to all inquiries and requests received from .any Governmental Entity in
connection therewith. The Purchaser agrees to take promptly any and all steps necessary to avoid
or eliminate each and .every impediment under any antitrust or competition law that may be
asserted by any federal, state or local antitrust or competition authority so as to enable the parties to
expeditiously close the transactions contemplated by this Agreement.
5 !5 !r-?'~.?2~q. 5.163/D~[_2 9/19;2003 4:28 PM 1 2
(c) As promptly as practicable after the date hereof, the Seller shall file a
motion with the Bankruptcy Court seeking approval of this Agreement and entry of the Section
363/365 Order. Seller shall (i) notify, as required by the Bankruptcy Court, all parties entitled to
notice of such motion and/or the Section 363/365 Order, as modified by orders in respect of notice
which may be issued at any time and from time to time by the Bankruptcy Court and (ii) use its
reasonable efforts to obtain Bankruptcy Court approval of same.
Section 5.4 Additional Matters. Subject to the terms and conditions herein provided,
each of the parties hereto agrees to use all reasonable best efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions contemplated by this
Agreement; provided, that the obligations of the parties to obtain any consent, approval or waiver
from the Bankruptcy Court shall be governed exclusively by Section 5.3(c); ~ further, that
nothing herein shall prevent the Seller from cooperating with any third party to take actions
necessary or advisable to acquire all or a portion of the Acquired Assets or pursuant to any orders
entered or approvals or authorizations granted by the Bankruptcy Court and the Bankruptcy Code.
The obligations of each of the Purchaser and the Seller pursuant to this Article V shall be subject to
any orders entered or approvals or authorizations granted by the Bankruptcy Court and the
Bankruptcy Code. Each of the Seller and the Purchaser shall give prompt notice to the other of the
occurrence or failure to occur of an event that would, or with the lapse of time would, cause any
condition to the consummation of the transactions contemplated by this Agreement to not be
capable of satisfaction.
Section 5.5 Employment of Store Employees.~
5 !5!~-?'P.'25~63:'D/2 9/I 9/2003 4:28 PM 1 3
Purchaser shall not be required to make offers of employment to any of the
employees of Seller at the Store Locations, nor shall Purchaser be required to assume any
obligations or liabilities under the collective bargaining agreements of Seller identified in
Schedule 5.5(a) applicable to employees at the Store Locations.:}
Section 5.6 No Implied Representations or Warranties; Due Diligence.
(a) The Purchaser hereby acknowledges and agrees that the Seller is not
making any representation or warranty whatsoever, express or implied, except those
representations and warranties of the Seller explicitly set forth in this Agreement or in any
certificate contemplated hereby and delivered by the Seller in connection herewith.
Without limiting the generality of the foregoing, and notwithstanding any
otherwise express representations and warranties made by the Seller in Article nl hereof, the Seller
makes no representation or warranty to the Purchaser with respect to:
(i) any projections, estimates or budgets heretofore delivered to or
made available to the Purchaser of future revenues, expenses or expenditures or
future results of operations; or
(ii) except as expressly covered by a. representation or warranty
contained in Article m hereof, any other information or documents (financial or
otherwise) made available to the Purchaser or its counsel, accountants or advisers
with respect to the Store Locations.
(b) The Purchaser acknowledges that: (i) it has had the oppommity to visit with
the Seller and meet with its officers and other representatives to discuss the Store LocatiOns and
the assets, liabilities, financial condition, cash flow and operations of the Store Locations; and (ii)
....... 54 at~,D, 2 9/19/2003 4.28 PM
all materials and information requested by the Purchaser to date have been provided to the
Purchaser's reasonable satisfaction.
Section 5.7 Books and Records; Cooperation. For a period of seven (7) years after the
Closing Date (or such longer period as may be required by any Governmental Entity or legal
proceeding):
(a) the Purchaser shall not dispose of or destroY any of the business records and
files of the Store Locations transferred to it hereunder; and
(b) the Purchaser shall allow the Seller and any of its directors, officers,
employees, counsel, representatives, accountants and auditors access to the Transferred
Employees~ and other employees of the Purchaser or its subsidiaries engaged in the
operation of the Store Locations and all business records and files of the Sellers or the Store
Locations that are transferred to it in connection herewith, which are reasonably required by the
Seller for purposes related to the Chapter 1 1 Case, Tax matters and other reasonable business
purposes, during regular business hours and upon reasonable notice and the Seller shall have the
right to make copies of any such records and files.
(c) After the Closing Date, the Seller and Purchaser shall (and shall cause their
Affiliates to):
(i) timely sign and deliver such certificates or forms as may be
necessary or appropriate to establish an exemption fi-om (or otherwise reduce), or
file Tax Returns or other reports with respect to, Transfer Taxes;
(ii) easonably assist the other party in preparing any Tax Returns which
such other party is responsible for preparing and filing in accordance with this
Section 5.7(c); and
(iii) reasonably cooperate in preparing for any audits of, or disputes with
taxing authorities regarding, any Tax Returns relating to the Acquired Assets or
Store Locations.
Notwithstanding the foregoing or any other provision in this Agreement, neither the Purchaser nor
any of its Affiliates shall have the right to receive or obtain any information relating to Taxes of the
Seller, any of its Affiliates or any of its predecessors other than information relating to the
Acquired Assets or Store Locations.
Section 5.8 Payments Received. Seller and Purchaser each agree that alter the Closing
they will hold and will promptly transfer and deliver to the other, from time to time as and when
received by them, any cash, checks with appropriate endorsements (using their best efforts not to
convert such checks into cash), or other property that they may receive on or after the Closing
which properly belong to the other party, including without limitation any insurance proceeds, and
will account to the other for all such receipts.
Section 5.9 Intellectual Property Removal. In event that the oart/es are unable to reach
agreement on the sale or licensing of a nortion of the Intellectual Pronertv nnrsuant to Section 1.8
hereof within 60 days of the Closin,, Date. Purchaser shall remove or obliterate, at its own
expense, all signs and other displays of Intellectual Property (including shopping cart logns) fi-om
the Acquired Assets and Store Locations promptly after the Closing.
......... _~ ._' d_ ' 16
........ 54.463,T~,~2 9/19,2003 4.28 PM
ARTICLE VI
CONDITIONS PRECEDENT
Section .6.1 Conditions Precedent to Obligation of the Seller and the Purchaser. The
respective obligations of each party to effect the transactions contemplated by this Agreement
shall be subject to the satisfaction of the following conditions:
(a) the Section 363/365 Order shall have been entered by the Bankruptcy Court
and such order shall not have been stayed, modified, reversed or amended;
(b) the waiting period applicable to the transactions contemplated by this
Agreement, if any, under the HSR Act shall have expired or been terminated and each of the
material approvals or consents required by equivalent legislation in any other applicable
jurisdiction shall have been obtained or waived;
(c) no action, suit or proceeding (including any proceeding over which the
Bankruptcy Court has jurisdiction under 28 U.S.C. § 157Co) and (c)) brought by any Governmental
Entity shall be pending to enjoin, restrain or prohibit the transactions contemplated by this
Agreement, or that would be reasonably likely to prevent or make illegal the consummation of the
transactions contemplated by this Agreement; and
(d) no Governmental Entity shall have issued any order, decree or ruling, and
there shall not be any statute, rule or regulation, restraining, enjoining or prohibiting the
consummation of the transactions contemplated by this Agreement.
Section 6.2 Conditions Precedent to Obligation of the Seller. The obligation of the
Seller. to effect th.e transactions contemplated by this Agreement shall be subject to the satisfaction
or wmver at or prior to the Closing Date of the following additional conditions:
(a) the Purchaser shall have performed in all material respects its obligations
under this Agreement required to be performed by the Purchaser at or prior to the Closing Date;
and
(b) each of the representations and warranties of the Purchaser contained in this
Agreement shall be tree and correct as of the Closing Date as if made at and as of such date, except
where the failure of such representation and warranty to be tree and correct would not have a
material adverse effect on the Purchaser or the transactions contemplated by this Agreement.
Section 6.3 Conditions Precedent'to Obligation of the Purchaser. The obligation &the
Purchaser to effect the transactions contemplated by this Agreement shall be subject to the
satisfaction or waiver at or prior to the Closing Date &the following additional conditions:
(a) the Seller shall have performed in all material respects its obligations under
this Agreement required to be performed by the Seller at or prior to the Closing Date; and
(b) each of the representations and warranties of the Seller contained in this
Agreement shall be hue and correct as of the Closing Date as if made at and as of such date, except
where the failure of such representation and warranty to be hue and correct would not have a
Material Adverse Effect.
c. !5~f~?/D25.4e463,,D/2 9/19/2003 4:28 PM 1 7
TERMINATION, AMENDMENT, AND WAIVER
Section 7.1 Termination by Mutual Consent. This Agreement may be terminated at any
time prior to the Closing Date by mutual written agreement of the Purchaser and the Seller.
Section 7.2 Termination by Either the Purchaser or the Seller. This Agreement may be
terminated at any time prior to the Closing Date by either the Purchaser or the Soller iftbe Closing
Date shall not have occurred on or before [~-]=November 4. 2003; provided, however, that the right
to terminate ~his Agreement pursuant to this Section 7.2 shall not be available to any party whose
failure to fulfill any obligation under this Agreement shall have been the cause of the failure of the
Closing Date to have occurred on or prior to such date.
Section 7.3 Termination by the Purchaser. This Agreement may be terminated at any
time prior to Closing by the Purchaser (provided that it is not in material breach of any
representation, warranty or covenant or other agreement contained herein) if:
(a~ (a) the Section 363/365 Order shall not have been entered by
Bankruptcy Court on or prior to {-*:]d3etober 30. 2003 and as of the time of such termination has
not been entered;
(b~ (b) upon (x) the conversion of the Chapter 11 Case to cases under
Chapter 7 of the Bankruptcy Code, (y) the filing of a plan of reorganization by the Seller which
does not provide for the sale of the Acquired Assets to the Purchaser under this Agreement, or (z)
the appointment ora Chapter 11 trustee in the Chapter 11 Case; or
c~ (c) upon a ':.5!15a! breach of any covenant or agreement on the part of
the Seller set forth in this Agreement such that the condition in Section 6.3(a) would not be
satisfied; provided, that if any such breach is curable prior to [-~};Octo~ 15.2003 through the use
of the Seller's reasonable best efforts, so long as the Seller, following written notice with respect to
such breach from the Purchaser, shall be using its reasonable best efforts to cure such breach, the
Purchaser may not terminate this Agreement pursuant to *aais Section 7.3(c).
Section 7.4._7.4Termination by the Seller. This Agreement may be terminated at any time
prior to Closing by the Seller (provided that it is not in material breach of any representation,
warranty or covenant or other agreement contained herein) if upon a w[PZ.:'! breach of any
covenant or agreement on the part of the Purchaser set forth in this Agreement suer that the
condition in Section 6.2(a) would not be satisfied; provided, that if any such breach is curable prior
to ~ 2003 through the use of the Purchaser's reasonable best efforts, so long as the
Purchaser, following written notice with respect to such breach from the Seller, shall be using its
reasonable best efforts to cure such breach, the Seller may not terminate this Agreement pursuant
to this Section 7.4.
Section 7.5 Effect of Termination and Abandonment. In the event of termination of this
Agreement pursuant to this Article VII, written notice thereof shall be given as promptly as
practicable to the other party to this Agreement and this Agreement shall terminate and the
transactions contemplated by this Agreement shall be abandoned, without further action by any of
the parties hereto. If this Agreement is terminated as provided herein (a) there shall be no liability
or obligation on the part of the Seller, the Purchaser, or their respective officers, directors and
Affiliates, and all obligations of the parties shall terminate, except for (i) the obligations of the
parties pursuant to Sections 7.5, 8.6, 8.7 and 8.11, (ii) that a party that is in willful breach of its
representations, warranties, covenants, or agreements set forth in this Agreement shall be liable for
damages occasioned by such breach, including without limitation any expenses, including the
~ ~5 ~':~ :D,2.~Sa631D(~ 9/19/2003 4:28 PM 18
reasonable fees and expenses of attorneys, accountants and other agents incurred by the other party
in connection with this Agreement and the transactions contemplated by this Agreement, and (b)
all filings, applications and other submissions made pursuant to the transactions contemplated by
this Agreement shall, to the extent practicable, be withdrawn from the agency or Person to which
made.
AR-T4C-L-g4gA RTICLE VII
GENERAL PROVISIONS
Section 8.l.$.lSurvival of Representations, Warranties, and Agreements. No
representations or warranties made by the Seller in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive beyond the Closing Date.
Section 8.2 Transfer Taxes. The Seller and the Purchaser will use reasonable efforts
and cooperate in good faith to exempt the sale, conveyance, assignments, transfers and deliveries
to be made to the Purchaser hereunder fi.om any sales, use, transfer, documentary, registration,
recording, stamp and other similar Taxes (collectively, "Transfer Taxes") payable in connection
with such sale, conveyance, assignments, transfers and deliveries, to the extent provided in the
Section 363/365 Order, in accordance with Section 1146(c) of the Bankruptcy Code. Any
instruments transferring the Acquired Assets to Purchaser shall contain the following
endorsement:
"Because this [instrument] has been authorized pursuant to Order of the United
States Bankrnptcy Court for the Northern District of Illinois relating to a chapter 11
plan of [Seller], it is exempt from transfer taxes, stamp taxes or similar taxes
pursuant to 11 U.S.C. § 1146(c)."
In the event that any Transfer Taxes are assessed with respect to such sale, conveyance,
assignments, transfers or deliveries, such Transfer Taxes shall be paid by the Purchaser.
Section 8.3 Brokers. The Purchaser hereby agrees to indemnify and hold harmless the
Seller, and the Seller hereby agrees to indemnify and hold harmless the Purchaser, against any
liability, claim, loss, damage or expense incurred by the Purchaser or the Seller, respectively,
relating to any fees or commissions owed by any broker, finder or financial ad, sot as a result of
actions taken by the Purchaser or the Seller, respectively.
Section 8.4 Notices. All notices, claims, demands, and other commnnications
hereunder shall be in writing and shall be deemed given upon (a) confirmation of receipt of a
facsimile transmission, Co) confirmed delivery by a standard overnight carder or when delivered
by hand, or (c) the expiration of five (5) business days after the day when mailed by registered or
certified mail (po,stage prepaid, return receipt requested), addressed to the respective parties at the
following addresses (or such other address for a party as shall be specified by like notice):
,~a} fa) If to the Purchaser, to
Downtown Eav_le Comorati0n
925 Main Street
Crete. NE 68333
Telecopy: [
Attention: [
] (402) 826-5098
]peter T. Clark.~e
......... ..4_¥63:~:, 2_ 9/I 9/2003 4.28 PM 19
with a copy to
[
[
Bell. Bovd & Lloyd LLC
70 W. Madison Street
C_hicaeo. IL 60602
Telecopy: [
Attention: [
]~{312'~ 827-8071~
]Nicholas I. Fink, ESCl.
And
(d~ (-b-)-Ifto the Seller, to
Eagle Food Centers, Inc.
801 First Street East
Milan, Illinois 61264
Telecopy: (309) 787-8840
Attention: Robert Kelly
with a copy to
Skadden, Arps, Slate, Meagher & Flora (Illinois)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606
Telecopy: (312) 407-0411 '
Attention: George Panagakis, Esq.
L. Byron Vance 1II, Esq.
Section 8.5 Descriptive Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 8.6 Entire Agreement; Assignment. This Agreement (including the Exhibits,
Schedules and the other documents and instruments referred to herein) (a) constitut~ the entire
agreement and supersed~ all other prior agreements and understandings, both written and oral,
among the parties or any of them, with respect to the subject matter hereof, including, without
limitation, any transaction between or among the parties hereto and (b) shall not be assigned by
operation of law or otherwi~.
Section 8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without regard to the roles of conflict of laws of
the State of Illinois or any other jurisdiction. The Purchaser and the Seller irrevocably and
unconditionally consent to submit to the jurisdiction of the Bankruptcy Court for any litigation
arising out of or relating to this Agreement and the transactions contemplated thereby (and agree
not to commence any litigation relating thereto except in the Bankruptcy Court).
Section 8.8 Expenses. Whether or not the transactions contemplated by this Agreement
are consummated, all costs and expenses incurred in connection with this Agreement and the
transactions contemplated thereby shall be paid by the party incurring such expenses.
Section 8.9 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties hereto.
......... 54~463:D 2 9/19 2003 .28 PM
Section 8.10 Waiver. At any time prior to the Closing Date, the parties hereto may (a)
extend the time for the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part ora party hereto to any such extension or
~vaiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.
Section 8.11 Counterparts; Effectiveness. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of which shall constitute
one and the same agreement. This Agreement shall become effective when each party hereto shall
have received counterparts thereof signed by all the other parties hereto.
Section 8.12 Severability; Validity; Parties in Interest. If any provision of this
Agreement or the application thereof to any Person or circumstance is held invalid or
unenforceable, the remainder of this Agreement, and the application of such provision to other
Persons or circumstances, shall not be affected thereby, and to such end, the provisions of this
Agreement are agreed to be severable. Nothing in this Agreement, express or implied, is intended
to confer upon any Person not a party to this Agreement any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
DEFINITIONS
As used herein, the terms below shall have the following meanings:
"Acquired Assets" has the meaning set forth in Section 1.1.
"Affiliate" of a Person means any other Person that, directly or indirectly, through
one or more intermediaries, conlrols, is controlled by, or is under common control with, the first
mentioned Person.
"Agreement" has the meaning set forth in the Preamble.
"Allocation Arbiter" has the meaning set forth in Section 1.7.
2.2(a)(iv).
"Assignment and Assumption Agreement" has the meaning set forth in Section
"Assumed Liabilities" has the meaning set forth in Section 1.3.
"Bankruptcy Code" has the meaning set forth in the Recitals.
"Bankruptcy Court" has the meaning set forth in the Recitals.
"Cash Purchase Price" has the meaning set forth in Section 1.5.
"Chapter 11 Case" has the meaning set forth in the Recitals.
5 !5,163 ,'49,z3~ ~3~63/D;2 9/19/2003 4:28 PM 2 1
"Cleanup" shall mean all actions required to: (1) cleanup, remove, treat or
remediate Hazardous Materials in the indoor or outdoor environment; (2) prevent the Release of
Hazardous Materials so that they do not migrate, endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment; (3) perform pre-remedial studies and investigations
and post-remedial monitoring and care required by Environmental Laws or any Governmental
Entity; or (4) respond to any government requests for information or documents in any way
relating to cleanup, removal, treatment or remediation or potential cleanup, removal, treatment or
remediation of Hazardous Materials in the indoor or outdoor environment to the extent required by
Environmental Laws or any Governmental Entity.
"Closing" has the meaning set forth in Section 2.1.
"Closing Date" has the meaning set forth in Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Environmental Claim" means any claim, action, cause of action, investigation or
written notice by any Person or entity alleging potential liability (including, without limitation,
potential liability for investigatory costs, Cleanup costs, governmental response costs, natural
resources damage, property damages, personal injuries or penalties) arising out of, based on or
resulting fi'om (a) the presence, Release or threatened Release of any Hazardous Materials at any
location, whether or not operated by the Seller or 17o) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means federal, state, local and foreign laws and regulations
relating to pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface strata).
"Excluded Assets" has the meaning set forth in Section 1.2.
"Final Order" means an order of the Bankruptcy Court or other court of competent
jurisdiction: (a) as to which no appeal, notice of appeal, motion to amend or make additional
findings of fact, motion to alter or amend judgment, motion for rehearing or motion for new trial
has been timely filed or, if any of the foregoing has been timely filed, it has been disposed of in a
manner that upholds and affirms the subject 9rder in all respects without the possibility for further
appeal or reheating thereon; Co) as to which the time for instituting or filing an appeal, motion for
rehearing or motion for new trial shall have expired; and (c) as to which no stay is in effect;
provided, however, that the filing or pendency of a motion under Federal Rule of Bankruptcy
Procedure 9024CO) shall not cause an order not to be deemed a "Final Order" unless such motion
shall be filed with 10 days of the entry of the order at issue. In the case of the Section 363/365
Order, a Final Order shall also consist of an order as to which an appeal, notice of appeal, motion to
amend or made additional findings of fact, motion alter or amend judgment, motion for rehearing
or motion for new trial has been filed, but as to which the Purchaser, in its sole discretion, elects to
proceed with Closing.
"Financing" means the financing provided pursuant to the debtor-in-possession
credit documents entered into among the Seller and certain of its subsidiaries and affiliates and
Congress Financial Corporation, including any extension, renewal, refinancing, refunding or
replacement (or successive extensions, renewals, refinancings, refundings or replacements)
......... 4. 463, D 2 9/19/2003 4.28 PM
thereof and as approved by the United States Bankruptcy Court for the Northern District of Illinois
Eastern Division, In re Eagle Foods Centers, Inc, et al., Case No. 03-I 5299, on May 20, 2003.
"GAAP" has the meaning set forth in Section 3.4.
"Governmental Authorizations" or "Permits" means any aooroval, consent,
waiver, license, p~ (e~i-S~:~nf~:"~iher a~ithorization issu~l. ~ranted. uiven or otherwis£
made available bv or under the author/tv of any Governmental Entity.
"Governmental Entity" means any federal, state, provincial, local, county or
municipal government, governmental, judicial, regulatory or administrative agency, commission,
board, bureau or other authority or instrumentality, domestic or foreign.
"Hazardous Materials" shall mean all substances defined as Hazardous
Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. § 300.5, or defined as such by, or regulated as such under,
any Environmental Law.
"HSR Act" has the meaning set forth in Section 3.3.
"Intellectual Property" has the meaning set forth in Section 1.2(k).
"Inventory" has the meaning set forth in Section 1.1(a).
"Inventory Amount" has the meaning set forth in Section 1.6(b).
"Inventory Statement" has the meaning set forth in Section 1.6(b).
"Material Adverse Effect" means any event, condition, or matter in respect of the
operation of the Store Locations, the Acquired Assets and the Assmed Liabilities that in the
aggregate result in or have a material adverse effect on the business, financial condition or
operations of the Store Location.* mkzn az .~ w~clc; provided, however, that, any event, condition
or matter that {i') is generally applicable to (A) the industries and markets in which the Store
Locations operate or (B) the United States an~
....... = ................... ~ shall in each case be excluded from the determination df
Material Adverse Effect; and provided, further, that any event, changes, condition or matter
resulting from the execution of this Agreement and the announcement of ~ Agreement, events
!ca~Lngupcan in dr lfi ' toandc~'~-'; '
...... ngresultm~ from the filing oftbe Chapter 11 Case
and the announcement of the Chapter 11 Case and the other transactions contemplated by this
Agreement shall also be excluded from the determination of Material Adverse Effect.
"Owned Real Property " has the meardng set forth in Section lA(e).
"Permits" has the meaning set forth in Section 3.6(b).
"Permitted Exceptions" means, with respect to any Person, any of the following
(al (a) liens with respect to the payment of Taxes, assessments or
governmental charges in all cases which are not yet due or which are being contested in good faith
by a.pp. ropriate proceedings and with respect to which adequate reserves or other appropriate
promsmns are being maintained to the extent required by GAAP;
9/I 9/2003 4:28 PM 23
(b) (b) liens of landlords arising by statute and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law
created in the ordinary course of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained to the extent required by GAAP;
~ lc) deposits made in the ordinary course in connection with worker's
compensation, unemployment insurance or other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money)
and surety, appeal, customs or performance bonds;
(d~ (d) encumbrances arising by reason of zoning restrictions easements,
licenses, reseiwations, covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of Real Property or any other matters of record;
/&l (e) encumbrances arising under leases or subleases of Real Property
which do not in the aggregate materially detract from the value of such Real Property or interfere
with the ordinary conduct of the business conducted and proposed to be conducted at such Real
Property;
(th (fl financing statements evidencing a lessor's rights in and to personal
property leased to such Person in the ordinary course of such Person's business of a consignor's
interest in goods consigned to such Person in the ordinary course of business; and
~'[ (g) any encumbrances associated with the Assumed Liabilities
"Person" means an individual, corporation, partnership, association, limited
liability company, trust, joint venture, unincorporated organization, other entity or group (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).
"Petitions" has the meaning set forth in the Recitals.
"Plans" means each deferred compensation and incentive compensation, stock
purchase, stock option and other equity compensation plan, program, agreement or arrangement;
each severance or termination pay, medical, surgical, hospitalization, life insurance and other
material "welfare" plan, fund or program (within the meaning of Section 3(1) of ERISA); each
profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of
Section 3(2) of ERISA); each material employment, termination, change of control or severance
agreement; and each other material employee benefit plan, fund, program, agreement or
arrangement
"Preliminary Inventory Amount" has the meaning set forth in Section 1.6(a).
"Property Leases" has the meaning set forth in Section 1.1(e).
"Purchase Price" means the sum of (i) the Cash Purchase Price and (ii)the
Assumed Liabilities.
"Purchaser" has the meaning set forth in the Preamble.
"Release" shall mean any release, spill, emission, discharge, leaking, pumping,
injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor
environment (including, without limitation, ambient air, surface water, groundwater and surface or
5 !5 !~.?~254.5~3~'_D.~2 9/19,r2003 4:28 PM 24
subsurface strata) or into or out of any property, including the movement of Hazardous Materials
through or in the air, soil, surface water, groundwater or property.
"SEC" means the federal Securities and Exchange Commission.
"Section 363/365 Order" means an order of the Bankruptcy Court approving the
sale of the Acquired Assets and assumption/assigrunent of the executory contracts and unexpired
leases and Assumed Liabilities under this Agreement pursuant to Sections 105, 363 and 365 of the
Bankruptc.y Code, that has not been reversed, stayed, modified or amended in any material
respects prior to the Closing Date. Without limiting the foregoing, the Section 363/365 Order shall
(i) include a finding that the Purchaser is a good faith purchaser entitled to the protections of
Section 363(m) of the Bankruptcy Code, (ii) provide that Purchaser is obtaining the Acquired
Assets free and clear of any cnc:umbranco.liens, claims or encumbrances, includim, but not limited
to~ any claims afisine under PACA and PASA: (iii) provide that neither the purchase of the
Acquired Assets nor the subsequent operation of any business with the Acquired Assets shall
cause Purchaser to be a deemed successor of Seller within the meaning of any revenue, pension,
ERISA, tax, labor or environmental law, rule or regulation or any products liability law an~ (iv)
provide for the assignment to Purchaser of the executory contracts and unexpired leases and
Assumed Liabilities and {vi include the lam_ma~e contained in Schedule B annexed hereto within
the sections of Section 363/365 Order described in such Schedule lq
"Seller" has the meaning set forth in the Preamble.
"Seller Disclosure Schedule" has the meaning set forth in the introductory
paragraph to Article ILl.
"Seller Plan* " means the Plans set forth in Schedule
"Seller SEC Documents" means all forms, reports, schedules, statements and other
documents required to be filed by the Seller since January 1, 2002 under the Securities Exchange
Act of 1934, as amended, or the Securities Act of 1933, as amended (as such documents have been
amended since the time of their filing.
"Store Location*" has the meaning set forth in the Recitals.
"Summary Financial Information" has the meaning set forth in Section 3.4.
"Tangible Personal Property" has the meaning set forth in Section 1.1(c).
"Tax Return" shall mean any report, return, document, statement, declaration or
other information filed with respect to any Taxes (including any schedules attached thereto), and
any claims for refund of Taxes, including any amendments or supplements to any of the foregoing,
with any Taxing Authority_with respect to Taxes.
"Taxes" shall mean any and all taxes, fees, levies or other assessments, including,
without limitation, federal, state, local, or foreign income, gross receipts, transfer, gains,
inventory, custom, duty, excise, real or personal property, sales, withholding, social security,
occupation, use, service, value added, license, net worth, payroll, franchise or similar taxes,
imposed by any Taxing Authority together with any interest, penalties or additions to tax and
additional amounts imposed with respect thereto.
5 ~5 ! 5-~ 'D'25454~6}jD/~2 9/19/2003 4:28 PM 25
"Taxing Authority" shall mean any Governmental Entity responsible for the
imposition or collection of any Taxes.
"Transfer Taxes" has the meaning set forth in Section 8.2.
"WARNAct" means the Worker Adjustment and Retraining Notification Act, 29
U.S.C. § § 2101-2109, as amended, and any regulations promulgated thereunder.
[Signature page follows]
5 ~5 !:'~' 'D 274~463/Dj2 9/I 9/2003 4:28 PM 26
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed on their behalf by their officers thereunto duly authorized, as of the date
first above written.
EAGLE FOOD CENTERS, INC.
By:
Name:
Title:
DOWNTOWN EAGLE CORPORATION
By:.
Name:
Title:
5 ~5 !f-? 'D'25474_~3_£~_.j~ 9/19t'2003 4:28 PM 27
FIXED PACKAGE BID ALLOCATION
Dubuqoe. Iowa Store 130
$450.000
Clinton Store 234 $200.000
~-i5~'a?~:'2545463_/Dt'2 9/19/2003 4:28 PM XXiX
Store Asset Number Description Units Serial Number Tag Number
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
116 TRASH ROOM
12497 FAX
12498 BALLAST LIGHTS
12499 FOOD PROCESSOR
12501 CM EXT SIGNS
13152 SCALE
13686 FREEZER
14012 TELZON RF SYSTEM
14130 SCALE
14271 CURRENCY COUNTER
14355 FF CASE
14361 ICE CREAM CASE
14486 DELI CASE
14849 CC AUTHO READERS
15708 PASTRY CASE
15709 PASTRY CASE
16325 SLICER
16326 PALLET TRUCK
16426 REFRIG INSTALLATI
1666 INDEXER-LABELER
17036 SHELVING
17790 REFRIG INSTALL
17795 REFRIG INSTALL
17820 PROD SHELVING
17821 BAKERY DISPLAYS
17822 PROD/FLORAL DISPL
17835 EQUIP INSTALLATIO
17842 TABLE
17846 INTERIOR SIGNS
17899 SCALE
18025 CONDENSING UNITS
18211 DISK UPGRADE
18359 TILT TABLES
18382 TILT TABLES
18384 MEMORY UPGRADE
18441 TILT TABLES
1895 AIR HEAT EXCHANGER
19192 AIR CONDITIONER
20214 RETAIL EQ INSTALL
20279 DECOR LIGN'rS
20715 SCANNER/SCALE
20755 TERMINAL
20847 TERMINAL
20849 TERMINAL
20850 TERMINAL
20851 TERMINAL
20852 TERMINAL
20854 TERMINAL
20855 TERMINAL
20856 TERMINAL
20858 SCANNER/SCALE
1 3000179430
1 10243 3200732240
1 3200732250
1 76006062 3200732260
1 3200732280
1 17053817 3200740020
I 3200746680
1 3200750120
I 17052960 3200751380
1 C15929 3200754450
1 8904-0166 3200755340
1 8907-0174 3200755400
1 8774-0158 3200761210
10 3200765720
1 3200775440
1 3200775450
I 3200785700
1 0452-PM8023 3200785710
I 3200786860
I 31804758 3000414390
8 3200793380
I 3200852280
1 3200852820
1 3200853400
I 3200853410
1 3200853420
I 3200853900
1 3200854070
1 3200854210
I 171025025 3200855500
1 3200857230
1 3200862370
2 3200880550
1 3200880780
I 3200880800
4 3200881390
I 3000437150
1 3200889090
1 3300103340
I 3300741850
1 T1962 0340010493T
1 X9981 0340010542T .
I X9994 ' 3400106900
I X9861 3400106920
1 Y0014 3400106930
1 X8912 3400106940
1 X9980 3400106950
1 AAF95 3400106970
I AAN69 340010698O
I AAR50 3400106990
I T1853 3400107010
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
20859
20860
20862
20863
20864
20865
20866
20867
2146
21893
22074
2?_075
22239
22240
22379
22380
23160
23618
2395
2420
24647
24873
24874
24875
24876
24877
24878
25331
25332
25499
27461
27539
28332
28333
28334
28335
28336
28337
28338
28,3.39.
28340
28643
28644,
2879
29042
29O43
29O44
29045
29046
29047
29129
29130
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
SCANNER/SCALE
ENERGY MGMT SYSTEM
sToRE LOOP KIT
PS/2
PS/2
DISPLAY/MONITOR
DISPLAY/MONITOR
PRINTER
PRINTER
TOKEN RING
FF CASE
SAFE
MEAT COOLER DOORS
DELL 5166/GL WORK
DELL POWER EDGE 2
DELL 5166/GL WORK
DELL 5166/GL WORK
HP6P LASER JET PRI
HP6P LASER JET PRI
DELL HP BACKUP TA
ARC SERVER WINDOW
ATS ELECTRONIC TI
IBM CONTROLLER W/
ROUTER & HUB
JLA SERVER
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
ENCRYPT PIN PAD
HYDRAULIC LIFT TRU
DECOR '
LEASE IMPROVEMENT
RETAIL INSTALL
SIGNAGE INSTALL
FRONT END INSTALL
BACK ROOM INSTALL
DOG FOOD BASE
HAND JACK
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
T1823
T1818
T1826
T1830
T1878
T1890
T1871
T1881
1
1
4520290
4532138
I 1021191
1021479
3502521
3502539
404FT
9656-1295
657328
SHN031403Tr'Y
1999 0018
500142929
500142701
500142175
500142662
500105641
500105637
500105520
500105156
50O105030
500105856
500102267
309147
7-234467
3400107020
3400107030
3400107050
3400107060
3400107070
3400107080
3400107090
3400107100
3000459800
340013152O
3500100500
3500100510
3500102350
3500102360
3500103990
3500104000
3500113830
3600104940
3000482030
3000483020
3000509480 '
0130
0130
0130
0130
0130
0130
0t30
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
29131
29134
29135
29137
29138
29139
29142
29151
29152
29153
29166
29167
29168
29169
29170
29171
29172
29184
29185
29186
29187
29204
29205
29206
29207
29209
29210
29211
29212
29213
29214
29215
29216
29217
29218
29222
29227
29228
29229
29230
29231
29232
29233
29234
29235
29236
29244
29245
29246
29279
29317
29318
HAND JACK
WATER SOFTENER
MISTING SYSTEM
CASE - UPRIGHT LI
CASE - UPRIGHT LI
CASE - UPRIGHT LI
GARBEL
REFRIG INSTALLATI
TILT-TOP TABLES (
BANANA END CAP ME
SCALE/PRINTER-BAK
SCALFJPRINTER-DEL
SCALE/PRINTER-DEL
OAK TABLE W/TOPP
OAK TABLE W/SHEL
ROTISSERIE
MEAT SAW
PINEAPPLE CORER
FLORAL WORK STATI
CHECKSTANDS (5)
CHECKSTAND-EXPRES
SCALE/LABELER-MEA
SERVICE COUNTER A
VIDEO CABINET
SHELVING INSTALL
CABINET-DELI PREP
TABLE-BAKERY
CABINET-DELI
CABINET-DELI '
SHELVING-LIQUOR
SHELVING-MEAT PRE
SHELVING-DELI PRE
SHELVING-BAKERY P
SHELVING-GROCERY
SHELVING-FLORAL
COOLER/FREEZER IN
SHELVING-DAIRY CO
COIL-DAIRY COOLER
COOLER-DAIRY
COOLER-DAIRY UPRI
COOLER-DAIRY UPRI
COOLER-DAIRY UPRI
COOLER-DAIRY UPRI
COOLE _R-DAIRY UPRI
COOLER-DAIRY UPRI
COOLER-DAIRY UPRI
FREEZER-FROZEN FO
COIL-FROZEN FOOD
COII~-FROZEN FOOD
PRINTER
SHOPPING CARTS (1
SHELVING-FROZEN F
7-234466
1
1
A3485373
1 A3485376
I A3472124
40,004,208
1
24
4
BU1036766
1 BU1038816
I BU1038785
2
8
1 7500O9741
1 271O95481
I
1
5
1
1 311199540/31120
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
2
1
1
1
1
1
1
1
1
1
1
1
1
100
1
620925-70A&B
A3485293
A3485296
A3172084
A3485294
A3485297
A3485295
A3485298
62092~10A
620925-10B
11-CXYB8
GREEN
0130
0130
013Q
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
29319
29320
29321
29322
29323
29324
29325
29326
29327
29328
29329
29363
29364
29365
29366
29367
29368
29369
29370
29371
29372
29373
29374
29375
29376
29377
29378
29379
29380
29381
29382
29383
29384
29385
29386
29387
29388
29465
29466
29467
29514
29665
305
306
30681
31
31526
31527
31528
31529
31530
31531
CASE-FROZEN FOOD
CASE-FROZEN FOOD
CASE-FROZEN FOOD
CASE-FROZEN FOOD
CASE-PRODUCE WET
CASE-PRODUCE WET
CASE-PRODUCE SPEC
CASE-PRODUCE SPEC
CASE-PRODUCE PRE-
CASE-PRODUCE PRE-
MISTING SYSTEM
CONDENSER A
CONDENSER B
COMPRESSOR RACK A
COMPRESSOR RACK B
THERMASTOR UNIT
COOLER-PRODUCE
FREEZER COIL-BAKE
CASE-SELF-SERVE B
CASE-CAKE BAKERY
CASE-FROZEN BAKER
FREEZER-BAKERY
CASE-SERVICE DELI
CASE-MULTI DECK D
FREEZER-SELF CONT
CASE-ISLAND DELI
CASE-SMOKED MEAT
CASE-FRESH MEAT
CASE-FRESH MEAT
CASE-FRESH MEAT
CASE-FRESH MEAT
COOLER-MEAT
COOLER COIL-MEAT
COOLER COIL-MEAT
COOLER COIL-MEAT
COOLER COIL-MEAT
CASE-FLORAL
LEASE IMPROVEMENT
LEASE IMPROVEMENT
LEASE IMPROVEMENT
AISLE DIRECTORIES
SECURITY SYSTEM
PALLET HAND JACK
PALLET HAND JACK
POS SIGNS
MEAT PREP COOL ROOM
ICE CREAM CASE
ICE CREAM CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
1
1
1
1
I
2
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
10
1
1
1
1
I
1
1
I 00D03117-766
I 00D03118-766
00D03054-130
00D03055-130
A3443508
A3443506
A3443509
A3443547
I A3443507
I A3443510
1
I 670448-10A
670447-t0A
99~0C00
9972C00
4989221
620925-10C
48410993/484211
A3485374
00D02480-951
AZ013JJ
A6700202
A6700204
A6700220
A6710312
A6710353
620925-30A
620925-306
620925-50A
62092~506
7518
C00M67284
C00M67285
C00M67286
1808
1809
8908-0203
8908-0204
8904-0165
9900-0771
9656-0262
9658-0794
3000244600
3000244610
3OO0096790
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
0130
31532
31533
31534
31535
31536
31537
31538
32
466
4991
4992
4995
5031
5053
5054
5100
5160
5254
5255
5256
5257
5259
5260
5345
5346
5347
5348
5349
5350
5351
5352
5354
5356
5362
5670
6O3
6108
6135
708
7417
7854
7874
7875
8188
823
825
8~,~-~
8445
8650
9737
9782
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
FROZEN FOOD CASE
UNIT HEATER
LiFT/RECEIVING ROOM
PRODUCE COOLER
GROCERY FREEZER
PROD TABLE 6 X 8
PACKER/CONTAINER C
DAIRY COMBO COOLER
COOLER DOOR
SUPRA VCR
MAGNAVOX TV
EDHARD JELLY HOPPE
BAKERY PANS
BAKERY RACKS
BAKERY TABLE
MIXER
TELEPHONE SYSTEM
TRAULSEN RETARDER
TRAULSEN PROOF BOX
BAKERY SHELVING
BELSHAW PROOF BOX
BELSHAW DONUT DROP
BELSHAW DONUT FRYE
AVALON DONUT GLAZE
ICING CONDITIONER
OLIVER BREAD SLICE
CAKE DECO UNIT
SLICER
MEAT COOLER
SOUND SYSTEM
60IN PAPER BALER
TRAILER HAND JACK
LEASEHOLD IMPROVEM
swrrcHGEAR
RACK OVEN
SS TABLE
FRYER W/~NARMER
WRAPPER SYSTEM
MIXER/GRINDER
LOW TEMP COOLER
CHOPPER
PROD TABLE
PROD TABLE
TENDERIZER
LEASEHOLD IMPROVEM
SCALE
9658-0539
9658-0538
9658-0792
9658-0793
9658-0536
9658-0537
9902-1326
3000097330
3000270480
3000614950
3000614960
RG-4678 0300061521T
VIP3327 3000616070
3000616650
3000616660
3000617540
3000618690
3000620750
3000620770
3000620780
3OOO62079O
11370979 3000620830 ·
3000620840
196097 3000622440
196098 3000622450
3000622480
3000622490
3000622500
3000622510
3000622520
3000622530
124285 3000622560
30O0622580
56827510 3000622660
3000624530
3000629170
24210 3000284300
109611 0300063751U
300O637810
3000302070
0310066212T
0320066813T
3200668420
31456922 3200668430
27122992 3200673450
6011-0468 3000316460
11069075 3000317150
RG5710 0320067857T
RG5711 0320067858T
56895583 3200681400
3200697160
17034643 0320069781T
Store Asset Number Description Units Serial Number Tag Number
0234 11178 FISHCASE 1 8273-0108 3200716170
0234 11191 FISHCASE 1 8273-O107 3200716320
0234 11205 WATER HEATER 1 RN0291A02208 3200716530
0234 11206 SHELVING 1 3200716540
0234 117 WESTINGHOUSE WATER 1 WK-134 602 3000179690
0234 11807 DONUT FRYER 1 3200723540
0234 11954 BALLAST LIGHTS 'I 3200725200
0234 12076 CM EXT SIGNS 1 0320072668T
0234 122 INTERCOM & MUSIC SY I 3000180490
0234 124 SHELVING ! 3000181860
0234 125 MEATSAW I 1812608 3000181920
0234 13422 CM EXTERIOR SIGNS 1 3200743410
0234 13618 DELI CASE I 8410-0381 3200745990
0234 13624 MEATCASE 1 8680-0191 3200746050
0234 13625 MEAT CASE I 8680-0193 3200746060
0234 13626 MEAT CASE I 8680-0195 3200746070
0234 13627 MEAT CASE 1 8680-0192 3200746080
0234 13628 MEAT CASE 1 8680-0194 3200746090
0234 13630 MEATCASE I 8679-0135 3200746110
0234 13674 DELI CASE 1 8409-0233 3200746560
0234 13676 DELI CASE 1 8410-0339 3200746580
0234 13677 DELI CASE I 8410-0340 3200746590
0234 13678 DELI CASE 1 8410-0341 3200746600
0234 14029 TELZON RF SYSTEM I 3200750290
0234 14274 TENDERIZER 1 56938209 3200754480
0234 14338 DELI CASE I 6870-0110 3200755170
0234 14340 DELI CASE 1 6870-0112 3200755190
0234 14341 DELI CASE I 6870-0113 3200755200
0234 14342 DELI CASE 1 6870-0114 3200755210
0234 14346 FISH CASE I 8978-0106 3200755250
0234 14864 CC AUTHO READERS 6 3200765890
0234 15246 SCALE 1 171011958 3200770080
0234 15274 RACK OVEN 1 39070776176C 0320077034T
0234 15471 POWER PANELS I 3200772800
0234 15567 MEAT CASE 1 4317-0413 3200773890
0234 15570 DAIRY CASE 1 4316-0223 3200773920
0234 15577 DAIRY CASE I 4317-O406 3200773990
0234 15588 FF CASE 1 8904-1155 3200774100
0234 15595 ICE CREAM CASE 1 8908-2368 3200774170
0234 15597 ICE CREAM CASE 1 8908-2370 3200774190
0234 15599 ICE CREAM CASE 1 8909-2372 3200774210
0234 15661 MEATSAW I 27188046 3200774840
0234 15664 WRAPPING SYSTEM I 311015251 3200774870
0234 15909 SCALE/PRINTER 1 171048494 3200777890
0234 15980 FF CASE 1 44860575 3200778600
0234 15984 FF CASE I 44840253 3200778640
0234 15985 FF CASE 1 44840254 3200778650
0234 16002 PROOF BOX 1 208V/1 3200778830
0234 16200 SCALE I 171024065 3200784200
0234 16341 DELI PRINTER 1 6A2659 3200785900
0234 16342 SCALE I 17044887 3200785910
0234
0234
0234
0234
0234
0234
O234
O234
O234
0234
O234
O234
0234
0234
0234
O234
0234
0234
0234
0234
O234
O234
0234
0234
O234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
O234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
16354 SCALE
166 HYD PALLET TRUCK
173 HYD PALLET TRUCK
17723 12 MEAT TABLES
18095 LHLD IMPROVEMENT
18330 4690 MEMORY UPGRA
1868 ENERGY MGMT SYSTEM
1875 LIGHTING ENRGY MGM
18937 CHECKSTAND-EXPRES
19367 FREEZER DOOR-WALK
19608 BANANA END CAP
1971 FLUIDIC CONTROLS/E
2037 SHELVING
20416 TERMINAL
20976 TERMINAL
20986 SCANNER/SCALE
21037 SCANNER/SCALE
21092 TERMINAL
21093 TERMINAL
21095 TERMINAL
21097 TERMINAL
21098 TERMINAL
21101 SCANNER/SCALE
21103 SCANNER/SCALE
21104 SCANNER/SCALE
21373 SCANNER/SCALE
21873 SCANNER/SCALE
21898 STORE LOOP KIT
22104 PS/2
22105 PS/2
22269 DISPLAY/MONITOR
22270 DISPLAY/MONITOR
22404 PRINTER
23189 MODEM
23190 TOKEN RING
23337 TELEPHONE SYSTEM
23653 MIXER
23751 FF CASE
24951 DELL POWER EDGE 2
24952 DELL 5166/GL WORK
24953 DELL 5166/GL WORK
24954 HP6P LASER JET PRI
24955 HP6P LASERJET PRI
24956 DELL HE BACKUP TA
25357 ARC SERVER WINDOW
25358 ATS ELECTRONIC TI
25512 IBM CONTROLLER W/
26205 SCALE/PRINTER
26812 SHOW CARTS
27386 UPS UNIT
27472 ROUTER & HUB
27550 JLA SERVER
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
100
1
1
1
17045714
HPF8724
HPF8721
ROOF REPL
13661E
BLACK
V0514
Y2132
T2110
T2540
X9913
X9899
Y0018
AAF96
AAH21
T2576
T2124
T2122
T2506
T2573
4520888
4532220
1021523
1021183
3503270
A23731083814
952FT
11412681
8798-0781
BU1026548
BQ401C0957
JAB034283PU
3200786040
30O0202740
3000203430
3200850190
3200858730
3200880260
3000431090
3000433820
3200886500
3200890870
3200893300
3000441060
0300044564T
3400101400
3400108510
3400108610
3400109190
3400109890
3400109900
3400109920
3400100940
3400109950
3400109980
3400110000
3400110010
0340011336T
0340013129T
3400131570
3500100800
3500100810
35O01O2650
3500102660
3500104300
3500114120
3500114130
36OO1O1O90
03600105453'
3600106950
O234
O234
0234
O234
O234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
27802 COMPRESSOR
27803 MART CART
28431 ENCRYPT PIN PAD
28432 ENCRYPT PIN PAD
28433 ENCRYPT PIN PAD
28434 ENCRYPT PIN PAD
28435 ENCRYPT PIN PAD
28436 ENCRYPT PIN PAD
29288 PRINTER
29503 CASE - CAKE
29566 SCALE
29664 AISLE DIRECTORIES
29725 EXTERIOR SlGNAGE
29887 NC COMPRESSOR
30501 POS SIGN
30502 POS SIGN
30503 POS SIGN
30504 POS SIGN
30505 POS SIGN
30506 POS SIGN
30507 POS SIGN
30508 POS SIGN
30509 POS SIGN
30510 POS SIGN
30541 LEASEHOLD IMPROVE
30542 LAND IMPROVEMENT
30543 DECOR
30544 RETAIL
30545 SIGNAGE
30546 FRONT END
30547 BACK ROOM
30548 FROZEN FOOD CASE
30549 PRODUCE TABLES
30550 FLORAL WORKSTATIO
30551 UPRIGHT DAIRY CAS
30552 MISTING SYSTEM
30553 FLORAL CASE
30554 PRODUCE CASE
30555 PAGING/PHONES
30556 REFRIGERAION INST
30557 TILT-TOP TABLES
30558 SHELVING
30559 ALTO-SHAM CABINET
30560 BEVERAGE COUNTER
30561 TRASH RECEPTACLE
30562 ROTISSERIE
30563 CONDIMENT CABINET
30564 WARMER
30566 BAKERY FIXTURES
30567 GLAZER
30568 CHECKSTAND
30569 SERVICE COUNTER
1
1
1
1
1
1
1
1
1
I
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
40
1
1
1
1
1
1
1
24
1
1
1
1
1
1
1
1
1
1
1
99F74465
54669
5OO1488O7
5OO142153
5OO1428O2
500148066
500105079
500105022
11-CXYT5
00K73498
BU1053913
2001VE4106
8985
750011825
750010850
0234
0234
0234
0234
0234
0234
0234
O234
0234
0234
0234
0234
0234
0234
0234
0234
0234
O234
0234
0234
0234
0234
0234
0234
O234
0234
0234
0234
0234
0234
0234
0234
O234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
0234
O234
O234
0234
0234
30570 VIDEO COUNTER
30571 WATER SOFTENER
30572 BEER CASE CONDENS
30573 BULK FOOD SIGNS
30574 WINDOW TREATMENT
30575 LIQUOR DEPT SHELV
30576 MEAT CASE
30577 MEAT CASE
30578 MEAT CASE
30579 MEAT CASE
30580 MEAT DEPT. ISLAND
30581 MEAT DEPT. ISLAND
30582 MEAT DEPT. ISLAND
30888 TiLT TABLES
3122 SAFE
31730 FAS 144 QN ASSET
31731 FAS I44 ON ASSET
31732 FAS 144 ON ASSET
31733 FAS 144 ON ASSET
3247 CHOPPER
3624 SHELVING
3666 FROZ FOOD CASE
3667 FROZ FOOD CASE
3668 FROZ FOOD CASE
3669 FROZ FOOD CASE
3670 FROZ FOOD CASE
3671 FROZ FOOD CASE
3672 FROZ FOOD CASE
3673 FROZ FOOD CASE
3674 SOUND/INTERCOM SYS
3698 CONDENSING UNITS
3699 FROZ FOOD CASE
3700 FROZ FOOD CASE
3702 ICE CREAM CASE
4063 LEASEHOLD IMPROVEM
4307 HYDRAULIC LIFT TRU
4678 GARBEL DISPOSAL UN
5619 OLIVER BREAD SLICE
608 60IN PAPER BALER
6118 TRAILER HAND JACK
6872 LEASEHOLD INTEREST
7051 2 MULTIPLE TIER LO
7287 TOTLVISIONNCR MON
8080 SS TABLE
8081 SS TABLE
8082 POLY TOP TABLE
8083 POLY TOP TABLE
8084 POLY TOP TABLE
8085 POL~ TOP TABLE
8087 SHELVING
8090 SLICER
8091 SLICER
1
1
1
1
1
1
1
1
1
1
1
1
1
2
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
6.272E+11
A7780603
A6440203
A6440202
A6430132
A7282397
A7357392
A7342125
659510 3000526660
11176398 3000542790
3000566810
9278-0469 3000568130
9280-1877 3000568140
9280-1878 3000568150
9280-1876 3000568160
9280-1870 3000568170
9278-0467 3000568180
9280-1869 3000568190
9280-1868 3000568200
3000568220
3000569390
9280-1895 3000569400
9280-1896 3000569410
9281-0365 300~569430
3000587830
316188 3000595790
8-85-10 3000604260
030006278TT
14148 3000284480
109624 0300063751V
3100652430
3100655190
L81AZ31150 0310066022T
3200671590
3200671600
3200671610
3200671620
3200671630
3200671640
3200671670
56890611 3200671700
56890612 3200671710
0234
0234
0234
0234
0234
O234
0234
0234
O234
O234
O234
0234
0234
0234
0234
0234
0234
0234
8092 FRYER WANARMER
8093 UNIT COOLER
8119 SCALE
8190 DELI COOLER
8191 TELEPHONE
8271 PIZZA CASE
8278 UPC PRINTEPJSCALE
8279 UPC PRINTER/SCALE
8285 SHELVING
8286 SHELVING
8287 COOLER SHELVING
8356 CHOPPER
8560 LEASEHOLD IMPROVEM
86 COMPRESSOR SYSTEM
8655 PINEAPPLE PEELER W
89 MEAT COOLER
90 COMBINATION COOLER
9550 AUX COMM ADAPTER
320O671720
3200671730
31458888 0320067254T
3200673490
3200673500
9293-0506 0320067493T
6D6416 3200675040
6D6396 3200675050
320O675110
3200675120
32O0675130
11426830 3200676980
3200679870
B6995-0051 3000172820
32OO68146O
3000174540
3000174560
3200694820
Exhibit 1.6(a)
Preliminary Inventory Amount
[to come]
Retail Price Percentages/Costs
The value of items in each of the followin~ categories shall be determined by
multinlvin~ the lowest marked retail nrice for disnlaved Inventory at the Store
Locations bv the following, multinliers:
~ ~ocerv 75%
_*_ liauor 82%
~ dairy 70%
__* frozen foods 70%
~ ci~arett¢~ 80%
health and beauty care inventory, ~ ....... ~, .... ~,. ......... ~ m=rgm
meat 75%
produce 50%
seafood 50%
deli 55%
bakery 50%
floral inventory 40%
average cost for such items.
For pharmacy inventory, the latest cost for such items. N/A
Store shall not be closed other than durin~ its normal oneratin~ hours.
.......... 54~a63, D/2 9/19/2003 4.28 PM XXX
Exhibit 1.6(b)
Inventory Procedure Instructions
Two weeks prior to the Closing (as defined in Section 2.1), Purchaser and Seller shall:
Identify their respective representatives (collectively, the "Representatives").
· Assign and identify Purchaser and Seller inventory captains for each store (the
"Inventory Captains") (potentially the Store Manager or District Manager and an
assigned Purchaser Representative):.
· Assign and identify perishable inventory counters for each store (potentially the
department manager and an assigned Purchaser Representative).
Identify the mutually agreed upon inventory counting firm(s) (Each an "Inventory
Counting Firm").
Identify a primary representative from the Inventory Counting Firm(s) (the "Firm
representative(s)")
Seven days prior to the store closing, the Representatives plus the Firm
Representative(s) and the Team Leaders shall meet at a mutually agreed to time and
place to review the inventory procedures including:
Introducing the identified personnel.
Setting the times for the commencement of the Inventoties.
Reviewing the procedures for inventory preparation.
Reviewing the procedures for the non-perishable and perishable inventory counts.
Establishing the order for the inventory review and having the Representatives
acknowledge suer an order.
The representatives shall jointly walk each store to review any concerns identified
by the Team Leaders.
After the store closing but prior to the Closing:
· Inventory counting firm(s) shall provide a "standard" consistent itemized
inventory count identification schedule and map for each store.
· All identified unsaleable or damaged product shall be eliminated either through
retail sales, discard or other disposition prior to the scheduled inventory count.
The perishable inventory crews shall take the inventories using standard inventory
procedures, forms, and practices as outlined on the attached perishable inventory
instructions (attach standard inventory forms ased by Seller).
5 ~ 5 %2 ~D.~2 ~4546~3(~ 9/19/2003 4:28 PM XXXi
The inventory shall be taken by the Inventory Counting Firm(s) in subsections of
natural breaks of shelving, not more than 8' per section from left to fight then
vertical. After each subsection is counted, the counter from the Inventory
Counting Firm(s) shall initial off on an inventory subsection total and place it at
the end of the section the count represents. Each section of the itemized inventory
count identification schedule shall be totaled.
The inventory shall be completed in agreed to sections. Once a complete section is
counted, as the counters move on to the next section, the Inventory Captains shall
walk each section with the Team Leader immediately after the section is counted
and acknowledge review and acceptance of each count. The Inventory Captain of
the Seller or the Purchaser or both can request a section recount during the review.
A Lead Counter shall do the recount. If more than two sections counted by the
same counter are deemed substantially inaccurate during the recount, that counter
may be eliminated from the crew at the request of either Seller's or Purchaser's
Inventory Captain.
Both the non-perishable and perishable inventories shall be taken utilizing
customer inventory count identification tags that the Inventory Counting Firm(s)
uses for its non-perishable inventories or a similar system for the perishable
inventories. The inventory count identification tags shall not be pulled until the
Representatives complete the store inventory walk and jointly authorize the tags
being pulled.
Each Inventory Captain and the two Lead Countem shall remain at each store until
after the Representatives walk each store and sign off and accept the inventory as
completed, with the final valuation to be completed in accordance with the
Agreement.
5 ,~ 5 ~ ~32 ,~'2 ~¥~_4~_ 3iD_,~ 9/19?2003 4 28 PM xxxii
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
mall. )
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
ORDER AUTHORIZING AND APPROVING (I) SALE OF CERTAIN OF THE
DEBTORS' ASSETS FREE AND CLEAR OF LIENS, CLAIMS AND ENCUM-
BRANCES, (ID ASSUMPTION AND ASSIGNMENT OF
CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED
LEASES, AND (III) ASSUMPTION OF CERTAIN LIABILITIES
Upon the motion, dated June 17, 2003 (the "Motion"): of the
above-captioned debtors and debtors-in-possession (the "Debtors"), for, inter alia, enh'y
of an order under 11 U.S.C. §§ 105(a), 363, 365, and 1146(c) and Fed. R. Bankr. P. 2002,
6004, 6006, and 9014 (the "Sale Order") authorizing (i) the Debtors' sale (the "Sale") of
assets related to tlic .g~i,,,~o, Store 130 located in Dubuque, Iowa and Store 234 located
in Clinton, Iowa (the "Acquired Assets") to ~ Downtown Eagle Corporation (the
"Purchaser") as identified in, and pursuant to, thc ar~,~-~.~ dated o~ ,,£ ,2003 that
certain Acouisition Agreement, by and between DcLto.o ,-,d l'~,.Las,., Eae. le Food
Unless otherwise defined, capitalized terms used herein shall have the meanings
ascribed to them in the Motion or the Purchase Agreement, as the case may be.
Centers, Inc. and Downtown Eagle Corporation (the "Purchase Agreement," a copy of
which is attached hereto as Exhibit 1.), (ii) the Debtors' assumption and assignment to the
Pumhaser of certain executory contracts and unexpired lease (the "Assumed Contracts")
and that certain assimm'nent of unexpired lease (the "Assi~rmaent Agreement'a and
together with the Assumed Contracts, collectively the "Property Interests"), pursuant to
and as described in the Purchase Agreement, and (iii) the assumption by the Pumhaser of
certain liabilities (the "Assumed Liabilities"), pursuant to and as described in the Pur-
chase Agreement; and the Court having entered an order on June 27, 2003 (the
"Procedures Order") approving (i) the Bidding Procedures, (ii) the Granting of Certain
Bid Protections, (iii) the forms of Purchase Agreement and Lease Termination Agree-
ment, and (iv) the Notice Procedures and the setting ora Sale Hearing; and a hearing on
the Motion having been held on -September 30, 2003 (the "Sale Hearing"), at
which time all interested parties were offered an oppommity to be heard with respect to
the Motion; and the Court having reviewed and considered (i) the Motion, (ii) the
objections thereto, if any, (iii) the arguments of counsel made, and the evidence proffered
or adduced, at the Sale Hearing; and it appearing that the relief requested in the Motion is
in the best interests of the Debtors, their estate and creditors and other parties in interest;
In particular, the A~ignment of Lease and Agreement dated November 10, 1987
between Lucky Stores, Inc. and Eagle Food Centers, L.P. for Stores 130 and 234.
2
and upon the record of the Sale Heating and these cases; and after due deliberation
thereon; and good cause appearing therefor, it is hereby
FOUND AND DETERMINED THAT:3
A. The court has jurisdiction over this Motion pursuant to 28 U.S.C.
§§ 157 and 1334, and this matter is a core proceeding pursuant to 28 U.S.C. §
157Co)(2)(A) and (N). Venue of these cases and the Motion in this district is proper
under 28 U.S.C. §§ 1408 and 1409.
B. The statutory predicates for the relief sought in the Motion are
sections 105, 363, 365 and 1146(c) of 1 t U.S.C. §§ 10t et seq. (the "Bankruptcy Code"),
and Fed. R. Bankr. P. 2002, 6004, 6006 and 9014.
C. As evidenced by the affidavits of service and publication previ-
ously filed with the Court, and based on the representations of counsel at the Sale
Hearing, (i) proper, timely, adequate and sufficient notice of the Motion, the Sale
Hearing, the Sale, the assumption and assignment of the A~o,~,~d C,,,~,,~ct~ Pl'ouerty
Interests, and the Cure Amounts has been provided in accordance with 11 U.S.C.
§§ 102(1), 363 and 365 and Fed. R. Bankr. P. 2002, 6004 and 9014 and in compliance
with the Procedures Order, (ii) such notice was good and sufficient, and appropriate under
the particular circumstances, and (iii) no other or further notice of the Motion, the Sale
Findings of fact shall be construed as conclusions 0flaw and conclusions o flaw shall
be construed as fmdings of fact when appropriate. See Fed. R. Bankr. p. 7052.
Hearing, the Sale, the assumption and assignment of the Assu~,,.d C,~,h,~,Xo ~o~ert~
Interests, or the Cure Amounts is or shall be required.
D. As demonstrated by (i) the testimony and other evidence proffered
or adduced at the Sale Hearing, (ii) the representations of counsel made on the record at
the Sale Hearing, the Debtors have marketed the Acquired Assets and conducted the sale
process in compliance with the Procedures Orde,[,~,d ~h,~ A,~,Ai,~,, ,.,~ d,~Ij ,~o~i,.,.d ,~,,d
E. Each Debtor (i) has fulI corporate power and authority to execute
the Purchase Agreement and all other documents contemplated thereby, and the sate of
the Acquired Assets by the Debtors has been duly and validly authorized by all necessary
corporate act/on of each of the Debtors, (ii) has all of the corporate power and authority
necessary to consummate the transactions contemplated by the Purchase Agreement,
(iii) has taken all corporate action necessary to authorize and approve the Purchase
Agreement and the consummation by such Debtors of the lransactions contemplated
thereby, and (iv) no consents or approvals, other than those expressly provided for in the
Purchase Agreement, are required for the Debtors to consummate such transactions.
F. Approval of the Purchase Agreement and consummation of the
Sale at this time are in the best interests of the Debtors, their creditors, their estates, and
other parties in interest.
G. The Debtors have demonstrated both (i) good, sufficient, and
sound business purpose and justification and (ii) compelling circumstances for the Sale
pursuant to 11 U.S.C. § 363(b) prior to, and outside of, a plan of reorganization in that,
among other things, the Sale at the current time will maximize the value of the Acquired
Assets and the Bus/ness (as defined below) on behalf of the Debtors' creditors and estates.
H. A reasonable opportunity to object or be heard with respect to the
Motion and the relief requested therein has been afforded to all interested persons and
entities, including: (i) the Office of the United States Trustee; (ii) counsel for the Par-
chaser; (iii) counsel for the Creditors' Committee; (iv) counsel for the Debtors'
postpetition lender; (v) all entities known to have expressed an interest in a transaction
with respect to the Acquired Assets during the past six months; (vi) all entities known to
have asserted any lien, claim, encumbrance or interest (the "Interests") in or upon the
Acquired Assets; (vii) all federal, state, and local regulatory or taxing authorities or
recording offices which have a reasonably known interest in the relief requested by the
Motion; (viii) all parties to ~nameOrf~a~w~ Property Interests; (ix) the United States
Attorney's office; (x) the Securities and Exchange Commission; (xi) the Internal Revenue
Service; and (xii) all entities on the 2002 service list.
I. The Purchase Agreement was negotiated, proposed and entered
into by the Debtors and the Pm-chaser without collusion, in good faith, and fi'om
arm's-length bargaining positions. Neither the Debtors nor the Purchaser have engaged in
416595.o2-10S2A/416895.01-10S2A 5 Dral~ Septmnber 19, 2003 - 4:54 pm
any conduct that would cause or permit the Purchase Agreement to be avoided under 1 I
U.S.C. § 363(n).
J. The Purchaser is a good faith purchaser under 1 1 U.S.C. § 363(m)
and, as such, is entitled to all of the protections afforded thereby. The Purchaser will be
acting in good faith within the meaning of 11 U.S.C. § 363(m) in closing the transactions
contemplated by the Purchase Agreement at all times after the entry of this Sale Order.
K. The consideration provided by the Purchaser for the Acquired
Assets pursuant to the Purchase Agreement (i) is fair and reasonable, (ii) is the highest
and best offer for the Acquired Assets, (iii) will provide a greater recovery for the '
Debtors' creditors than would be provided by any other practical available alternative, and
(iv) constitutes reasonably equivalent value and fair consideration under the Bankruptcy
Code and under the laws of the United States, any state, territory, possession, or the
District of Columbia.
L. The Wansfar of the Acquired Assets to the Purchaser will be a
legal, valid, and effective transfer of the Acquired Assets, and will vest the Purchaser
with all fight, rifle, and interest of the Debtors to the Acquired Assets fr~ and clear of all
Interests, including, but not limited to those (A) that purport to give to any party a right or
option to effect any forfeiture, medifieation, fight of first refusal, or termination of the
Debtors' or the Purchaser's interest in the Acquired Assets, or any similar rights and (B)
416895.02-t0S2M416595.01-10~2A 6 ~ s~plmn~r 19, 2(;03 - 4:54 pm
relating to taxes arising under or out of, in connection with, or in any way relating to the
operation of the Business prior to the Closing Date.
M. The Purchaser would not have entered into the Purchase Agree-
ment and would not consummate the transactions contemplated thereby, thus adversely
affecting the Debtors, their estates, and their creditors, if the sale of the Acquired Assets
to the Purchaser and the assignment of the Am~m~oma'ae~ ~ and
Assumed Liabilities to the Purchaser was not free and clear of all Interests of any kind or
nature whatsoever, or if the Purchaser would, or in the future could, be liable for any of
the Interests.
N. The Debtors may sell the Acquired Assets free and clear of all
Interests of any kind or nature whatsoever because, in each case, one or more of the
standards set forth in 11 U.S.C. § 363(0(1)-(5) has been satisfied. Those (i) holders of
Interests and (ii) non-debtor parties to A~eaed-L~,~ Pro~ ~teres~ who did not
object, or who withdr~v their objections, as the case may be, to the Sale or the Motion
are deemed to have consented pursuant to 11 U.S.C. § 363(f)(2). Those (i) holder~ of
Interests and (ii) non-debtor parties to ~aS~Ya'~ Pronertv Interests who did
object fall within one 0r more of the other subsections of 11 U.S.C. § 363(0 and ar~
adequately protected by having their Interests, if any, attach to the cash proceeds of the
Sale ultimately attributable to the property against or in which they claim an Interest.
O. The (i) transfer of the Acquired Assets to the Purchaser and
(ii) assumption and assignment to the Purchaser of the A~omm. d Co,,ha,.ts P~
Interests and Assumed Liabilities, will not subject the Purchaser to any liability whatso-
ever with respect to the operation of the D~,.i~,C~o business related to the Acquired Assets_
(the "Business") prior to the Closing Date or b: ..... s, as a direct or indirect result of
such transfer under the laws of the United States, any state, territory, or possession
thereof, or the District of Columbia, based, in whole or in part, directly or indirectly, on
any theory of law or equity, including, without limitation, any theory of equitsble law,
includ'mg, without limitation, any theory of anti~'ust or successor or transferee liability:
and including, without limitation, any statutory or other nonobankruptc¥ law obligation or
liabilit~ otherwise imposed upon a purchaser of assets outside the ordinary course of
busines~s.
P.
The sale of the Acquired Assets to the Purchaser is a prerequisite to
the Debtors' abihty to confu'm and consummate a plan or plans of reorganization. The
Sale is a sale in contemplation of a plan and, accordingly, subiect to the resolution of the
1146(c) Stinulation (as defined herein), may be a transfer pursuant to 11 U.S.C.
§ 1146{ ) .....................................
Q. '/'he Debtors have demonstrated that it is an exercise of their sound
business judgment to assume and assign the Ass~ned Con,,acts Pronertv Interests to the
416595.02- 1082A/416895.01 - I 0S2A 8 Draft Sq~rnbet !9, 2C~3 - 4:54 pm
Purchaser in connection with the consummation of the Sale, and the assumption and
assignment of the A~ ...... d C,~,hact$ Propen'y Interests is in the best interests of the
Debtors, their estates, and their creditors. The A~en~-C-eneea~ Property Interests
being assigned to, and the liabilities being assumed by, the Purchaser are an integral part
of the Acquired Assets being purchased by the Purchaser and, accordingly, such assump-
tion and assignment of Ass,.~¢d C,,~,[.~,Ao Property Interests and Liabilities are reason-
able, enhance the value of the Debtors' estates, and do not constitute unfair diserimina-
tion.
R.
The Debtors have(1), (i) to the extent necessary, cured, or have
provided adequate assurance of cure, of any default existing prior to the date hereof ~idc,
za,., ,~. u ..... ~, Coiihac;~ with resoect to the Prooertv Interests. within the meaning
of 11 U.S.C. § 365(b)(1)(A), and(ii), (ii) to the extent necessary, provided compensation
or adequate assurance of compensation to any party for any actual pecuniary loss to such
party resulting from a default prior to the date hereof ~,,dci ,~,.v ,:,fC,c A~ua~,,~d C.~,,£~,.la
with resoect to the Pronertv Interests. with the meaning of ll U.S.C. § 365(bX1)(B), and~
to the extent necessary, the Purchaser has provided adequate assurance of their future
performall~ ,z,£&hd ~mdc, fi~c Assii~h;.d Cu,£ua~,;.o with resoect to the Property Interests,
within the mea~tir~g of 11 U.S.C. § 365(bX1)(C).
NOW THEREFORE, IT IS HEREBY ORDERED, ADrJDGED, AND
DECREED THAT:
General Provisions
1. The Motion is GRANTED, as further described herein.
Approval of the Purchase Agreement
2. The Purchase Agreement, and alt of the terms and conditions
thereof, is hereby approved.
3. Pursuant to 11 U.S.C. § 363C0), the Debtors are authorized and
directed to consummate the Sale, pursuant to and in accordance with the terms and
conditions of the Purchase Agreement.
4. The Debtors are authorized and directed to execute and deliver,
and empowered to perform under, consummate and implement, the Purchase Agreement,
together with all additional instruments and documents that may be reasonably necessary
or desirable to implement the Purchase Agreement, and to take all further actions as may
be requested by the Purchaser for the purpose of assigning, transferring, granting,
conveying and conferring to the Purchaser or reducing to possession, the Acquired
Assets, or as may be necessary or appropriate to the performance of the obligations as
contemplated by the Purchase Agreement.
416895,02-10S23J416895.01 - 10S2A 10 Draft Septeml:~t 19, 20~3 - 4:54 pm
Transfer of Acquired Assets
5. Pursuant to 11 U.S.C. §§ 105(a) and 363(0, the Acquired Assets
shall be transferred to the Purchaser, and upon consummation of the Purchase Agreement
(the "Closing") shall be, free and clear of all Interests of any kind or nature whatsoever
with all such Interests of any kind or nature whatsoever to attach to the net proceeds of
the Sale in the order of their priority, with the same validity, force and effect which they
now have as against the Acquired Assets, subject to any claims and defenses the Debtors
may possess with respect thereto.
6__. Any and all net proceeds as a result of the sale of Acquired Ass~t~
shall be utilized consistent with the provisions of the Financing (as defined in the
Purchase A~eement) and with respect to other liens, if any, to the extent permitted by the
Bankruptcy Code.
7.
Except as expressly permitted or otherwise specifically provided by
the Purchase Agreement or this Sale Order, all persons and entities, including, but not
limited to, all debt secm'ity holders, governmental, tax, and regulatory authorities, lenders,
trade and other creditors, holding Interests or other claims of any kind or nature whatso-
ever ag~in~ or in the Debtors or_~ the Acquired Assets or the Purchaser by reason of such
Purehasefs ae, anisifion of Debtors' Assets outside the ordinary course of business
(whether legal or equitable, secured or unsecured, matured or matured, contingent or
non-contingent, senior or subordinated), arising under or out of, in connection with, or in
any way relating to, the Debtors, the Acquired Assets, the operation of the Business prior
to the Closing Date, or the transfer of the Acquired Assets to the Purchaser, hereby are
forever ban-ed, estopped, and permanently enjoined from asserting against the Purchaser,
its successor or assign, its property, or the Acquired Assets, such persons' or entities'
Interests or claims.
_8_ ~. The transfer of the Acquired Assets to the Purchaser pursuant to
the Purchase Agreement constitutes a legal, valid, and effective transfer of the Acquired
Assets, and shall vest the Purchaser with all right, title, and interest of the Debtors in and
to the Acquired Assets flee and clear of all Interests of any kind or nature whatsoever.
Assumption and Assignment
to Purchaser of Ao~,m,,.d C,~,,h,~,.t~ Property Interests
{}9. Pursuant to 11 U.S.C. §§ 105(a) and 365, and subject to and
conditioned upon the Closing of the Sale, the Debtors' assumption and assignment to the
Purchaser, and the Purchaser's assumption on the terms set forth in the Purchase Agree-
ment, of the Assumed Contracts is hereby approved, and the requirements of 11 U.S.C.
§ 365(b)(I) with respect thereto are hereby deemed satisfied. Additionally, pursuant to
11 U.S.C. § 365 and in accordance with this Sale Order, the Debtors are authorized to
assume and assi~a to Purchaser the Assignment Agreement4, to the extent that the
The Debtors shall assume and assign the Assignment Agreement pursuant to that
certain form of Assigmnent Agreement of Lease Documents attached to this Sale
(continued...)
Assimunent Agreement is executor? contracts; provided, however, that (except as
otherwise provided in paragraphs 11 and 12 of this Sale Order) to the extent the Assign-
ment Agreement is not an executory contract, the Purchaser is subiect to all of the rights,
interests, obligations and duties imposed on the assignee under, pursuant to and as
provided in the Assignment Agreement and any documents entered into in connection
with the assumption and assigranent of the Property Interests, as if the Purchaser was the
ori~/nal assignee under the Assigrnnent Agreement, and the requirements of I I U.S.C.
§ 365(o)(1) with respect thereto are hereby deemed satisfied.
9 10. The Debtors are hereby authorized and directed in accordance with
11 U.S.C. §§ 105(a) and 365 to (a) assme and assign to the Purchaser, effective upon the
Closing of the Sale, the A$3u,iicd Co,,~,~ct~ ProperW Interests flee and clear of all
Interests of any kind or nature whatsoever and (0) execute and deliver to the Purchaser
such documents or other insmumants as may be necessary to assign and transfer the
~ Prooertv Interests and Assumed Liabilities to the Purchaser.
-I-0:11: The As~,,,cd CO,,h,,,.L. Pronertg Interests shall be transferred to,
and remain in full force and effect for the benefit of, the Purchaser in accordance with
their respective te~ms, notwithstanding any provision ' - .... ~ .....=~
~ (including those of the type described in sections 365(0)(2) and (f) of
(...continued)
Order as Exhibit 2
the Bankruptcy Code) that prohibits, restricts, or conditions such assignment or transfer
,md, v,,,s,~o~t. Pursuant to 11 U.S.C. § 365(k), the Debtors shall be relieved from any
further liability with respect to the Ao ...... d C,~,~h,~,Xo Property Interests after such
assignment to and assumption by the Purchaser.
54- 1~___2. All defaults or other obligations of the Debtors under the Assuiiicd
Coix[,acZa Property Interests arising or accruing phor to the date of this Sale Order as
svecificallv listed on Exhibit 3 attached hereto, (without giving effect to any acceleration
clauses or any default provisions of the kind specified in section 365Co)(2) of the Bank-
mptcy Code) shall be cured by the Debtors at the Closing of the Sale or as soon thereafter
as practicable, and the Purchaser shall have no liability or obligation arising or accruing
prior to the date of the Closing of the Sale, except as otherwise expressly provided in the
Purchase Agreement.
-I--2 13. Each non-Debtor party to a an Assumed Contract and eac..~h
non-Debtor ~artv to an Assimanent Aeteement hereby is forever barred, estopped, and
permanently enjoined fi.om asserting against the Debtors or the Purehaser, or the property
of either of them, any default, liability or obligation (whether legal or equitable, secured
or unseeuretk matured or nnmann'ed, contingent or non-contingent, senior or subordinate)
existing as of the,.~,,, ....... ,~, o~,. ,~ llca, iiig. Closing Date. Without limiting the foregoing,
each non-Debtor natty to an Assignment A~eement is hereby forever barred, estonved.
and permanently enjoined fi.om asserting a~,ainst the Purchaser or the Debtors, or their
416895.02-1052AJ416895.01-I 0S2A 1 4 Draft ,~pt~nl~' 19, 2003 - 4'54 pm
ro~.p_e~rt¥, any.flaim for indemnification under such Assimament A e~nt that is based
u on arises from or relates in an wa to an event s and/or occurrence s on or before
A_Additional Provisions
-I--3 14. The consideration provided by the Purchaser for the Acquired
Assets under the purchase Agreement shall be deemed to constitute reasonably equivalent
value and fair consideration under the Bankruptcy Code and under the laws of the United
States, any state, territory, possession, or the District of Columbia.
-i-4 15. The consideration provided by the purchaser for the Acquired
Assets under the Purchase Agreement is fair and reasonable and may not be avoided
under section 363(n) of the Bankruptcy Code.
t-5 16. On the Closing Date of the Sale, each of the Debtors' creditors is
authorized and directed to execute such documents and lake all other actio~s as may be
necessary to release its Interests in the Acquired Assets, if any, as such Interests may have
been recorded or may otherwise exist.
-1-6 17. This Sale Order (a) shall be effective as a determination that, on
the Closing Date, all Interests of any kind or nature whatsoever existing as to the Debtors
or the Acquired Assets prior to the Closing have been unconditionally released, dis-
charged and terminatedl and that the conveyances described herein have been effected,
and (b) shall be bin~ing upon and shall govern the acts of all entities including without
limitation, all filing agents, filing officers, title agents, title companies, recorders of
mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental
departments, secretaries of state, federal, state, and local officials, and all other persons
and entities who may be required by operation of law, the duties of their office, or
contract, to accept, file, register or otherwise record or release any documents or instru-
ments, or who may be required to report or insure any title or state of title in or to any of
the Acquired Assets.
-I--7 1~____8. Each and every federal, state, and local governmental agency or
department is hereby directed to accept any and all documents and insmmuents necessary
and appropriate to consummate the transactions contemplated by the Purchase Agree-
mont.
-1-8 1~___9. All entities who are presently, or on the Closing Date may be, in
possession of some or all of the Acquired Assets are hereby directed to surrender
possession of the Acquired Assets to the Purchaser on the Closing Date.
-I-9 2=~0. The Purchaser shall have no liability or responsibility for any
liability or other obligation of the Debtors arising under or related to the Acquired Assets
or resulting directly or indirectly from its acquisition of the Ac,~uired Asses. other than
~,,," .... ~,,,. A~,o,.ac.,l L~d,,~llt~c~ those specifically assumed by the Purchaser in the Purchase
Aeyeement. Without Ii'hiring the generality of the foregoing, and except as otherwise
specifically provided herein and in the Purchase Agreement, the Purchaser shall not be
4 t 6895.02-10s2M416895.01 - 10S2A 1 6 ~ s~,,~mb~ ~9. 2C~3- ~
liable for any claims against the Debtors or any of their predecessors or affiliates, and the
Purchaser shall have no obligations or liabilities under an? statute applicable to the sale of
goods outside the ordinatw course of business, and the Pumhaser shall have no direct,
indirec.__.__~t, successor or vicarious liabilities of any kind or character whether known or
unknown as of the Closing Date, now existing or hereafter arising, whether fixed or
contingent, with respect to the Debtors or any obligations of the Debtors arising pr/or to
the Closing Date, including, but not limited to, liabilities on account of any taxes arising,
accruing, or payable under, out of, in connection with, or in any way relating to the
operation of the Business prior tO the Closing Date, and including, but not limited to,
statutory or other non-bankruptcy law obligations otherwise imposed upon purchasers of
goods outside the ordinary course ofbnsineas..-
-20 21. Under no cimumstances shall the Purchaser be deemed a successor
of or to the Debtors for any Interest against or in the Debtors or the Acquired Assets of
any kind or nature whatsoever. The sale, ~ansfer, assignment and delivery of the
Acquired Assets shall not be subject to any Interests, and Interests of any kind or nature
whatsoever shall remain with, and continue to be obligations of, the Debtors. All persons
holding Interests against or in the Debtors or the A~quired Assets of any kind or nature
whatsoever shall be, and hereby are, forever barred, estopped, and permanently enjoined
fi-om asserting, prosecuting, or otherwise pumfing such Interests of any kind or nature
whatsoever against ~he Purchaser, its property, its successors and assigns, or the Acquired
416895.02-10S2M416895.0t-I0S2A 1 7 Draft S~membar 19, 2003 - 4:54 pm
Assets with respect to any Interest of any kind or nature whatsoever such person or entity
had, has, or may have against or in the Debtors, their estates, officers, directors, share-
holders, or the Acquired Assets. Following the Closing Date, no holder of an Interest in
the Debtors shall interfere with the Purchaser's title to or use and enjoyment of the
Acquired Assets based on or related to such Interest, or any actions that the Debtors may
take in their Chapter 1 1 cases.
~ 22. This Court retains jurisdiction to enfome and implement the terms
and provisions of the Purchase Agreement, all amendments thereto, any waivers and
consents thereunder, and of each of the agreements executed in connection therewith in
all respects, including, but not limited to, retaining jurisdiction to (a) compel delivery of
the Acquired Assets to the Purchaser, (b) compel delivery of the purchase price or
performance of other obligations owed to the Debtors, (e) resolve any disputes arising
under or related to the Purchase Agreement, except as otheradse provided therein, (d)
interpret, implement, and enfome the provisions of this Sale Order, and (e) protect the
Purchaser against any Interests in the Debtors or the Acquired Assets or any liabilities or
obliRations desen'bed in nara~'a~h 0 of this Court's findings, of any kind or natur~
whatsoever, attaching to the proceeds of the Sale or otherwise imoosed on the Purchaser
as a direct or indirect result of such transfer.
2~ ~-2. The transactions contemplated by the Purchase Agreement are
undertaken by the Purchaser in good faith, as that te~m is used in section 363(m) of the
416595.02-10S2A/416895.01-10S2A 1 8 Draft September 19, 2~05 - 4:54 pm
Bankruptcy Code, and accordingly, the reversal or modification on appeal of the authori-
zation provided herein to consummate the Sale shall not affect the validity of the Sale to
the Purchaser, unless such authorization is duly stayed pending such appeal. The
Purchaser is a purchaser in good faith of the Acquired Assets, and is entitled to all of the
protections afforded by section 363(m) of the Bardo-uptcy Code.
~ 24. The terms and provisions of the Purchase Agreement and this Sale
Order shall be binding in all respects upon, and shall inure to the benefit of, the Debtors,
their estates, and their creditors, the Purchaser, and its respective affiliates, successors and
assigns, and any affected third parties including, but not limited to, all persons asserting
Interests in the Acquired Assets to be sold to the Purchaser pursuant to the Purchase
Agreement, notwithstanding any subsequent appointment of any trustee(s) under any
chapter of the Bankruptcy Code, as to which trustee(s) such terms and provisions likewise
shall be binding.
~ 25. The failure specifically to include any particular provisions of the
Purchase Agreement in this Sale Order shall not diminish or impair the effectiveness of
such provision, it being the intent of the Court that the Purchase Agreement be authorized
and approved in its entirety.
-2'5 26. The Purchase Agreement and any related agreements, documents
or other instruments may be modified, amended or supplemented by the patties thereto, in
a writing signed by both parties, and in accordance with the terms thereof, without further
416895.02-10S2A/416595.01 - 10S2A ] 9 Draft Septeml~ea' 19, 2003 - 4~4 pm
order of the Court, provided that any such modification, amendment or supplement does
not have a material adverse effect on the Debtors' estates.
~-6 27. The transfer of the Acquired Assets pursuant to the Sale
~,mo,,., v~o~,,~,L Lo may ultimately be exc~mpt from taxation as provided in section
1146(c) oft e Bankruptcy Code, .m--- .......... .... ~,~ ........ ~,~,o~,, ,~oo,~. .....
......... provided that a plan is ultimately confirmed in these
~-7 and subject to the ultimate resolution of that certain Stipulation and A~'eed Order
Between Eaele Food Centers, [nc: and States of Illinois and Iowa (the "1146(c) Stipula-
tion''), entered by the Bankruptcy Court on Aueust 21, 2003 [Docket no. 478].
28. As provided by Rules 6004(g) and 6006(d) of the Federal Rules of
Bankruptcy Procedure, this Sale Order shall not be stayed for I 0 days after the entry of
the Sale Order and shall be effective immediately upon entry.
Dated: Chicago, Illinois
~ Seutember · 2003
UNITED STATES BANKRUPTCY JUDGE
Exhibit 1
PURCHASE AGREEMENT
Exhibit 2
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASE DOCUMENTS
This Instrument Prepared By
And After Recording Return To:
]
ASSIGNMENT AND ASSUMPTION OF LEASE DOCUMENTS
This ASSIGNMENT AND ASSUMPTION OF LEASE DOCUMENTS (this
"Assignment"), dated as of the __ day of ,2003, is executed by and between
EAGLE FOOD CENTERS, INC., a Delaware corporation ("Assignor"), and ,
an corporation ("Assignee"). For and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby assigns and transfers to Assignee all of Assignor's right,
title, interest and obligation in and under that certain Assignment of Lease and Agreement dated
November 10, 1987 between Lucky Stores, Inc. and Eagle Food Centers, L.P. (the "Assignment")
and all of Assignor's right, title and interest derived therefrom in the instruments set forth, along
with said Assignment, on Exhibit A attached hereto (collectively, the "Lease Documents"), which
Lease Documents create a leasehold estate in a certain parcel of real property located in
, described on Exhibit B attached hereto and described more fully in
the Lease Documents (the "Leased ?~.fises"). To the extent that the Assignment is not an
executory contract (as that term is used in 11 U.S.C. §365), the interests in the other Lease
Documents conveyed hereby to Assignee are subject to all of the rights, interests, obligations and
duties imposed on the assignee under, pursuant to and as provided in the Assignment as if
Assignee were the original assignee thereunder. Assignee hereby accepts such assigrunent and
U-ansfer and agrees to assume and to perform and discharge all obligations and liabilities of
Assignor under the Lease Documents which arise after the date hereof and relate to the period
after the date hereof. Assignor hereby makes no representations or warranties of any kind or
nature whatsoever with respect to the Lease Documents, whether express or implied, any and all
such representations and warranties being expressly diselairned. This Assignment may be
executed in any one or more counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute but one and the same instrument. This Assignment
shall inure to the benefit of and be binding upon and enforceable against Assignor and Assignee
and their respective successors and assigns.
[Signature Page Follows]
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and
Assumption of Lease Documents to be executed as of the date first written above.
ASSIGNOR:
EAGLE FOOD CENTERS, INC., a Delaware
corporation
Name:
Its:
ASSIGNEE:
By:.
Name:
Its:
STATE OF ~ )
-- -- ) SS:
)
COUNTY OF ____--- --
BEFORE ME, a Notary public in and for said County and State,
who acknowledged that he did execute the foregoing
~,~,ENTERS, IN., a Delaware corporation, and that the
free act and deed individually and in his caCCacity indicated above, and the free act and d¢~
co~poration.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at this
_, 2003.
day of
Notary Public
Name:_
My Comrmssi°n Expires:~
)
sTATE OF
) SS:
COUNTY OF_____--- - )
BEFORE ME, a Nota~ Public in and for said Comaty and State, personally appeared
.~ who acknowledged that he did execute the foregoing insmmaant on
corporation, and that the same was his f~ee act and
~sanca~ -- '- above, and the fa~e act and deed of the
City indicateddeed inoivmuaa
behalf of,
corporation.
IN wif~IESS WI-IEREOF, I have hereunto set my hand and seal at this ~ day of
~ 20O3.
Notary Public
Name: . .
My Commission EX'l~es'-
Exhibit A
Lease Documents.
Exhibit 3
Store 130: Dubuque, Iowa Cure Amount:
April Rent 2003 $18,777.92
2002/2003 Taxes $34,696.00
TOTAL CURE AMOUNT: $53,473.92
Store 234: Clinton, Iowa Cure Amount:
April Ground Rent 2003 $1,736.17
April Building Rent 2003 $1,041.67
2002/2003 Taxes $72, I 10.00
TOTAL CURE AMOUNT: $74.887.84
The cure mounts above shall also include any other mutually a~reeable administrative
claims, of which the Landlord is not presently aware and of which the Landlord notifies
Eagle in writing by the Closing of the Sale. that arise between the date hereof and the Closing
of the Sale. If aRer good faith negotiations, the parties cannot agree as to legitimacy or
amount of any such administrative claims, then the parties a~ree to submit such dispute to
the Bankruptcy Court for final resolution.
416895.02- I 0S2A/416895.01 - I 0S2A 24 D~fl 8ept~aber 19, 2003 - 4:54 pm
.................. COMPARISON OF FOOTNOTES ..................
-FOOTNOTE t-
Unless otherwise defined, capitalized terms used herein shall have the meanings ascribed
to them in the Motion or the Purchase Agreement, as the case may be.
-FOOTNOTE 2-
In particular, the Assimunent of Lease and Aereement dated November 10, 1987 between
Luclo? Stores, Inc. and Eagle Food Centers, L.P. for Stores 130 and 234.
-FOOTNOTE ~
Findings of fact shall be construed as conclusions of law and conclusions of law shall be
construed as findings of fact when appropriate. See Fed. R. Bardcr. P. 7052.
-FOOTNOTE 3 4-
To thc cxtci~t ~lii~ The Debtors shall assume and assien the Assi~tment Aeyeement Cursnant
to that certai~n form of Assignment Am'eement of Lease Documents attached to this Sale
,,,~ ,~,~ ...... as Exhibit 2
............... COMPARISON OF HEADERS ............
Et-C, I~iT I
........... COMPARISON OF FOOTERS ............
-FOOTER 1-
4167,95.01 416895.02-Chicago Server 2A Dral~ September 18, 2003 - 6: 0-7-22 pm
-FOOTER 2-
23
416595.02-10S2M416895.01- 1052A 25 r~ September 19, 2003 - 4:54 pm
[ -FOOTER3-
1 2~
LN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DMSION
) Case No. 03-15299 (PSH)
In re: ) (Jointly Adrrdnistered)
) Chapter 11
EAGLE FOOD CENTERS, INC., ) Hon. Pamela S. Hollis
et )
)
Debtors. )
CERTIFICATE OF SERVICE
I, Pauline P. Chow, a non-attorney, do hereby certify that on September 19,
2003, I caused the foregoing Notice of Filing Acquisition A~'eement by and
between EaSe Food Centers, Inc., a Delaware Corporation, and Downtown
Eagle Corporation, an Iowa corporation to be served on the parties set forth on the
Master Service List, attached hereto as Exhibit A, via UPS Overnight Mail or U.S.
Express Mail; on the 2002 Serv/ce List, attached hereto as Exhfl~it B, via First Class
US Mail; on Stores 130 and 234 Service List, attached hereto as Exln~oit C, via UPS
Overnight Mail; and on the Government Service L/st, attached hereto as Exh~it D,
via UPS Overnight Mail or U.S. Express Mail.
Pauline P. Chow
Subscn'bed and sWOrn to me before
me on the 19th day of September, 2003.
?O g
.' ILUNOI~ ~
Exhibit A In re Eagia Food Centers, Inc., et at.
U.S. Bankruptcy Court for the Nodhem District of IIl~ncla
Master Service List Case NO, 03-15299
NAME COMPANY ADDRESS1 ~DDRESS2 CITY STATE ZIPCODE PARTYFUNCTION
George Panagokia Skadben Arps Slata Meagher & Flora 333 W. Wacker Drive Suite 2100 Chicago IL 60606 __ Counsel to Debtor
{on Maiater Skedden Arps Slate Mesgher & Flora 333 W. Wacker Drive Suite 2100 Chicago IL 60606 Counsel to Debtor ___
{chert Kelly, President and CEO E~lle Fosd Centers, Inc. 801 t at Street, East Milan IL 61254 bebtor
~andall McMurray -- E~lla Food Cen~mr Inc. 801 1 st Street, East Milan IL :61264 Debtor
Nilliam Feeel, Managing Director Huron Consu~ln9 Group, LLC ~50 West Van 8uren Street ~th Floor ~hica~lO IL ~0605 Financial Advisor __
~_thiaen M. Lo,an, President Logan & Company, Inc. ~,6 Valley Road Jppar Montciair NJ )7043 Claims Agent __
Gretchen Silver Office of the United States Trustee ~27 West Monroe Suite 3350 3hioago tL ~0~06 US Trustee
Steve Licderman, Secicr Vice
President Cor~rese Financial Coqxgatkm {Central) 150 S Wacker Drive Suite 2200 .Chicago IL ~0606 Prepotit[on Lender
Gerard C. Wordel, Vice President Cos~lrsos Financial Corporation (Central) 150 S Wacker Drive Suite 2200 Chicago IL 50606 Prapetitidn Lender
233 S. Wecker Drive, Suite
_Ti_mothy A. Barnes Latham & Watkloa LLC 5800 Sears Tower Chicago ;IL 50606 ~o~unsel to Congress _
Notaholder
Mail Station; EX-MA- Trostee/Creditors'
aura L. Moran, Vice President U.S. Sank Trust National Association One Federal Street, 3rd Floor FED Boston ~ 92110 Commldee Member
3300 Wells Fargo Counsel to Noteholder
Clark T. Whitmors Meeicn Ede/man Borman & Brand LLP ~0 South Seventh Street Center Minneapolis VIN 55402 __ Trustee
Counsel to Navistar
Kethleen N. Siegel Navistar Financial Corporation 2850 West Gott Road Rolling Meadows L 60008 Financial Corp.
William J McKenna =atey & Lardoar 321 North Clark Street Suite 2800 Chicago IL 60610 __ Counsel to Committee
Christine Sass =olay 8, Lardner 321 Ninth Clark Street Suite 2800 Chicago L 60610 Counsel to Committee
Jonathan E. Aberman -'olay & Lardner 321 North Clark Stree{ Suite 2800 Chicago IL 60610 Counsel to Committee __
Mark L. Prager Foley & Lerdncr 321 North Clark Street Suite 2800 Chicago rL 60610 Counsel to Committee
Territoiy Manager, Insolveecy Territory
7 Internal Revenue Service 2~0 South Dosrb~n Street Mail Stop 5010 CHI Chicago IL 60~04 IRS
Lisa Madi~os, Attorncy General or,ca o1' the Attome~ General 100 West Ramiolph St Suite 12 Chicago IL 60601 IL Attorney General
Judy Beer To~lnka~ State Treesure~ Offioa of the State Treasurer 219 State House Spdn~lleld IL 62706 . State Treasurer
Kenneth V. Buzbee, BuNne~ Sadie. es
Director Otfloa of the Secratar~ of State 213 State Cepitat Building Spdngfield IL 62756 L Secretar~ of State
Mar~ Kee/e, Rogional Director Securities end Exchange Commission 175 W. Jackson Blvd. Suite 9(X) Chicago IL 10604 L and IA SEC
Exhibit A In re Eagle Food Centem~ Inc., et al.
U.S. BankruptW Court lot Ihs Northern District of Illinois
Master Sen4ce List Case No. 03-15299
YAME COMPANY ADDRESSf liDDRESS2 CITY STATE 7JPCODE PARTYFUNCTION
Ralph Metcet fe
:rancisLl/ons, Rei~llonalAdmlnistratei' Envlronmen/alProle~tklnAgency 77WJaeksonBIvd FederalBIdg Ch,;afro IL 60604 _j LEPA
ro~ln Miller, Attorney General Office of the Attorne)' General Hoover Building 2nd Flooi' Des Moines IA 50319 A Attorney General _.
~li_~chaet Fitz~lerald, Treasurer Office ~ the Stale Treasurer State Capitol Bul~din~l Des Moines IA 50319 A State Treasurer
Statehouse, E Ninth & Grail --
.~hester J. Culver, Be~retar7 of State Olttce of the 8ec, mla~ of State Ave Des Moinea __ IA 50319 A Secretar)' of State
Dennis Grams, Re~lioual Administrator Envlmnmentst Protection A~n~ 901 North 5th Street Kansas City KS 66101 A EPA
3.arvel State Ofline
M. Jane Brad)', Attorney General Office of the Attome)' General 820 N French Street BId~ Wilmington DE 19801 3E Attorney General
540 S DuPout Highway, Suite
Jack Markell, State Treasurer Office of Ihs Trea. sui'er 4 rlmmea Colline Bid0 Dover DE 19901 3E Slate Treasurer
Ronnie Pletch, Corporations DivlNon Office of the Secra{ery of State 401 Federal Street 9uite 4 Dover DE 19901 DE Se~reta~ of State
Wayne M. Cadln, Ref~loual Director Securities and Exchange Commission 233 Broadway, 13th Floor New York NY 10279 DE and VT SEC
~'~(~!~yM~ ~l~l!,..l~eg!~!~l~ Environmental Prolectlan A~eacy 1650Arch Street Philadelpha PA 19103 3E EPA
i ' i i ; · ~Creditors' Committee
Austin Noons iMcCormlck & Co. : 211 Sohi ir~ C re · Hunt Va e)~ i MD 21031 Member/To 20 Creditor
William. S~?g ............................................. [Stern Brothers & Compan)'i ~ ./~ ~..~.....n.~ ,~.~ ;: . ....... St Louis~ iMO[ 63105 iMember[Credit°rs' Committee
Midweal !(~e ~re~ ~l~f 122573 Nelwork Place Ch cago ilL ::60673 iTop 20 Cred or
Sr~ 9[~ ]~.§~1~1~.~ ~[(~ ;~21077 Network Place ! iChicago ::IL 60673 Top 20 Cred or
i ........ .Cred ors' Commitiee
~.(~!~.~[~.e,[l~,.~ i ........................... 601f Lemmon Ave, . .................................................. :.Dallas !~ ........... "~ ....... iMember/Top 20 Creditor
Representative for Coca
_Wil._tiam Ka)'e JLL Consulters 31 Rose Lane East Rockaway NY 1151B _ Cola Enterprises, thc.
Attn: Brian Smith-Coutroiter Flaming Companlas, Irm. 72f5 South Topeka Olvd Topeka KS 66619 Toj~.2~0 Creditor
,~t~r~: B~.~l~l~{~' .............. Fleming Companies, Inc. s301 Waterford Blvd Oklahoma City DK 73118 Top 20 Creditor
Oeze~ Kmi~hak iEDS J
................................................................ ~ ............................................................................ 222 Weal AdaiTis Suite 2'301~Chlca~o ;L 60606 Top 20 Creditor
Attn: ROU Pareday Ed~ Grand Ice Cream !3863 Cstlaettou C i
...................................................................... : ........................................................... ~ enter Ddve i :Chicago ilL 60693 ::Top 20 Creditor
Al Hadman ~ ' ' ................ :~ ...................................................... :i ........................................ ~ ! ........... i .............. .i Creditors' Committee
iEerthgmina (Sera Lea BekorY Group) i ! !.~..~!~ ~fflce Drive iSutts 200 [Earth City iMO 63045 !Member. rrop 20 Creditor
[ i ................. ~ ................................. i i i iCreditom' C,,~mmittea
Arlene E. Man,inn !Chae. Levy Clroolattng !815 O~den Avenue ! ilLtsle ilL :,60532 ! Member/Top 20 Creditor
Exhibit A In re Eagle Food Centers, lee., el al.
U.S. Bankruplcy Court for the Nmtharn Di~rict of Illinois
Master Service List Case No. 03-15299
NAME [COMPANY IADDRESSf [ADDRESB2 ICITY ISTATE IZIPCODE IPARTYFUNCTION
Me,aware nc of California i !1230Ca eSuede i:Cam~r ~ ~;CA 93012 ~Top20Creditor
Galen Walters ~Adplex Rhodes i650 Ceetul~ Plaza Drive Suite 120 s { 7 Creditors'V[ember/T°Pcommlttee20 Creditor
Art Turtle iAmedcan Gr~ I..G ~ ~*~ ~g~ =:~...n~...A..~[ .~ ~(~ ...................
~4144 Member/Top 20 Creditor
Altn: John O'Roarke R JO Pred~,e ~ ! !~.~:~ ~'~/~ ~:~ .......... i~' ..... ~;~1 ! Top 20 Creditor
i ................................................... 135 B LaSalle Street DEPT ,
ADPLEX [23t7 == Department 2317 iChicago ill 60674 ~Top 20 Creditor
,ohart J. Bo~ : iiOCAMPO {350! Wes~ Hubbard [ Suite 450 I Chic,~o I'; i6~I0 MLM~emher/Topicreditors' Commit~es20 Creditor
.~U~...P~..~'/~ ..................................... ~ BOttli~[.Ce. [Ssteot i21431 Nstwo.rk Pl~.c~. ..... ~ .......................... Chicago i!l~ 6~3 :~Top 20 Creditor
McKesson Dru{~ CO. 520 East Nedh Avenue Carol Stream L 60188 Secured Parties
American Sanka-ore Company ~.merlcan Bank Note Company 2520 MSt ropolitan Drive Trevose ~A 1 ~053 Secured Parties
United Science Industries [Jnlted Science Industhes 6295 East iL Hwy. 15 Weedlawn ,L 62898 Secured Parties __
Kristin T. Mihalic Fagal Herber LLC 55 East Me,roe Street 40{h Floor Chica~o IL 60603 and Momin(Istar Foods
Counsel to Albe~teens. Inc.
Edward J, Lesniak Burke Warren MacKay & .Serritalle PC 330 N. Wabash Ave. Z2nd Floor Chica~lo IL 606t 1 (Store 228~
Paul A. Lucy blicheal Best & Frledrl~ LLC 100 E. Wiseenaln Ave. Suite 3300 Milwaukee dVI 53202 Counsel to McKesson
Alan I. Greene Michael Best & Friedric, h. LLC 401 N. Michigan Ave. Suite t9~0 Chica~o IL 60611 Counsel to McKesson __
Jason D, Airman Michael Best & Frledrich~ LLC 401 N. Michigan Ave. Suite t900 Chica~o iL 6061 t Counsel to McKesson
3ounesl to Schwan Food
dark E. Leipotd Go, Id & Rstner 222 N. LaSalle Street ~th Floor Chica~le IL ~060t
t 00 W. Randolph St.. 13Ih State of Illinois
Jim Newlx)ld I#inc~ Department of Revenue Floor ~ugding Chica{~o IL 60606 IL Dept. of Revenue
'-- 3ounesl to Sulk'ama Lobster
:{ichard Fimo~f Rel~r4. Sstemea & PuB. Ltd. 25 E. Weshingtorl Sires{ Sul{e 1{30 Chicago IL 60602 {. Ses~ond Ce.
~ou~l to U.S. Bank NA
9arty Chatz. D~stes Jesl~x~ NT~tstn & Lahr t 20 S. Rl~a,kfe Plaza Sul{e 12~3 C hic,~e iL 60~6 ',st ~e 39)
· ' SecurtSes and Exchange
~,ngela Dedd Bect~le~ and F_i~J~an~e Cealeli~ica 175 West Jac, k~w1 Blvd. Suite gOO CMc~e IL }0604 7,ornmi~k~
;~Jnesl te C.N.A.
Jonathan W. YoungT David P. Valise W~man Han*otd A~n & Dixon 225 West Waohar Drive Suite 3000 Chica~]o IL 60606 3ompanies
Exhibit A In re Eagle Food Centers, Inc., et al.
U.S. Bsnk[upl(3y Court for the Northern Dlatri~l of fillnole
Master So.ice List Case NO, 03-15299
NAME COMPANY ADDRESS1 ADDRESS2 CITY STATE ZIPCODE ! PARTYFUNCTION
dnion Planters Bank and
SouthTowne Plaza, LLC
J_a_so_n A. Newman Law Offices of Jason A. Newman /7 West Washington Street Suite 1313 Chioago Ii.. 60602 :Store 266)
;ounsel to Deutsche Sank
:Store 233), Inland Real
F. state Cap. (Store 269),
F~ehsb Associates X. Inc.
;Store St) and Valley Fair
Ronald R. Petersen Jenner & Blouk~ LLC 3ne tBM Plaza Chicago IL 60611 ___ ~C~S~tor~e 93)
~,ounsel to Deutsche Bank
',S/ors 233), Inland Heal
Estate Corp. (Store 269),
Rehab Associates X, Inc.
',Store 81) and Valley Fair
Jeffrey Gansborg Jenner & Block, LLC 3ne IBM Plaza Suite 3800 !Chioa~lo LL- 60611 __ LC (Store 93)
Counsel to Deutsche Bank
~,Store 233), Inland Real
Estate Corp. (Store 2~9),
Rehab Associates X, Inc.
',Store 81) and Valley Fair
2.a~the_i~ine Slaege __ Jenner & Block, LLC One IBM Plaza Suite 3800 Chicano IL __ 60611 L:C (~Slore 93)
Dflice of General For Pension Benefit --
Sherease Pratt Louis Pension Benefit Guaran~ Corporation 1200 K Street, NW, Suite 340 Counsel Washington DC 20005 3orpondion
-';ounset to United Food and
3ruce Simon, Esq. Cohen, Weiss and Simon LLP 330 West 42nd Street New York NY 10036 .3ommercial Workers
3ounsel to Topco
_~a_nnah Mulaon, Dean Grsmlioh M~De[molt Will & Emery 227 West Monrne St. Chicago IL 60606 ~,ssociates LLC
3500 Three First National --
.3ounsel for First American
~. Scott Alsterda Ungarstti & Harris Plaza Chicago IL 60602 3ank, SSb
3501 Three Find NatiM)st .~ounsel for First American
.~h~ristopher L. Rexrost Un~aretfl & Harris Plaza Chlca~o IL 6(~o2 Bank, SSb
3501 Three First Nst.~nal Counsel for First American
Vle__~li~sa G. Melsher Ungarettl & Harris Plaza Chicago IL 60602 Bank, SSb
3502 Three First National Counsel for First American
~regg E. Szila~lyt Un~larsttl & Harris Plaza Chioa~o iL 60602 Bank, SSb
Counsel for Ocampo Dixon
LLC, Ocampo Belvtdere,
Ocampo Dekalb, Okampo
~/edder, Price, Kauliner, & Kammho~z, Galesborg and RD Hobson
~tichael M. Eldelman P.C. 222 North La Salle Strse~ Suite 2600 Chicago IL 60601 Assoc.
Randall Pi~ Center
· _larold Moskowitz Law Offioes of Harold MnekmVitz , 100 North LaSalle Street 24th Floor Chioago IL 60602 Associates
Counsel to Central States
Areas Health and Welfare
Charles Lee 3ent(al States Law Department 9377 W. Hi~ins Road Rosemont L 60018 Fund and Pension Fund
Exhibit A In m Eagle Food Centem, Inc., et al.
U.S. Sankrup~ey Court for the Nmthern Dlstrtot of Illinois
Master Service List Case No. 03-15299
i ~ !Amboy Specialty i i ~
s, fln: Shannon l'rimble .i~a~ ~ ~: (1~!!~) P0.BC))~ '(~ ~ i[~l~ [~)!~a~o ilL ~g4 ~0 Creditor
' ~n F~ ~dfi C~t~l i~ [ ::~ ~ ~ ............. ~.T.~,~ .................. ~j~.~l~ ~. ........ ~T~ Top ~ Cr~itor
................................................................... ~ ~Am~y S~ ~ :
~.[~.~.~: ............................. [ .... [~ ~ ~!~ ......... j.~i~ ...................... ~,~ ......... !~ ......... ~ ?o~ ~o c~or
=lemin~ Wire Purchases :: P.O. BOX 1817 ~ ~To~ [KS ~1 [Top ~ Cr~ithr
~Un: Bd~ Smith-Conlrol~r ~F~ ~ I~. ~ P O BOX ~7 ~ [Okla~ma Ci~ ~OK 73126-~47 ::Top ~ Cr~
~er~an Sank N~e C~ny P.O, Box ~ GPO N~ Y~ NY ~ 1 ~8~ Secur~ Cr~itors
Counsel for Government
Sue A Pa~n S~a~ 8~w ~ EaN Monr~ Strut Suite 4~ Chicago IL ~03 Em~ees Insurance Co.
;ounsel for Government
Charles S RiecKe SeraPh 8~w ~ East Monr~ Strut Sure 4~ Chica~o IL ~03 Employe~ Insurance Co.
;ounsel for Ben.re
Stephen L. Gelf~n Bank O~ NA ;1 Ba~ O~ PI~ Marl C~ IL1 ~1 ~ Chicago IL ~70 ~om n
Pl~a, Store 316; ~m~,
V~r, P~, ~ufman ~mm~. and 311; a~ RD H~n,
~Son Russo P.C. Z22 No~h La Salle Strut ~hlcago IL ~1 Store 110
Counsel ~or Dorothy M.
Schimanski, Julie and
Dennis Helm, Patricta and
Robter O'Connell and Nanc
C~app (as Administrator of
[he Estate of Shadis
Heiphinstine and as
:x~ut~ o[ t~ Es~te o~
Larence G. Galla~her AE~e~ at Law 111 East Wac~r Dr~ SuEe ~ ~h~a~o iL ~1 Joh~ Hel~thsti~)
Exhibit B
2002 Service List
In re Eagla Food Centers, Inc., et al.
U.S. Bankruplcy Court 1or the Nathem District of Illinois
Case No. 03-15299
William Sorrell, Attorney General ofrme of the Attorney Genaret 109 State Street Pavilion Offion Building ~1 _o~tpelier VT I 05609~ VT Attorney Genaral
Je~b §pauldin~l, State Treasurer Otlies ol the Treasurer 133 State Street Second Flor Vlontpolier ~ 05633, VT State Treasurer
Deborah Markowltz, Secretary of State office of the Secretary of State 26 Termue Street, Drawer 9 Redetoue Buiktin~ ~lontpolier VI' 0560~ ~l'~eor--eiary of State
RohedVarney, Re~lionalAdmln, EnvlronmentalPro~sutk~nAgeno¥ OnaCon~reseStreet Suite1100 ~oeton MA 02114 VTEPA
Sam Rosenwald Black EqutB~ Group, Ltd. 433 No. Camden Drive Suite 1070 Severly Hills CA 90210 For Black Equities Group
Mon~ica L. Cla.'k Dem~/& Wk~ LLP 50 Sou~h 6th Street Suite 1500 ~ttnneapolis MN 55402 ~ounsel to S~hwan Food Co.
.R~mona J. Urhenlk Munsch Hal<It K~oflf & Herr PC 1445 Ross Avenue Suite 4000 3alias TX 75_2_0.~ ,Counsel to Sara Lee Bakery Group
~ E. Gardner Keston & A~ooietes PC 1278 W. Northwest Hwy. Suite 903 =alatine IL 60067 gounsel to Dole Fresh Fruit
Michael J. Keston Keston & ~ PC 1278 W. Norlh~e~t Hwy. Suite 903 =alatine IL 60067 Counsel to Dole Fresh Fruit
Counsel to C.H. Robinson Co. and
H artla~.Martyn, Mark Amendola Mart~n & Associates 820 Superkx Avenue, N.W. Tenth Floor 31eveland OH 441 t 3 Del Monte Fresh Produce NA
Jason R. Pstomson Yerl~'ough & Hadan 2401 20ih :ubbook TX 79~tt 1 Counsel to Prater Foods, Inc. --
Sloven Pinsker Pinsker & Hodbe6 15 West Cerrillo Street Suite 220 Santa Barbara CA 93101 California
Michael D. Warner Warner, Stevens & Doby, LLP 301 Commerce Street t700 City Cfr. Tower II ~ort Worth TX 76102 Counsel to Kelle~_o~
Ayala A, Hasesll Ela~tronk3 Data Systems Corp. 5400 La~acy Drive 'viS: H3-3A-05 =iano TX 75024 For EOB Corporation
Howard Heller Kin Proporties, Inc. . 16 N. Main Street Suite 384 ~ew York NY 10956 For ~edies, Inc. (Store 32)
Marvin Schnee Merkai Properties Ltd. 240 East Palisade Ave, Suite 18C =ngle~ NJ (~631 For Markai prn,nertlaS, Ltd.
Richard Goldbarg, KImherly Stoker Shapiro Sher Gulnot &Sandlar 36 South Charles Street 20th Floor Saitirr~'e MD 21201 Counsel to GEICO (Store 329)
Financial Advisors to the Creditors'
Danielle Tobin Ernst & Young Corporate Finance 5 Times Sqnare '4ew York NY t0036 Committee
Counsel to Union Planters Sank,
',iA. and South Towne Plaza (Store
Christopher Tietz Tletz & Richardson 132 S. Water Street Suite 444 3ecatur IL 62525 266)
3,ounsol to Carol Whittle~ULM,
S~ David Simpson Hadery, Simpson & West 402 Hill Atcde .~alesbur~ tL 61401 Janet McEown
Holler Ehrman White & McAuliffe j Counsel to Paul and E,~anor Sade.
Cart B. Johnson, Micheetine H. Corrse LLP ~33 Bush Street San Francisco CA 94104J Truslees
rrustae for the Paul and Eleanor
Mr. Paul Sade ~85 Point San Pedro Road San Ratael CA 94901 ~evocabla Trust
J~i F. C~/stal, ESQ Excel Really Trust - ST, inc. 1120 Avenue of the Americas 12th Floor New York NY 1003( !Counsel to Excel
Kenneth Miller, Er~:I. Reins, Evens & Sestaoovich 1924 Centu~ Park East ~uita 1600 Lo~ An~letes CA 9006~ :c,,3unsel for Para-Jo;/Res~
Ge~don Bro~hem R~etl Partners, -
Mitchell H. Cohen LLC ~O Rrond Street I lth Floor Boston MA 021 ~ For Gordon Brothem Retail Padner~
Rook Island County Stata'e 2.ounsel to The County of Rook
Heidl Waller, Assistant State's Ariorna~ Altomey'$ Office ZI0.15th Street Rool( Island IL 61201 !island, Illinois
Marc J. Kurzman Levee Rookva3od P.C. ~3 Rive~Nde Avenue Weet~xxt CT 0688(
Daniel J. Ariz MsuDooald Schuble & Arlz LLP ~25 North St. Paul Street Suite 2400 Dallas TX 75201 ~,o_unsel to J.W. Partners LLP
Karl A. Szymanski ABerna'/' al Law ~377 Sebring Way Loves Park IL 61111 Counsel to Evelyn B. Polecaetro
2 ~Jbertson*s. Inc. A#~i: JOel G~lh 250 Patkcenter Boulevard ~olse ID 83726 ~lo;es: 130, 234B. 234G
EXHIBIT D
Government Service List
Chain-nan William H. Donaldson
Securities and Exchange Commassion
450 Fifth Street N.W.
Washington, DC 20549
Mark W. Everson, Coumdssioner
Internal Revenue Serv/ce
1111 Constitution Avenue, N.W.
Washington, DC 20224
Roscoe Conklin Howard Jr.
U.S. Attorney
District of Columbia District
555 Fourth St. N.W.
Washington, DC 20001
Patrick J. Fitzgerald
U.S. Attorney
Illinois North~-n District
219 S Dearborn St., 5th Floor
Chicago, IL 60604
General Counsel
Lynne Raimondo
Illinois Department of Revenue
Willard Ice Build/ng
101 West Jefferson Street
Springfield, IL 62702-19016
Michael J. Fenger, Director
Illinois Department of Labor
1 West Old State Capitol Plaza
Room 300
Springfield, Illinois 62701
John Waters, Attorney at Law
Iowa Dept. of Revenue and Finance
Collections Section
P.O. Box 10547
Des Moines, IA 50306
Joseph S Van Bokkelen
U.S. Attorney
Ind/ana Northern District
1001 Main St,. Suite A
Dyer, IN 46311
Charles W. Larson Sr.
U.S Attorney
Iowa Northern D/strict
401 First St., Suite 400
Cedar Rap/ds, IA 52401
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DMSION
)
In re: )
)
EAGLE FOOD CENTERS, INC., )
~t al., )
)
Debtors. )
Case No. 03-15299 (PSH)
(Jointly Administered)
Chapter 11
Hon. Pamela S. Hollis
Hearing Date: September 30, 2003
Hearing Time: 11:00 a.m. (Prevail-
ing Central Time)
PROPOSED AGENDA FOR SEPTEMBER 30, 2003 HEARING
I. Introduction
Set forth below is a proposed agenda for the Hearing scheduled for
September 30, 2003 beginning at I I:00 a.m. (Prevailing Central Time) (the "Agenda").
The information contained in the Agenda reflects documents received in our offices as
of the date hereof. Counsel for the Debtors have served a copy of this Agenda on the
Master Service List and those persons who have entered an appearance with respect to
any item listed on the Agenda.
The matters set for hearing on September 30, 2003, are divided into the
following categories for the purposes of this Agenda:
I. Introduction
II. Matters Requested to be Continued or Adjourned
in. Sale Matters
IV. Uncontested, Agreed or Settled Matters
V. Contested Matters
II.
III.
Matters Requested to be Continued or Adjourned
Motion for Relief from Automatic Stay by Brandell McCafferty
(Docket No. 491)
Objections Filed: None.
Related Items: None.
Pursuant to an ag-reed order, the Debtors
respectfully request that this matter be
continued to December 12, 2003 and that
the objection deadline be extended for the
Debtors to December 5, 2003.
Application of C.J. Vitner Co. for an Order Directing an Assump-
tion Or Rejection of an Executoxy Contract (Docket No. 520)
Objections Filed: None.
Related Items: None.
Status:
Pursuant to an agreed order, the Debtors
respectfully request that this matter be
continued to October 23, 2003 and that the
objection deadline be extended for the
Debtors to October 16, 2003.
Sale Matters (Deadline to object to each Acquisition Agreement set forth
below is September 26, 2003)
Motion for Orders Pursuant to 11 U.S.C. §§ 105(a), 363, 365 and
1146(c) and Fed. R. Bankr. P. 2002, 6004, 6006 and 9014 (1)
Approving (A) Bidding Procedures, 03) The Granting of Certain
Bid Protections, (C) Form of Asset Purchase Agreement and
Lease Termination Agreement, (D) the Form and Manner of Sate
Notices, and (E) the Setting ora Sale Hearing, and (1I) Authoriz-
ing and Approving (A) The Sale of Certain of the Debtors' Assets
Free and Clear of Liens, Claims and Encumbrances, 03) the
Assumption and Assignment of Certain Executory Contracts and
2
0)
Unexpired Leases and (C) The Assumption of Certain Liabilities
(Docket No. 287)
Uncontested
(a)
Acquisition Agreement, dated September 11, 2003, by
and between Eagle Food Centers, Inc., a Delaware Corpo-
ration, and Bobak Acquisition Corp., an Illinois corpora-
tion (Store No. 110) (Docket No. 607)
Objections Filed: None to date.
Related Items: None.
Status:
A proposed order will be submitted
for the Court's consideration.
Co)
Acquisition Agreement, by and between Eagle Food
Centers, Inc., a Delaware Corporation, and Jefferson
Capital Group Inc., an Illinois corporation (Store Nos. 86
and 111) (Docket No. 614)
Objections Filed: None to date.
Related Items: None.
Status:
A proposed order will be submitted
for the Court's consideration.
(c)
Acquisition Agreement, by and between Eagle Food
Centers, Inc., a Delaware Corporation, and Downtown
Eagle Corporation, an Iowa corporation (Store Nos. 130
and 234) (Docket No. 612)
Objections Filed: None to date.
Related Items: None.
Status:
A proposed order wil! be submitted
for the Court's consideration.
3
(ii)
Acquisition Agreement, by and between Eagle Food
Centers, Inc., a Delaware Corporation, and TesBo Con-
ception Group, LLC (Store No. 075) (Docket No. 610)
Objections Filed: None to date.
Related Items: None.
Status:
A proposed order will be submitted
for the Court's consideration.
Acquisition Agreement, by and between Eagle Food
Centers, Inc., a Delaware Corporation, and Crystal Lake
Limited Partnership, an nlinois limited partnership (Store
No. 289) (Docket No. 603)
Objections Filed: None to date.
Related Items: None.
Status:
Contested
(0
A proposed order will be submitted
for the Court's consideration.
Acquisition Agreement, by and between Eagle Food
Centers, Inc., a Delaware Corporation, and Central Gro-
cers, Inc., an Illinois corporation (Store No. 311) (Docket
No. 605)
Objections Filed: Objection expected to be filed.
Related Items: None.
Status:
This matter will go forward.
Acquisition Agreement, dated September 18, 2003, by
and between Eagle Food Centers, Inc., a Delaware Corpo-
ration, and David W. Tennant (Store No. 008) (Docket
No. 616)
4
Objections Filed:
Official Committee of Unsecured
Creditor' Protective Statement in
Lieu of Objection to the Debtors'
Proposed Sale of Store 008 to Da-
vid W. Tennant (Docket No. TBD)
Related Items: None.
Status:
This matter will go forward.
Uncontested, Agreed or Settled Matters
Application and Motion for Order under 11 U.S.C. §§ 105(a),
327(a) and 363 Authorizing (i) the Employment and Retention of
the Great American Group as Consultant for Purposes of Liqui-
dating the Surplus Furniture, Fixtures and Equipment at the
Debtors' Warehouse, and (ii) the Sale of the surplus Warehouse
Assets (Docket No. 618)
Objections Filed:
None to date. Objection Deadline expires
September 26, 2003.
Related Items: None.
Status:
A proposed order will be submitted for the
Court's consideration.
Motion for Order Pursuant to 11 U.S.C. § 365(d)(4) E:~tending
the Deadline to Assume or Reject an Unexpired Lease of Noures-
idential Real Property (Docket No. 620)
Objections Filed:
Objection of Inland Real Estate Corpora-
tion to Motion for Order Pursuant to 11
U.S. C. ag 365(d)(4) Extending the Deadline
to Assume or Reject an Unexpired Lease of
Nonresidential Real Property (Docket No.
TBD).
Related Items: None.
Status:
The parties anticipate submission of a stip-
ulation resolving the Objection.
VI. Contested Matters
Motion for an Order (I) in Furtherance of Order Pursuant to (i) 11
U.S.C. § 327 Authorizing and Approving the Retention of Grate
Auction Company, Inc. as Liquidating Agent and (ii) 11 U.S.C.
§§ 105 and 363 Approving the Sale of Certain Furniture, Fixtures
and Equipment Without Further Court Approval, Entered on June
27, 2003, Approving Retention of Grate Auction Company, Inc.
to Serve as Equipment Liquidating Agent for up to 12 Additional
Stores (Docket No. 619)
Objections Filed:
Objection expected to be filed. Objection
deadline expires September 26, 2003.
Related Items: None.
Status:
This matter will go forward.
Motion for an Order Pursuant to 11 U.S.C. §§ 105(a), 365(a) and
554(a) Authorizing Rejection of Certain Unexpired Nonresiden-
tial Real Property Leases and Authorizing the Debtors to Aban-
don Certain Surplus Furniture, Fixtures and Equipment (Docket
No. 592)
Objections Filed:
Objection of Government Employees In-
surance Company to Motion for an Order
Pursuant to 11 U.S.C. :~3g 105(a), 365(a)
and 554(a) Authorizing Rejection of Cer-
tain Unexpired Non-Residential Real
Property Leases and Authorizing the Debt-
ors to Abandon Certain Surplus Furniture,
Fixtures and Equipment (Docket No. 631);
Objection of Inland real Estate Corpora-
tion to Motion for Order Pursuant to 11
U.S.C. 393~ 105(a), 365(a) and 554(a)Au-
thorizing Rejection of Certain Unexpired
Non-Re*idential Real Property Leases and
Authorizing Debtors to Abandon Certain
Surplus Furniture, Fixtures and Equipment
(Docket No. 638); Objection of
Meadowdale Shopping Centers to Debtors'
Motion Authorizing Rejection of Unexpired
Nonresidential Real Property Leases
(Docket No. 628); Limited Objection of RD
Hobson Associates, L.P. (Store Number
110), Ocampo Belvidere, LLC (Store Num-
ber 311), Ocampo DeKalb (Store Number
070), and Ocampo Gale*burg, LLC (Store
Number 012) to Motion for an Order Pur-
suant to 11 U.S.C. 3~3~ 105(a), 365(a) and
554(a) Authorizing Rejection of Certain
Unexpired Non-Residential Real Property
'Leases and Authorizing the Debtors to
Abandon Certain Surplus Furniture, Fix-
ture* and Equipment (Docket No. 626).
Related Items: None.
Status:
This matter will go forward.
Dated: Chicago, Illinois
September 26, 2003
Respectfully Submitted,
John Wm. t~ler, Jr. (,~Pd)C No. 06209373)
George N. Panagakis (AP_DC No. 06205271)
Ron E. Meisler (ARDC No. 06270262)
SKADDEN, AR.PS, SLATE, MEAGHER
& FLOM (ILLINOIS)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606-1285
(312) 407-0700
Attomeys for Debtors and
Debtors-in-Possession
417352~Chicago S2A 7