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AMENDMENT TO PURCHASE AND SALE AGREEMENT
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This AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT (this
"Amendment")
dated as of June 22, 2005 by and between
DENNIS J. SCHMIDT, ROBERT V. GOTHIER,
SR., ROBERT V. GOTHIER, JR., HOOVER AVENUE
GF, LP, MECHANICSBURG GF, LP, ROBBIE
KEMPSVILLE CORP., COLISEUM FF MM, INC.,
ROBBIE LITTLE CREEK CORP., BRYCE
SMITHFIELD CORP., BRYCE SUFFOLK CORP., and
BRYCE GENERAL BOOTH CORP., each
having an office at 1000 North Front
Street, Suite 500, Wormleysburg,
Pennsylvania 17043 (individually, a
"Seller," and collectively, the "Sellers")
and CEDAR SHOPPING CENTERS PARTNERSHIP,
L.P., a Delaware limited partnership
("CSCP").
W I T N E S S E T H:
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WHEREAS, Sellers and CSCP entered into that certain Contribution
and
Sale Agreement, dated as of May 10, 2005
(the "Contract"); and
WHEREAS, Sellers and CSCP desire to amend the terms of the Contract
as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
set forth in this Amendment, and in
consideration of other good and valuable
consideration, the receipt and sufficiency
of which is hereby acknowledged, and
intending to be legally bound hereby,
Sellers and CSCP hereby covenant and agree
as follows:
1. All capitalized terms not otherwise defined herein shall have
the
meanings ascribed to such terms in the
Contract.
2. The Contract is hereby amended by replacing the first sentence
of
Article II, Section (a) in its entirety
with the following: "The consideration
for the Interests and the Purchased
Property (the "Consideration") shall be the
amount of Ninety Three Million Seven
Hundred Ninety Two Thousand and One Hundred
Ninety One Dollars ($93,792,191).
3. The Contract is hereby amended by replacing the first sentence
of
Article IV in its entirety with the
following: "Subject to the provisions of
Article V and Article XIII hereof, the
closing of the transactions contemplated
hereby (the "Closing") shall take place at
10:00 A.M. on July 27, 2005, or such
earlier date designated by CSCP on not less
than seven (7) days written notice
(the "Scheduled Closing Date") at the
offices of Stroock & Stroock & Lavan LLP,
180 Maiden Lane, New York, New York 10038
or through an escrow in which the
parties need not be physically present but
shall deposit documents by overnight
delivery or courier and funds by wire
transfer, with the Title Company as escrow
agent and pursuant to escrow instructions
consistent with the terms of this
Agreement and otherwise mutually
satisfactory to Sellers and CSCP."
4. The Contract is hereby amended by replacing Article VI, Section
1(d)
in its entirety with the following: "(d)
Except for the right of first offer
granted to KFC pursuant to its Lease at the
Norfolk, Virginia, East Little Creek
Premises (the "KFC Purchase Right") which
right has been (or shall be by
Closing) waived in writing by KFC, no
Person or entity (other than CSCP) has a
conditional or unconditional right or
option to purchase or ground lease all or
any portion of the Property, including,
without limitation, a right of first
refusal, first offer or redemption."
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5. The Contract is amended by deleting the following from Article
VI,
Section 1(h): "The P & S Agreement (as
defined in the Hoover REA) is in full
force and effect and, to Sellers'
knowledge, no party is in default thereunder.
Sellers have provided a true, complete and
correct copy of the P & S Agreement
to CSCP. The Residual Purchase Period (as
defined in the Hoover REA) ends on
September 13, 2007."
6. The Contract is hereby amended by replacing the sixth sentence
of
Article VI, Section 1(e) with the
following: "The security deposits (the
"Security Deposits") under the Leases for
the Premises, and whether such
Security Deposits are in the form of cash
or a letter of credit or otherwise,
are as set forth on Exhibit M attached
hereto and made a part hereof."
7. The Contract is hereby amended by supplementing Article VI,
Section
1(e) by adding the following at the end of
Article VI, Section 1(e):
"Notwithstanding anything to the contrary
contained in the Leases with Farm
Fresh, (i) the parties under each Lease
with Farm Fresh, or any affiliate
thereof, are treating each such Lease as a
"net lease", and Farm Fresh is
currently paying (and in the past has paid)
its share of all common area
maintenance expenses at each Premises in
which it is a tenant without any cap
thereon and (ii) for calculating percentage
rent at the Kempsville, Norfolk,
Virginia Premises, the breakpoint is
calculated (and in the past has been
calculated) using "Store Premises Minimum
Rent" as opposed to "Minimum Rent".
With respect to the Premises located in
Smithfield Virginia, no Seller or RVG
Entity has received invoices or otherwise
been requested to pay any annual
payment required under the Cross Easement,
Development and Operating Agreement
(initially in the amount of $10,000,
subject to increase).
8. The Contract is hereby amended by adding the following as
Article
VI, Section 1(x): "(x) Attached hereto and
made a part hereof as Exhibit GG, is
a true, correct and complete list of all of
the documents, including all
amendments and supplements thereto,
relating to or evidencing the obligation by
Hoover Avenue GF, LP ("Hoover"), to
purchase from Green Dot, Inc., a
Pennsylvania corporation ("Green Dot"),
approximately 19 acres of land (the
"Residual Property") adjacent to the
Premises located in Dubois, Pennsylvania
(the "Residual Property Purchase
Documents"). Sellers have delivered to CSCP
true, correct and complete copies of all of
the Residual Property Purchase
Documents. The Residual Property Purchase
Documents are in full force and
effect. To Sellers' knowledge, neither
Hoover nor Green Dot is in default in any
respect under the Residual Property
Purchase Documents. Sellers have not
received nor delivered any written notice
of default under the Residual Property
Purchase Documents. Pursuant to the
Residual Property Purchase Documents, Hoover
has an unconditional obligation to purchase
the Residual Property at any time
during the five year period commencing on
September 13, 2002 and expiring on
September 13, 2007. No portion of the
Residual Property has been purchased
pursuant to or in connection with the
Residual Property Purchase Documents nor,
to Sellers' knowledge, conveyed by Green
Dot (other than in connection with the
Dubois Area School District condemnation of
a portion of the Residual Property).
The purchase price for the Residual
Property is Seventy Seven Thousand Twenty
Eight Dollars ($77,028.00) per acre,
subject to annual increases commencing on
September 13, 2003 by the percentage amount
increase, if any, in the U.S.
Department of Labor Statistics Consumer
Price Index (All Items, All Consumers
1982-1984+100) which occurs during the
preceding twelve (12) month period. If
Hoover fails to purchase all of the
Residual Property by September 13, 2007,
Green Dot has the right, upon one hundred
eighty (180) days notice, to purchase
the Premises located in Dubois,
Pennsylvania for a purchase price equal to the
fair market value of said Premises. If
Hoover and Green Dot are unable to agree
on fair market value, each shall select an
appraiser who, if necessary, shall
select a third appraiser to determine the
fair market value."
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9. Article VI, Section 3 of the Contract is hereby deleted in
its
entirety and replaced with the
following:
"3. Other than the representations, warranties and agreements set
forth
in Section 1 (a), (b),(v) and (x) of this
Article, the representations,
warranties and agreements set forth in this
Article shall survive the applicable
Closing for a period of one (1) year,
unless a claim shall be made within such
one
