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AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT
--------------------------------------------
This AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT (this
"Amendment")
dated as of April 5, 2005 by and between
the entities listed on EXHIBIT 1
attached hereto and made a part hereof,
each an Ohio limited liability company
(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:
WHEREAS, Sellers and CSCP entered into that certain Contribution
and
Sale Agreement, dated as of February 3,
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 term "Stabilized Assumable Debt" (as defined in Section
(a)(i)
of Article II of the Contract) shall be
deemed to mean those loans set forth on
EXHIBIT 2 attached hereto and made a part
hereof.
3. The Contract is hereby amended by deleting Section 2 of Article
III
in its entirety and inserting the following
provision:
2. As a condition to the Closing, the Title Company shall have
committed to insure (a) CSCP as the fee owner of each of the
Premises
in an amount
designated by CSCP (but in no event exceeding, in the
aggregate, the Consideration) by issuance of an ALTA owner's
title
insurance policy for each of the Premises on the 1970 (last
revised
1984) form, subject only to the Permitted Exceptions (each, an
"Owner's
Policy"), and (b) each lender that is the holder of Assumable
Debt
(each, an "Existing Lender"), whether by the issuance of a
separate
title insurance policy or by the issuance of an endorsement to
such
Existing Lender's existing mortgagee title policy insuring the
lien
created by the Assumable Debt held by such Existing Lender, that as
of
the date of the recording of the Assumption Documents (as
hereinafter
defined) applicable to such Assumable Debt which are to be
recorded,
the lien created by such Assumable Debt is a valid first lien on
the
Premises securing such Assumable Debt, subject only to
exceptions,
liens and encumbrances acceptable to such Existing Lender (each,
an
"Existing Lender's Policy"), and (c) each lender that is
providing
financing for the acquisition of any of the Premises which
financing is
to be secured by a mortgage on such Premises (each, an
"Acquisition
Lender") that as of the date of the recording of such mortgage,
the
lien created by such mortgage is a valid first lien on the
Premises
securing such financing, subject only to exceptions, liens and
encumbrances acceptable to such Acquisition Lender (each, an
"Acquisition Lender's Policy").
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4. The Contract is hereby amended by inserting the following
provision
as Section 5 of Article III immediately
following Section 4 of Article III:
5. If a Title Commitment discloses judgments, bankruptcies or
other returns against other persons having names the same as,
or
similar to, that of any of the Sellers, the applicable Seller
shall
deliver to the Title Company affidavits showing that such
judgments,
bankruptcies or other returns are not against such Seller in order
to
induce the Title Company to omit exceptions with respect to
such
judgments, bankruptcies or other returns or to insure over same.
In
addition, Sellers shall deliver to the Title Company any
affidavits,
declarations and indemnifications required to cause the Title
Company
to issue a
non-imputation endorsement to each Owner's Policy and/or
respecting the existence of mechanic's or materialmen's liens and
other
third party rights relating to matters of title, as reasonably
required
by the Title Company. The affidavits, declarations and
indemnifications
referred to in this Section 5 are collectively referred to herein
as
the "Title Affidavits".
5. The Contract is hereby amended by deleting the words "all of
the
loans set forth on Exhibits F-1 and F-2" in
the first two sentences of Section 1
of Article V and replacing them with the
following words: "all of the Stabilized
Assumable Debt and those loans set forth on
Exhibit F-2 that CSCP shall elect to
assume under the terms of this
Agreement".
6. The Contract is hereby amended by inserting the following
provision
as subsection (z) of Section 1 of Article
VI, immediately following subsection
(y) of Section 1 of Article VI: "Sellers
have delivered to CSCP a true, correct
and complete copy of that certain Ground
Lease dated October 15, 2001 (the
"Dover Ground Lease") between Dover Land
Development Corp., as landlord ("Ground
Lessor"), and County Road, Ltd. LLC, as
tenant ("Ground Lessee"). The Dover
Ground Lease is in full force and effect.
Ground Lessee is not in default in any
material respect under the Dover Ground
Lease. Ground Lessee has not received
any written notice alleging that it is in
default under the Dover Ground Lease.
Ground Lessor is not in default in any
material respect under the Dover Ground
Lease, and Ground Lessee has not delivered
any notice of any alleged default or
breach on the part of Ground Lessor. Ground
Lessee is the tenant under the Dover
Ground Lease and has not assigned,
mortgaged, pledged, sublet, hypothecated or
otherwise encumbered its rights or
interests under the Dover Ground Lease;
provided, however, that, pursuant to that
certain Lease dated as of January 31,
1997 between Ground Lessee and Discount
Drug Mart, Inc. ("Drug Mart"), as
amended by Lease Amendment dated as of
October 15, 2001 between Ground Lessee
and Drug Mart, as further amended by Second
Lease Amendment dated as of June 6,
2003 between Ground Lessee and Drug Mart
(collectively, the "Drug Mart Lease"),
Drug Mart has the right to use the premises
demised under the Dover Ground Lease
(the "Dover Ground Leased Premises") as
necessary for the operation of the
drive-through pharmacy window for the
convenience of Drug Mart's prescription
drug customers and other members of the
public (the "Drive-Through Right").
Ground Lessee's interest in the Dover
Ground Lease shall be assigned, free and
clear of all liens and encumbrances other
than the Permitted Exceptions and the
Drive-Through Right."
7. The Contract is hereby amended by inserting the following
provision
as subsection (aa) of Section 1 of Article
VI, immediately following subsection
(z) of Section 1 of Article VI: "The notice
address for The Lamar Companies, a
Tenant of the property located at 825 East
Chestnut Street, Lancaster, PA 17602,
is as follows: Lamar Outdoor Advertising,
5953 Susquehanna Plaza Drive, PO Box
6157, York, PA 17406.
8. The Contract is hereby amended by deleting subsection (c) of
Section 1 of Article VIII in its entirety
and inserting the following provision:
"The agreement by the Title Company to
issue each Owner's Policy, each Existing
Lender's Policy, and each Acquisition
Lender's Policy;"
9. The Contract is hereby amended by deleting subsection (f) of
Section
1 of Article VIII in its entirety and
inserting the following provision:
"Subject to the provisions of Section 2 of
Article XIII hereof, receipt of the
Required Stabilized Tenant Estoppels (as
hereinafter defined) with respect to
the Closing of the Stabilized Premises and
receipt of the Required Development
Tenant Estoppels (as hereinafter defined)
with respect to the Closing of the
Development Premises;".
10. The Contract is hereby amended by inserting the following
provision
as subsection (i) of Section 1 of Article
VIII immediately following subsection
(h) of Section 1 of Article VIII: "Receipt
of the Required Additional Estoppel
Certificates (as hereinafter defined)."
11. The Contract is hereby amended by inserting the following
provision
as subsection (j) of Section 1 of Article
VIII immediately following subsection
(i) of Section 1 of Article VIII: "Receipt
of the Geneseo Payment and
Landscaping Evidence (as hereinafter
defined)."
12. The Contract is hereby amended by inserting the following
provision
as subsection (k) of Section 1 of Article
VIII immediately following subsection
(j) of Section 1 of Article VIII: "Receipt
of the Oswego C/O (as hereinafter
defined)."
13. The Contract is hereby amended by renumbering subsection (i)
of
Section 1 of Article VIII as subsection (j)
of Section 1 of Article VIII.
14. The Contract is hereby amended by deleting subsection (k)
of
Section 1 of Article IX therefrom in its
entirety.
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15. The Contract is hereby amended by inserting the following
provision
as subsection (p) of Section 1 of Article
IX immediately following subsection
(o) of Section 1 of Article IX: "Timely
make and observe and perform all
obligations to be paid, observed or
performed by Ground Lessee under the Dover
Ground Lease and use commercially
reasonable efforts to obtain (i) consent from
Ground Lessor for the assignment of Ground
Lessee's right, title and interest
in, to and under the Dover Ground Lease by
Ground Lessee to Cedar-Dover Plaza
LLC (the "Dover Ground Lessor Consent"),
(ii) either (x) an amendment to the
Dover Ground Lease in form and substance
reasonably acceptable to CSCP extending
the term thereof so that the term of the
Dover Ground Lease (including all
renewal and extension options) is the same
as that of the Drug Mart Lease (the
"Dover Ground Lease Amendment") or (y) an
acknowledgment by the tenant under the
Drug Mart Lease in form and substance
reasonably acceptable to CSCP that it
shall not be a default by the landlord
under the Drug Mart Lease in the event
that the tenant under the Drug Mart Lease
is unable to exercise a renewal or
extension option under the Drug Mart Lease
by reason of the expiration of the
Dover Ground Lease in accordance with its
terms (the "Drug Mart
Acknowledgment"), and (iii) a release in
recordable form, executed by the
current holder of that certain Open-End
Mortgage covering the Ground Lessor's
interest in the Dover Ground Leased
Premises made by Ground Lessor in favor of
The Huntington National Bank dated October
30, 1996 in the original principal
amount of $65,075.00, recorded on November
4, 1996 in Tuscarawas County, Ohio in
Volume 774, Page 116 (as the same may be
amended, supplemented, extended,
restated or consolidated, the "Dover Fee
Mortgage"), of the Ground Leased
Premises from the lien of the Dover Fee
Mortgage (the "Dover Fee Mortgage
Release").
16. The Contract is hereby amended by inserting the following
provision
as subsection (q) of Section 1 of Article
IX immediately following subsection
(p) of Section 1 of Article IX: "Prior to
the Stabilized Closing Date, Sellers
shall (i) pay to the Town of Geneseo all
outstanding charges payable to the Town
of Geneseo for the repair of the shoulder
of Morgan View Road for damage done
during the construction of the plaza, the
outstanding amount with respect
thereto being $1,677.52 as of the date
hereof, and deliver evidence of such
payment to CSCP, which evidence shall be
reasonably satisfactory to CSCP, and
(ii) complete the landscaping at the
Geneseo Property, as per the specifications
of the site plan filed with the Town of
Geneseo, and deliver written
confirmation of such completion by the Town
of Geneseo (the documentation
referred to in this subsection (q) is
referred to herein as the "Geneseo Payment
and Landscaping Evidence")."
17. The Contract is hereby amended by inserting the following
provision
as subsection (r) of Section 1 of Article
IX immediately following subsection
(q) of Section 1 of Article IX: "Prior to
the Stabilized Closing Date, Sellers
shall (i) cause to occur the final
inspection for the emergency generator at the
Stabilized Premises located in Oswego, New
York (the "Oswego Property"), and
(ii) obtain the final permanent Certificate
of Occupancy for the Oswego Property
(the "Oswego C/O")."
18. The Contract is hereby amended by deleting subsection (h)
of
Section 1 of Article XI in its entirety and
inserting the following provision:
"The Title Affidavits".
19. The Contract is hereby amended by deleting subsection (kk)
of
Section 1 of Article XI in its entirety and
replacing it with the following
provision: "An agreement regarding
partnership issues by and among CSCP and the
Sellers, in the form attached hereto as
Exhibit PP (the "Side Agreement");"
20. The Contract is hereby amended by inserting the following
provision
as subsection (uu) of Section 1 of Article
XI immediately following subsection
(tt) of Section 1 of Article XI: "Subject
to the provisions of Article XLIV
hereof, an assignment and assumption of the
Dover Ground Lease (the "Dover
Ground Lease Assignment and Assumption") in
the form of Exhibit SS attached
hereto and made a part hereof."
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21. The Contract is hereby amended by inserting the following
provision
as subsection (vv) of Section 1 of Article
XI immediately following subsection
(uu) of Section 1 of Article XI: "Subject
to the provisions of Section 2 of
Article XIII hereof, the Required
Additional Estoppel Certificates."
22. The Contract is hereby amended by inserting the following
provision
as subsection (ww) of Section 1 of Article
XI immediately following subsection
(vv) of Section 1 of Article XI: "The
Geneseo Payment and Landscaping Evidence."
23. The Contract is hereby amended by inserting the following
provision
as subsection (xx) of Section 1 of Article
XI immediately following subsection
(ww) of Section 1 of Article XI: "The
Oswego C/O."
24. The Contract is hereby amended by inserting the following
provision
as subsection (v) of Section 2 of Article
XI immediately following subsection
(u) of Section 2 of Article XI: "The Dover
Ground Lease Assignment and
Assumption."
25. Notwithstanding anything to the contrary contained in Section 5
or
Section 7 of Article XII of the Contract,
the parties hereto acknowledge and
agree that (i) the Designated Date shall be
deemed to be April 5, 2005, and (ii)
CSCP shall be deemed to have waived its
right to exercise the Termination Option
and, except as set forth in Paragraphs 32
and 33 below, the Removal Option,
pursuant to Section 5 of Article XII.
26. The Contract is hereby amended by deleting the first three
sentences of Section 2 of Article XIII and
replacing them with the following
provision: "Sellers shall, promptly
following the date hereof, deliver a Tenant
Estoppel Certificate in the form (but with
all relevant information filled in by
Sellers) attached hereto and made a part
hereof as Exhibit GG (the "Completed
Premises Tenant Estoppel Certificate Form")
to each Tenant of a Stabilized
Premises (other than the Tenants set forth
on Exhibit HH-3 attached hereto) for
execution by such Tenant. Sellers shall,
promptly following the date hereof,
deliver a Tenant Estoppel Certificate in
the form (but with all relevant
information filled in by Sellers) attached
hereto and made a part hereof as
Exhibit TT (the "Premises-In-Construction
Estoppel Certificate Form") to each
Tenant set forth on Exhibit HH-3 for
execution by such Tenant. Sellers shall
deliver to CSCP each executed Tenant
Estoppel Certificate promptly following
Sellers' receipt thereof. It shall be a
condition precedent to CSCP's obligation
to consummate the transactions contemplated
by this Agreement with respect to
the Stabilized Property that CSCP shall
receive Tenant Estoppel Certificates
from all of the Tenants set forth on
Exhibit HH-1 and Exhibit HH-4 attached
hereto and made a part hereof
(collectively, the "Required Stabilized Tenants"),
each (i) with respect to those Required
Stabilized Tenants listed on Exhibit
HH-1 under the heading entitled "All
Premises in which the following Tenants
Occupy Space" and all Required Stabilized
Tenants listed on Exhibit HH-4, as
more particularly set forth on Exhibit HH-1
and Exhibit HH-4, dated no earlier
than forty-five (45) days prior to the
Closing Date, (ii) consistent with the
terms of the Leases and the representations
and warranties of Sellers contained
in this Agreement, and (iii) in form
substantially similar to the Completed
Premises Tenant Estoppel Certificate Form
with respect to those Tenants listed
on Exhibit HH-1 and the
Premises-In-Construction Estoppel Certificate Form for
the Tenants listed on Exhibit HH-3 or in
such other form as CSCP shall approve
in the exercise of its reasonable judgment
(collectively, the "Required
Stabilized Tenant Estoppels"). If, on or
before the Stabilized Closing Date,
CSCP shall not have received Required
Stabilized Tenant Estoppels from those
Required Stabilized Tenants containing an
asterisk (*) next to their names on
Exhibit HH-1, each applicable Seller shall
deliver to CSCP on the Stabilized
Closing Date a certificate in the form
attached hereto as Exhibit HH-5.
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27. The Contract is hereby amended by deleting Section 1(a) of
Article
XX and replacing it with the following
provision:
(a) During the period (the "Development Period") commencing on
the date hereof and ending on the
Development Period Expiration Date, Sellers of
the Development Properties ("Development
Sellers") shall, at Development
Sellers' cost and expense, diligently and
continuously prosecute the performance
of the Development Work and the lease-up of
the Development Premises; provided,
however, (A) prior to the Closing with
respect to a Development Premises,
Development Sellers shall not enter into
Leases of such Development Premises (i)
covering four thousand (4,000) square feet
or less, other than in accordance
with Sellers' ordinary conduct of business,
without CSCP's prior written
consent, or (ii) covering more than four
thousand (4,000) square feet without
CSCP's prior written consent, and (B) from
and after the Closing with respect to
a Development Premises, Development Sellers
shall not enter into Leases of such
Development Premises without CSCP's prior
written consent, it being agreed that
for Leases covering four thousand (4,000)
square feet or less, CSCP's consent
shall not be unreasonably withheld (i.e.,
Leases containing similar terms and
Tenants of comparable creditworthiness as
the Leases and Tenants at the Property
as of the date of this Agreement). Any
Leases entered into for which CSCP's
consent is required pursuant to this
paragraph (a) shall be written on the
Standard Lease Form. CSCP and Sellers shall
act in good faith in leasing the
Development Premises, and CSCP shall
approve or disapprove a proposed Lease
pursuant to this paragraph (a) promptly
following CSCP's receipt of (x) the
fully negotiated Lease between a Seller and
a proposed Tenant, and (y) financial
information concerning the proposed Tenant.
At Sellers' election, with respect
to Leases covering a Development Premises
for which the Closing shall not yet
have occurred, each proposed Lease and
financial information delivered to CSCP
in connection with a request for CSCP's
consent thereto may be accompanied by a
Lease Transmittal Letter which shall
request CSCP's consent to said Lease and
shall contain the First Lease Transmittal
Letter Statement in bold, capital
letters. Provided that the proposed Lease
and accompanying financial information
shall have been submitted to CSCP together
with the Lease Transmittal Letter, if
CSCP shall fail to so respond to the
applicable Seller within said 10-day period
(which response, notwithstanding the
provisions of Article XIX hereof, may be
transmitted by email to
muckleylaw@aol.com), and also shall have failed to so
respond to the applicable Seller within
three (3) Business Days after said
Seller shall have sent CSCP the second
Lease Transmittal Letter (which response,
notwithstanding the provisions of Article
XIX hereof, may be transmitted by
email to muckleylaw@aol.com), then CSCP
shall be deemed to have consented to the
proposed Lease. The second Lease
Transmittal Letter shall state, in bold,
capital letters, the Second Lease
Transmittal Letter Statement.
28. The Contract is hereby amended by inserting the following
provision
at the end of Section 5 of Article XX:
"During the Development Lease-up Period,
Development Sellers shall not enter into
Leases of any Development Premises
without CSCP's prior written consent, it
being agreed that for Leases covering
four thousand (4,000) square feet or less,
CSCP's consent shall not be
unreasonably withheld (i.e., Leases
containing similar terms and Tenants of
comparable creditworthiness as the Leases
and Tenants at the Property as of the
date of this Agreement). CSCP and Sellers
shall act in good faith in leasing the
Development Premises during the Development
Lease-up Period, and CSCP shall
approve or disapprove a proposed Lease
pursuant to this Section 5 promptly
following CSCP's receipt of (x) the fully
negotiated Lease between a Development
Seller and a proposed Tenant, and (y)
financial information concerning the
proposed Tenant.
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29. The Contract is hereby amended by inserting the following
provision
at the end of Section 1 of Article XXI:
"During the Leasing Period, Sellers
shall not enter into Leases of any
Stabilized Premises without CSCP's prior
written consent, it being agreed that for
Leases covering four thousand (4,000)
square feet or less, CSCP's consent shall
not be unreasonably withheld (i.e.,
Leases containing similar terms and Tenants
of comparable creditworthiness as
the Leases and Tenants at the Property as
of the date of this Agreement). CSCP
and Sellers shall act in good faith in
leasing the Vacant Stabilized Space
during the Leasing Period, and CSCP shall
approve or disapprove a proposed Lease
pursuant to this Section 1 promptly
following CSCP's receipt of (x) the fully
negotiated Lease between a Seller and a
proposed Tenant, and (y) financial
information concerning the proposed
Tenant."
30. The Contract is hereby amended by inserting the following
Article
in the Contract immediately following
Article XLIII:
ARTICLE XLIV: Dover Ground
Lease.
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1. As conditions precedent to CSCP's obligation to consummate
the transactions contemplated by this Agreement with respect to
the
Stabilized Property, CSCP shall receive the Dover Ground Lessor
Consent, the Dover Ground Lease Amendment and the Dover Fee
Mortgage
Release. In the event that any of the conditions precedent to
CSCP's
obligation to close set forth in this Section 1 have not been
satisfied
prior to the Scheduled Stabilized Closing Date (as the same may
have
been extended pursuant to the terms of this Agreement), then CSCP
shall
have the right, exercisable by delivery of written notice to
Sellers,
to either (i) remove the Stabilized Premises located at 3001-3015
N.
Wooster Avenue, Dover, OH 44622 (including without limitation the
Dover
Ground Leased Premises) (the "Dover Property") from the Premises
being
conveyed pursuant to this Agreement and receive a corresponding
reduction in the Consideration (unless CSCP shall elect that more
than
five (5) Stabilized Premises in the aggregate be so removed,
regardless
of the reason for removal, pursuant to the terms of this
Agreement,
including, without limitation, pursuant to Article XII hereof, in
which
case, CSCP shall have the right to terminate this Agreement by
written
notice delivered to Sellers (in which event the Title Company
shall
return the Required Deposit to CSCP and no party hereto shall have
any
further
obligations in connection herewith except under those
provisions that expressly survive a termination of this
Agreement)), or
(ii) extend the Closing Date with respect to the Dover Premises,
in
which case (x) the Consideration payable on the Stabilized Closing
Date
shall be correspondingly reduced, (y) the Closing with respect to
the
Dover Premises shall occur thirty (30) days following the
satisfaction
of the conditions precedent to CSCP's obligation to close set forth
in
this Section 1; provided, however, that if the conditions precedent
to
CSCP's obligation to close set forth in this Section 1 shall not
be
satisfied on or before the first anniversary of the Stabilized
Closing
Date, CSCP shall be deemed to have removed the Dover Premises from
the
Premises being conveyed pursuant to this Agreement.
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31. The Contract is hereby amended by inserting the following
Article
in the Contract immediately following
Article XLIV:
ARTICLE XLV: Additional
Estoppel Certificates.
--------------------------------
1. Sellers shall, promptly following the date hereof, deliver
estoppel certificates (the "Additional Estoppel Certificates") in
the
form (but, to the extent missing, with all relevant information
filled
in by Sellers) attached hereto and made a part hereof as Exhibit
UU-1,
Exhibit UU-2, Exhibit UU-3, Exhibit UU-4, Exhibit UU-5, Exhibit
UU-6,
and Exhibit UU-7 (the "Additional Estoppel Certificate Forms") to
each
of the parties referenced therein. Sellers shall deliver to CSCP
each
executed Additional Estoppel Certificate promptly following
Sellers'
receipt thereof. It shall be a condition precedent to CSCP's
obligation
to consummate the transactions contemplated by this Agreement
with
respect to the Stabilized Property that CSCP shall receive an
Additional Estoppel Certificate from each party that is a signatory
to
the Additional Estoppel Certificate Forms attached hereto as
Exhibits
UU-3, UU-4, UU-5 and UU-7, each (i) dated no earlier than thirty
(30)
days prior to the Closing Date, (ii) consistent with the terms of
the
representations and warranties of Sellers contained in this
Agreement,
and (iii) in form substantially similar to the applicable
Additional
Estoppel Certificate or in such other form as CSCP shall approve in
the
exercise of its reasonable judgment (the "Required Additional
Estoppel
Certificates"). If, on or before the Scheduled Stabilized Closing
Date,
such condition is not satisfied (or waived in writing by CSCP),
then
CSCP shall have the right, exercisable by delivery of written
notice to
Sellers, to remove the concerned Premises from the Premises
being
conveyed pursuant to this Agreement and receive a corresponding
reduction in the Consideration (unless CSCP shall elect that more
than
five (5) Stabilized Premises in the aggregate be so removed,
regardless
of the reason for removal, pursuant to the terms of this
Agreement,
including, without limitation, pursuant to Article XII hereof, in
which
case, CSCP shall have the right to terminate this Agreement by
written
notice delivered to Sellers (in which event the Title Company
shall
return the Required Deposit to CSCP and no party hereto shall have
any
further obligations in connection herewith except under those
provisions that expressly survive a termination of this
Agreement)).
Either
Sellers or CSCP shall have a one (1) time right to extend the
Scheduled Stabilized Closing Date for up to thirty (30) additional
days
if the conditions precedent to CSCP's obligation to close set forth
in
this Section have not been satisfied prior to the Scheduled
Stabilized
Closing Date (exercisable by delivery of written notice to the
other
parties hereto on or prior to the Scheduled Stabilized Closing
Date).
32. The Stabilized Premises known as 1423 Lexington Avenue,
Mansfield,
Ohio (the "Mansfield Premises") shall be
deemed to have been removed from the
Premises being conveyed pursuant to the
Contract, pursuant to CSCP's Removal
Option under Section 5 of Article XII of
the Contract, and the Consideration is
hereby reduced in the amount of $425,875.
Any references in the Contract,
including any reference in any Exhibits, to
the Mansfield Premises shall be
deemed deleted therefrom.
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33. The Stabilized Premises known as 2010-2030 August Drive,
Ontario,
Ohio (the "August Premises") shall be
deemed to have been removed from the
Premises being conveyed pursuant to the
Contract, pursuant to CSCP's Removal
Option under Section 5 of Article XII of
the Contract, and the Consideration is
hereby reduced in the amount of $1,838,422.
Any references in the Contract,
including any reference in any Exhibits, to
the August Premises shall be deemed
deleted therefrom.
34. CSCP hereby notifies Sellers that CSCP elects to have all
Service
Contracts in effect on the date hereof
remain in effect after the Closing, and
this Amendment shall be deemed to be the
Service Contract Notice referred to in
Section 4 of Article IX of the
Contract.
35. The Contract is hereby amended by deleting "Exhibit B-1"
therefrom
and replacing it with EXHIBIT 3 attached
hereto. All references in the Contract
to "Exhibit B-1" shall be deemed to refer
to EXHIBIT 3 attached hereto.
36. The Contract is hereby amended by deleting "Exhibit K"
therefrom
and replacing it with EXHIBIT 4 attached
hereto. All references in the Contract
to "Exhibit K" shall be deemed to refer to
EXHIBIT 4 attached hereto.
37. The Contract is hereby amended by deleting "Exhibit L-1"
therefrom
and replacing it with EXHIBIT 5 attached
hereto. All references in the Contract
to "Exhibit L-1" shall be deemed to refer
to EXHIBIT 5 attached hereto.
38. The Contract is hereby amended by deleting "Exhibit L-2"
therefrom
and replacing it with EXHIBIT 6 attached
hereto. All references in the Contract
to "Exhibit L-2" shall be deemed to refer
to EXHIBIT 6 attached hereto.
39. "Exhibit DD" of the Contract is hereby amended by inserting
as
"Exhibit B" thereto the schedule of
Existing ROFO/ROFR Properties attached
hereto as EXHIBIT 7. All references in
"Exhibit DD" to "Exhibit B" shall be
deemed to refer to EXHIBIT 7 attached
hereto.
40. The Contract is hereby amended by deleting "Exhibit HH-1"
therefrom
and replacing it with the list of Tenants
attached hereto as EXHIBIT 8. All
references in the Contract to "Exhibit
HH-1" shall be deemed to refer EXHIBIT 8
attached hereto.
41. The Contract is hereby amended by inserting as "Exhibit
HH-3"
thereto the list of Tenants attached hereto
as EXHIBIT 9. All references in the
Contract to "Exhibit HH-3" shall be deemed
to refer to EXHIBIT 9 attached
hereto.
42. The Contract is hereby amended by inserting as "Exhibit
HH-4"
thereto the list of Tenants attached hereto
as EXHIBIT 10. All references in the
Contract to "Exhibit HH-4" shall be deemed
to refer to EXHIBIT 10 attached
hereto.
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43. The Contract is hereby amended by inserting as "Exhibit
HH-5"
thereto the form of certificate attached
hereto as EXHIBIT 11. All references in
the Contract to "Exhibit HH-5" shall be
deemed to refer to EXHIBIT 11 attached
hereto.
44. The Contract is hereby amended by inserting as "Exhibit
II-3"
thereto the list of fees and assessments
attached hereto as EXHIBIT 12. All
references in the Contract to "Exhibit
II-3" shall be deemed to refer to EXHIBIT
12 attached hereto.
45. The Contract is hereby amended by inserting as "Exhibit JJ"
thereto
the list of Vacant Stabilized Spaces
attached hereto as EXHIBIT 13. All
references in the Contract to "Exhibit JJ"
shall be deemed to refer to EXHIBIT
13 attached hereto.
46. Exhibit QQ-1 of the Contract is hereby amended by deleting
therefrom the section entitled "Term" and
replacing it with the following:
Term: The initial term
shall be twenty five (25) years. With
respect to Ground Leases located in the state of Ohio,
Ground Lessee shall have five (5) option periods, each
having a five (5) year term. With respect to Ground
Leases located in the state of New York, Ground Lessee
shall have five (5) option periods, the first four (4)
option periods having a five (5) year term and the
final option period having a four (4) year term.
47. The Contract is hereby amended by inserting as "Exhibit SS"
thereto
the form of Assignment and Assumption of
Ground Lease attached hereto as EXHIBIT
14. All references in the Contract to
"Exhibit SS" shall be deemed to refer to
EXHIBIT 14 attached hereto.
48. The Contract is hereby amended by inserting as "Exhibit TT"
thereto
the form of Premises-In-Construction
Estoppel Certificate attached hereto as
EXHIBIT 15. All references in the Contract
to "Exhibit TT" shall be deemed to
refer to EXHIBIT 15 attached hereto.
49. The Contract is hereby amended by inserting as "Exhibit
UU-1"
thereto the form of Estoppel Certificate
(Centerville Easement Agreement)
attached hereto as EXHIBIT 16-1. All
references in the Contract to "Exhibit
UU-1" shall be deemed to refer to EXHIBIT
16-1 attached hereto.
50. The Contract is hereby amended by inserting as "Exhibit
UU-2"
thereto the form of Estoppel Certificate
(Centerville Storm Water and Detention
Easement Agreement) attached hereto as
EXHIBIT 16-2. All references in the
Contract to "Exhibit UU-2" shall be deemed
to refer to EXHIBIT 15-2 attached
hereto.
51. The Contract is hereby amended by inserting as "Exhibit
UU-3"
thereto the form of Estoppel Certificate
(Davis Road Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-3.
All references in the Contract to
"Exhibit UU-3" shall be deemed to refer to
EXHIBIT 16-3 attached hereto.
52. The Contract is hereby amended by inserting as "Exhibit
UU-4"
thereto the form of Estoppel Certificate
(McCormick Place Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-4.
All references in the Contract to
"Exhibit UU-4" shall be deemed to refer to
EXHIBIT 16-4 attached hereto.
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53. The Contract is hereby amended by inserting as "Exhibit
UU-5"
thereto the form of Estoppel Certificate
(McCormick Place Party Wall Agreement)
attached hereto as EXHIBIT 16-5. All
references in the Contract to "Exhibit
UU-5" shall be deemed to refer to EXHIBIT
16-5 attached hereto.
54. The Contract is hereby amended by inserting as "Exhibit
UU-6"
thereto the form of Estoppel Certificate
(Portage Trail Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-6.
All references in the Contract to
"Exhibit UU-6" shall be deemed to refer to
EXHIBIT 16-6 attached hereto.
55. The Contract is hereby amended by inserting as "Exhibit
UU-7"
thereto the form of Ground Lease Estoppel
Certificate attached hereto as EXHIBIT
16-7. All references in the Contract to
"Exhibit UU-7" shall be deemed to refer
to EXHIBIT 16-7 attached hereto.
56. Notwithstanding anything to the contrary contained in the
Contract,
it shall be a condition precedent to CSCP's
obligation to close the transactions
contemplated by the Contract that the
Property Management Agreements, the Medina
Ground Lease, the Mason Ground Lease, the
Grove City Ground Lease and the
Geneseo Ground Lease, all in form and
content acceptable to Cedar and Sellers in
their reasonable discretion, be executed
and delivered by the applicable parties
thereto.
57. Notwithstanding anything to the contrary contained in Section 1
of
Article IV of the Contract, Section 1 of
Article V of the Contract or Section 2
of Article XIII of the Contract, the
Scheduled Stabilized Closing Date shall be
deemed to mean April 19, 2005; provided,
however, that either Sellers or CSCP
shall have a one (1) time right to extend
the Scheduled Stabilized Closing Date
to May 3, 2005 if the conditions precedent
to CSCP's obligation to close set
forth in Section 1 of Article V, or Section
2 of Article XIII, or Article XLIV
have not been satisfied prior to the
Scheduled Stabilized Closing Date
(exercisable by delivery of written notice
to the other parties hereto on or
prior to the Scheduled Stabilized Closing
Date). Except as otherwise set forth
in this Paragraph 57, neither Sellers nor
CSCP shall have the right to extend
the Scheduled Stabilized Closing Date if
the conditions precedent to CSCP's
obligation to close set forth in Section 1
of Article V, or Section 2 of Article
XIII, or Article XLIV have not been
satisfied prior to the Scheduled Stabilized
Closing Date. Nothing contained in this
Paragraph 57 shall be deemed to limit or
otherwise modify CSCP's rights in the event
that the conditions precedent to
CSCP's obligation to close set forth in
Article V or Article XIII or Article
XLIV of the Contract shall not have been
satisfied with respect to the
Stabilized Property prior to the Scheduled
Stabilized Closing Date (as the same
may have been extended pursuant to this
Paragraph 57).
58. (a) The parties hereto shall amend the Future Properties
Agreement
prior to the Closing with respect to the
Stabilized Premises to reflect the
provisions contained in this Paragraph 58,
and all references in the Contract to
the Future Properties Agreement shall be
deemed to refer to the Future
Properties Agreement, as amended in
accordance with this Paragraph 58. Any
undefined capitalized terms used in this
Paragraph 58 shall have the meanings
ascribed to them in the Future Properties
Agreement.
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(b) Notwithstanding anything to the contrary contained in the
Future Properties Agreement, (i) the
properties set forth on EXHIBIT 17 attached
hereto and made a part hereof (each, an
"Outside Partner Property") shall be
deemed to be excluded from the definition
of Existing ROFO/ROFR Properties (as
defined in the Future Properties
Agreement), and (ii) at such time that one
hundred percent (100%) of the equity
interests in an Outside Partner Property
shall be owned, directly or indirectly, by
a Giltz Party (as defined in the
Future Properties Agreement), such Outside
Partner Property shall be deemed to
be a Future ROFO/ROFR Property (as defined
in the Future Properties Agreement).
(c) During the Option Lease-up Period, Giltz Property Owning
Parties shall not enter into Leases of any
Vacant Option Space without CSCP's
prior written consent, which consent shall
not be unreasonably withheld with
respect to Leases covering four thousand
(4,000) square feet or less. CSCP and
the Giltz Property Owning Parties shall act
in good faith in leasing the Vacant
Option Space during the Option Lease-up
Period, and CSCP shall approve or
disapprove a proposed Lease pursuant to
this paragraph (c) promptly following
CSCP's receipt of (x) the fully negotiated
Lease between a Giltz Property Owning
Party and a proposed Tenant, and (y)
financial information concerning the
proposed Tenant.
59. (a) Notwithstanding anything to the contrary contained in
subsection (g) of Section 1 of Article X,
but subject to the provisions of
subsection (b) of this Paragraph 59: (i)
Sellers shall obtain payoff letters as
of the Stabilized Closing Date with respect
to those fees and assessments
containing an asterisk (*) next to their
names on Exhibit II-3, and, at the
Closing of the Stabilized Premises, Sellers
shall pay said fees and assessments
in full and, if applicable, deliver to the
Title Company a release of said fees
and assessments of record, (ii) the
remaining fees and assessments listed on
Exhibit II-3 shall be apportioned such that
all amounts accruing prior to the
Proration Time shall be the obligation of
Sellers and all amounts accruing from
and after the Proration Time shall be the
obligation of CSCP, (iii) Sellers
shall obtain payoff letters as of the
Closing Date with respect to, and pay in
full at the Closing and, if applicable,
deliver to the Title Company a release
of said fees and assessments of record with
respect to, any fees or assessments
affecting any of the Premises that is not
set forth on Exhibit II-3, if and to
the extent that any such fee or assessment
(x) was levied in connection with the
development (as opposed to operation) of
the applicable Premises or (y) was
levied in connection with the operation of
the applicable Premises but is not
able to be completely passed through to,
and fully reimbursed by, the Tenants at
the applicable Premises pursuant to the
terms of the Leases at such Premises,
and (iv) any other fee or assessment (or
portion thereof) affecting any of the
Premises that (x) is not set forth on
Exhibit II-3 and (y) was levied in
connection with the operation (as opposed
to the development) of the applicable
Premises and (z) is able to be completely
passed through to, and fully
reimbursed by, the Tenants at the
applicable Premises pursuant to the terms of
their respective Leases shall be
apportioned such that all amounts accruing
prior to the Proration Time shall be the
obligation of Sellers and all amounts
accruing from and after the Proration Time
shall be the obligation of CSCP.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 59: (A) clauses (iii) and (iv) of
subparagraph (a) of this Paragraph
59 shall not apply to general real estate
taxes, which shall be apportioned in
accordance with subsection (g) of Section 1
of Article X, (B) if any fee or
assessment shall not be assessed for a
finite period but instead shall be
assessed in perpetuity, then (x) Sellers
shall not be required to obtain payoff
letters with respect to any such fee or
assessment pursuant to clause (iii) of
subparagraph (a) of this Paragraph 59, and
(y) for purposes of clause (iii) of
subparagraph (a) of this Paragraph 59, the
amount of such assessment shall be
deemed to be the annual amount thereof
divided by eight percent (8%), and (C) if
a fee or assessment shall be able to be
completely passed through to, and fully
reimbursed by, some (but not all) Tenants
at a particular Premises pursuant to
the terms of their respective Leases, then
the amounts being apportioned
pursuant to clauses (iii)(y) and (iv) of
subparagraph (a) of this Paragraph 59
shall be appropriately prorated based on
the percentage thereof that is able to
be passed through to, and fully reimbursed
by, said Tenants.
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(c) The provisions of this Paragraph 59 shall survive, with
respect
to each Premises, for a period of two (2)
years following the Closing Date with
respect to such Premises.
60. (a) If the Zoning
Inspector of Liberty Township, Ohio, or such
other governmental or quasi-governmental
official claiming jurisdiction over the
Stabilized Premises located at 9965-10011
Sawmill Parkway, Powell, Ohio (the
"Powell Property"), shall require, during
the period commencing on the date
hereof and ending on the second (2nd)
anniversary of the Closing with respect to
the Powell Property, the construction of
additional parking spaces on the Powell
Property, Sellers shall deliver to CSCP,
within ten (10) days after delivery of
an invoice therefor, the actual reasonable
costs incurred (or to be incurred) by
CSCP or its affiliate in connection with
such construction.
(b) Seller Indemnitors (other than Dave Thomas), by execution
of this Agreement, hereby agree, on a joint
and several basis, to guarantee the
prompt payment to CSCP of the amounts
described in subsection (a) of this
Paragraph 60. This guarantee is a guarantee
of payment and performance and not
of collection. In connection with such
guarantee, each guarantor hereby waives
any and all (i) defenses, offsets,
counterclaims, demands, protests,
presentments and notices of every kind and
nature, and (ii) legal requirements
that CSCP institute any action or
proceeding at law or in equity against any
Seller or any other Person.
(c) The provisions of this Paragraph 60 shall survive the
Closing.
61. Except as expressly modified or amended by this Amendment, all
of
the terms, covenants and conditions of the
Contract are hereby ratified and
confirmed.
62. Except insofar as reference to the contrary is made in any
such
instrument, all references to the
"Contract" in any future correspondence or
notice shall be deemed to refer to the
Contract as modified by this Amendment.
63. This Amendment may be signed in any number of counterparts,
each of
which shall be deemed to be an original,
with the same effect as if the
signatures thereto and hereto were on the
same instrument.
64. This Amendment shall be governed by and construed in
accordance
with the laws of the State of New York,
without regard to principles of
conflicts of laws.
65. Delivery of this Amendment by facsimile by any party shall
represent a valid and binding execution and
delivery of this Amendment by such
party.
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IN WITNESS WHEREOF, the Sellers and CSCP have executed and
delivered
this Amendment as of the date first above
written.
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping
Centers, Inc.,
a Maryland corporation, its
general partner
By: /s/
Leo S. Ullman
------------------
Name: Leo S. Ullman
Title: President
[Signature pages to continue on next page]
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BUFFALO BROAD COMPANY, LLC,
an Ohio limited liability company
By: /s/
Harry W. Giltz, II
-------------------
