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Exhibit 10.1
SECOND AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT
This SECOND AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT (this
"Amendment") dated as of April 25, 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 and that certain Amendment to
Contribution and Sale Agreement, dated as
of April 5, 2005 (collectively, 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. (a) Notwithstanding
anything to the contrary contained in Article II
of the Contract, Sellers and CSCP
acknowledge and agree that in lieu of the
Title Company holding the Stabilized
Holdback:
(i)
a portion of the Stabilized Holdback with respect to
Movie Gallery at the Geneseo Property, in
the amount of $165,980, shall be held
by CSCP, and the remaining portion of the
Stabilized Holdback with respect to
Movie Gallery at the Geneseo Property, in
the amount of $386,000, shall be held
by KeyBank National Association
("KeyBank"); and
(ii) the
entire Stabilized Holdback with respect to
Olympia Sports at the New Milford Property
in the amount of $699,422 shall be
held by CSCP.
(b) Upon satisfaction of the conditions set forth in the
Contract
for release of the Stabilized Holdback (and
with respect to the portion of the
Movie Gallery Stabilized Holdback being
held by KeyBank, upon release by
KeyBank), CSCP shall, in accordance with
the terms of the Contract, either
retain for its own account or pay to the
applicable Seller, the Stabilized
Holdback or applicable portion thereof.
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(c) Notwithstanding anything to the contrary contained in Article
II
of the Contract, Sellers and CSCP
acknowledge and agree that in lieu of CSCP
holding the entire Sleepys Holdback, a
portion of the Sleepys Holdback in the
amount of $652,000 shall be held by
KeyBank, and the remaining portion of the
Sleepys Holdback in the amount of $699,000
shall be held by CSCP. Upon
satisfaction of the conditions set forth in
the Contract for release of the
Sleepys Holdback (and with respect to the
portion of the Sleepys Holdback being
held by KeyBank, upon release by KeyBank),
CSCP shall, in accordance with the
terms of the Contract, either retain for
its own account or pay to the
applicable Seller, the Sleepys Holdback or
applicable portion thereof.
(d) Sellers and CSCP further acknowledge and agree that KeyBank
shall have the right to transfer its
portion of the Stabilized Holdback and/or
the Sleepys Holdback to its loan servicer
or to any successor in connection with
an assignment of its interest in the
applicable loans held by KeyBank.
4. A portion of the
Stabilized Consideration in the amount of $43,750
(the "Lodi Holdback") shall be held by CSCP
in accordance with the terms of this
Paragraph 4, on account of asphalt repairs
required to be made to the Stabilized
Premises located in Lodi, Ohio (the "Lodi
Premises"), as more particularly set
forth in the estoppel certificate delivered
by Discount Drug Mart to CSCP in
connection with the closing (said repairs,
the "Repairs"). Upon Discount Drug
Mart delivering to CSCP or its designee
that owns the Lodi Premises an estoppel
certificate or written acknowledgment
reasonably satisfactory to CSCP indicating
that the Repairs shall have been completed
in a manner satisfactory to Discount
Drug Mart, the Lodi Holdback shall be paid
to the Seller of the Lodi Premises.
5. (a) CSCP hereby
waives the condition precedent to CSCP's obligation
to close that the Existing Lender holding
the loan on the Conveyed Buffalo Broad
Property and the Released Buffalo Broad
Property (collectively, the "Buffalo
Broad Property") issue the Buffalo Broad
Release, as more particularly set forth
in Section 2 of Article V of the Contract.
Accordingly, at the Closing, CSCP (or
its nominee or designee) shall acquire
title to the entire Buffalo Broad
Property.
(b) Sellers hereby agree to use best efforts following the
Stabilized Closing Date to obtain the
Buffalo Broad Release in recordable form
satisfactory to the Title Company and
otherwise satisfactory to CSCP releasing
the Released Buffalo Broad Property from
the lien of said mortgage and removing
the Released Buffalo Broad Property (and
any references thereto) from the other
loan documents evidencing, securing and/or
relating to said loan. Sellers shall
pay all costs and expenses in connection
with obtaining the Buffalo Broad
Release, including, without limitation, all
costs and expenses of the holder of
the mortgage on the Buffalo Broad Property
(the "Buffalo Broad Mortgagee"). If
the Buffalo Broad Mortgagee shall agree to
grant the Buffalo Broad Release,
contemporaneously with the recordation of
the Buffalo Broad Release, CSCP (or
its designee or nominee holding title to
the Buffalo Broad Released Property)
shall convey the Buffalo Broad Released
Property to Buffalo Broad Company LLC or
its designee or nominee ("Buffalo Broad
Owner") without recourse, and without
representation or warranty of any kind
whatsoever.
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(c) In the event that Sellers shall not have obtained the
Buffalo
Broad Release in accordance with this
Paragraph 5 on or before the date that
shall be six (6) months following the
Stabilized Closing Date, and provided that
the entering into and the performance under
the Buffalo Broad Ground Lease (as
hereinafter defined) does not violate any
Law or the terms of any financing
documents secured by the Buffalo Broad
Property or the terms of any easement,
covenant, condition or restriction
encumbering all or a portion of the Buffalo
Broad Property or any Lease applicable to
all or any portion of the Buffalo
Broad Property, CSCP (or its designee or
nominee taking title to the Buffalo
Broad Property) shall enter into a ground
lease with the Buffalo Broad Owner
having the terms set forth on EXHIBIT QQ-1
attached to the Contract (and
otherwise in form and content acceptable to
CSCP) (the "Buffalo Broad Ground
Lease") for the Released Buffalo Broad
Property. Sellers shall pay all costs and
expenses in connection with obtaining the
consent of the Buffalo Broad Mortgagee
to the Buffalo Broad Ground Lease,
including attorneys' fees and disbursements.
(d) Supplementing the provisions of Article XXV of the
Contract,
Seller Indemnitors (other than Dave
Thomas), by execution of this Amendment,
hereby agree, on a joint and several basis,
to indemnify, defend and hold
harmless the CSCP Parties from and against
any and all Claims asserted against,
incurred or suffered by any CSCP Party in
connection with, related to or arising
from the ownership of the Released Buffalo
Broad Property during the period
commencing on the Stabilized Closing Date
and ending on the earlier to occur of
(i) the conveyance of the Released Buffalo
Broad Property to Buffalo Broad
Owner, or (ii) the execution of the Buffalo
Broad Ground Lease.
(e)
The provisions of this Paragraph 5 shall survive the Closing.
6. The Contract is
hereby amended by inserting the following provision
as subsection (bb) of Section 1 of Article
VI, immediately following subsection
(aa) of Section 1 of Article VI: "There are
no utility lines in the easements
described on Exhibit VV attached hereto and
made a part hereof (the "Centerville
Easements") encumbering the Stabilized
Property known as 1501-1575 Lyons Road,
Centerville, Ohio (the "Centerville
Property"). Sellers hereby acknowledge that
KeyBank National Association, as the holder
of a mortgage encumbering the
Centerville Property (the "Centerville
Mortgage"), and any parties which become
holders of the Centerville Mortgage
subsequent to the date hereof by reason of
assignment, consolidation or otherwise
(KeyBank National Association and any
such subsequent holders of the Centerville
Mortgage being hereinafter referred
to collectively as the "Centerville
Mortgagee"), shall be deemed to be third
party beneficiaries of the representations
and warranties made by Sellers in
favor of CSCP pursuant to this subsection
(bb)."
7. The Contract is
hereby amended by inserting the following provision
as subsection (cc) of Section 1 of Article
VI, immediately following subsection
(bb) of Section 1 of Article VI: "Sellers
hereby represent that there are no
third party property managers or leasing
agents (other than GBC Property
Management, L.L.C.) for any of the
Premises, except as set forth on Exhibit WW
attached hereto and made a part
hereof."
8. The Contract is
hereby amended by inserting the following provision
as subsection (dd) of Section 1 of Article
VI, immediately following subsection
(cc) of Section 1 of Article VI: "Sellers
hereby represent that (i) they have
delivered to the Town of Geneseo a check in
the
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amount of $________ (the "Landscaping
Payment"), and (ii) completion of the
landscaping is not a condition to the
issuance of the certificate of occupancy
for the building permits for the site."
9. In furtherance of,
and without limiting the generality of, Articles
XXIII and XLIII of the Contract, Sellers
shall pay all costs and expenses of the
holder of any mortgage encumbering (i) the
Lodi Property in connection with the
Lodi Subdivision, (ii) the Gahanna Property
in connection with the Gahanna
Subdivision, (iii) the Mason Property in
connection with the Mason Subdivision,
and (iv) the Stabilized Property located in
Powell, Ohio in connection with the
dedication of Attucks Drive to the
appropriate governmental authorities. The
provisions of this Paragraph 9 shall
survive the Closing.
10. Supplementing the provisions of Article XXV of the Contract,
Harry
W. Giltz, II, Harry W. Giltz, III and Giltz
& Associates, Inc. (collectively,
"Key Bank Assumption Indemnitors"), by
execution of this Amendment, hereby
agree, on a joint and several basis, to
indemnify, defend and hold harmless the
CSCP Parties from and against any and all
Claims asserted against, incurred or
suffered by any CSCP Party in connection
with, related to or arising from:
(a) that certain loan in the original principal amount of
$2,760,000
(the "McCormick Loan") made by National
Realty Funding L.C. to 23300 Lorain Road
Company, LLC ("McCormick Seller") arising
from acts and/or omissions occurring
prior to the assumption by Cedar-McCormick
LLC of the McCormick Loan, including,
without limitation, any Claims arising from
acts and/or omissions occurring
prior to the assumption by Cedar-McCormick
LLC of the McCormick Loan under (i)
that certain Environmental Indemnity
Agreement executed by McCormick Seller, and
(ii) those certain Key Principal's Limited
Guaranty Agreements executed
respectively by Harry W. Giltz, II, Harry
W. Giltz, III, Giltz & Associates,
Inc. and James B. Abraham;
(b) that certain loan in the original principal amount of
$2,330,000
(the "Chestnut Loan") made by KeyBank
National Association to 825 East Chestnut
Company, LLC ("Chestnut Seller") arising
from acts and/or omissions occurring
prior to the assumption by Cedar-Chestnut
LLC of the Chestnut Loan, including,
without limitation, any Claims arising from
acts and/or omissions occurring
prior to the assumption by Cedar-Chestnut
LLC of the Chestnut Loan under (i)
that certain Environmental Indemnity
Agreement executed by Harry W. Giltz, II an
Harry W. Giltz, III (collectively,
"Chestnut Guarantor") and Chestnut Seller,
and (ii) that certain Guaranty and
Indemnity executed by Chestnut Guarantor.
The provisions of this Paragraph 10 shall survive the Closing.
11. Supplementing the provisions of Article XXV of the Contract,
Seller
Indemnitors (other than Dave Thomas), by
execution of this Amendment, hereby
agree, on a joint and several basis, to
indemnify, defend and hold harmless the
CSCP Parties from and against any and all
Claims asserted against, incurred or
suffered by any CSCP Party in connection
with, related to or arising from the
failure of Sellers of the Pennsylvania
Properties to comply with Pennsylvania
bulk sales laws and regulations to the
extent applicable to the transactions
contemplated by this Agreement, including,
without limitation, the giving of all
notices and the delivery to CSCP of
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all clearance certificates from the
Pennsylvania Department of Revenue and
Pennsylvania Department of Labor and
Industry. The provisions of this Paragraph
11 shall survive the Closing.
12. Sellers hereby agree to cause the Centerville Easements to
be
relocated and/or released of record in a
manner satisfactory to CSCP and the
Centerville Mortgagee. Sellers shall cause
such relocation and/or release to
occur as expeditiously as possible, and in
any event on or before the date that
shall be six (6) months following the
Stabilized Closing Date. Sellers shall pay
all costs and expenses in connection with
such relocation and/or release,
including, without limitation, all costs
and expenses of the Centerville
Mortgagee. Sellers and CSCP shall cooperate
with each other in connection with
such relocation and/or release. All
documents and instruments required to be
executed in connection with such relocation
and/or release shall be in form and
content satisfactory to CSCP and the
Centerville Mortgagee. The Seller
Indemnitors, by execution of this
Amendment, hereby agree, on a joint and
several basis, to indemnify, defend and
hold harmless the CSCP Parties from and
against any and all Claims asserted
against, incurred or suffered by any CSCP
Party in connection with, related to or
arising from the breach of the Sellers
under this Paragraph 12 or the failure of
the Sellers to comply with their
obligations under this Paragraph 12. The
provisions of this Paragraph 12 shall
survive the Closing.
13. Sellers hereby agree to obtain, within six (6) months following
the
date hereof, the proposed sanitary sewer
easement (the "Shelby Easement") that
is set forth on the survey delivered in
connection with the Closing with respect
to the Stabilized Premises located at
209-219 Mansfield Avenue, Shelby, Ohio
(the "Shelby Premises"). In the event that
Sellers shall fail to obtain the
Shelby Easement within said six (6) month
period, then, promptly following
CSCP's request, Sellers shall, at Sellers'
cost and expense, cause the sanitary
sewer drain located on the Shelby Premises
to be relocated in a location and
pursuant to plans approved by CSCP and
otherwise in a manner satisfactory to
CSCP in its sole and absolute discretion.
The Seller Indemnitors (other than
Dave Thomas), by execution of this
Amendment, hereby agree, on a joint and
several basis, to indemnify, defend and
hold harmless the CSCP Parties from and
against any and all Claims asserted
against, incurred or suffered by any CSCP
Party in connection with, related to or
arising from the breach of the Sellers
under this Paragraph 13 or the failure of
the Sellers to comply with their
obligations under this Paragraph 13. The
provisions of this Paragraph 13 shall
survive the Closing.
14. A principal of Touch of Mom, LLC ("Touch of Mom"), a Tenant at
the
Stabilized Premises known as 797-845 Hill
Road North, Pickerington, Ohio (the
"Pickerington Premises") has filed for
bankruptcy, and the parties have agreed
to treat the premises demised under such
Tenant's Lease as a Vacant Stabilized
Space. Accordingly, Touch of Mom is hereby
deemed to be deleted from
EXHIBIT HH-1 to the Contract, the
Consideration is hereby reduced in the amount
of $479,425, and the Contract is hereby
amended by modifying EXHIBIT JJ thereto
to add the following as a Vacant Stabilized
Space:
PROPERTY NAME
VACANT SF
--------------------------------
------------------------------------------
One Pickerington Company, LLC
3,175 (formerly
occupied by Touch of Mom)
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15. (a) The parties acknowledge that the Closings with respect to
the
Deferred Premises shall not occur on the
Stabilized Closing Date with respect to
the balance of the Stabilized Premises.
Rather, the Closings with respect to the
Deferred Premises shall occur in accordance
with this Paragraph 13.
(b) The Closing with respect to the Akron Premises and the
Massillon
Premises shall occur as soon as is
reasonably practicable following the complete
negotiation of the Assumption Documents
with respect to the Stabilized Debt and
satisfaction of the Existing Lenders'
conditions to said assumptions, but in no
event later than thirty (30) days following
the date hereof (the "Scheduled
Deferred Closing Date"). In the event that
the conditions set forth in the
immediately preceding sentence have not
been satisfied prior to the Scheduled
Deferred Closing Date, CSCP shall have the
right, at its option, to (i) remove
the concerned Premises from the Premises
being conveyed pursuant to this
Agreement and receive a corresponding
reduction in the Consideration, or (ii)
pay the portion of the Stabilized
Consideration allocable to the applicable
Premises in cash.
(c) The Closing with respect to the New Milford Premises and
the
Pickerington Premises shall occur as soon
as is reasonably practicable following
the satisfaction of the conditions with
respect to title and survey set forth in
the Contract, but in no event later than
the Scheduled Deferred Closing Date. In
the event that the conditions set forth in
the immediately preceding sentence
have not been satisfied prior to the
Scheduled Deferred Closing Date, CSCP shall
have the right, at its option, to remove
the concerned Premises from the
Premises being conveyed pursuant to this
Agreement and receive a corresponding
reduction in the Consideration.
(d) As used herein, the term "Deferred Premises" shall mean
those
certain Stabilized Premises (i) 1140
Portage Trail, Akron, Ohio (the "Akron
Premises"), (ii) 3129 Lincolnway East,
Massillon, Ohio (the "Massillon
Premises"), (iii) 116 Danbury Road, Suite
1-11, New Milford, Connecticut (the
"New Milford Premises") and (iv) 797-845
Hill Road North, Pickerington, Ohio
(the "Pickerington Premises").
(e) The provisions of this Paragraph 15 shall survive the
Closing
with respect to the balance of the
Stabilized Premises.
16. Sellers hereby agree that all fees, compensation and other
amounts
payable by any of the Sellers to any of GBC
Property Management, L.L.C., Giltz &
Associates, Inc. or any of their respective
affiliates (collectively, the "Giltz
Parties") with respect to performance by
any of the Giltz Parties of any
property management or leasing services
with respect to any of the Premises
prior to the date hereof (collectively, the
"Giltz Management Fees") shall be
paid in full as of the Closing Date with
respect to each Premises. The Seller
Indemnitors, by execution of this
Amendment, hereby agree, on a joint and
several basis, to indemnify, defend and
hold harmless the CSCP Parties from and
against any and all Claims asserted
against, incurred or suffered by any CSCP
Party in connection with, related to or
arising from the failure of any Sellers
to pay any Giltz Management Fees; provided,
however, that the indemnification
obligations of Dave Thomas set forth in
this sentence shall only apply with
respect to each Seller and each
Property
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in which he owns an interest, directly or
indirectly, or with which he is
affiliated. The provisions of this
Paragraph 16 shall survive the Closing.
17. The parties acknowledge that the Medina Ground Lease and the
Geneseo
Ground Lease are being executed
contemporaneously herewith. 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 with respect to the Grove City
Property and the Mason Property that the
Mason Ground Lease and the Grove City
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. The provisions of this Paragraph 17
shall survive the Closing with respect to
the Stabilized Premises.
18. The Contract is hereby amended by inserting the following
provisions
immediately following Section 4 of Article
X:
4A. Pursuant to
the Lease with Sherwin Williams for premises
located at 25-51 Briggs Drive, Mansfield,
Ohio, Sherwin Williams is required to
pay a discounted rent of $2,128 per month
through February 28, 2006. On March 1,
2006, Sherwin Williams' base rent increases
to the full amount of $4,650 per
month Accordingly, CSCP shall receive, on
the Stabilized Closing Date, a credit
against the Stabilized Consideration in an
amount equal to $25,220.
4B. CSCP shall
receive, on the Stabilized Closing Date, a credit
in the amount of $700, representing funds
owed to Pizzeria New York, a Tenant of
the Pickerington Premises, on account of a
claim stated in such Tenant's
estoppel certificate delivered in
connection with the Closing.
4C. On the
Stabilized Closing Date, Sellers shall cause to be paid
the amount of $27,500 to Stroock &
Stroock & Lavan LLP, on account of legal fees
and disbursement incurred in connection
with preparation of closing documents,
in accordance with the following wiring
instructions:
Bank: JP
Morgan Chase Bank
ABA: 021 000 021
For Credit to: Stroock & Stroock & Lavan LLP
Acct: 006 028356
Ref: Client Matter 106699/0029
4D. CSCP shall
receive, on the Stabilized Closing Date, a credit
in the amount of $10,000, on account of
various repairs required to be made to
the Stabilized Premises.
4E. CSCP shall
receive, on the Stabilized Closing Date, a credit
in the amount of $15,000, on account of
fees and expenses incurred in connection
with the prepayment of the Assumable Debt
encumbering the Stabilized Premises
known as 1240 Maple Avenue, Zanesville,
Ohio and 5863 Darrow Road, Hudson, Ohio.
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19. Sellers hereby represent that the Pending Litigations have
been
settled, and the Seller Indemnitors, by
execution of this Amendment, hereby
agree, on a joint and several basis, to
indemnify, defend and hold harmless the
CSCP Parties from and against any and all
Claims asserted against, incurred or
suffered by any CSCP Party in connection
with, related to or arising from the
Pending Litigations. The provisions of this
Paragraph 19 shall survive the
Closing.
20. Notwithstanding anything to the contrary contained in
subsection (g)
of Section 1 of Article X of the Contract,
at the Closing with respect to the
Portage Trail Premises, the assessment
claimed by Velvet Car Wash, Inc. to be
payable under that certain Reciprocal
Easement Agreement by and between Giltz &
Associates, Inc. and Velvet Touch Car Wash,
Inc., filed for record April 27,
1997, in Reception No. 54009970, of the
Summit County, Ohio Records in the
amount of $3,056.40 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.
21. The parties acknowledge that the Required Additional
Estoppel
Certificate attached as Exhibit UU-3 to the
Contract with respect to the
Stabilized Premises located at 31 Dav
