AGREEMENT
AGREEMENT
Agreement,
dated February 5, 2010 (this “Agreement”), by and
between Cedar Shopping Centers, Inc., a Maryland corporation (the “Company”), and RioCan
Holdings USA Inc., a Delaware corporation (the “Purchaser”).
WITNESSETH :
WHEREAS,
the Company and the Purchaser entered into that certain Securities Purchase
Agreement, dated October 26, 2009 (the “Securities Purchase
Agreement”), pursuant to which the Purchaser acquired shares of common
stock of the Company (“Common Stock”) and a
warrant to acquire additional shares of Common Stock;
WHEREAS,
the Company and the Purchaser entered into that certain Registration Rights
Agreement, dated October 30, 2009 (the “Registration Rights
Agreement”), pursuant to which the Purchaser was granted certain
registration rights with respect to Registrable Securities (as defined therein
and as amended hereby) acquired by the Purchaser pursuant to the Securities
Purchase Agreement;
WHEREAS,
the Company desires to issue and sell to the Purchaser additional shares of
Common Stock and the Purchaser desires to purchase from the Company additional
shares of Common Stock;
WHEREAS,
the Company and the Purchaser desire to amend the Registration Rights Agreement
to grant to the Purchaser certain registration rights with respect to additional
shares of Common Stock the Purchaser intends to acquire from the
Company;
WHEREAS,
the Company and the Purchaser desire to amend the Securities Purchase Agreement
to correct a typographical error;
WHEREAS,
in connection with a public offering, the Company has entered into that certain
Underwriting Agreement, dated February 2, 2010 (the “Underwriting
Agreement”), with KeyBanc Capital Markets Inc., Xxxxxxx Xxxxx &
Associates, Inc. and the other Underwriters (as defined therein) indentified on
Schedule A thereto; and
WHEREAS,
in connection with such public offering, the Company has filed with the
Securities and Exchange Commission the Registration Statement (as defined in the
Underwriting Agreement) and the Prospectus (as defined in the Underwriting
Agreement).
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration set forth herein, the parties hereto agree
as follows:
Section
1. Amendment to Registration
Rights Agreement. From and after the date of this Agreement,
the Registration Rights Agreement shall be amended as follows:
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(a)
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Section
2.1(b) of the Registration Rights Agreement is hereby amended by deleting
the words “one year from the date hereof” and replacing them with the
following words “six months from February 5,
2010”.
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(b)
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Section
1 of the Registration Rights Agreement is hereby amended by (i) inserting
the words “or acquired by” immediately after the words “any shares of
Common Stock issuable to” in clause (a) of the definition of “Registrable
Securities”, (ii) deleting the word “and” immediately after clause (b) of
the definition of “Registrable Securities” and inserting in its place a
new clause with the following words “, (c) any shares of Common Stock
acquired by the Investor prior to the date the Registration Statement is
filed with the Commission, and” and (iii) renumbering what has heretofore
been clause (c) in the definition of “Registrable Securities” as clause
(d).
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Section
2. Amendment to Securities
Purchase Agreement. From and after the date of this Agreement,
the Securities Purchase Agreement shall be amended as follows:
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(a)
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Section
9.4 of the Securities Purchase Agreement is hereby amended by deleting the
words “Section 9.6(c)” at the end of the last sentence in such section and
replacing them with the following words “Section
9.6(b)”.
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Section
3. Purchase. Subject
to the terms and conditions set forth herein, the Company hereby agrees to issue
and sell to the Purchaser, and the Purchaser hereby agrees to purchase from the
Company 1,250,000 shares of Common Stock which shall be validly issued, fully
paid, non-assessable and free and clear of any liens, other than liens created
by the Purchaser (collectively, the “Shares” and each
individually, a “Share”), at a
purchase price of $6.60 per Share.
Section
4. Purchase
Price. The purchase price payable by the Purchaser hereunder
for the Shares is $8,250,000.00, which will be paid by the Purchaser to the
Company as of the date hereof by means of a wire transfer to an account and
depository designated by the Company to the Purchaser in writing.
Section
5. Closing. The
closing (the “Closing”) of the
transactions contemplated by this Agreement shall take place as of the date
hereof or on such other date as the parties may mutually agree. At
the Closing, (i) the Purchaser shall deliver to the Company the purchase price
as set forth in Section 4 and (ii) the Company shall deliver to the Purchaser
(A) the Shares and (B) an opinion letter from Stroock & Stroock & Xxxxx
LLP in the form attached hereto as Schedule
A.
Section
6. Representations and
Warranties of the Company. As of the date hereof, the Company
makes to the Purchaser those representations and warranties made by the Company
in Section 1(a) (Representations and Warranties by the Company and the Operating
Partnership) of the Underwriting Agreement, provided that, for purposes of
this Agreement, the word “Securities” in each such representation and warranty
shall be replaced by “Shares”. As of the date hereof, the Company
further makes to the Purchaser that representation and warranty made by the
Company in Section 2.30 (Private Offering) of the Securities Purchase Agreement,
provided that, for purposes of
this Agreement, the word “Shares” shall have the meaning ascribed thereto in
this Agreement.
Section
7. Representations and
Warranties of the Purchaser. The Purchaser makes to the
Company those representations and warranties made by the Purchaser in Sections
3. 1 (Due
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Organization),
3.2 (Authorization), 3.3 (No Violations), 3.4 (Investment Intent), 3.5 (No
Registration under Federal or State Securities Laws), 3.6 (Investment
Experience), 3.7 (Investment Risks), 3.10 (Financial Resources) and 3.11
(Opportunity for Independent Investigation) of the Securities Purchase
Agreement, provided that, for purposes of
this Agreement, the word “Shares” shall have the meaning ascribed thereto in
this Agreement.
Section
8. Representations and
Warranties of the Parties. Each party hereby represents and
warrants: (i) the execution, delivery and performance of this Agreement is
within its power, has been duly authorized by all necessary action and, where
applicable, is not in contravention of any of its organizational documents; (ii)
this Agreement has been duly executed and delivered by such party; and (iii)
this Agreement constitutes the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms.
Section
9. No Other
Amendment. Except as and to the extent expressly amended by
the terms and provisions of this Agreement, each of the Registration Rights
Agreement and the Securities Purchase Agreement shall continue in full force and
effect unamended. Except as expressly set forth herein, the
execution, delivery and effectiveness of this Agreement shall not operate as a
waiver of any right, power or remedy of the parties under either the
Registration Rights Agreement or the Securities Purchase Agreement, or
constitute a waiver of any provision of the Registration Rights Agreement or the
Securities Purchase Agreement.
Section
10. References to Registration
Rights Agreement. On and after the date hereof, each reference
in the Registration Rights Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein” or words of like import referring to the Registration Rights Agreement,
and each reference in any of the agreements or certificates to be delivered in
connection with the Registration Rights Agreement to the “Registration Rights
Agreement,” “thereunder,” “thereof” or words of like import referring to the
Registration Rights Agreement, shall mean and be a reference to the Registration
Rights Agreement as amended by this Agreement.
Section
11. References to Securities
Purchase Agreement. On and after the date hereof, each
reference in the Securities Purchase Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of like import referring to the Securities Purchase
Agreement, and each reference in any of the agreements or certificates to be
delivered in connection with the Securities Purchase Agreement to the
“Securities Purchase Agreement,” “thereunder,” “thereof” or words of like import
referring to the Securities Purchase Agreement, shall mean and be a reference to
the Securities Purchase Agreement as amended by this Agreement.
Section
12. Successors and
Assigns. This Agreement is solely for the benefit of and shall
be binding upon the parties and their respective successors and permitted
assigns, including, without limitation, any successor of the Company by merger,
acquisition, reorganization, recapitalization or otherwise. Neither
the Company nor the Purchaser may assign this Agreement or any of its rights,
duties or obligations hereunder without the prior written consent of the other
party; provided, however, that the
Purchaser may assign its rights, duties or obligations hereunder to any
affiliate of the Purchaser, provided that such affiliate
agrees to be bound by the terms of this Agreement as a Holder (as such term is
defined in the Registration Rights Agreement). Except as expressly
set forth herein, nothing herein shall be construed to provide any rights to any
other entity or individual.
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Section
13. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
document.
Section
14. Headings. Section
headings are for convenience only and do not control or affect the meaning or
interpretation of any terms or provisions of this Agreement.
Section
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York governing contracts to be made
and performed therein without giving effect to principles of conflicts of law,
and, with respect to any dispute arising out of this Agreement, each party
hereby consents to the exclusive jurisdiction of the courts sitting in the City
of New York as provided in Section 10.15 of the Securities Purchase
Agreement.
Section
16. Survival of Representations
and Warranties. All representations and warranties contained
in this Agreement shall remain operative and in full force and effect regardless
of delivery of and payment for the Shares.
Section
17. Severability. Should
any part, term, condition or provision hereof or the application thereof be
declared illegal, invalid or otherwise unenforceable or in conflict with any
other law by a court of competent jurisdiction, the validity of the remaining
parts, terms, conditions or provisions of this Agreement shall not be affected
thereby, and the illegal, invalid or unenforceable portions of this Agreement
shall be and hereby are redrafted to conform with applicable law, while leaving
the remaining portions of this Agreement intact, except to the extent necessary
to conform to the redrafted portions hereof.
Section
18. Further
Assurances. Each party shall duly execute and deliver, or
cause to be duly executed and delivered, such further instruments and documents
and to take all such actions, in each case as may be necessary or proper to
carry out the provisions and purposes of this Agreement.
Section
19. Entire
Understanding. This Agreement and the exhibits attached hereto
state the entire understanding between the parties with respect to the subject
matter hereof, and supersede all prior oral and written communications and
agreements, and all contemporaneous oral communications and agreements, with
respect to the subject matter hereof. This Agreement may not be
amended, modified or waived except by an instrument in writing signed by each of
the parties hereto.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
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CEDAR
SHOPPING CENTERS, INC.
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By:
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/s/
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Name:
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Title:
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RIOCAN
HOLDINGS USA INC.
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By:
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/s/
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Name:
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Title:
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