Contract
EXHIBIT 9
AGREEMENT
Agreement,
dated February 26, 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”).
W I T N E S S E T H
:
WHEREAS,
the Company and the Purchaser entered into that certain Securities Purchase
Agreement, dated October 26, 2009, as amended by an agreement dated February 5,
2010 (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 Purchaser desires to acquire additional shares of Common Stock through the
reinvestment of cash dividends pursuant to the Company’s Dividend Reinvestment
and Direct Stock Purchase Plan (the “Plan”);
WHEREAS,
the Company and the Purchaser desire to amend the Securities Purchase Agreement
to permit reinvestment of cash dividends by the Purchaser pursuant to the
Plan;
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 Securities
Purchase Agreement. From and after the date of this Agreement,
Section 9.6(b) of the Securities Purchase Agreement is hereby amended to read in
its entirety as follows:
“(b) Notwithstanding
the provisions of Section 9.6(a), (A) the Purchaser shall be permitted to
acquire additional shares of Common Stock in the open market in an amount
sufficient so as to maintain its Percentage Interest if the Shares owned by it
and its affiliates come to represent less than its Percentage Interest as a
result of (i) the issuance, grant or sale of Common Stock, options to
purchase Common Stock or Common Stock issuable upon the exercise of options or
other equity awards pursuant to any stock option, stock bonus or other stock
plan or arrangement adopted by the Company, (ii) the issuance of securities
by the Company in connection with an acquisition, merger, joint venture or sale
or purchase of assets, (iii) any Common Stock issuable upon the redemption
of outstanding Units in the Operating Partnership, or (iv) a Non Eligible
Public Offering; provided, however, that notwithstanding anything to the
contrary contained in this Agreement, if at any time or from time to time the
Purchaser does not elect to purchase its Percentage Interest of New Securities
as provided in Section 9.3, then the Percentage Interest shall automatically be
reduced each such time to be calculated on a fully diluted basis at the time of
each closing of the sale of New Securities; and (B) the Purchaser shall be
permitted to reinvest all or part of the cash dividends received on its Common
Stock in additional shares of Common Stock pursuant to the Company’s Dividend
Reinvestment and Direct Stock Purchase Plan.”
Section
2. 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
3. No Other
Amendment. Except as and to the extent previously amended by
agreement dated February 5, 2010 and as expressly amended by the terms and
provisions of this Agreement, 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 the
Securities Purchase Agreement, or constitute a waiver of any provision of the
Securities Purchase Agreement.
Section
4. 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 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 pursuant to the agreement dated February 5, 2010 and by
this Agreement.
Section
5. 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. 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.
Section
6. 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
7. 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
8. 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
9. 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
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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
10. 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
11. Entire
Understanding. This Agreement states the entire understanding
between the parties with respect to the subject matter hereof, and supersedes
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/ Xxx X. Xxxxxx | |
| Name: Xxx X. Xxxxxx | |||
| Title: President | |||
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RIOCAN
HOLDINGS USA INC.
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By:
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/s/ Raghunath Davloor | |
| Name: Raghunath Davloor | |||
| Title: Senior Vice President, Chief Financial Officer and Secretary | |||
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