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 XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX,
XX., XXXXXX X. XXXXXXX, XX., XXXXXX AVENUE GF, LP, MECHANICSBURG GF, LP, XXXXXX
KEMPSVILLE CORP., COLISEUM FF MM, INC., XXXXXX XXXXXX CREEK CORP., BRYCE
SMITHFIELD CORP., BRYCE SUFFOLK CORP., and BRYCE GENERAL BOOTH CORP., each
having an office at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (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 & Xxxxx LLP,
000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 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."
5. The Contract is amended by deleting the following from Article VI,
Section 1(h): "The P & S Agreement (as defined in the Xxxxxx XXX) 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 Xxxxxx XXX) 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
Xxxxxx Avenue GF, LP ("Xxxxxx"), 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 Xxxxxx 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, Xxxxxx
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
Xxxxxx 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
Xxxxxx 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 Xxxxxx 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 (1) year period in which event the representations, warranties and
agreements shall survive the applicable Closing until resolution of all such
claims. The representations, warranties and agreements set forth in Section 1
(a), (b), (v) and (x) of this Article shall survive the applicable Closing until
the expiration of the applicable statute of limitations with respect to all
causes of action which may be brought in connection with a breach of such
representations, warranties and/or agreements."
10. Article XLIII of the Contract is hereby modified with respect to
the Coliseum Vacant Space only (and not with respect to the Xxxxxx Vacant Space)
by extending the eighteen (18) month period referenced therein to thirty six
(36) months.
11. The Contract is hereby amended by inserting the following as
Article XLIV:
"Article XLIV: Liberty Tax. Sellers and CSCP acknowledge and
agree that (i) Sellers are currently negotiating a lease with Liberty
Tax for 1,200 square feet of space in the Coliseum Hampton, Virginia
Premises, with a net rent of $18 per square foot (the "Liberty Tax
Lease"), and (ii) CSCP's consent to the Liberty Tax Lease shall be
required prior to Seller entering into the Liberty Tax Lease. If, prior
to the Closing, the Liberty Tax Lease shall be entered into and in full
force and effect and within eighteen (18) months following the Closing,
Liberty Tax shall take occupancy and commence the ordinary conduct of
business and commence the regularly scheduled payment of rent pursuant
to the Liberty Tax Lease, then, within thirty (30) days thereafter,
CSCP shall pay to Sellers an amount equal to the Liberty Tax Lease
Value for the Liberty Tax Lease. As used herein, the term "Liberty Tax
Lease Value" shall mean (a) a seven and twenty eight hundredths percent
(7.28%) capitalization rate applied to the Liberty Tax Net Operating
Income, less (b) free rent, leasing commissions and tenant build-out
costs in connection with the Liberty Tax Lease. As used herein, the
term "Liberty Tax Net Operating Income" shall mean the net rent payable
under the Liberty Tax Lease for the first year of the Liberty Tax Lease
as adjusted for the application of a three percent (3%) vacancy factor
and a three and one-half percent (3.5%) management factor. A sample
calculation of Liberty Tax Lease Value is attached hereto as Exhibit
H."
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12. The Contract is hereby amended by inserting the following as
Article XLV:
"Article XLV: Playaz. Sellers and CSCP acknowledge and agree
that (i) a lease has been entered into with Playaz Gear for 3,000
square feet of space in the Coliseum Hampton, Virginia Premises, with a
net rent of $19 per square foot (the "Playaz Lease"), and (ii) Playaz
Gear has not taken occupancy or commenced the regularly scheduled
payment of rent under the Playaz Lease. If within eighteen (18) months
following the Closing, Playaz shall take occupancy and commence the
ordinary conduct of business and commence the regularly scheduled
payment of rent pursuant to the Playaz Lease, then, within thirty (30)
days thereafter, CSCP shall pay to Sellers an amount equal to the
Playaz Lease Value for the Playaz Lease. As used herein, the term
"Playaz Lease Value" shall mean (a) a seven and twenty eight hundredths
percent (7.28%) capitalization rate applied to the Playaz Net Operating
Income, less (b) free rent, leasing commissions and tenant build-out
costs in connection with the Playaz Lease. As used herein, the term
"Playaz Net Operating Income" shall mean the net rent payable under the
Playaz Lease for the first year of the Playaz Lease as adjusted for the
application of a three percent (3%) vacancy factor and a three and
one-half percent (3.5%) management factor. A sample calculation of
Playaz Lease Value is attached hereto as Exhibit H."
13. The Contract is hereby amended by inserting the following as
Article XLVI:
"Article XLVI: KFC Purchase Right. If KFC shall fail to waive
the KFC Purchase Right in writing by the Scheduled Closing Date, (i)
the Contract shall remain in full force and effect, (ii) the
Consideration shall be reduced by the amount of One Million Forty Two
Thousand Nine Hundred Ninety Five Dollars ($1,042,995), (iii) the
Interests being sold to CSCP shall exclude the interests in East Little
Creek KFC, LLC and (iv) all references to East Little Creek KFC, LLC
and the Premises known as East Little Creek KFC shall be deemed deleted
from the Contract."
14. The Contract is hereby amended by inserting the following as Article XLVII:
"Article XLVII: Construction Holdback Reserve. Seller
represents that the lender holding the Assumable Debt secured by the
Premises located in Hampton, Virginia is currently holding a reserve in
the amount of $1,600,000 (the "Construction Holdback Reserve") pursuant
to the terms of the Construction Holdback Reserve Rider attached hereto
and made a part hereof as Exhibit HH. Promptly following satisfaction
of the conditions precedent to the release of the Construction Holdback
Reserve, Purchaser shall (i) request release of the Construction
Holdback Reserve from the holder thereof, (ii) use commercially
reasonable efforts to secure the release thereof, and (iii) direct that
the Construction Holdback Reserve be paid directly to an account
designated by Seller. Seller shall reimburse Purchaser for all
out-of-pocket costs and expenses, if any, incurred in connection with
obtaining the release of the Construction Holdback Reserve. The
provisions of this Article shall survive the Closing.
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15. It shall be a condition precedent to Purchaser's obligation to
close the transactions contemplated by the Contract that Purchaser receive a
letter from Farm Fresh in form and content reasonably satisfactory to Purchaser
confirming that notwithstanding anything to the contrary contained in the Leases
with Farm Fresh or any affiliate thereof (the "Farm Fresh Leases"), (i) the Farm
Fresh Leases are "net" leases and (ii) the tenants under the Farm Fresh Leases
are required to pay all common area maintenance expenses.
16. The Contract is hereby amended by deleting "Exhibit E" therefrom
and replacing it with Exhibit 1 attached hereto. All references in the Contract
to "Exhibit E" shall be deemed to refer to Exhibit 1 attached hereto.
17. The Contract is hereby amended by deleting "Exhibit L" therefrom
and replacing it with Exhibit 2 attached hereto. All references in the Contract
to "Exhibit L" shall be deemed to refer to Exhibit 2 attached hereto.
18. The Contract is hereby amended by deleting "Exhibit M" therefrom
and replacing it with Exhibit 3 attached hereto. All references in the Contract
to "Exhibit M" shall be deemed to refer to Exhibit 3 attached hereto.
19. The Contract is hereby amended by deleting "Exhibit N" therefrom
and replacing it with Exhibit 4 attached hereto. All references in the Contract
to "Exhibit N" shall be deemed to refer to Exhibit 4 attached hereto.
20. The Contract is hereby amended by deleting "Exhibit DD" therefrom
and replacing it with Exhibit 5 attached hereto. All references in the Contract
to "Exhibit DD" shall be deemed to refer to Exhibit 5 attached hereto.
21. The Contract is hereby amended by adding Exhibit 6 attached hereto
as "Exhibit GG".
22. The Contract is hereby amended by adding Exhibit 7 attached hereto
as "Exhibit HH".
23. The form of Pennsylvania Deed attached as "Exhibit Q" to the
contract is hereby approved.
24. Except as expressly modified or amended by this Amendment, all of
the terms, covenants and conditions of the Contract are hereby ratified and
confirmed.
25. 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.
26. 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.
27. 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.
28. 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.
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx, Xx.
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XXXXXX X. XXXXXXX, XX.
/s/ Xxxxxx X. Xxxxxxx, Xx.
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XXXXXX X. XXXXXXX, XX.
MECHANICSBURG GF, LP,
a Pennsylvania limited partnership
By: Mechanicsburg GF, LLC,
a Pennsylvania limited liability company,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Authorized Member
XXXXXX AVENUE GF, LP,
a Pennsylvania limited partnership
By: Dubois Xxxxxx, Inc.,
a Pennsylvania corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
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BRYCE GENERAL BOOTH CORP., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
BRYCE SUFFOLK CORP., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
BRYCE SMITHFIELD CORP., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
XXXXXX XXXXXX CREEK CORP., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
COLISEUM FF MM, INC., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.
Vice President
XXXXXX KEMPSVILLE CORP., a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
Vice President
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
a Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT "1"
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ASSUMABLE DEBT
EXHIBIT "2"
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INTENTIONALLY OMITTED
EXHIBIT "3"
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SECURITY DEPOSITS
EXHIBIT "4"
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DEBT DOCUMENTS
EXHIBIT "5"
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XXXXXX OUT-PARCELS RESTRICTIVE COVENANTS
EXHIBIT "6"
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RESIDUAL PROPERTY PURCHASE DOCUMENTS
1. Agreement of Purchase and Sale dated January 19, 2001 (the "Purchase and Sale
Agreement"), by and between Green Dot, Inc., a Pennsylvania corporation, as
seller ("Green Dot"), and Xxxxxx Avenue GF, LP, a Pennsylvania limited
partnership, as purchaser ("Xxxxxx").
2. Letter Agreement dated April 30, 2001 by and between Green Dot and Xxxxxx.
3. Review Period Extension Agreement dated May 23, 2001 by and between Green Dot
and Xxxxxx.
4. Review Period Extension Agreement dated June 14, 2001 by and between Green
Dot and Xxxxxx.
5. Letter Agreement dated January 30, 2002, by and between Green Dot and Xxxxxx.
6. Letter Agreement dated February 5, 2002, by and between Green Dot and Xxxxxx.
7. Letter Agreement dated March 28, 2002, by and between Green Dot and Xxxxxx.
8. Addendum to Agreement of Sale dated April 9, 2002, by and between Green Dot
and Xxxxxx.
EXHIBIT "7"
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CONSTRUCTION HOLDBACK RESERVE RIDER
