EXHIBIT 10.05
FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
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THIS FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is made and entered into as of the __ day of October, 2004, by and
between Xxxxx X. Xxxxxxxx and A. Xxxxxxx Xxxxxxxx, as trustees of the Franklin
Village Trust, dated January 19, 1979, as amended ("Seller"), having an office
at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000, and
Cedar-Franklin Village LLC, a Delaware limited liability company ("Buyer"),
having an office c/o Cedar Shopping Centers Partnership, L.P., 00 Xxxxx Xxxxxx
Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000.
WHEREAS, Buyer and Seller have entered into that certain Agreement of
Purchase and Sale, dated as of August 2, 2004, as amended by that certain
Amendment to Agreement of Purchase and Sale dated as of September 2, 2004, as
further amended by that certain Second Amendment to Agreement of Purchase and
Sale dated as of September 10, 2004, and as further amended by that certain
Third Amendment to Agreement of Purchase and Sale (the "Third Amendment") dated
as of September 13, 2004 (collectively, the "Agreement").
WHEREAS, Seller and Buyer desire to amend the terms of the Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment, in consideration of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, Seller and Buyer hereby covenant and agree
as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Agreement.
2. Seller is party to a Lease Agreement, dated May 30, 1987 as amended
and extended, with New Weathervane Retail Corporation, a Delaware corporation
(hereinafter "Weathervane") for the premises known as Rental "E-4" at the
property (the "Lease"). Weathervane filed for protection under the bankruptcy
laws in The United States Bankruptcy Court For The District of Delaware - Case
No. 04-11649(PJW) (the "Bankruptcy Court"), and on or about July 29, 2004 the
Bankruptcy Court ordered (the "Order") the transfer of the tenant's interest
under the Lease to Fair Vane Corp., a corporation with an address at 0000
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxx XXX0X0 (hereinafter "Fair Vane"). Pursuant to
said order, Fair Vane has indicated to Seller that it will assume the
obligations of Weathervane under the Lease arising from and after August 1,
2004, subject to certain conditions specified in the Order. Seller has (with
Buyer's consent) agreed to extend the term of the Lease until February 1, 2010,
with minimum rent equal to $80,850 per year (without increases) for the term of
the Lease. After Closing (as defined in the Agreement), Buyer has agreed to
enter into an agreement with Fair Vane amending and extending the Lease on the
terms and conditions set forth in this Paragraph 2. Payments by Fair Vane of all
rents due for the months of August, September, and October, 2004 shall be
deferred (the "Deferred Amount"), and Fair Vane has agreed to pay the Deferred
Amount in thirty six (36) consecutive equal monthly installments commencing
November 1, 2004 (the "Deferred Payments") which Deferred Payments shall be in
addition to the monthly rental due to Buyer during such months.
Seller and Buyer agree that Buyer shall apply such Deferred Payments
from Fair Vane against the Enviro/Golf Payment Amount (as defined in the Third
Amendment) and, upon payment in full of all amounts due and owing to Buyer with
respect to the Enviro/Golf Payment Amount, such Deferred Payments shall be
remitted to Seller.
3. The Prepayment Consideration payable by Buyer at the Closing will be
an estimate provided by the Seller's Mortgagee based upon applicable Treasury
Rates in effect either one or two weeks prior to scheduled Closing. Actual
Prepayment Consideration cannot be determined until after the closing because it
is based upon applicable Treasury Rates upon in effect during the week prior to
the closing and will not be determined by the Seller's Mortgagee until after the
closing. The Mortgagee has indicated that if the Prepayment Consideration is
greater than the estimate, it will obtain sufficient funds from escrow accounts
maintained by Seller, and if less than the estimate, it will refund the
difference to Seller. Buyer and Seller agree to make appropriate adjustment
pursuant to the terms of the Agreement within three (3) days of receipt of
notice from the Mortgagee of its determination as to the amount of the
Prepayment Consideration.
4. The terms of this Fourth Amendment shall survive the Closing.
5. Except insofar as reference to the contrary is made in any such
instrument, all references to the "Agreement" in any future correspondence or
notice shall be deemed to refer to the Agreement as modified by this Amendment.
6. 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.
7. 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 parties hereto have executed this Amendment as
of the date first above written.
FRANKLIN VILLAGE TRUST
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Trustee
By:
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Name: A. Xxxxxxx Xxxxxxxx
Title: Trustee
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By:
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Name:
Title:
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