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.
(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 Davis Road, Bradford, Pennsylvania (the "Davis
Road Required Additional Estoppel Certificate") shall not have been obtained as
of the Stabilized Closing Date. As a condition to CSCP agreeing to waive said
condition precedent to CSCP's obligation to consummate the transactions
contemplated by the Contract, CSCP is requiring that the Seller of the
Stabilized Premises located at 31 Davis Road, Bradford, Pennsylvania (the "Davis
Road Seller") certify to CSCP as to the accuracy of the items set forth in the
Davis Road Required Additional Estoppel Certificate. Accordingly, the Davis Road
Seller hereby certifies to CSCP as to the accuracy of the items set forth in the
Davis Road Required Additional Estoppel Certificate.
22. Sellers shall, within thirty (30) days following the date hereof,
deliver to CSCP written confirmation by the Town of Geneseo that the payment of
the Landscaping Payment satisfies the condition previously imposed by the Town
of Geneseo that landscaping at the site be complete as a condition to the
issuance of a certificate of the occupancy for the building permits for the
site. 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 22 or the failure of the Sellers to comply with
their obligations under this Paragraph 22. The provisions of this Paragraph 22
shall survive the Closing.
23. Sellers represent that McDonald's, Inc. has approved the sign and
the placement thereof currently contemplated to be constructed on the Premises
located in Medina, Ohio, and Sellers shall, within thirty (30) days following
the date hereof, deliver to CSCP written confirmation by McDonald's, Inc. that
they have approved the placement of the sign currently contemplated to be
constructed on the Premises located in Medina, Ohio. 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 23 or the failure of the Sellers to comply with
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their obligations under this Paragraph 23. The provisions of this Paragraph 23
shall survive the Closing.
24. The Contract is hereby amended by deleting "Exhibit E" therefrom and
replacing it with EXHIBIT 3 attached hereto and made a part hereof. All
references in the Contract to "Exhibit E" shall be deemed to refer to EXHIBIT 3
attached hereto.
25. The Contract is hereby amended by deleting "Exhibit G-1" therefrom
and replacing it with EXHIBIT 4 attached hereto and made a part hereof. All
references in the Contract to "Exhibit G-1" shall be deemed to refer to
EXHIBIT 4 attached hereto.
26. The Contract is hereby amended by deleting "Exhibit K" therefrom and
replacing it with EXHIBIT 5 attached hereto and made a part hereof. All
references in the Contract to "Exhibit K" shall be deemed to refer to EXHIBIT 5
attached hereto.
27. The Contract is hereby amended by deleting "Exhibit L-1" therefrom
and replacing it with EXHIBIT 6 attached hereto and made a part hereof. All
references in the Contract to "Exhibit L-1" shall be deemed to refer to
EXHIBIT 6 attached hereto.
28. The Contract is hereby amended by deleting "Exhibit L-2" therefrom
and replacing it with EXHIBIT 7 attached hereto and made a part hereof. All
references in the Contract to "Exhibit L-2" shall be deemed to refer to
EXHIBIT 7 attached hereto.
29. The Contract is hereby amended by deleting "Exhibit M" therefrom and
replacing it with EXHIBIT 8 attached hereto and made a part hereof. All
references in the Contract to "Exhibit M" shall be deemed to refer to EXHIBIT 8
attached hereto.
30. The Contract is hereby amended by deleting "Exhibit EE" therefrom
and replacing it with the Unit Holder Certificate attached hereto as EXHIBIT 9.
All references in the Contract to "Exhibit EE" shall be deemed to refer
EXHIBIT 9 attached hereto.
31. The Contract is hereby amended by inserting as "Exhibit VV" thereto
the easements located in the Centerville Property attached hereto as EXHIBIT 10.
All references in the Contract to "Exhibit VV" shall be deemed to refer to
EXHIBIT 10 attached hereto.
32. The Contract is hereby amended by inserting as "Exhibit WW" thereto
the leasing agreements listed on EXHIBIT 11 attached hereto. All references in
the Contract to "Exhibit WW" shall be deemed to refer to EXHIBIT 11 attached
hereto.
33. Except as expressly modified or amended by this Amendment, all of
the terms, covenants and conditions of the Contract are hereby ratified and
confirmed.
34. 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.
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35. 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.
36. 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.
37. 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.
CEDAR SHOPPING CENTERS PARTNERSHIP,
L.P., a Delaware limited partnership
By: Cedar Shopping Centers, Inc., a Maryland
corporation, its general partner
By: /s/ Brenda J. Walker
---------------------
Name: Brenda J. Walker
Title: Vice President
[Signature pages to continue on next page]
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BUFFALO BROAD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Member
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Member
By: /s/ Grant W. Giltz
-------------------
Name: Grant W. Giltz
Title: Member
By: /s/ Sandra E. Giltz
--------------------
Name: Sandra E. Giltz
Title: Member
[Signature pages to continue on next page]
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31 DAVIS ROAD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
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1020 NORTH MAIN STREET COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Member
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Member
By: /s/ Grant W. Giltz
-------------------
Name: Grant W. Giltz
Title: Member
By: /s/ Sandra E. Giltz
--------------------
Name: Sandra E. Giltz
Title: Member
[Signature pages to continue on next page]
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825 EAST CHESTNUT COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: Member
By: /s/ Grant W. Giltz
-----------------------
Name: Grant W. Giltz
Title: Member
By: /s/ Sandra E. Giltz
------------------------
Name: Sandra E. Giltz
Title: Member
[Signature pages to continue on next page]
15
ONE CLYDE COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, Inc., its Manager
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
16
TWO CARROLLTON COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Manager
[Signature pages to continue on next page]
17
COUNTY ROAD, LTD.,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Manager
[Signature pages to continue on next page]
18
301 OSWEGO COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, Inc., its sole member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
19
ONE GENESEO COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, Inc., its sole member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
20
B SPACE ZANESVILLE COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, Inc., its sole member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
21
ONE AUGUST COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, its sole member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
22
23300 LORAIN ROAD COMPANY, LLC,
an Ohio limited liability company
By: /s/ James B. Abraham
---------------------
Name: James B. Abraham
Title: Manager
[Signature pages to continue on next page]
23
3160 MEDINA ROAD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
24
ONE UBB, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Member
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Member
By: /s/ Grant W. Giltz
-------------------
Name: Grant W. Giltz
Title: Member
By: /s/ Sandra E. Giltz
--------------------
Name: Sandra E. Giltz
Title: Member
[Signature pages to continue on next page]
25
ONE WESTFIELD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
26
1140 PORTAGE TRAIL COMPANY, LLC,
an Ohio limited liability company
By: Portage Trail Management, Inc.,
its Manager
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
27
3129 LINCOLN WAY COMPANY, LLC,
an Ohio limited liability company
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Member
By: Thomas Properties, Ltd., Member
By: /s/ David M. Thomas
-------------------
Name: David M. Thomas
Title: Manager
By: Giltz & Associates, Inc., Member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
28
ONE LODI COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
29
ONE ONTARIO COMPANY, LLC,
an Ohio limited liability company
By: /s/ Joseph Bolognue
--------------------
Name: Joseph Bolognue
Title: Manager
[Signature pages to continue on next page]
30
ONE PICKERINGTON COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
31
ONE POWELL COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
32
ONE POLARIS COMPANY, LLC,
an Ohio limited liability company
By: /s/ Joseph Bolognue
--------------------
Name: Joseph Bolognue
Title: Manager
[Signature pages to continue on next page]
33
ONE SHELBY COMPANY, LLC,
an Ohio limited liability company
By: /s/ Michael Bolognue
---------------------
Name: Michael Bolognue
Title: Manager
[Signature pages to continue on next page]
34
ONE HUDSON COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
35
ONE NEW MILFORD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
36
CANTON-YANKEE ASSOCIATES, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
37
ONE SPRINGBORO COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
38
ONE GROVE CITY COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, II
-----------------------
Name: Harry W. Giltz, II
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
39
ONE HILLIARD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
40
ONE MASON COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Co-Manager
By: /s/ David M. Thomas
--------------------
Name: David M. Thomas
Title: Co-Manager
[Signature pages to continue on next page]
41
ONE ENON COMPANY, LLC,
an Ohio limited liability company
By: Giltz & Associates, Inc., its sole member
By: /s/ Harry W. Giltz, III
-----------------------
Name: Harry W. Giltz, III
Title: President
[Signature pages to continue on next page]
42
ONE WESTLAKE COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
------------------------
Name: Harry W. Giltz, III
Title: Manager
[Signature pages to continue on next page]
43
AGREED AND ACKNOWLEDGED:
SELLER INDEMNITORS:
/s/ Dan Giltz
---------------
Dan Giltz
/s/ Harry W. Giltz II
----------------------
Harry W. Giltz II
/s/ Harry W. Giltz III
-----------------------
Harry W. Giltz III
/s/ Grant Giltz
----------------
Grant Giltz
/s/ Dave Thomas
----------------
Dave Thomas
[Final signature page]
44
Exhibit 1
SELLERS
1020 North Main Street Company, LLC
3160 Medina Road Company, LLC
23300 Lorain Road Company, LLC
Buffalo Broad Company, LLC
31 Davis Road Company, LLC
301 Oswego Company, LLC
One UBB, LLC
B Space Zanesville Company, LLC
One Clyde Company, LLC
One Geneseo Company, LLC
825 East Chestnut Company, LLC
Two Carrollton Company, LLC
County Road, Ltd., LLC
Canton-Yankee Associates, LLC
One Springboro Company, LLC
One Lodi Company, LLC
One Ontario Company, LLC
One Pickerington Company, LLC
One Polaris Company, LLC
One Powell Company, LLC
One Shelby Company, LLC
One Hudson Company, LLC
One Grove City Company, LLC
One Hilliard Company, LLC
One Mason Company, LLC
One Enon Company, LLC
One Westlake Company, LLC
One New Milford Company, LLC
1140 Portage Trail Company, LLC
One Westfield Company, LLC
3129 Lincoln Way Company, LLC
Exhibit 2
PROPERTY PROPERTY ADDRESS LENDER
- --------------------------- ------------------------ ---------------------------------
1020 North Main St. Co. LLC 1020 N. Main Street 40/86 Mortgage successor to
Celina, Ohio 16701 Conseco
31 Davis Rd Co. LLC 31 Davis Road 40/86 Mortgage successor to
Bradford, PA 44622 Conseco
Buffalo Broad Co. LLC 1407 Buffalo Road 40/86 Mortgage successor to
Erie, PA 16503 Conseco
1140 Portage Trail Co. LLC 1140 Portage Trail First Union National Bank nka
Akron, Ohio 44313 Wachovia Securities
23300 Lorain Rd. Co. LLC 23250-23300 Lorain Road Key Bank Real Estate successor to
North Olmsted, OH 44102 National Realty Funding
825 East Chestnut Co. LLC 825 E. Chestnut Street Keybank NA
Lancaster, PA 17602
3129 Lincoln Way Co. LLC 3129 Lincolnway East William Blair Insurance
Massillon, Ohio 44646
46
Exhibit 3
Exhibit E
ALLOCATION OF CONSIDERATION AND TAX BASIS OF STABILIZED PROPERTIES
ALLOCATION OF CONSIDERATION
SHOPPING CENTER PURCHASE
LOCATION OWNER PRICE
- ------------------------ ----------------------------------- -----------
OHIO
Medina, OH 3160 Medina Road Company, LLC $ 884,853
North Olmstead, OH 23300 Lorain Road Company, LLC $ 4,485,625
Akron, OH One UBB, LLC $ 903,438
Zanesville, OH B Space Zanesville Company, LLC $ 607,313
Clyde, OH One Clyde Company, LLC $ 2,876,181
Celina, OH 1020 North Main Street Company, LLC $ 2,138,124
Carrollton, OH Two Carrolton Company, LLC $ 3,721,804
Dover, OH County Road, Ltd. $ 3,482,189
Lodi, OH One Lodi Company, LLC $ 4,202,356
Mansfield, OH One Ontario Company, LLC $ 3,651,545
Pickerington, OH One Pickerington Company, LLC $ 6,328,788
Lewis Center, OH One Polaris Company, LLC $ 7,146,935
Powell, OH One Powell Company, LLC $ 6,795,157
Shelby, OH One Shelby Company, LLC $ 4,027,198
Hudson, OH One Hudson Company, LLC $ 3,942,214
Centerville, OH (Dayton) Canton-Yankee Associates, LLC $ 4,092,513
Akron, OH 1140 Portage Trail Company, LLC $ 1,667,941
Massillon, OH 3129 Lincoln Way Company, LLC $ 2,175,231
PENNSYLVANIA
Erie, PA Buffalo Broad Company, LLC $ 2,002,535
Bradford, PA 31 Davis Road Company, LLC $ 1,642,074
Lancaster, PA 825 East Chestnut Company, LLC $ 4,115,353
NEW YORK
Oswego, NY 301 Oswego Company, LLC $ 3,411,103
Geneseo, NY One Geneseo Company, LLC $ 1,902,490
Westfield, NY One Westfield Company, LLC $ 1,909,714
CONNECTICUT
New Milford, CT One New Milford Company, LLC $ 9,272,757
47
EXHIBIT E CONTINUATION
Tax Basis of Stabilized Property
As of March 31, 2005 includes all capitalized costs for 2004
Land
Improvements
and 7 and 10 yr
Land Building Sec 197 Macrs
------------ ------------ ------------ ---------------
3160 Medina Rd. Co. LLC 967,247 - - -
23300 Lorain Rd. Co. LLC 636,800 1,836,800 101,331 726,400
One UBB Co. LLC - 620,000 3,917 -
B Space Zanesville Co LLC - 532,668 23,167 -
One Clyde Co. LLC 542,400 2,538,467 111,129 -
1020 North Main St. Co. LLC 644,126 725,790 228,048 155,649
Two Carrollton Co. LLC 553,627 1,863,688 8,453 624,824
County Road Ltd. 650,118 1,493,414 5,975 301,933
One Lodi Co. LLC 255,307 2,170,626 57,955 261,919
One Ontario Co. LLC 663,000 1,767,000 73,000 397,000
One Pickerington Co. LLC 1,204,675 3,740,693 167,651 625,030
One Polaris Co. LLC 2,197,839 3,527,945 80,511 333,000
One Powell Co. LLC 1,515,000 3,225,327 237,493 552,516
One Shelby Co. LLC 385,227 1,943,602 140,716 262,756
One Hudson Co. LLC 1,650,000 1,266,184 107,689 -
Canton Yankee Associates 1,883,495 2,970,800 52,243 425,067
1140 Portage Trail Co. LLC 329,493 624,141 203,223 134,023
3129 Lincolnway Co. LLC 235,507 887,235 213,467 191,932
Buffalo Broad Co. LLC 683,408 1,051,997 198,339 -
31 Davis St. Co. LLC 292,843 866,341 144,354 45,895
825 East Chestnut St. Co. LLC 467,750 1,706,956 227,292 -
301 Oswego Co. LLC 1,145,000 1,365,687 231,547 140,000
One Geneseo Co. LLC 320,000 918,140 52,813 -
One Westfield Co LLC 470,500 1,009,852 130,613 76,933
One New Milford Co. LLC 2,656,493 3,896,742 1,781,979 1,049,636
------------ ------------ ------------ ---------------
20,349,855 42,550,095 4,582,905 6,304,513
A/D
A/D Building Amortization Improvements Net book value
------------ ------------ ------------ ---------------
3160 Medina Rd. Co. LLC - - - 967,247
23300 Lorain Rd. Co. LLC (327,743) (45,597) (296,870) 2,631,121
One UBB Co. LLC (118,188) (2,002) - 503,727
B Space Zanesville Co LLC (54,628) (6,575) - 494,632
One Clyde Co. LLC - - - 3,191,996
1020 North Main St. Co. LLC (110,904) (91,220) (70,633) 1,480,856
Two Carrollton Co. LLC (189,157) (5,610) (297,749) 2,558,076
County Road Ltd. (276,156) (3,784) (182,172) 1,989,328
One Lodi Co. LLC (92,704) (33,807) (43,576) 2,575,720
One Ontario Co. LLC (100,055) (36,500) (86,575) 2,676,870
One Pickerington Co. LLC (214,293) (34,455) (156,093) 5,333,208
One Polaris Co. LLC (270,971) (14,760) (83,163) 5,770,401
One Powell Co. LLC (216,651) (47,164) (137,984) 5,128,537
One Shelby Co. LLC (74,910) (14,072) (43,716) 2,599,603
One Hudson Co. LLC (117,690) (26,324) - 2,879,859
Canton Yankee Associates (348,311) (16,542) (132,920) 4,833,832
1140 Portage Trail Co. LLC (117,677) (76,738) (76,651) 1,019,814
3129 Lincolnway Co. LLC (125,977) (81,829) (87,098) 1,233,237
Buffalo Broad Co. LLC (169,856) (63,634) - 1,700,254
31 Davis St. Co. LLC (152,512) (51,125) (18,249) 1,127,547
825 East Chestnut St. Co. LLC (325,151) (84,028) - 1,992,819
301 Oswego Co. LLC (169,291) (77,183) (54,920) 2,580,840
One Geneseo Co. LLC (18,637) (13,203) - 1,259,113
One Westfield Co LLC (108,969) (37,007) (24,985) 1,516,937
One New Milford Co. LLC (158,305) (211,076) (265,279) 8,750,190
------------- ------------ ------------ --------------
(3,858,736) (1,074,235) (2,058,633) 66,795,764
48
Exhibit 4
Exhibit G-1
ALLOCATION OF STABILIZED COMMON UNIT HOLDERS
PERCENT OF PERCENT OF
PERCENT OF CONSIDERATION INDIVIDUALS TO UNITS TO
CONSIDERATION IN COMMON RECEIVE COMMON ALLOCATE TO
SELLER IN CASH UNITS UNITS INDIVIDUAL
- ------------------------- ------------- ------------- ------------------ -----------
One Westfield Company LLC 100% 0% N/A N/A
Canton-Yankee Associates 100% 0% N/A N/A
One New Milford Company
LLC 100% 0% N/A N/A
One UBB Company LLC 100% 0% N/A N/A
One August Company LLC Removed
B Space Zanesville
Company LLC 100% 0% N/A N/A
B Space Mansfield
Company LLC Removed
1140 Portage Trail
Company LLC 100% 0% N/A N/A
1020 North Main St.
Company LLC 100% 0% N/A N/A
Two Carrolltton Company
LLC 100% 0% N/A N/A
County Road Ltd. 100% 0% N/A N/A
Buffalo Broad Company LLC 100% 0% N/A N/A
31 Davis St. Company LLC 100% 0% N/A N/A
301 Oswego Company LLC 100% 0% N/A N/A
49
One Geneseo Company LLC 100% 0% N/A N/A
825 East Chestnut St.
Company LLC 100% 0% N/A N/A
One Lodi Company LLC 0% 100%
Grant W. Giltz 15.00%
Harry W. Giltz III 15.00%
Harry W. Giltz II 10.40%
Sandra E. Giltz 37.00%
Danridge Giltz 22.60% 100.00%
One Ontario Company LLC 0% 100% Joseph Bolognue 100.00% 100.00%
One Pickerington Company
LLC 0% 100%
Joseph Bolognue 37.5%
Frank Bolognue 22.0%
Grant W. Giltz 7.5%
Harry W. Giltz III 7.5%
Harry W. Giltz II 21.5%
Sandra E. Giltz 4.0% 100.0%
One Polaris Company LLC 0% 100% Joseph Bolognue 100% 100%
One Powell Company LLC 0% 100%
Grant W. Giltz 20%
Harry W. Giltz III 20%
Harry W. Giltz II 49%
Sandra E. Giltz 11% 100%
One Shelby Company LLC 0% 100%
Grant W. Giltz 11.00%
Harry W. Giltz III 11.00%
Harry W. Giltz II 27.80%
Sandra E. Giltz 6.00%
Michael Bolognue 44.20% 100.00%
One Hudson Company LLC 0% 100%
Grant W. Giltz 10.0%
Harry W. Giltz III 10.0%
50
Harry W. Giltz II 24.5%
Sandra E. Giltz 5.5%
David M. Thomas 50.0% 100.0%
3129 Lincolnway Company
LLC 0% 100%
David M. Thomas 15.0%
John W. Thomas 7.0%
Robert J. Thomas 7.0%
Joseph M. Thomas 7.0%
Marie T. Morse 7.0%
James J. Thomas 7.0%
Grant W. Giltz 10.0%
Harry W. Giltz III 10.0%
Harry W. Giltz II 24.5%
Sandra E. Giltz 5.5% 100.0%
3160 Medina Road Company
LLC 0% 100%
David M. Thomas 15.0%
John W. Thomas 7.0%
Robert J. Thomas 7.0%
Joseph M. Thomas 7.0%
Marie T. Morse 7.0%
James J. Thomas 7.0%
Grant W. Giltz 10.0%
Harry W. Giltz III 10.0%
Harry W. Giltz II 24.5%
Sandra E. Giltz 5.5% 100.0%
23300 Lorain Road
Company LLC 15% 85%
Grant W. Giltz 10.0%
Harry W. Giltz III 10.0%
Harry W. Giltz II 24.5%
Sandra E. Giltz 5.5%
Bruce Abraham Jr. 22.5%
Steven R. Abraham 12.5%
James B. Abraham 15.0% 100.00%
One Clyde Company LLC 0% 100%
Grant W. Giltz 49.0%
Harry W. Giltz III 20.0%
Harry W. Giltz II 20.0%
Sandra E. Giltz 11.0% 100.0%
51
Earnout Consideration to
be determined at time of
disbursement
52
Exhibit 5
Exhibit K
RENT ROLL
53
Exhibit 6
Exhibit L-1
STABILIZED/SLEEPYS HOLDBACK SCHEDULE (CONSTRUCTION IN PROGRESS)
STABILIZED
SHOPPING ESTIMATED
CENTER HOLDBACK MONHTLY BASE MONTHLY
LOCATION TENANT AMOUNT RENT RECOVERIES
- --------------- --------------------- ---------- ------------ ----------
NEW YORK
Geneseo, NY Movie Gallery $ 551,980 $ 3,813 $ 867
CONNECTICUT
New Milford, CT Olympia Sports Center $ 699,242 $ 5,010 $ 771
SLEEPYS
SHOPPING ESTIMATED
CENTER HOLDBACK MONTHLY BASE MONTHLY
LOCATION TENANT AMOUNT RENT RECOVERIES
- --------------- --------------------- ---------- ------------ ----------
Sleepy's Inc. Sleepy's Inc. $1,351,000 $ 9,333 $ 1,458
54
Exhibit 7
Exhibit L-2
STABILIZED CREDIT (TENANTS IN POSSESSION)
OUTSTANDING FREE RENT PERIODS
Shopping Center Monthly
Location Tenant Rent Commencement Base Rent(1) Per Diem
- ---------------- ------------------------ ------------------ ------------ ---------
Clyde, OH Movie Gallery December 28, 2005 $ 3,666.67 $ 120.55
Lodi, OH Movie Gallery June 3, 2005 $ 3,300.00 $ 108.49
Mansfield, OH Hot Shots Billiards June 15, 2005 $ 5,160.75 $ 169.67
Pickerington, OH Pizzeria, NY Co. May 1, 2005 $ 3,188.25 $ 104.82
Grateful Bread July 9, 2005 $ 2,053.33 $ 67.50
Beef O'Brady February 21, 2006 $ 3,960.00 $ 130.19
ATA Karate September 27, 2005 $ 3,960.00 $ 130.19
NovaCare June 12, 2005 $ 2,236.67 $ 73.53
Powell, OH Photo Internet Cafe June 1, 2005 $ 3,726.67 $ 122.52
$1.50 Cleaners July 1, 2005 $ 2,380.00
Shelby, OH Movie Gallery May 1, 2005 $ 3,833.33 $ 126.03
New Milford, CT Kabloom's May 1, 2005 $ 2,250.00 $ 73.97
Sherwin Williams May 22, 2005 $ 4,833.33 $ 158.90
Geneseo, NY Rent-A-Center East, Inc. May 1, 2005 $ 3,333.33(2) TBD(2)
- ----------
(1) To the extent monthly basic rent does not include recoveries, this
exhibit will be updated at closing to reflect such recoveries.
(2) Pursuant to that certain letter agreement dated February 23, 2005 between
One Geneseo Company LLC and Rent-A-Center East, Inc., tenant improvement
allowance of $56,000 is being reimbursed to Rent-A-Center East, Inc. in the form
of a rent abatement (see attached amortization schedule). Credit to CSCP on
account of said rent abatement will be calculated separately on interest and
principal portions of monthly payment amount. If One Geneseo Company LLC
exercises its right to prepay the outstanding amount of such tenant improvement
allowance, and such tenant improvement allowance is paid in full as of the
Closing Date, there will be no adjustment on account of the rent abatement.
55
Amortization Schedule for Rent-A-Center Rent Abatement
Pmt No. Date Pmt Interest Princ Balance Annual
- ------- --------- -------- -------- -------- --------- --------------------------
56,000.00 Interest rate 6.50%
1 4/1/2005 3,333.33 303.33 3,030.00 52,970.00 Original Amt 56,000.00
2 5/1/2005 3,333.33 286.92 3,046.41 49,923.59 Term
3 6/1/2005 3,333.33 270.42 3,062.91 46,860.68 Payment -3,333.33
4 7/1/2005 3,333.33 253.83 3,079.50 43,781.18
5 8/1/2005 3,333.33 237.15 3,096.18 40,685.00
6 9/1/2005 3,333.33 220.38 3,112.95 37,572.05
7 10/1/2005 3,333.33 203.52 3,129.81 34,442.23
8 11/1/2005 3,333.33 186.56 3,146.77 31,295.46
9 12/1/2005 3,333.33 169.52 3,163.81 28,131.65
10 1/1/2006 3,333.33 152.38 3,180.95 24,950.70
11 2/1/2006 3,333.33 135.15 3,198.18 21,752.52
12 3/1/2006 3,333.33 117.83 3,215.50 18,537.02
13 4/1/2006 3,333.33 100.41 3,232.92 15,304.10
14 5/1/2006 3,333.33 82.90 3,250.43 12,053.66
15 6/1/2006 3,333.33 65.29 3,268.04 8,785.62
16 7/1/2006 3,333.33 47.59 3,285.74 5,499.88
17 8/1/2006 3,333.33 29.79 3,303.54 2,196.34
18 9/1/2006 3,333.33 11.90 2,196.34 0.00
3,333.33 Rent
11.90 Interest
2,196.34 Princ
--------
Rent Due for September, 2006 1,125.09
56
OUTSTANDING TENANT ALLOWANCES
PROPERTY TENANT ALLOWANCE WHEN DUE HOLDBACK PAY AT CLOSING AMOUNT
- --------------- ---------------- -------- -------- -------------- ------------
New Milford Co. TA-Kabloom's Closing $ 18,250.00 $ 18,250.00
One Shelby Co. TA-Movie Gallery Closing $ 9,547.37 $ 9,547.37
One Geneseo Co. TA-Rent-A-Center Closing $ 53,243.47 $ 53,243.47
TOTALS $ 81,040.84 $ 81,040.84
Does not include ongoing Tenant Improvements set forth on Exhibit L-1
57
Exhibit 8
Exhibit M
OUTSTANDING LEASING COMMISSIONS
OUTSTANDING COMMISSIONS
PROPERTY LEASING COMMISSIONS WHEN DUE PAYEE HOLDBACK PAY AT CLOSING AMOUNT
- -------------------- --------------------------- ----------------- ----- -------- -------------- -----------
One Pickerington Co. Commission-Greatful Bread Closing $ 2,600 $ 2,600
One Pickerington Co. Commission-Novacare Closing $ 6,710 $ 6,710
One Lodi Co. Commission-Movie Gallery Closing $ 11,880 $ 11,880
Commission-Regis Closing $ 4,212 $ 4,212
One Clyde Co. Commission-Movie Gallery Closing $ 13,380 $ 13,380
One Shelby Co. Commission-Movie Gallery Closing $ 13,800 $ 13,800
One Geneseo Commission-Dollar General Closing $ 14,700 $ 14,700
Commission-Movie Gallery Rent Commencement $ 11,440 $ 11,440
Commission-Salon Secrets Closing $ 5,460 $ 5,460
Commission-Rent-A-Center Closing $ 10,000 $ 10,000
New Milford Co. Commission-Staples Closing $ 125,000 $ 125,000
Commission-Sleepy's Rent Commencement $ 28,000 $ 28,000
Commission-Olympia Sports Rent Commencement $ 10,706 $ 10,706
Commission-Sherwin Williams Closing $ 14,100 $ 14,100
TOTALS $ 271,988 $ 271,988
There are no leasing commissions due on any renewals.
There are no outstanding leasing commissions except as set forth above.
58
Exhibit 9
EXHIBIT EE
UNIT HOLDER CERTIFICATE
The undersigned (the "Unit Holder"), in connection with the Unit
Holder's acquisition of ______ common units (the "Units") in Cedar Shopping
Centers Partnership, L.P. (the "Operating Partnership"), hereby represents and
warrants to the Operating Partnership as follows, with the knowledge and
understanding that the Operating Partnership is relying on this certificate in
issuing the Units to the Unit Holder:
1. That the Unit Holder is acquiring the Units to be received by
the Unit Holder for its own account and not with the view to the sale or
distribution of the same or any part thereof in violation of the Securities Act
of 1933, as amended (the "Securities Act").
2. That the Unit Holder understands that the Units to be issued to
the Unit Holder will not be registered under the Securities Act or the
securities laws of any state by reason of a specific exemption or exemptions
from registration under the Securities Act and applicable state securities laws.
3. That the Unit Holder understands that, for the reasons set forth
in paragraph 2 above, (i) the Units may not be offered, sold, transferred,
pledged, or otherwise disposed of by the Unit Holder except (a) pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws, (b) pursuant to a no-action letter issued by the
Securities and Exchange Commission to the effect that a proposed transfer of the
Units may be made without registration under the Securities Act, together with
either registration or an exemption under applicable state securities laws, or
(c) upon Cedar Shopping Centers, Inc. ("Cedar") receiving an opinion of counsel
knowledgeable in securities law matters and reasonably acceptable to Cedar to
the effect that the proposed transfer is exempt from the registration
requirements of the Securities Act and any applicable state securities laws, and
(ii) accordingly, the Unit Holder must bear the economic risk of any investment
in the Units for an indefinite period of time.
4. That the Unit Holder is an accredited investor as defined in
Rule 501 promulgated under the Securities Act.
5. That the Unit Holder understands that an investment in the
Operating Partnership involves substantial risks and the Unit Holder has had the
opportunity to review all documents and information which the Unit Holder has
requested concerning its investment in the Operating Partnership and to ask
questions of the management of the Operating Partnership, which questions were
answered to the Unit Holder's satisfaction.
6. That the Unit Holder (i) agrees to be bound by all of the terms
and provisions of the agreement of limited partnership of the Operating
Partnership dated June 25, 1998, as amended from time to time (the "Partnership
Agreement") as if it were a signatory thereto,
59
including, without limitation, the power of attorney granted in Section 2.4
thereof, and (ii) hereby makes and confirms the representations and warranties
contained in Section 8.7 of the Partnership Agreement.
7. That, pursuant to the provisions of the Partnership Agreement,
the Unit Holder hereby constitutes and appoints the General Partner of the
Operating Partnership its true and lawful attorney-in-fact with full power and
authority in its name, place and stead to execute, acknowledge, deliver, swear
to, file and record at the appropriate public offices such documents and
instruments as may be necessary or appropriate to carry out the provisions of
the Partnership Agreement, including the admission of the Unit Holder. The
foregoing appointment shall be deemed irrevocable and to be a power coupled with
an interest and shall survive the incapacity of the Unit Holder.
8. That the Unit Holder shall execute such other instruments or
documents as the General Partner of the Operating Partnership may deem necessary
or desirable in connection with the acquisition of the Units.
9. That the Unit Holder shall only be entitled to distributions
attributable to the periods from and after the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
the ___ day of ___________, 2005.
[UNIT HOLDER]
By:
-----------------------
Name:
Title:
60
Exhibit 10
Exhibit VV
Centerville Easements
The following easements as depicted on the referenced plats and located along
the east boundary of Lot 10 and the west boundary of Lot 14:
(1) General Utility Easements dedicated for the construction, operation,
maintenance, repair, replacement or removal of water, sewer, gas, electric,
telephone or other utility lines or services, and for the express privilege of
removing any or all trees or other obstructions to the free use of said
utilities, as shown in plat for Yankee Station, Section 11 recorded in Plat Book
133, page 11 and on plat for Yankee Station, Section 8 recorded in Plat Book
124, page 37, both of the Plat Records of Montgomery County, Ohio.
(2) Access Easements as shown in plat for Yankee Station, Section 11 recorded in
Plat Book 133, page 11 and on plat for Yankee Station, Section 8 recorded in
Plat Book 124, page 37, both of the Plat Records of Montgomery County, Ohio.
(3) Easement to The Ohio Bell Telephone Company as created by document of record
in Deed Book 86, page 614 of the Recorder's Office of Montgomery County, Ohio.
61
Exhibit 11
Exhibit WW
LISTING AGREEMENT BETWEEN: LOCATION
- -------------------------------------------------------------- ---------------
- -CB Richard Ellis and One Grove Co., dated April 15, 2005 GROVE CITY, OH
- -CB Richard Ellis and One Hilliard Co., dated April 15, 2005 HILLIARD, OH
- -CB Richard Ellis and One Springboro Co., dated April 15, 2005 GAHANNA, OH
- -Coldwell Banker and Canton-Yankee Co., dated Jan. 1, 2005 CENTERVILLE, OH
- -CB Richard Ellis and One Clyde Co. dated 2005 CLYDE, OH