AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT
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This AMENDMENT TO CONTRIBUTION AND SALE AGREEMENT (this "Amendment")
dated as of April 5, 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 (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. The Contract is hereby amended by deleting Section 2 of Article III
in its entirety and inserting the following provision:
2. As a condition to the Closing, the Title Company shall have
committed to insure (a) CSCP as the fee owner of each of the Premises
in an amount designated by CSCP (but in no event exceeding, in the
aggregate, the Consideration) by issuance of an ALTA owner's title
insurance policy for each of the Premises on the 1970 (last revised
1984) form, subject only to the Permitted Exceptions (each, an "Owner's
Policy"), and (b) each lender that is the holder of Assumable Debt
(each, an "Existing Lender"), whether by the issuance of a separate
title insurance policy or by the issuance of an endorsement to such
Existing Lender's existing mortgagee title policy insuring the lien
created by the Assumable Debt held by such Existing Lender, that as of
the date of the recording of the Assumption Documents (as hereinafter
defined) applicable to such Assumable Debt which are to be recorded,
the lien created by such Assumable Debt is a valid first lien on the
Premises securing such Assumable Debt, subject only to exceptions,
liens and encumbrances acceptable to such Existing Lender (each, an
"Existing Lender's Policy"), and (c) each lender that is providing
financing for the acquisition of any of the Premises which financing is
to be secured by a mortgage on such Premises (each, an "Acquisition
Lender") that as of the date of the recording of such mortgage, the
lien created by such mortgage is a valid first lien on the Premises
securing such financing, subject only to exceptions, liens and
encumbrances acceptable to such Acquisition Lender (each, an
"Acquisition Lender's Policy").
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4. The Contract is hereby amended by inserting the following provision
as Section 5 of Article III immediately following Section 4 of Article III:
5. If a Title Commitment discloses judgments, bankruptcies or
other returns against other persons having names the same as, or
similar to, that of any of the Sellers, the applicable Seller shall
deliver to the Title Company affidavits showing that such judgments,
bankruptcies or other returns are not against such Seller in order to
induce the Title Company to omit exceptions with respect to such
judgments, bankruptcies or other returns or to insure over same. In
addition, Sellers shall deliver to the Title Company any affidavits,
declarations and indemnifications required to cause the Title Company
to issue a non-imputation endorsement to each Owner's Policy and/or
respecting the existence of mechanic's or materialmen's liens and other
third party rights relating to matters of title, as reasonably required
by the Title Company. The affidavits, declarations and indemnifications
referred to in this Section 5 are collectively referred to herein as
the "Title Affidavits".
5. The Contract is hereby amended by deleting the words "all of the
loans set forth on Exhibits F-1 and F-2" in the first two sentences of Section 1
of Article V and replacing them with the following words: "all of the Stabilized
Assumable Debt and those loans set forth on Exhibit F-2 that CSCP shall elect to
assume under the terms of this Agreement".
6. The Contract is hereby amended by inserting the following provision
as subsection (z) of Section 1 of Article VI, immediately following subsection
(y) of Section 1 of Article VI: "Sellers have delivered to CSCP a true, correct
and complete copy of that certain Ground Lease dated October 15, 2001 (the
"Dover Ground Lease") between Dover Land Development Corp., as landlord ("Ground
Lessor"), and County Road, Ltd. LLC, as tenant ("Ground Lessee"). The Dover
Ground Lease is in full force and effect. Ground Lessee is not in default in any
material respect under the Dover Ground Lease. Ground Lessee has not received
any written notice alleging that it is in default under the Dover Ground Lease.
Ground Lessor is not in default in any material respect under the Dover Ground
Lease, and Ground Lessee has not delivered any notice of any alleged default or
breach on the part of Ground Lessor. Ground Lessee is the tenant under the Dover
Ground Lease and has not assigned, mortgaged, pledged, sublet, hypothecated or
otherwise encumbered its rights or interests under the Dover Ground Lease;
provided, however, that, pursuant to that certain Lease dated as of January 31,
1997 between Ground Lessee and Discount Drug Mart, Inc. ("Drug Mart"), as
amended by Lease Amendment dated as of October 15, 2001 between Ground Lessee
and Drug Mart, as further amended by Second Lease Amendment dated as of June 6,
2003 between Ground Lessee and Drug Mart (collectively, the "Drug Mart Lease"),
Drug Mart has the right to use the premises demised under the Dover Ground Lease
(the "Dover Ground Leased Premises") as necessary for the operation of the
drive-through pharmacy window for the convenience of Drug Mart's prescription
drug customers and other members of the public (the "Drive-Through Right").
Ground Lessee's interest in the Dover Ground Lease shall be assigned, free and
clear of all liens and encumbrances other than the Permitted Exceptions and the
Drive-Through Right."
7. The Contract is hereby amended by inserting the following provision
as subsection (aa) of Section 1 of Article VI, immediately following subsection
(z) of Section 1 of Article VI: "The notice address for The Lamar Companies, a
Tenant of the property located at 825 East Chestnut Street, Lancaster, PA 17602,
is as follows: Lamar Outdoor Advertising, 5953 Susquehanna Plaza Drive, PO Box
6157, York, PA 17406.
8. The Contract is hereby amended by deleting subsection (c) of
Section 1 of Article VIII in its entirety and inserting the following provision:
"The agreement by the Title Company to issue each Owner's Policy, each Existing
Lender's Policy, and each Acquisition Lender's Policy;"
9. The Contract is hereby amended by deleting subsection (f) of Section
1 of Article VIII in its entirety and inserting the following provision:
"Subject to the provisions of Section 2 of Article XIII hereof, receipt of the
Required Stabilized Tenant Estoppels (as hereinafter defined) with respect to
the Closing of the Stabilized Premises and receipt of the Required Development
Tenant Estoppels (as hereinafter defined) with respect to the Closing of the
Development Premises;".
10. The Contract is hereby amended by inserting the following provision
as subsection (i) of Section 1 of Article VIII immediately following subsection
(h) of Section 1 of Article VIII: "Receipt of the Required Additional Estoppel
Certificates (as hereinafter defined)."
11. The Contract is hereby amended by inserting the following provision
as subsection (j) of Section 1 of Article VIII immediately following subsection
(i) of Section 1 of Article VIII: "Receipt of the Geneseo Payment and
Landscaping Evidence (as hereinafter defined)."
12. The Contract is hereby amended by inserting the following provision
as subsection (k) of Section 1 of Article VIII immediately following subsection
(j) of Section 1 of Article VIII: "Receipt of the Oswego C/O (as hereinafter
defined)."
13. The Contract is hereby amended by renumbering subsection (i) of
Section 1 of Article VIII as subsection (j) of Section 1 of Article VIII.
14. The Contract is hereby amended by deleting subsection (k) of
Section 1 of Article IX therefrom in its entirety.
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15. The Contract is hereby amended by inserting the following provision
as subsection (p) of Section 1 of Article IX immediately following subsection
(o) of Section 1 of Article IX: "Timely make and observe and perform all
obligations to be paid, observed or performed by Ground Lessee under the Dover
Ground Lease and use commercially reasonable efforts to obtain (i) consent from
Ground Lessor for the assignment of Ground Lessee's right, title and interest
in, to and under the Dover Ground Lease by Ground Lessee to Cedar-Dover Plaza
LLC (the "Dover Ground Lessor Consent"), (ii) either (x) an amendment to the
Dover Ground Lease in form and substance reasonably acceptable to CSCP extending
the term thereof so that the term of the Dover Ground Lease (including all
renewal and extension options) is the same as that of the Drug Mart Lease (the
"Dover Ground Lease Amendment") or (y) an acknowledgment by the tenant under the
Drug Mart Lease in form and substance reasonably acceptable to CSCP that it
shall not be a default by the landlord under the Drug Mart Lease in the event
that the tenant under the Drug Mart Lease is unable to exercise a renewal or
extension option under the Drug Mart Lease by reason of the expiration of the
Dover Ground Lease in accordance with its terms (the "Drug Mart
Acknowledgment"), and (iii) a release in recordable form, executed by the
current holder of that certain Open-End Mortgage covering the Ground Lessor's
interest in the Dover Ground Leased Premises made by Ground Lessor in favor of
The Huntington National Bank dated October 30, 1996 in the original principal
amount of $65,075.00, recorded on November 4, 1996 in Tuscarawas County, Ohio in
Volume 774, Page 116 (as the same may be amended, supplemented, extended,
restated or consolidated, the "Dover Fee Mortgage"), of the Ground Leased
Premises from the lien of the Dover Fee Mortgage (the "Dover Fee Mortgage
Release").
16. The Contract is hereby amended by inserting the following provision
as subsection (q) of Section 1 of Article IX immediately following subsection
(p) of Section 1 of Article IX: "Prior to the Stabilized Closing Date, Sellers
shall (i) pay to the Town of Geneseo all outstanding charges payable to the Town
of Geneseo for the repair of the shoulder of Morgan View Road for damage done
during the construction of the plaza, the outstanding amount with respect
thereto being $1,677.52 as of the date hereof, and deliver evidence of such
payment to CSCP, which evidence shall be reasonably satisfactory to CSCP, and
(ii) complete the landscaping at the Geneseo Property, as per the specifications
of the site plan filed with the Town of Geneseo, and deliver written
confirmation of such completion by the Town of Geneseo (the documentation
referred to in this subsection (q) is referred to herein as the "Geneseo Payment
and Landscaping Evidence")."
17. The Contract is hereby amended by inserting the following provision
as subsection (r) of Section 1 of Article IX immediately following subsection
(q) of Section 1 of Article IX: "Prior to the Stabilized Closing Date, Sellers
shall (i) cause to occur the final inspection for the emergency generator at the
Stabilized Premises located in Oswego, New York (the "Oswego Property"), and
(ii) obtain the final permanent Certificate of Occupancy for the Oswego Property
(the "Oswego C/O")."
18. The Contract is hereby amended by deleting subsection (h) of
Section 1 of Article XI in its entirety and inserting the following provision:
"The Title Affidavits".
19. The Contract is hereby amended by deleting subsection (kk) of
Section 1 of Article XI in its entirety and replacing it with the following
provision: "An agreement regarding partnership issues by and among CSCP and the
Sellers, in the form attached hereto as Exhibit PP (the "Side Agreement");"
20. The Contract is hereby amended by inserting the following provision
as subsection (uu) of Section 1 of Article XI immediately following subsection
(tt) of Section 1 of Article XI: "Subject to the provisions of Article XLIV
hereof, an assignment and assumption of the Dover Ground Lease (the "Dover
Ground Lease Assignment and Assumption") in the form of Exhibit SS attached
hereto and made a part hereof."
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21. The Contract is hereby amended by inserting the following provision
as subsection (vv) of Section 1 of Article XI immediately following subsection
(uu) of Section 1 of Article XI: "Subject to the provisions of Section 2 of
Article XIII hereof, the Required Additional Estoppel Certificates."
22. The Contract is hereby amended by inserting the following provision
as subsection (ww) of Section 1 of Article XI immediately following subsection
(vv) of Section 1 of Article XI: "The Geneseo Payment and Landscaping Evidence."
23. The Contract is hereby amended by inserting the following provision
as subsection (xx) of Section 1 of Article XI immediately following subsection
(ww) of Section 1 of Article XI: "The Oswego C/O."
24. The Contract is hereby amended by inserting the following provision
as subsection (v) of Section 2 of Article XI immediately following subsection
(u) of Section 2 of Article XI: "The Dover Ground Lease Assignment and
Assumption."
25. Notwithstanding anything to the contrary contained in Section 5 or
Section 7 of Article XII of the Contract, the parties hereto acknowledge and
agree that (i) the Designated Date shall be deemed to be April 5, 2005, and (ii)
CSCP shall be deemed to have waived its right to exercise the Termination Option
and, except as set forth in Paragraphs 32 and 33 below, the Removal Option,
pursuant to Section 5 of Article XII.
26. The Contract is hereby amended by deleting the first three
sentences of Section 2 of Article XIII and replacing them with the following
provision: "Sellers shall, promptly following the date hereof, deliver a Tenant
Estoppel Certificate in the form (but with all relevant information filled in by
Sellers) attached hereto and made a part hereof as Exhibit GG (the "Completed
Premises Tenant Estoppel Certificate Form") to each Tenant of a Stabilized
Premises (other than the Tenants set forth on Exhibit HH-3 attached hereto) for
execution by such Tenant. Sellers shall, promptly following the date hereof,
deliver a Tenant Estoppel Certificate in the form (but with all relevant
information filled in by Sellers) attached hereto and made a part hereof as
Exhibit TT (the "Premises-In-Construction Estoppel Certificate Form") to each
Tenant set forth on Exhibit HH-3 for execution by such Tenant. Sellers shall
deliver to CSCP each executed Tenant Estoppel Certificate promptly following
Sellers' receipt thereof. It shall be a condition precedent to CSCP's obligation
to consummate the transactions contemplated by this Agreement with respect to
the Stabilized Property that CSCP shall receive Tenant Estoppel Certificates
from all of the Tenants set forth on Exhibit HH-1 and Exhibit HH-4 attached
hereto and made a part hereof (collectively, the "Required Stabilized Tenants"),
each (i) with respect to those Required Stabilized Tenants listed on Exhibit
HH-1 under the heading entitled "All Premises in which the following Tenants
Occupy Space" and all Required Stabilized Tenants listed on Exhibit HH-4, as
more particularly set forth on Exhibit HH-1 and Exhibit HH-4, dated no earlier
than forty-five (45) days prior to the Closing Date, (ii) consistent with the
terms of the Leases and the representations and warranties of Sellers contained
in this Agreement, and (iii) in form substantially similar to the Completed
Premises Tenant Estoppel Certificate Form with respect to those Tenants listed
on Exhibit HH-1 and the Premises-In-Construction Estoppel Certificate Form for
the Tenants listed on Exhibit HH-3 or in such other form as CSCP shall approve
in the exercise of its reasonable judgment (collectively, the "Required
Stabilized Tenant Estoppels"). If, on or before the Stabilized Closing Date,
CSCP shall not have received Required Stabilized Tenant Estoppels from those
Required Stabilized Tenants containing an asterisk (*) next to their names on
Exhibit HH-1, each applicable Seller shall deliver to CSCP on the Stabilized
Closing Date a certificate in the form attached hereto as Exhibit HH-5.
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27. The Contract is hereby amended by deleting Section 1(a) of Article
XX and replacing it with the following provision:
(a) During the period (the "Development Period") commencing on
the date hereof and ending on the Development Period Expiration Date, Sellers of
the Development Properties ("Development Sellers") shall, at Development
Sellers' cost and expense, diligently and continuously prosecute the performance
of the Development Work and the lease-up of the Development Premises; provided,
however, (A) prior to the Closing with respect to a Development Premises,
Development Sellers shall not enter into Leases of such Development Premises (i)
covering four thousand (4,000) square feet or less, other than in accordance
with Sellers' ordinary conduct of business, without CSCP's prior written
consent, or (ii) covering more than four thousand (4,000) square feet without
CSCP's prior written consent, and (B) from and after the Closing with respect to
a Development Premises, Development Sellers shall not enter into Leases of such
Development Premises without CSCP's prior written consent, it being agreed that
for Leases covering four thousand (4,000) square feet or less, CSCP's consent
shall not be unreasonably withheld (i.e., Leases containing similar terms and
Tenants of comparable creditworthiness as the Leases and Tenants at the Property
as of the date of this Agreement). Any Leases entered into for which CSCP's
consent is required pursuant to this paragraph (a) shall be written on the
Standard Lease Form. CSCP and Sellers shall act in good faith in leasing the
Development Premises, and CSCP shall approve or disapprove a proposed Lease
pursuant to this paragraph (a) promptly following CSCP's receipt of (x) the
fully negotiated Lease between a Seller and a proposed Tenant, and (y) financial
information concerning the proposed Tenant. At Sellers' election, with respect
to Leases covering a Development Premises for which the Closing shall not yet
have occurred, each proposed Lease and financial information delivered to CSCP
in connection with a request for CSCP's consent thereto may be accompanied by a
Lease Transmittal Letter which shall request CSCP's consent to said Lease and
shall contain the First Lease Transmittal Letter Statement in bold, capital
letters. Provided that the proposed Lease and accompanying financial information
shall have been submitted to CSCP together with the Lease Transmittal Letter, if
CSCP shall fail to so respond to the applicable Seller within said 10-day period
(which response, notwithstanding the provisions of Article XIX hereof, may be
transmitted by email to muckleylaw@aol.com), and also shall have failed to so
respond to the applicable Seller within three (3) Business Days after said
Seller shall have sent CSCP the second Lease Transmittal Letter (which response,
notwithstanding the provisions of Article XIX hereof, may be transmitted by
email to muckleylaw@aol.com), then CSCP shall be deemed to have consented to the
proposed Lease. The second Lease Transmittal Letter shall state, in bold,
capital letters, the Second Lease Transmittal Letter Statement.
28. The Contract is hereby amended by inserting the following provision
at the end of Section 5 of Article XX: "During the Development Lease-up Period,
Development Sellers shall not enter into Leases of any Development Premises
without CSCP's prior written consent, it being agreed that for Leases covering
four thousand (4,000) square feet or less, CSCP's consent shall not be
unreasonably withheld (i.e., Leases containing similar terms and Tenants of
comparable creditworthiness as the Leases and Tenants at the Property as of the
date of this Agreement). CSCP and Sellers shall act in good faith in leasing the
Development Premises during the Development Lease-up Period, and CSCP shall
approve or disapprove a proposed Lease pursuant to this Section 5 promptly
following CSCP's receipt of (x) the fully negotiated Lease between a Development
Seller and a proposed Tenant, and (y) financial information concerning the
proposed Tenant.
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29. The Contract is hereby amended by inserting the following provision
at the end of Section 1 of Article XXI: "During the Leasing Period, Sellers
shall not enter into Leases of any Stabilized Premises without CSCP's prior
written consent, it being agreed that for Leases covering four thousand (4,000)
square feet or less, CSCP's consent shall not be unreasonably withheld (i.e.,
Leases containing similar terms and Tenants of comparable creditworthiness as
the Leases and Tenants at the Property as of the date of this Agreement). CSCP
and Sellers shall act in good faith in leasing the Vacant Stabilized Space
during the Leasing Period, and CSCP shall approve or disapprove a proposed Lease
pursuant to this Section 1 promptly following CSCP's receipt of (x) the fully
negotiated Lease between a Seller and a proposed Tenant, and (y) financial
information concerning the proposed Tenant."
30. The Contract is hereby amended by inserting the following Article
in the Contract immediately following Article XLIII:
ARTICLE XLIV: Dover Ground Lease.
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1. As conditions precedent to CSCP's obligation to consummate
the transactions contemplated by this Agreement with respect to the
Stabilized Property, CSCP shall receive the Dover Ground Lessor
Consent, the Dover Ground Lease Amendment and the Dover Fee Mortgage
Release. In the event that any of the conditions precedent to CSCP's
obligation to close set forth in this Section 1 have not been satisfied
prior to the Scheduled Stabilized Closing Date (as the same may have
been extended pursuant to the terms of this Agreement), then CSCP shall
have the right, exercisable by delivery of written notice to Sellers,
to either (i) remove the Stabilized Premises located at 3001-3015 N.
Wooster Avenue, Dover, OH 44622 (including without limitation the Dover
Ground Leased Premises) (the "Dover Property") from the Premises being
conveyed pursuant to this Agreement and receive a corresponding
reduction in the Consideration (unless CSCP shall elect that more than
five (5) Stabilized Premises in the aggregate be so removed, regardless
of the reason for removal, pursuant to the terms of this Agreement,
including, without limitation, pursuant to Article XII hereof, in which
case, CSCP shall have the right to terminate this Agreement by written
notice delivered to Sellers (in which event the Title Company shall
return the Required Deposit to CSCP and no party hereto shall have any
further obligations in connection herewith except under those
provisions that expressly survive a termination of this Agreement)), or
(ii) extend the Closing Date with respect to the Dover Premises, in
which case (x) the Consideration payable on the Stabilized Closing Date
shall be correspondingly reduced, (y) the Closing with respect to the
Dover Premises shall occur thirty (30) days following the satisfaction
of the conditions precedent to CSCP's obligation to close set forth in
this Section 1; provided, however, that if the conditions precedent to
CSCP's obligation to close set forth in this Section 1 shall not be
satisfied on or before the first anniversary of the Stabilized Closing
Date, CSCP shall be deemed to have removed the Dover Premises from the
Premises being conveyed pursuant to this Agreement.
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31. The Contract is hereby amended by inserting the following Article
in the Contract immediately following Article XLIV:
ARTICLE XLV: Additional Estoppel Certificates.
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1. Sellers shall, promptly following the date hereof, deliver
estoppel certificates (the "Additional Estoppel Certificates") in the
form (but, to the extent missing, with all relevant information filled
in by Sellers) attached hereto and made a part hereof as Exhibit UU-1,
Exhibit UU-2, Exhibit UU-3, Exhibit UU-4, Exhibit UU-5, Exhibit UU-6,
and Exhibit UU-7 (the "Additional Estoppel Certificate Forms") to each
of the parties referenced therein. Sellers shall deliver to CSCP each
executed Additional Estoppel Certificate promptly following Sellers'
receipt thereof. It shall be a condition precedent to CSCP's obligation
to consummate the transactions contemplated by this Agreement with
respect to the Stabilized Property that CSCP shall receive an
Additional Estoppel Certificate from each party that is a signatory to
the Additional Estoppel Certificate Forms attached hereto as Exhibits
UU-3, UU-4, UU-5 and UU-7, each (i) dated no earlier than thirty (30)
days prior to the Closing Date, (ii) consistent with the terms of the
representations and warranties of Sellers contained in this Agreement,
and (iii) in form substantially similar to the applicable Additional
Estoppel Certificate or in such other form as CSCP shall approve in the
exercise of its reasonable judgment (the "Required Additional Estoppel
Certificates"). If, on or before the Scheduled Stabilized Closing Date,
such condition is not satisfied (or waived in writing by CSCP), then
CSCP shall have the right, exercisable by delivery of written notice to
Sellers, to remove the concerned Premises from the Premises being
conveyed pursuant to this Agreement and receive a corresponding
reduction in the Consideration (unless CSCP shall elect that more than
five (5) Stabilized Premises in the aggregate be so removed, regardless
of the reason for removal, pursuant to the terms of this Agreement,
including, without limitation, pursuant to Article XII hereof, in which
case, CSCP shall have the right to terminate this Agreement by written
notice delivered to Sellers (in which event the Title Company shall
return the Required Deposit to CSCP and no party hereto shall have any
further obligations in connection herewith except under those
provisions that expressly survive a termination of this Agreement)).
Either Sellers or CSCP shall have a one (1) time right to extend the
Scheduled Stabilized Closing Date for up to thirty (30) additional days
if the conditions precedent to CSCP's obligation to close set forth in
this Section have not been satisfied prior to the Scheduled Stabilized
Closing Date (exercisable by delivery of written notice to the other
parties hereto on or prior to the Scheduled Stabilized Closing Date).
32. The Stabilized Premises known as 1423 Lexington Avenue, Mansfield,
Ohio (the "Mansfield Premises") shall be deemed to have been removed from the
Premises being conveyed pursuant to the Contract, pursuant to CSCP's Removal
Option under Section 5 of Article XII of the Contract, and the Consideration is
hereby reduced in the amount of $425,875. Any references in the Contract,
including any reference in any Exhibits, to the Mansfield Premises shall be
deemed deleted therefrom.
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33. The Stabilized Premises known as 2010-2030 August Drive, Ontario,
Ohio (the "August Premises") shall be deemed to have been removed from the
Premises being conveyed pursuant to the Contract, pursuant to CSCP's Removal
Option under Section 5 of Article XII of the Contract, and the Consideration is
hereby reduced in the amount of $1,838,422. Any references in the Contract,
including any reference in any Exhibits, to the August Premises shall be deemed
deleted therefrom.
34. CSCP hereby notifies Sellers that CSCP elects to have all Service
Contracts in effect on the date hereof remain in effect after the Closing, and
this Amendment shall be deemed to be the Service Contract Notice referred to in
Section 4 of Article IX of the Contract.
35. The Contract is hereby amended by deleting "Exhibit B-1" therefrom
and replacing it with EXHIBIT 3 attached hereto. All references in the Contract
to "Exhibit B-1" shall be deemed to refer to EXHIBIT 3 attached hereto.
36. The Contract is hereby amended by deleting "Exhibit K" therefrom
and replacing it with EXHIBIT 4 attached hereto. All references in the Contract
to "Exhibit K" shall be deemed to refer to EXHIBIT 4 attached hereto.
37. The Contract is hereby amended by deleting "Exhibit L-1" therefrom
and replacing it with EXHIBIT 5 attached hereto. All references in the Contract
to "Exhibit L-1" shall be deemed to refer to EXHIBIT 5 attached hereto.
38. The Contract is hereby amended by deleting "Exhibit L-2" therefrom
and replacing it with EXHIBIT 6 attached hereto. All references in the Contract
to "Exhibit L-2" shall be deemed to refer to EXHIBIT 6 attached hereto.
39. "Exhibit DD" of the Contract is hereby amended by inserting as
"Exhibit B" thereto the schedule of Existing ROFO/ROFR Properties attached
hereto as EXHIBIT 7. All references in "Exhibit DD" to "Exhibit B" shall be
deemed to refer to EXHIBIT 7 attached hereto.
40. The Contract is hereby amended by deleting "Exhibit HH-1" therefrom
and replacing it with the list of Tenants attached hereto as EXHIBIT 8. All
references in the Contract to "Exhibit HH-1" shall be deemed to refer EXHIBIT 8
attached hereto.
41. The Contract is hereby amended by inserting as "Exhibit HH-3"
thereto the list of Tenants attached hereto as EXHIBIT 9. All references in the
Contract to "Exhibit HH-3" shall be deemed to refer to EXHIBIT 9 attached
hereto.
42. The Contract is hereby amended by inserting as "Exhibit HH-4"
thereto the list of Tenants attached hereto as EXHIBIT 10. All references in the
Contract to "Exhibit HH-4" shall be deemed to refer to EXHIBIT 10 attached
hereto.
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43. The Contract is hereby amended by inserting as "Exhibit HH-5"
thereto the form of certificate attached hereto as EXHIBIT 11. All references in
the Contract to "Exhibit HH-5" shall be deemed to refer to EXHIBIT 11 attached
hereto.
44. The Contract is hereby amended by inserting as "Exhibit II-3"
thereto the list of fees and assessments attached hereto as EXHIBIT 12. All
references in the Contract to "Exhibit II-3" shall be deemed to refer to EXHIBIT
12 attached hereto.
45. The Contract is hereby amended by inserting as "Exhibit JJ" thereto
the list of Vacant Stabilized Spaces attached hereto as EXHIBIT 13. All
references in the Contract to "Exhibit JJ" shall be deemed to refer to EXHIBIT
13 attached hereto.
46. Exhibit QQ-1 of the Contract is hereby amended by deleting
therefrom the section entitled "Term" and replacing it with the following:
Term: The initial term shall be twenty five (25) years. With
respect to Ground Leases located in the state of Ohio,
Ground Lessee shall have five (5) option periods, each
having a five (5) year term. With respect to Ground
Leases located in the state of New York, Ground Lessee
shall have five (5) option periods, the first four (4)
option periods having a five (5) year term and the
final option period having a four (4) year term.
47. The Contract is hereby amended by inserting as "Exhibit SS" thereto
the form of Assignment and Assumption of Ground Lease attached hereto as EXHIBIT
14. All references in the Contract to "Exhibit SS" shall be deemed to refer to
EXHIBIT 14 attached hereto.
48. The Contract is hereby amended by inserting as "Exhibit TT" thereto
the form of Premises-In-Construction Estoppel Certificate attached hereto as
EXHIBIT 15. All references in the Contract to "Exhibit TT" shall be deemed to
refer to EXHIBIT 15 attached hereto.
49. The Contract is hereby amended by inserting as "Exhibit UU-1"
thereto the form of Estoppel Certificate (Centerville Easement Agreement)
attached hereto as EXHIBIT 16-1. All references in the Contract to "Exhibit
UU-1" shall be deemed to refer to EXHIBIT 16-1 attached hereto.
50. The Contract is hereby amended by inserting as "Exhibit UU-2"
thereto the form of Estoppel Certificate (Centerville Storm Water and Detention
Easement Agreement) attached hereto as EXHIBIT 16-2. All references in the
Contract to "Exhibit UU-2" shall be deemed to refer to EXHIBIT 15-2 attached
hereto.
51. The Contract is hereby amended by inserting as "Exhibit UU-3"
thereto the form of Estoppel Certificate (Davis Road Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-3. All references in the Contract to
"Exhibit UU-3" shall be deemed to refer to EXHIBIT 16-3 attached hereto.
52. The Contract is hereby amended by inserting as "Exhibit UU-4"
thereto the form of Estoppel Certificate (McCormick Place Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-4. All references in the Contract to
"Exhibit UU-4" shall be deemed to refer to EXHIBIT 16-4 attached hereto.
10
53. The Contract is hereby amended by inserting as "Exhibit UU-5"
thereto the form of Estoppel Certificate (McCormick Place Party Wall Agreement)
attached hereto as EXHIBIT 16-5. All references in the Contract to "Exhibit
UU-5" shall be deemed to refer to EXHIBIT 16-5 attached hereto.
54. The Contract is hereby amended by inserting as "Exhibit UU-6"
thereto the form of Estoppel Certificate (Portage Trail Reciprocal Easement
Agreement) attached hereto as EXHIBIT 16-6. All references in the Contract to
"Exhibit UU-6" shall be deemed to refer to EXHIBIT 16-6 attached hereto.
55. The Contract is hereby amended by inserting as "Exhibit UU-7"
thereto the form of Ground Lease Estoppel Certificate attached hereto as EXHIBIT
16-7. All references in the Contract to "Exhibit UU-7" shall be deemed to refer
to EXHIBIT 16-7 attached hereto.
56. 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 that the Property Management Agreements, the Medina
Ground Lease, the Mason Ground Lease, the Grove City Ground Lease and the
Geneseo 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.
57. Notwithstanding anything to the contrary contained in Section 1 of
Article IV of the Contract, Section 1 of Article V of the Contract or Section 2
of Article XIII of the Contract, the Scheduled Stabilized Closing Date shall be
deemed to mean April 19, 2005; provided, however, that either Sellers or CSCP
shall have a one (1) time right to extend the Scheduled Stabilized Closing Date
to May 3, 2005 if the conditions precedent to CSCP's obligation to close set
forth in Section 1 of Article V, or Section 2 of Article XIII, or Article XLIV
have not been satisfied prior to the Scheduled Stabilized Closing Date
(exercisable by delivery of written notice to the other parties hereto on or
prior to the Scheduled Stabilized Closing Date). Except as otherwise set forth
in this Paragraph 57, neither Sellers nor CSCP shall have the right to extend
the Scheduled Stabilized Closing Date if the conditions precedent to CSCP's
obligation to close set forth in Section 1 of Article V, or Section 2 of Article
XIII, or Article XLIV have not been satisfied prior to the Scheduled Stabilized
Closing Date. Nothing contained in this Paragraph 57 shall be deemed to limit or
otherwise modify CSCP's rights in the event that the conditions precedent to
CSCP's obligation to close set forth in Article V or Article XIII or Article
XLIV of the Contract shall not have been satisfied with respect to the
Stabilized Property prior to the Scheduled Stabilized Closing Date (as the same
may have been extended pursuant to this Paragraph 57).
58. (a) The parties hereto shall amend the Future Properties Agreement
prior to the Closing with respect to the Stabilized Premises to reflect the
provisions contained in this Paragraph 58, and all references in the Contract to
the Future Properties Agreement shall be deemed to refer to the Future
Properties Agreement, as amended in accordance with this Paragraph 58. Any
undefined capitalized terms used in this Paragraph 58 shall have the meanings
ascribed to them in the Future Properties Agreement.
11
(b) Notwithstanding anything to the contrary contained in the
Future Properties Agreement, (i) the properties set forth on EXHIBIT 17 attached
hereto and made a part hereof (each, an "Outside Partner Property") shall be
deemed to be excluded from the definition of Existing ROFO/ROFR Properties (as
defined in the Future Properties Agreement), and (ii) at such time that one
hundred percent (100%) of the equity interests in an Outside Partner Property
shall be owned, directly or indirectly, by a Giltz Party (as defined in the
Future Properties Agreement), such Outside Partner Property shall be deemed to
be a Future ROFO/ROFR Property (as defined in the Future Properties Agreement).
(c) During the Option Lease-up Period, Giltz Property Owning
Parties shall not enter into Leases of any Vacant Option Space without CSCP's
prior written consent, which consent shall not be unreasonably withheld with
respect to Leases covering four thousand (4,000) square feet or less. CSCP and
the Giltz Property Owning Parties shall act in good faith in leasing the Vacant
Option Space during the Option Lease-up Period, and CSCP shall approve or
disapprove a proposed Lease pursuant to this paragraph (c) promptly following
CSCP's receipt of (x) the fully negotiated Lease between a Giltz Property Owning
Party and a proposed Tenant, and (y) financial information concerning the
proposed Tenant.
59. (a) Notwithstanding anything to the contrary contained in
subsection (g) of Section 1 of Article X, but subject to the provisions of
subsection (b) of this Paragraph 59: (i) Sellers shall obtain payoff letters as
of the Stabilized Closing Date with respect to those fees and assessments
containing an asterisk (*) next to their names on Exhibit II-3, and, at the
Closing of the Stabilized Premises, Sellers shall pay said fees and assessments
in full and, if applicable, deliver to the Title Company a release of said fees
and assessments of record, (ii) the remaining fees and assessments listed on
Exhibit II-3 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, (iii) Sellers
shall obtain payoff letters as of the Closing Date with respect to, and pay in
full at the Closing and, if applicable, deliver to the Title Company a release
of said fees and assessments of record with respect to, any fees or assessments
affecting any of the Premises that is not set forth on Exhibit II-3, if and to
the extent that any such fee or assessment (x) was levied in connection with the
development (as opposed to operation) of the applicable Premises or (y) was
levied in connection with the operation of the applicable Premises but is not
able to be completely passed through to, and fully reimbursed by, the Tenants at
the applicable Premises pursuant to the terms of the Leases at such Premises,
and (iv) any other fee or assessment (or portion thereof) affecting any of the
Premises that (x) is not set forth on Exhibit II-3 and (y) was levied in
connection with the operation (as opposed to the development) of the applicable
Premises and (z) is able to be completely passed through to, and fully
reimbursed by, the Tenants at the applicable Premises pursuant to the terms of
their respective Leases 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.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 59: (A) clauses (iii) and (iv) of subparagraph (a) of this Paragraph
59 shall not apply to general real estate taxes, which shall be apportioned in
accordance with subsection (g) of Section 1 of Article X, (B) if any fee or
assessment shall not be assessed for a finite period but instead shall be
assessed in perpetuity, then (x) Sellers shall not be required to obtain payoff
letters with respect to any such fee or assessment pursuant to clause (iii) of
subparagraph (a) of this Paragraph 59, and (y) for purposes of clause (iii) of
subparagraph (a) of this Paragraph 59, the amount of such assessment shall be
deemed to be the annual amount thereof divided by eight percent (8%), and (C) if
a fee or assessment shall be able to be completely passed through to, and fully
reimbursed by, some (but not all) Tenants at a particular Premises pursuant to
the terms of their respective Leases, then the amounts being apportioned
pursuant to clauses (iii)(y) and (iv) of subparagraph (a) of this Paragraph 59
shall be appropriately prorated based on the percentage thereof that is able to
be passed through to, and fully reimbursed by, said Tenants.
12
(c) The provisions of this Paragraph 59 shall survive, with respect
to each Premises, for a period of two (2) years following the Closing Date with
respect to such Premises.
60. (a) If the Zoning Inspector of Liberty Township, Ohio, or such
other governmental or quasi-governmental official claiming jurisdiction over the
Stabilized Premises located at 9965-10011 Sawmill Parkway, Powell, Ohio (the
"Powell Property"), shall require, during the period commencing on the date
hereof and ending on the second (2nd) anniversary of the Closing with respect to
the Powell Property, the construction of additional parking spaces on the Powell
Property, Sellers shall deliver to CSCP, within ten (10) days after delivery of
an invoice therefor, the actual reasonable costs incurred (or to be incurred) by
CSCP or its affiliate in connection with such construction.
(b) Seller Indemnitors (other than Dave Thomas), by execution
of this Agreement, hereby agree, on a joint and several basis, to guarantee the
prompt payment to CSCP of the amounts described in subsection (a) of this
Paragraph 60. This guarantee is a guarantee of payment and performance and not
of collection. In connection with such guarantee, each guarantor hereby waives
any and all (i) defenses, offsets, counterclaims, demands, protests,
presentments and notices of every kind and nature, and (ii) legal requirements
that CSCP institute any action or proceeding at law or in equity against any
Seller or any other Person.
(c) The provisions of this Paragraph 60 shall survive the
Closing.
61. Except as expressly modified or amended by this Amendment, all of
the terms, covenants and conditions of the Contract are hereby ratified and
confirmed.
62. 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.
63. 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.
64. 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.
65. Delivery of this Amendment by facsimile by any party shall
represent a valid and binding execution and delivery of this Amendment by such
party.
13
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/ Leo S. Ullman
------------------
Name: Leo S. Ullman
Title: President
[Signature pages to continue on next page]
14
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]
15
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]
16
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]
17
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]
18
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]
19
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]
20
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]
21
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]
22
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]
23
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]
24
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]
25
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]
26
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]
27
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]
28
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]
29
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]
30
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]
31
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]
32
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]
33
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]
34
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]
35
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]
36
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]
37
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]
38
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]
39
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]
40
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]
41
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]
42
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]
43
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]
44
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]
45
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]
46
AGREED AND ACKNOWLEDGED:
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]
47
B SPACE MANSFIELD COMPANY, LLC,
an Ohio limited liability company
By: /s/ Harry W. Giltz, III
-----------------------------
Name: Harry W. Giltz, III
Title: Member
By: /s/ Grant W. Giltz
-----------------------------
Name: Grant W. Giltz
Title: Member
[Signature pages to continue on next page]
48
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]
49
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
---------
STABILIZED ASSUMABLE DEBT
-------------------------
- -------------------------------------------------------------------------------------------------------------------------
PROPERTY PROPERTY ADDRESS LENDER
- -------------------------------------------------------------------------------------------------------------------------
1020 North Main St. Co. LLC 1020 N. Main Street 40/86 Mortgage successor to Conseco
Celina, Ohio 16701
- -------------------------------------------------------------------------------------------------------------------------
31 Davis Rd Co. LLC 31 Davis Road 40/86 Mortgage successor to Conseco
Bradford, PA 44622
- -------------------------------------------------------------------------------------------------------------------------
Buffalo Broad Co. LLC 1407 Buffalo Road 40/86 Mortgage successor to Conseco
Erie, PA 16503
- -------------------------------------------------------------------------------------------------------------------------
1140 Portage Trail Co. LLC 1140 Portage Trail First Union National Bank nka Wachovia
Akron, Ohio 44313 Securities
- -------------------------------------------------------------------------------------------------------------------------
Two Carrollton Co. LLC 592 12th Street NW & 1244-1256 Firstar Bank nka U. S. Bank
Canton Road
Carrolton, OH 44615
- -------------------------------------------------------------------------------------------------------------------------
B Space Zanesville Co LLC 1240 Maple Avenue General Electric Capital Business
Zanesville, Ohio 47301 Asset Funding Corporation
- -------------------------------------------------------------------------------------------------------------------------
One Hudson Co. LLC 5863 Darrow Road General Electric Capital Business
Hudson, Ohio 44236 Asset Funding Corporation
- -------------------------------------------------------------------------------------------------------------------------
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
- -------------------------------------------------------------------------------------------------------------------------
Exhibit 3
---------
STABILIZED PREMISES
-------------------
SELLER NAME PROPERTY ADDRESS
- ------------------------------------ -------------------------------------------
3160 Medina Road Company, LLC 3160-3190 Medina Road
Medina, Ohio 44256
- ------------------------------------ -------------------------------------------
23300 Lorain Road Company, LLC 23250-23300 Lorain Road
North Olmsted, OH 44102
- ------------------------------------ -------------------------------------------
One UBB, LLC 1411 S. Arlington Road
Akron, Ohio 44308
- ------------------------------------ -------------------------------------------
B Space Zanesville Company, LLC 1240 Maple Avenue
Zanesville, Ohio 47301
- ------------------------------------ -------------------------------------------
One Clyde Company, LLC 1062-1076 McPherson HWY
Clyde, OH 43410
- ------------------------------------ -------------------------------------------
1020 North Main Street Company, LLC 1020 N. Main Street
Celina, Ohio 45822
- ------------------------------------ -------------------------------------------
Two Carrolton Company, LLC 592 12th Street NW & 1244-1256 Canton Road
Carrolton, OH 44615
- ------------------------------------ -------------------------------------------
County Road, Ltd. 3001-3015 N. Wooster Avenue
Dover, OH 44622
- ------------------------------------ -------------------------------------------
One Lodi Company, LLC 661-663-4 Wooster Avenue
Lodi, Ohio 44254
- ------------------------------------ -------------------------------------------
One Ontario Company, LLC 25-51 Briggs Drive
Mansfield, Ohio 44906
- ------------------------------------ -------------------------------------------
One Pickerington Company, LLC 797-845 Hill Road North
Pickerington, Ohio 43147
- ------------------------------------ -------------------------------------------
One Polaris Company, LLC 8909-8951 S. Old State Road
Lewis Center, Ohio 43035
- ------------------------------------ -------------------------------------------
One Powell Company, LLC 9965-10011 Sawmill Parkway
Powell, Ohio 43065
- ------------------------------------ -------------------------------------------
One Shelby Company, LLC 209-219 Mansfield Avenue
Shelby, Ohio 44875
- ------------------------------------ -------------------------------------------
One Hudson Company, LLC 5863 Darrow Road
Hudson, Ohio 44236
- ------------------------------------ -------------------------------------------
Canton-Yankee Associates, LLC 1501-1575 Lyons Road
Centerville, Ohio 45458
- ------------------------------------ -------------------------------------------
1140 Portage Trail Company, LLC 1140 Portage Trail
Akron, Ohio 44313
- ------------------------------------ -------------------------------------------
3129 Lincoln Way Company, LLC 3129 Lincolnway East
Massillon, Ohio 44646
- ------------------------------------ -------------------------------------------
Buffalo Broad Company, LLC 1407 Buffalo Road
Erie, PA 16503
- ------------------------------------ -------------------------------------------
31 Davis Road Company, LLC 31 Davis Road
Bradford, PA 16701
- ------------------------------------ -------------------------------------------
825 East Chestnut Company, LLC 825 E. Chestnut Street
Lancaster, PA 17602
- ------------------------------------ -------------------------------------------
301 Oswego Company, LLC 301 State Route 104
Oswego, NY 13126
- ------------------------------------ -------------------------------------------
One Geneseo Company, LLC 4342-4364 Pondside Plaza
Geneseo, NY 14454
- ------------------------------------ -------------------------------------------
One Westfield Company, LLC 117 E. Main Street
Westfield, NY 14787
- ------------------------------------ -------------------------------------------
One New Milford Company, LLC 116 Danbury Road, Suites 1-11
New Milford, CT 06776
- ------------------------------------ -------------------------------------------
Exhibit 4
---------
REVISED RENT ROLL (Exhibit K)
-----------------------------
Exhibit 5
---------
STABILIZED/SLEEPYS HOLDBACK SCHEDULE (CONSTRUCTION IN PROGRESS) (Exhibit L-1)
-----------------------------------------------------------------------------
STABILIZED
----------
ESTIMATED MONTHLY
SHOPPING CENTER LOCATION TENANT HOLDBACK AMOUNT MONTLY BASE RENT RECOVERIES
- ------------------------- ------------------------- ----------------------- ---------------------- ----------------------
OHIO
Powell, OH $1.50 Cleaners $331,833 $2,380 $425
NEW YORK
Geneseo, NY Movie Gallery $551,980 $3,813 $867
CONNECTICUT
New Milford, CT Olympia Sports Center $699,242 $5,010 $771
SLEEPYS
-------
ESTIMATED MONTHLY
SHOPPING CENTER LOCATION TENANT HOLDBACK AMOUNT MONTLY BASE RENT RECOVERIES
- ------------------------- ------------------------- ----------------------- ---------------------- ----------------------
Sleepy's Inc. Sleepy's Inc. $1,351,000 $9,333 $1,458
Exhibit 6
---------
STABILIZED CREDIT (TENANTS IN POSSESSION) (Exhibit L-2)
-------------------------------------------------------
OUTSTANDING FREE RENT PERIODS
Shopping Center Monthly Base
Location Tenant Rent Commencement 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 Touch of Mom September 3, 2005 $3,439.58 $113.08
Pizzeria, NY Co. March 26, 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
Asian Paradise March 1, 2005 $1,980.00 $65.10
NovaCare June 12, 2005 $2,236.67 $73.53
Powell, OH Photo Internet Cafe April 27, 2005 $3,726.67 $122.52
Shelby, OH Movie Gallery February 18, 2005 $3,833.33 $126.03
New Milford, CT Kabloom's February 1, 2005 $2,250.00 $73.97
Sherwin Williams May 22, 2005 $4,833.33 $158.90
Geneseo, NY Rent-A-Center East, September 1, 2006 $3,333.33(2) TBD(2)
Inc.
- ----------
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.
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
OUTSTANDING TENANT ALLOWANCES
- ------------------------------------------------------------------------------------------------------------------
PROPERTY TENANT ALLOWANCE WHEN DUE HOLDBACK PAY AT CLOSING AMOUNT
- ------------------------------------------------------------------------------------------------------------------
New Milford Co. TA-Kabloom's Closing $25,000 $25,000
- ------------------------------------------------------------------------------------------------------------------
One Shelby Co. TA-Movie Gallery Closing $20,000 $20,000
- ------------------------------------------------------------------------------------------------------------------
Being reimbursed
to tenant in the
form of a rent
One Geneseo Co. TA-Rent-A-Center abatement. $TBD(2) $TBD(2)
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
TOTALS $TBD $TBD
- ------------------------------------------------------------------------------------------------------------------
Does not include ongoing Tenant Improvements set forth on Exhibit L-1
- ------------------------------------------------------------------------------------------------------------------
Exhibit 7
---------
Exhibit B
---------
- ---------------------------------------- -------------------------------------- --------------------------------------
CITY STATE OWNER NAME ANCHOR TENANT
---------- ---------- -------------
- ---------------------------------------- -------------------------------------- --------------------------------------
Strasburg, OH One Strasburg Co., LLC Dollar General/Antique Shop
- ---------------------------------------- -------------------------------------- --------------------------------------
Canton, OH 2976 Market Ave. Co., LLC CVS/Women's Fitness (FS)
- ---------------------------------------- -------------------------------------- --------------------------------------
Akron, OH 970 Copley Road Co., LLC CVS/Family Dollar
- ---------------------------------------- -------------------------------------- --------------------------------------
Kent, OH 1830 East Main St. Co., LLC Gabriel Brothers
- ---------------------------------------- -------------------------------------- --------------------------------------
Exhibit 8
---------
TENANTS IN COMPLETED PREMISES FROM WHOM ESTOPPELS ARE REQUIRED
--------------------------------------------------------------
(Exhibit HH-1)
--------------
All Premises in which the following Tenants Occupy Space(3)
- -----------------------------------------------------------
CVS
Family Dollar Stores
First Merit Bank
Discount Drug Mart
Dollar General
Dover-Phila Federal Credit Union
Hollywood Entertainment
McDonalds Corp.
Movie Gallery (for all Premises other than 4342-4364 Pondside Plaza,
Geneseo, NY)
NovaCare
Regis Corp.
Rent-A-Center
Rite Aid
Sam Levin Furniture
Sherwin Williams Co.
Staples
TJX Companies
Waffle House
One Polaris Company, LLC
- ------------------------
Animal Hospital of Polaris, LLC
Frank Le
John Szeto dba Hunan Restaurant
Young T. Song
Cobb Enterprises
From the Vine
One Lodi Company, LLC
- ---------------------
Pay America, LLC
One Ontario Company, LLC
- ------------------------
Frank & Brenda Potter dba Hot Shots
One Powell Company, LLC
- -----------------------
Nancy McCorkle
Photo Internet Cafe Studio
One Pickerington Company, LLC
- -----------------------------
Touch of Mom*
Ellsworth-McKenzie, Inc. (Curves)*
Grateful Bread, LLC (Great Harvest Bread Co.)
Mira Bella, LLC
Scott Phengchomphet & Souksavanh Phengchomphet*
Pizzeria, NY Co.
County Road, Ltd.
- -----------------
David and Tonya DeTorio, dba Sunless Rays
Al & Donna Fidelholtz
Edward D. Jones & Co.
MI-DE, Inc. (Grinders & Such)
- ----------
3 Certificates must be dated no more than 45 days prior to the Stabilized
Closing Date.
Exhibit 9
---------
TENANTS IN PREMISES UNDER CONSTRUCTION (Exhibit HH-3)
-----------------------------------------------------
Movie Gallery (for Premises at 4342-4364 Pondside Plaza, Geneseo, NY)
Olympia Sports
Sleepy's
S.S. Chianis II, Ltd. d/b/a $1.50 Cleaners
Exhibit 10
----------
TENANTS IN PREMISES UNDER CONSTRUCTION
--------------------------------------
FROM WHOM ESTOPPELS ARE REQUIRED (Exhibit HH-4)3
------------------------------------------------
Movie Gallery (for Premises at 4342-4364 Pondside Plaza, Geneseo, NY)
Olympia Sports
Sleepy's
Exhibit 11
----------
SELLERS' CERTIFICATE (Exhibit HH-5)(4)
--------------------------------------
Reference is hereby made to that certain Contribution and Sale
Agreement, dated as of February 3, 2005 (as the same has been amended, the
"Agreement"), by and among various affiliates of Giltz & Associates, Inc. and
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P. ("CSCP").
[If Required Tenant Estoppel Certificate is not received from Touch of
Mom, a Tenant of the property located at 797-845 Hill Road North, Pickerington,
Ohio 43147:]
One Pickerington Co. LLC hereby certifies to CSCP and its nominees and
designees under the Agreement that (i) the commencement of the initial Lease
term of that certain Lease between ___________ and _______________ ("Touch of
Mom") dated ____________ (the "Touch of Mom Lease") was _________________, (ii)
Touch of Mom commenced paying rent on ______________________, and (iii) the
security deposited with One Pickerington Co. LLC under the Touch of Mom Lease is
$__________.
[If Required Tenant Estoppel Certificate is not received from Ellsworth
McKenzie, Inc. (Curves), a Tenant of the property located at 797-845 Hill Road
North, Pickerington, Ohio 43147:]
One Pickerington Co. LLC hereby certifies to CSCP and its nominees and
designees under the Agreement that (i) the commencement of the initial Lease
term of that certain Lease between ___________ and _______________ ("Ellsworth
McKenzie") dated ____________ was _________________, and (ii) Ellsworth McKenzie
commenced paying rent on ______________________.
[If Required Tenant Estoppel Certificate is not received from Scott
Phengchompehet & Souksavanh Phengchompet, a Tenant of the property located at
797-845 Hill Road North, Pickerington, Ohio 43147:]
One Pickerington Co. LLC hereby certifies to CSCP and its nominees and
designees under the Agreement that (i) the commencement of the initial Lease
term of that certain Lease between ___________ and _______________
("Phengchompehet") dated ____________ was _________________, and (ii)
Phengchompehet commenced paying rent on ______________________.
- ----------
4 If there is more than one Seller that must deliver a certificate,
separate certificates will be created for each Seller.
[Signature Page Follows]
Date: ________ ___, 2005
[APPLICABLE SELLER]
Exhibit 12
----------
Exhibit II-3
------------
SECTION 1. SPECIAL ASSESSMENTS AND CHARGES TO BE PAID AT CLOSING
-----------------------------------------------------
One Polaris Company, LLC
- ------------------------
*(a) Deferred Payment of Sewer Connection Fee
- Delaware County Sanitary Engineer
- Account Number DMP8951
- $31,152.00
One Powell Company, LLC
- -----------------------
*(a) Deferred Payment of Sewer Connection Fee
- Delaware County Sanitary Engineer
- Account Number SD0MART
- $58,965.87
One New Milford Company, LLC
- ----------------------------
*(a) Deferred Payment of Sewer Connection Fee
- New Milford Sewer Commission
- Certificate of Lien Vol. 731 Pg. 839
- $67,449.05 payable in nine (9) equal annual installments of
$7,494.34 plus interest at 6.6% commencing October 15, 2002.
One Mason Company, LLC
- ----------------------
*(a) CAUV Agricultural Recoupment
- CAUV for tax year 2004 and payable in 2005.
- $44,858.28
SECTION 2. SPECIAL ASSESSMENTS AND CHARGES TO BE ASSUMED AT CLOSING
--------------------------------------------------------
One Grove City Company, LLC
- ---------------------------
(a) Sidewalk Assessment
- Assessment for 1st and 2nd half 2003 paid
- $166.41 per half
One Springboro Company, LLC
- ---------------------------
(a) New Albany Community District Assessment
- Assessment for 1st and 2nd half 2003 paid
- $1,444.03 per half
Canton-Yankee Associates, LLC
- -----------------------------
(a) APC Fee Assessment
- Installment of Special Assessment of Incinerator/Air Pollution
Contract.
- $982.80 per half
(b) Aquifer Preservation Assessment
- Annual Non Pre-Payable Assessment for Miami Conservancy
District/Aquifer Preservation Subdivision
- $21.05 annual amount
One New Milford Company, LLC
- ----------------------------
*(a) Sewer Benefit Installment
- New Milford Sewer Commission
- Vol. 540 Pg. 502
- $11,059.00 payable in twenty (20) equal annual installments of
$522.95 plus 3.5% interest commencing June 1, 1996 and
continuing until June 1, 2015.
*(b) Sewer Benefit Installment
- New Milford Sewer Commission
- Vol. 540 Pg. 514
- $17,541.00 payable in twenty (20) equal annual installments
of $877.05 plus 3.5% interest commencing June 1, 1996 and
continuing until June 1, 2015.
*(c) First Supplemental Sewer Benefit Assessment
- New Milford Sewer Commission
- Vol. 777 Pg. 611
- $36,712.20 payable in annual installments of $3,059.35 together
with accrued interest commencing June 1, 2004 and continuing
until June 1, 2015
One UBB, LLC
- ------------
(a) Notice of Special Assessment
- Resurfacing assessment
- Resolution No. 107-2005 adopted February 28, 2005
- Estimated cost (based on linear feet) $1,332.42
Exhibit 13
----------
Exhibit JJ
----------
- ---------------------------------------------------- ---------------------------
Property Name Vacant SF*
------------- ----------
- ---------------------------------------------------- ---------------------------
1062-1076 McPherson HWY 2,000 sf
Clyde, OH 43410
- ---------------------------------------------------- ---------------------------
1062-1076 McPherson HWY 2,000 sf
Clyde, OH 43410
- ---------------------------------------------------- ---------------------------
1062-1076 McPherson HWY 2,000 sf
Clyde, OH 43410
- ---------------------------------------------------- ---------------------------
116 Danbury Road, Suites 1-11 6,400 sf
New Milford, CT 06776
- ---------------------------------------------------- ---------------------------
116 Danbury Road, Suites 1-11 1,400 sf
New Milford, CT 06776
- ---------------------------------------------------- ---------------------------
116 Danbury Road, Suites 1-11 1,600 sf
New Milford, CT 06776
- ---------------------------------------------------- ---------------------------
116 Danbury Road, Suites 1-11 1,200 sf
New Milford, CT 06776
- ---------------------------------------------------- ---------------------------
25-51 Briggs Drive 2,000 sf
Mansfield, Ohio 44906
- ---------------------------------------------------- ---------------------------
9965-10011 Sawmill Parkway 1,680 sf
Powell, OH 43065
- ---------------------------------------------------- ---------------------------
1501-1575 Lyons Road 10,046 sf
Centerville, OH 45458
- ---------------------------------------------------- ---------------------------
1501-1575 Lyons Road 1,861 sf
Centerville, OH 45458
- ---------------------------------------------------- ---------------------------
1501-1575 Lyons Road 1,804 sf
Centerville, OH 45458
- ---------------------------------------------------- ---------------------------
- ----------
* See attached plans depicting location of vacancies.
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
Exhibit 14
----------
FORM OF ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (Exhibit SS)
--------------------------------------------------------------
THIS GROUND LEASE ASSIGNMENT AND ASSUMPTION (this "Assignment and
Assumption") is executed as of the ____ day of __________, 2005 by and between
COUNTY ROAD, LTD. LLC, an Ohio limited liability company having an office at
4835 Munson Street N.W., Canton, Ohio 44718 ("Assignor") and CEDAR-DOVER PLAZA
LLC, a Delaware limited liability company, having an office at 44 South Bayles
Avenue, Port Washington, New York 11050 ("Assignee").
WHEREAS, Assignor desires to transfer and assign to Assignee, and
Assignee desires to assume as provided herein, all of Assignor's right, title
and interest in and to that certain Ground Lease dated October 15, 2001 between
Dover Land Development Corp., as landlord, and Assignor, as tenant, (the "Ground
Lease"), a copy of which is annexed hereto as EXHIBIT A and made a part hereof.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title
and interest of Assignor in and to the Ground Lease.
2. Assignee hereby assumes all of Assignor's obligations and
liabilities under the Ground Lease arising from and after the date hereof.
3. This Assignment and Assumption may be executed in any number of
counterparts, each of which may be executed by any one or more of the parties
hereto, but all of which shall constitute one and the same instrument, and shall
be binding and effective when all parties hereto have executed and delivered at
least one counterpart.
4. Assignee shall be liable for and Assignee hereby indemnifies and
holds harmless Assignor from and against all claims, losses, damages,
liabilities, costs, expenses (including reasonable attorneys' fees and
disbursements) and charges Assignor may incur or suffer as a result of or which
arises (directly or indirectly) out of the breach by Assignee of Assignee's
obligations arising or accruing under the Ground Lease from and after the date
hereof.
5. Assignor shall be liable for and Assignor hereby indemnifies and
holds harmless Assignee from and against all claims, losses, damages,
liabilities, costs, expenses (including reasonable attorneys' fees and
disbursements) and charges Assignee may incur or suffer as a result of or which
arises (directly or indirectly) out of the breach by Assignor of Assignor's
obligations arising or accruing under the Ground Lease prior to the date hereof.
6. The terms and provisions of this Assignment and Assumption shall be
binding upon and inure to the benefit of the respective parties hereto, and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed as of the day and year first written above.
ASSIGNOR:
COUNTY ROAD, LTD. LLC,
an Ohio limited liability company
By:
-------------------------------
Name:
Title:
ASSIGNEE:
CEDAR-DOVER PLAZA LLC,
a Delaware limited liability company
By:
-------------------------------
Name:
Title:
Exhibit A
---------
Ground Lease
------------
Exhibit 15
----------
FORM OF ESTOPPEL CERTIFICATE FOR TENANTS WHOSE PREMISES ARE
-----------------------------------------------------------
UNDER CONSTRUCTION (Exhibit TT)
-------------------------------
Re: Lease dated __________________ between ______________________________
__________________________, as Landlord and _________________________
__________________________, as Tenant, for Premises (the "Premises")
known as Store No. ______ located at ______________ Shopping Center
(the "Property").
The undersigned Tenant under the Lease certifies to Cedar Shopping
Centers Partnership, L.P. ("Cedar"), its designee or nominee under that certain
Contribution and Sale Agreement between the sellers shown on Exhibit A attached
thereto and Cedar, dated ______ __, 2005 (the "Contribution and Sale
Agreement"), and any lender having a security interest in the Property, and
their respective successors and assigns, the following as of this date:
1. A true and correct copy of the Lease is attached hereto as Exhibit
A. The Lease constitutes the entire agreement between Landlord and Tenant with
respect to the Premises and has not been amended, modified or supplemented
except as follows: __________________________________________________ [IF NONE,
SO STATE].
2. A guaranty agreement from __________________________________________
dated _______________ [IF NONE, SO STATE] has been delivered to Landlord, and
has not been amended, modified or supplemented.
3. The Lease and guaranty (if any) are valid and in full force and
effect, neither Tenant nor the guarantor of the Lease (if any) has any credit,
offset or claim against Tenant's duty to perform its monetary and other
obligations under the Lease, whether by reason of Landlord's acts or omissions
or otherwise, and no default exists under the Lease on the part of either
Landlord or Tenant.
4. (a) The initial Lease term will commence on _________________, and
Tenant will commence paying rent on ______________________.
(b) The expiration date of the initial Lease term will be
_________________.
(c) Tenant has not yet accepted possession of the Premises and is
not yet in occupancy but hereby confirms that Tenant will take
possession and commence occupancy in accordance with the terms
of the Lease.
(d) Tenant has not assigned or sublet its interest in the Lease or
any portion of the Premises.
(e) The options on the part of Tenant to extend or renew the Lease
term are: __________ options for _________ years each.
(f) The monthly base rent which will be payable under the Lease
commencing on _____________ is $__________. The monthly
payments on account of common area maintenance charges, real
estate taxes, insurance, additional rent and other sums which
will be payable by Tenant commencing on _____________ in
addition to base rent are $____________, in the aggregate.
5. Tenant has no option, first refusal or first offer right, or other
right to purchase the Premises or Property or lease additional space in the
Property or any part thereof, except as follows:
_________________________________ [IF NONE, SO STATE]. Tenant hereby waives any
such option or right as it relates to the proposed purchase of the Property by
[INSERT NAME].
6. The security deposited with Landlord under the Lease is $__________
[IF NONE, SO STATE].
7. All base rent, common area maintenance charges, real estate taxes,
insurance, additional rent and other sums payable by Tenant under the Lease and
charged to Tenant as of the date hereof, if any, have been fully paid in
accordance with the provisions of the Lease through the date of this
Certificate.
8. Tenant has not been granted any free rent or any rent or other cash
allowances, concessions or abatements which have yet to accrue or which have
accrued but remain outstanding, except as follows:
_______________________________________ [IF NONE, SO STATE].
9. All work required to be performed by Landlord pursuant to the Lease
prior to the date hereof was completed to Tenant's satisfaction. All work
currently being performed by Landlord pursuant to the Lease is being performed
in accordance with the terms of the Lease.
10. $______________ of the tenant improvement allowance required to be
provided by Landlord to Tenant pursuant to the terms of the Lease has been paid
by the Landlord to the Tenant and $______________ of said tenant improvement
allowance remains to be paid to the Tenant pursuant to the terms of the Lease
[IF NONE, SO STATE].
11. No installment of base rent has been paid more than one (1) month
in advance and no other charges under the Lease have been paid in amounts
greater than what is now due thereunder.
12. There are no actions, voluntary or otherwise, pending against
Tenant under any bankruptcy, reorganization, arrangement, insolvency or similar
federal or state laws.
13. The person executing this certification is duly authorized to
execute the same on behalf of the Tenant and the certificate shall be binding on
the Tenant, its (their) heirs, successors and assigns.
This Certificate is given with the knowledge that it will be relied on
by Cedar, its designee or nominee under the Contribution and Sale Agreement, and
any lender having a security interest in the Property, and their respective
successors and assigns.
Dated: ________________, 2005 Tenant: _______________________
By: __________________________
Its: __________________________
Exhibit A
---------
Lease
-----
Exhibit 16-1
------------
ESTOPPEL CERTIFICATE - CENTERVILLE EASEMENT AGREEMENT
-----------------------------------------------------
(Exhibit UU-1)
--------------
March ___, 2005
Cedar-Centerville Plaza LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
KeyBank National Association
911 Main Street, Suite 1500
Kansas City, MO 64105
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Easement Agreement Dated August 23, 1999 by and between
Canton-Yankee Associates, LLC, and Ralph G. Woodley, Trustee
et al, of Record at DMF 99-581 of the Records of Montgomery
County, Ohio (the "Declaration")
Ladies and Gentlemen:
At the request of Cedar-Centerville Plaza, LLC ("Purchaser") and
Canton-Yankee Associates, LLC, ("Current Owner"), the undersigned hereby
certifies with respect to Lot 10, Yankee Station, Section 8 and Lot 14, Yankee
Station, Section 11, located on the northeast corner of the intersection of
Lyons Road and Yankee Street in the Township of Washington, County of
Montgomery, State of Ohio, and also known as Parcels 067-217-13-002 and
067-217-13-001 of said County (the "Property"), recognizing that the information
contained herein will be relied on by the parties hereby addressed and by
lenders who will from time to time hold various security interests in the
Property, and all of their respective successors and assigns (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Declaration):
1. The Declaration is in full force and effect and has not been
amended, modified, supplemented or superseded; and no other agreement exists
between the undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the Declaration and there
exist no defaults on the part of Current Owner (or any prior owner of the
Property) under the Declaration, nor has any event occurred which, with the
passage of time or the giving of notice or both, would constitute a default
under the Declaration by Current Owner (or any prior owner of the Property) or
the undersigned, nor has Current Owner (or any prior owner of the Property) or
the undersigned suffered or permitted the occurrence of any such event. There is
no defense, offset, claim or counterclaim by or in favor of the undersigned
against Current Owner (or any prior owner of the Property) under the Declaration
or against the obligations of the undersigned under the Declaration. The
undersigned has no actual knowledge of any claim by others against Current Owner
(or any prior owner of the Property) relating to the Property or its use by any
other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the Declaration have been paid through
_____N/A________.
4. All improvements currently made to or erected upon the Property, and
all improvements currently under construction on the Property (the
"Improvements"), fully comply with the applicable provisions of the Declaration.
No notice of noncompliance has been issued with respect to the Improvements nor
does there exist any condition with respect to the Improvements which would give
rise to the issuance of a notice of noncompliance with respect to the
Improvements.
Very truly yours,
By:
----------------------------------
Name: Ralph G. Woodley, Trustee
By:
----------------------------------
Name Gerald M. Woodley
By:
----------------------------------
Name Jennifer S. Santurbane
By:
----------------------------------
Name: Earnest V. Santurbane
WOODBRIAR, INC.
By:
----------------------------------
Name:
Title:
Exhibit 16-2
------------
ESTOPPEL CERTIFICATE - CENTERVILLE STORM WATER AND DETENTION EASEMENT AGREEMENT
-------------------------------------------------------------------------------
(Exhibit UU-2)
--------------
March ___, 2005
Cedar-Centerville Plaza LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
KeyBank National Association
911 Main Street, Suite 1500
Kansas City, MO 64105
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Storm Water Drainage and Detention Easement Agreement Dated
October 10, 2001 by and between Canton-Yankee Associates, LLC,
and Ralph G. Woodley, Trustee et al, of Record at DMF 01-724
of the Records of Montgomery County, Ohio (the "Declaration")
Ladies and Gentlemen:
At the request of Cedar-Centerville Plaza, LLC ("Purchaser") and
Canton-Yankee Associates, LLC, ("Current Owner"), the undersigned hereby
certifies with respect to Lot 10, Yankee Station, Section 8 and Lot 14, Yankee
Station, Section 11, located on the northeast corner of the intersection of
Lyons Road and Yankee Street in the Township of Washington, County of
Montgomery, State of Ohio, and also known as Parcels 067-217-13-002 and
067-217-13-001 of said County (the "Property"), recognizing that the information
contained herein will be relied on by the parties hereby addressed and by
lenders who will from time to time hold various security interests in the
Property, and all of their respective successors and assigns (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Declaration):
1. The Declaration is in full force and effect and has not been
amended, modified, supplemented or superseded; and no other agreement exists
between the undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the Declaration and there
exist no defaults on the part of Current Owner (or any prior owner of the
Property) under the Declaration, nor has any event occurred which, with the
passage of time or the giving of notice or both, would constitute a default
under the Declaration by Current Owner (or any prior owner of the Property) or
the undersigned, nor has Current Owner (or any prior owner of the Property) or
the undersigned suffered or permitted the occurrence of any such event. There is
no defense, offset, claim or counterclaim by or in favor of the undersigned
against Current Owner (or any prior owner of the Property) under the Declaration
or against the obligations of the undersigned under the Declaration. The
undersigned has no actual knowledge of any claim by others against Current Owner
(or any prior owner of the Property) relating to the Property or its use by any
other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the Declaration have been paid through
_____N/A________.
4. All improvements currently made to or erected upon the Property, and
all improvements currently under construction on the Property (the
"Improvements"), fully comply with the applicable provisions of the Declaration.
No notice of noncompliance has been issued with respect to the Improvements nor
does there exist any condition with respect to the Improvements which would give
rise to the issuance of a notice of noncompliance with respect to the
Improvements.
Very truly yours,
By:
----------------------------------
Name: Ralph G. Woodley, Trustee
By:
----------------------------------
Name: Gerald M. Woodley
By:
----------------------------------
Name: Jennifer S. Santurbane
By:
----------------------------------
Name: Earnest V. Santurbane
WOODBRIAR, INC.
By:
----------------------------------
Name:
Title:
Exhibit 16-3
------------
ESTOPPEL CERTIFICATE - DAVIS ROAD RECIPROCAL EASEMENT AGREEMENT
---------------------------------------------------------------
(Exhibit UU-3)
--------------
March ___, 2005
Cedar-Davis Road LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
Conseco Mortgage Capital, Inc.
NationsBank Center
701 South Taylor Street, Suite 400
Amarillo, TX 79101
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Reciprocal Easement Agreement by and between Giltz &
Associates, Inc. an Ohio corporation and Pure Tech, Inc., a
Pennsylvania corporation, dated as of March 31, 1997 and
recorded April 25, 1997 in Record Book Volume 236, Page
765, of McKean County, Pennsylvania (the "REA")
Ladies and Gentlemen:
At the request of Cedar-Davis Road LLC ("Purchaser") and 31 Davis Road
Company, LLC ("Current Owner"), the undersigned hereby certifies with respect to
31 Davis Street, Bradford, PA (the "Property"), recognizing that the information
contained herein will be relied on by the parties hereby addressed and by
lenders who will from time to time hold various security interests in the
Property, and all of their respective successors and assigns (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
REA):
1. The REA is in full force and effect and has not been amended,
modified, supplemented or superseded; and no other agreement exists between the
undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the REA and there exist no
defaults on the part of Current Owner (or any prior owner of the Property) under
the REA, nor has any event occurred which, with the passage of time or the
giving of notice or both, would constitute a default under the REA by Current
Owner (or any prior owner of the Property) or the undersigned, nor has Current
Owner (or any prior owner of the Property) or the undersigned suffered or
permitted the occurrence of any such event. There is no defense, offset, claim
or counterclaim by or in favor of the undersigned against Current Owner (or any
prior owner of the Property) under the REA or against the obligations of the
undersigned under the REA. The undersigned has no actual knowledge of any claim
by others against Current Owner (or any prior owner of the Property) relating to
the Property or its use by any other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the REA have been paid through n/a.
4. All improvements currently made to or erected upon the Property (the
"Improvements") fully comply with the applicable provisions of the REA. No
notice of noncompliance has been issued with respect to the Improvements nor
does there exist any condition with respect to the Improvements which would give
rise to the issuance of a notice of noncompliance with respect to the
Improvements.
Very truly yours,
Pure Tech, Inc.
By:
----------------------------------
Name:
Title:
Exhibit 16-4
------------
ESTOPPEL CERTIFICATE - MCCORMICK PLACE RECIPROCAL EASEMENT AGREEMENT
--------------------------------------------------------------------
(Exhibit UU-4)
--------------
March ___, 2005
Cedar-McCormick Place LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
National Realty Funding L.C.
911 Main Street, Suite 1400
Kansas City, Missouri 64105
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Reciprocal Easement Agreement by and between Fairpark Company,
Ltd. and Crossbar Realty Company, filed for record December
29, 1995, in Volume 95-11180, Page 45, of the Cuyahoga County,
Ohio Records and Amendment to Reciprocal Easement Agreement
filed for record August 26, 1996, in Volume 96-08342, Page 57,
of the Cuyahoga County, Ohio Records (collectively, the "REA")
Ladies and Gentlemen:
At the request of Cedar-McCormick Place ("Purchaser") and 23300 Lorain
Road Company, LLC ("Current Owner"), the undersigned hereby certifies with
respect to 23300 Lorain Road, North Olmstead, OH (the "Property"), recognizing
that the information contained herein will be relied on by the parties hereby
addressed and by lenders who will from time to time hold various security
interests in the Property, and all of their respective successors and assigns
(capitalized terms used but not defined herein shall have the meanings ascribed
to them in the REA):
1. The REA is in full force and effect and has not been amended,
modified, supplemented or superseded; and no other agreement exists between the
undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the REA and there exist no
defaults on the part of Current Owner (or any prior owner of the Property) under
the REA, nor has any event occurred which, with the passage of time or the
giving of notice or both, would constitute a default under the REA by Current
Owner (or any prior owner of the Property) or the undersigned, nor has Current
Owner (or any prior owner of the Property) or the undersigned suffered or
permitted the occurrence of any such event. There is no defense, offset, claim
or counterclaim by or in favor of the undersigned against Current Owner (or any
prior owner of the Property) under the REA or against the obligations of the
undersigned under the REA. The undersigned has no actual knowledge of any claim
by others against Current Owner (or any prior owner of the Property) relating to
the Property or its use by any other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the REA have been paid through n/a.
4. All improvements currently made to or erected upon the Property (the
"Improvements") fully comply with the applicable provisions of the REA. No
notice of noncompliance has been issued with respect to the Improvements nor
does there exist any condition with respect to the Improvements which would give
rise to the issuance of a notice of noncompliance with respect to the
Improvements.
Very truly yours,
Fairpark Company, Ltd.
By:
----------------------------------
Name:
Title:
Exhibit 16-5
------------
ESTOPPEL CERTIFICATE - MCCORMICK PLACE PARTY WALL AGREEMENT
-----------------------------------------------------------
(Exhibit UU-5)
--------------
March ___, 2005
Cedar-McCormick Place LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
National Realty Funding L.C.
911 Main Street, Suite 1400
Kansas City, Missouri 64105
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Party Wall Agreement by and between Crossbar Realty Company and
Fairpark Company, Ltd., filed for record August 30, 1996,
in Volume 96-08621, Page 25, of the Cuyahoga County, Ohio
Records (the "Party Wall Agreement")
Ladies and Gentlemen:
At the request of Cedar-McCormick Place ("Purchaser") and 23300 Lorain
Road Company, LLC ("Current Owner"), the undersigned hereby certifies with
respect to 23300 Lorain Road, North Olmstead, OH (the "Property"), recognizing
that the information contained herein will be relied on by the parties hereby
addressed and by lenders who will from time to time hold various security
interests in the Property, and all of their respective successors and assigns
(capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Party Wall Agreement):
1. The Party Wall Agreement is in full force and effect and has not
been amended, modified, supplemented or superseded; and no other agreement
exists between the undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the Party Wall Agreement and
there exist no defaults on the part of Current Owner (or any prior owner of the
Property) under the Party Wall Agreement, nor has any event occurred which, with
the passage of time or the giving of notice or both, would constitute a default
under the Party Wall Agreement by Current Owner (or any prior owner of the
Property) or the undersigned, nor has Current Owner (or any prior owner of the
Property) or the undersigned suffered or permitted the occurrence of any such
event. There is no defense, offset, claim or counterclaim by or in favor of the
undersigned against Current Owner (or any prior owner of the Property) under the
Party Wall Agreement or against the obligations of the undersigned under the
Party Wall Agreement. The undersigned has no actual knowledge of any claim by
others against Current Owner (or any prior owner of the Property) relating to
the Property or its use by any other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the Party Wall Agreement have been paid through n/a.
4. All improvements currently made to or erected upon the Property (the
"Improvements") fully comply with the applicable provisions of the Party Wall
Agreement. No notice of noncompliance has been issued with respect to the
Improvements nor does there exist any condition with respect to the Improvements
which would give rise to the issuance of a notice of noncompliance with respect
to the Improvements.
Very truly yours,
Fairpark Company, Ltd.
By:
----------------------------------
Name:
Title:
Exhibit 16-6
------------
(Exhibit UU-6)
--------------
ESTOPPEL CERTIFICATE - PORTAGE TRAIL RECIPROCAL EASEMENT AGREEMENT
------------------------------------------------------------------
March ___, 2005
Cedar-Portage Trail LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
First Union National Bank
One First Union Center DC-6
301 South College Street
Charlotte, NC 28288-0166
Commonwealth Land Title Insurance Company/
LandAmerica Financial Group, Inc.
921 Eastwind Drive, Suite 133
Westerville, Ohio 43081
Re: Reciprocal Easement Agreement by and between Giltz &
Associates, Inc. an Ohio corporation and Velvet Touch Car Wash,
Inc., an Ohio corporation, filed for record April 27, 1997,
in Reception No. 54009970, of the Summit County, Ohio Records
(the "REA")
Ladies and Gentlemen:
At the request of Cedar-Portage Trail LLC ("Purchaser") and 1140
Portage Trail Company, LLC ("Current Owner"), the undersigned hereby certifies
with respect to 1140 Portage Trail, Akron, OH (the "Property"), recognizing that
the information contained herein will be relied on by the parties hereby
addressed and by lenders who will from time to time hold various security
interests in the Property, and all of their respective successors and assigns
(capitalized terms used but not defined herein shall have the meanings ascribed
to them in the REA):
1. The REA is in full force and effect and has not been amended,
modified, supplemented or superseded; and no other agreement exists between the
undersigned and Current Owner with respect to the Property.
2. The undersigned is not in default under the REA and there exist no
defaults on the part of Current Owner (or any prior owner of the Property) under
the REA, nor has any event occurred which, with the passage of time or the
giving of notice or both, would constitute a default under the REA by Current
Owner (or any prior owner of the Property) or the undersigned, nor has Current
Owner (or any prior owner of the Property) or the undersigned suffered or
permitted the occurrence of any such event. There is no defense, offset, claim
or counterclaim by or in favor of the undersigned against Current Owner (or any
prior owner of the Property) under the REA or against the obligations of the
undersigned under the REA. The undersigned has no actual knowledge of any claim
by others against Current Owner (or any prior owner of the Property) relating to
the Property or its use by any other party.
3. All sums required to be paid by Current Owner (or any prior owner of
the Property) pursuant to the REA have been paid through n/a.
4. All improvements currently made to or erected upon the Property (the
"Improvements") fully comply with the applicable provisions of the REA. No
notice of noncompliance has been issued with respect to the Improvements nor
does there exist any condition with respect to the Improvements which would give
rise to the issuance of a notice of noncompliance with respect to the
Improvements.
Very truly yours,
Velvet Touch Car Wash, Inc.
By:
----------------------------------
Name:
Title:
Exhibit 16-7
------------
GROUND LEASE ESTOPPEL CERTIFICATE
---------------------------------
(Exhibit UU-7)
--------------
The undersigned Dover Land Development Corp. ("Ground Lessor") hereby
certifies to County Road, Ltd. LLC ("Ground Lessee") and to any prospective
assignee of Ground Lessee's interest in that certain Ground Lease dated October
15, 2001 between Ground Lessor, as landlord, and Ground Lessee, as tenant (the
"Ground Lease") and such prospective assignee's lender as follows, with the
understanding that Ground Lessee, and such prospective assignee and prospective
assignee's lender, are relying on such certification in connection with the
assignment of the Ground Lease:
1. Ground Lessee is the tenant under the Ground Lease. A true, correct
and complete copy of the Ground Lease is annexed hereto as Exhibit A.
2. The Ground Lease has not been amended.
3. The Ground Lease is in full force and effect, and neither Ground
Lessor nor Ground Lessee is in default in any respect under the Ground Lease.
Except for the Ground Lease, there are no agreements or other arrangements
between Ground Lessee and Ground Lessor in respect of the premises demised under
the Ground Lease (the "Premises").
4. The Ground Lease commenced on November 1, 2002 and will expire on
October 31, 2011, unless sooner terminated as provided in the Ground Lease, and
subject to Ground Lessee's option to renew the Ground Lease for four (4)
additional terms of five (5) years each.
5. Ground Lessee is in possession of the Premises. Ground Lessor has
complied fully and completely with all of its covenants, warranties and other
undertakings and obligations under the Ground Lease as of this date. Ground
Lessee is fully obligated to pay, and is paying, the rent and other charges due
under the Ground Lease, and is fully obligated to perform, and is performing,
all of the other obligations of Ground Lessee under the Ground Lease without
right of counterclaim, offset, credit, deduction, defense or otherwise.
6. The current amount of the annual base rental under the Lease is
$7,200. Ground Lessee has not made any prepayment of rent under the Ground Lease
more than one month in advance. All rentals and all other sums payable by Ground
Lessee under the Ground Lease have been paid through ________________.
7. To Ground Lessor's knowledge, Ground Lessee has neither sublet any
portion of the Premises nor assigned its interest under the Ground Lease;
provided, however, that, pursuant to that certain Lease dated as of January 31,
1997 between Ground Lessee and Discount Drug Mart, Inc. ("Drug Mart"), as
amended by Lease Amendment dated as of October 15, 2001 between Ground Lessee
and Drug Mart, as further amended by Second Lease Amendment dated as of
________, 2003 between Ground Lessee and Drug Mart, Drug Mart has the right to
use the Premises as necessary for the operation of the drive-through pharmacy
window for the convenience of Drug Mart's prescription drug customers and other
members of the public.
8. This letter shall inure to the benefit of Ground Lessee, its
successors and assigns, any assignee of Ground Lessee's interest in the Ground
Lease, and its successors and assigns and their respective lenders, and shall be
binding upon Ground Lessor and Ground Lessor's heirs, legal representatives,
successors and assigns. This letter shall not be deemed to alter or modify any
of the terms and conditions of the Ground Lease.
9. Ground Lessor hereby consents to the assignment by Ground Lessee to
Cedar-Dover Plaza LLC of Ground Lessee's right, title and interest in, to and
under the Ground Lease.
EXECUTED this ___ day of _____________, 2005.
DOVER LAND DEVELOPMENT CORP.,
an Ohio corporation
By:
-------------------------------
Name:
Title:
Exhibit A
---------
Copy of Ground Lease
--------------------
Exhibit 17
----------
- ---------------------- ------------------------------- -------------------------
CITY STATE OWNER NAME ANCHOR TENANT
- ---------------------- ------------------------------- -------------------------
Akron, OH 915 Arlington Road Co., LLC CVS/Family Dollar
- ---------------------- ------------------------------- -------------------------
Niles, OH Canton Niles Co., LLC CVS (FS)
- ---------------------- ------------------------------- -------------------------
Niles, OH Rt. 422 Niles Co. LLC Taco Bell (FS)
- ---------------------- ------------------------------- -------------------------
Mansfield, OH 64 Lexington Ave Co., LLC Family Dollar (FS)
- ---------------------- ------------------------------- -------------------------
Erie, PA 2307 State Street Co., LLC Family Dollar (FS)
- ---------------------- ------------------------------- -------------------------