Exhibit 10.45
FIRST AMENDMENT TO MANAGEMENT AGREEMENT
(TOPANGA PLAZA)
THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (this "Amendment") is
made as of the 1st day of February, 1994, between CENTERMARK PROPERTIES,
INC., formerly known as May Centers, Inc. ("Manager"), and TOPANGA PLAZA
PARTNERSHIP ("Owner").
RECITALS
A. Manager and Owner entered into a Management Agreement (the "Management
Agreement"), dated as of December 31, 1985.
B. The Management Agreement sets forth the various rights and obligations of
Owner and Manager respecting the management, leasing and operation of that
certain regional shopping center known as Topanga Plaza located in the
County of Los Angeles, State of California (the "Shopping Center").
C. Owner and Manager desire to amend the Management Agreement as set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and
provisions hereinafter set forth and other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged,
Manager and Owner agree as follows:
1. AMENDMENT TO SECTION 2.1. Section 2.1 of the Management
Agreement is hereby amended by adding the following new subparagraphs (u) and
(v):
"(u) In the event Owner or a partner acting on behalf of Owner should
enter into negotiations for the sale of the Shopping Center or a partner
of Owner should enter into negotiations for the sale of its partnership
interest or portion thereof in Owner, Manager agrees to reasonably
assist Owner or such partner in such transaction including, but not
limited to, by using its reasonable efforts to deliver or make available
to Owner or such partner of Owner, at Owner's sole cost and expense, the
following items:
(1) Copies of any written notice(s) received by Manager (A) from any
government agency or any employee or official thereof alleging that
the construction, operation or use of the Shopping Center violates
any law, ordinance, regulation or order or that any investigation
has been commenced or is contemplated respecting any such
violation, or (B) alleging any material default by Manager or Owner
under any current tenant lease, mortgage loan, insurance policy,
service contract or equipment lease;
(2) Copies of (A) the most recent financial reports prepared by
Manager pursuant to Section 2.1(l), (B) all insurance policies and
material service contracts in Manager's possession respecting the
Shopping Center, and (C) current tenant lease files.
(3) Copies of any written correspondence, documents and/or notices
received by Manager respecting any actions, suits or proceedings,
pending or threatened, before or by any judicial, administrative or
union body, any arbiter or any governmental authority and against
or affecting or relating to the Shopping Center, including eminent
domain or similar proceedings; and
(4) an updated rent roll, supplemented with the following information:
the date of each lease as well as the date(s) for all amendments
and/or supplements thereto; any tenant improvements required to be
completed by Owner which have not been completed; whether a
tenant(s) has received an outstanding and unsatisfied (or otherwise
unresolved) notice of default from Manager; and a list of all
potential brokerage commissions that may become due and payable by
Owner with respect to any lease pursuant to any existing agreement
binding upon Manager or Owner with respect to such lease or any
renewal thereof. Manager shall attach to such rent roll an executed
certification reasonably acceptable to Manager and Owner confirming
that, to the best of its actual knowledge, Manager is not aware of
any items of a nature described in (1), (2), (3) or (4) of this
Section 2.1(u).
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(v) Manager shall deliver annually updated rent rolls and lease
summaries for the Shopping Center which will contain the following
information with respect to each of the tenant leases shown thereon:
parties to the original lease; and a list of all scheduled rebates,
rental concessions, tenant allowances, free-rent periods, credits,
setoffs or rent reductions under such leases and which, as appropriate,
have either not yet been funded by the Owner or which relate to any
period after the date of said rent roll."
2. AMENDMENT OF SECTION 7.1. Section 7.1 of the Management
Agreement is amended by deleting such section in its entirety and
substituting the following therefor:
"Manager shall not assign all or any part of its interest in or
obligations arising out of this Agreement except in accordance with this
Section 7.1. Manager may assign all or any part of its interest in or
obligations arising out of this Agreement to (i) a partnership or other
entity owned by GGP Limited Partnership and a wholly-owned (direct or
indirect) subsidiary of Westfield Holdings Limited, (ii) any of (a)
Westfield Holdings Limited, (b) General Growth Management, Inc., (c)
General Growth Properties, Inc., (d) GGP Limited Partnership, or (e) any
entity wholly-owned by one or more of the foregoing entities, PROVIDED
that (1) an assignment under this clause (ii) shall be permitted on one
occasion only and (2) Owner may terminate this Agreement at any time
following an assignment under this subparagraph (ii) if a direct or
indirect owner of the Manager hereunder is not a direct or indirect
owner of a substantial interest in Co-Partner or (iii) any "PERMITTED
TRANSFEREE." For purposes of this Agreement, the term "PERMITTED
TRANSFEREE" shall mean any entity in which at least 50% of the voting
rights and economic interests are owned (directly or indirectly) by a
person or entity which owns (directly or indirectly) at least 50% or
more of the voting rights and economic interests of Co-Partner. Any
transfer of stock or of a partnership interest in a Permitted Transferee
which reduces the interest of the entities referenced in clause (ii) to
less than 50%, collectively, shall be deemed not to constitute a
Permitted Transferee."
3. REINCORPORATION OF MANAGER. In connection with the sale of the
stock of Manager to GGP Limited
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Partnership, Westfield U.S. Investment Pty. Limited and Whitehall Street Real
Estate Limited Partnership III (collectively, the "Purchasers"), it is
currently intended to merge Manager into a newly-formed Delaware corporation
owned by the Purchasers ("New CenterMark"). Such merger may occur
concurrently or shortly after the closing of the acquisition. To the extent
the consent of Owner may be required for such merger, Owner hereby consents
to such merger and agrees that such merger shall not be deemed an assignment
under Section 7.1. Upon any such merger, all references in the Agreement to
May Centers, Inc. or CenterMark Properties, Inc. shall be deemed to refer to
New CenterMark.
4. SUCCESSORS. This Amendment shall inure to the benefit of and
be binding upon Manager and Owner and their respective successors and assigns.
5. GOVERNING LAW. This Amendment shall be construed and enforced
in accordance with the laws of the State of California.
6. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which may be deemed an original, but all of which
together shall constitute one and the same instrument.
7. RATIFICATION. Except as modified herein, the Management
Agreement shall continue in full force and effect in accordance with its
terms. In the event of any conflict between the terms and provisions
contained in the Management Agreement and this Amendment, the terms and
provisions of this Amendment shall prevail.
[SIGNATURE BLOCKS TO FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
MANAGER
CENTERMARK PROPERTIES, INC.
a Missouri corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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OWNER
TOPANGA PLAZA PARTNERSHIP,
a California partnership
By: TOPANGA CENTER, INC.,
as general partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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By: JMB INCOME PROPERTIES,
LTD - XII, as general partner
By: JMB REALTY CORPORATION,
general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Executive Vice President
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