THIRD AMENDMENT
TO
JOINT VENTURE AGREEMENT
FOR
VANCOUVER MALL
This Third Amendment (the "Third Amendment") to Joint Venture Agreement
for Vancouver Mall is made and entered into as of September 1, 1990, by and
between MAY CENTERS OF VANCOUVER, INC. ("MCV"), a Delaware corporation, and
VANCOUVER ASSOCIATES ("Associates"), a California limited partnership.
RECITALS
--------
A. Associates and MCV (formerly known as May Centers, Inc.) have
made and entered into a Joint Venture Agreement for Vancouver Mall as of
September 29, 1975 as amended by a letter on May 12, 1976, and as amended by
a Second Amendment to Joint Venture Agreement for Vancouver Mall made as of
September 1, 1990 (together the "Partnership Agreement"), for the purpose of
forming and establishing a general partnership under the laws of the state of
Washington known as Vancouver Mall (the "Partnership") for the limited
purposes set forth in the Partnership Agreement.
B. May Centers, Inc., a Missouri corporation and parent company of
MCV ("MCI") desires to loan the Partnership funds up to and not exceeding
$1,600,000.00 (the "Funds") and the Partnership desires from time to time to
borrow the Funds from MCI (the "Loan").
C. Section 7.5 of the Partnership Agreement sets forth certain
terms and conditions concerning loans made to the Partnership by MCI or its
subsidiaries, among others.
D. Section 11.5(B) of the Partnership Agreement provides among other
things, for limitations on payments by the Partnership under certain loans.
THEREFORE, for good and valuable consideration and in consideration of
the mutual promises and covenants herein, Properties and TCI hereby agree as
follows:
1. APPROVAL OF LOAN. MCV and Associates hereby approve the making of
the Loan from MCI to the Partnership from time to time and shall execute a
promissory note and each of MCV and Associates shall execute its respective
guaranty in the general from of the Promissory Note and each Guaranty
attached hereto as Exhibit A (the "Documents").
2. LOAN PERMITTED BY PARTNERSHIP. MCV and Associates agree the Loan is
in compliance with Section 7.5 of the Partnership Agreement and that in the
event of any conflict between Section 7.5 of of the Partnership Agreement or
any other term or provision of the Partnership Agreement, the terms and
provisions of the Documents shall control.
3. SATISFACTION OF APPROVAL REQUIREMENT. MCV and Associates agree that
this Third Amendment shall satisfy the terms and provisions of the Partnership
Agreement and the requirement for any written approvals of the Loan or the
execution of the Documents as may be set forth in the Partnership Agreement.
4. PARTNERSHIP AGREEMENT IN FULL FORCE AND EFFECT. Except as
specifically set forth herein, the terms and provisions of the Partnership
Agreement shall remain in full force and effect. However, in the event of any
conflict between the terms and provisions of the Partnership Agreement and
the terms and provisions of this Third Amendment, the terms and provisions of
this Third Amendment shall control.
-2-
IN WITNESS WHEREOF, the undersigned have executed this Third Amendment
as of the date first written above.
Witness: VANCOUVER ASSOCIATES
/s/ Xxxxxxxx Xxxx By: /s/ Xxxxx Xxxxxx, Xx.
---------------------- -----------------------------
Xxxxx Xxxxxx, Xx.
Witness:
/s/ Xxxx X. Xxxxx By: /s/ XxXxx X. Xxxxxxx
---------------------- -----------------------------
XxXxx X. Xxxxxxx
MAY CENTERS OF VANCOUVER, INC.,
Attest: a Delaware corporation
/s/ Authorized Officer By: /s/ Authorized Officer
---------------------- -----------------------------
-3-
EXHIBIT A
PROMISSORY NOTE
$1,600,000.00 As of September 1, 1990
St. Louis, Missouri
This Promissory Note (the "Notes") is given by VANCOUVER MALL, a
Washington general partnership ("Maker") and with an address of c/o May
Centers, Inc., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, to
MAY CENTERS, INC., a Missouri corporation ("Holder") with an address of 000
Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000.
For value received, Maker hereby covenants and agrees with Holder as
follows:
1. The term "Principal Amount" shall mean the sum borrowed by Maker up
to an amount of One Million Six Hundred Thousand Dollars ($1,600,000.00)
which shall be memorialized on the attached Exhibit A to this Promissory Note
as each portion of the Principal Amount is borrowed by Maker.
2. The term "Interest Rate" shall mean a variable interest rate equal
to the sum of the Corporate Base Rate charged from time to time by the
Boatmen's National Bank of St. Louis, Missouri plus one percent (1%).
3. The term "Commencement Date" shall mean the date Maker first borrows
any of the Principal Amount from Holder.
4. The term "Principal Payment Date" shall mean the date(s) Maker shall
pay to Holder the Principal Amount which has been borrowed by Maker and is
outstanding which is the date on which Maker has positive cash flow available
to pay the Principal Amount or portions thereof or on which a loan for a
financing of Vancouver Mall Shopping Center is closed, but in no event later
than December 31, 1992.
5. The term "Interest Payment Date(s)" shall mean the date(s) Maker
shall pay the interest accruing on the Principal Amount to Holder which shall
be on the last day of each month beginning on the last day of the first
month following the month in which the Commencement Date falls.
6. Maker does hereby covenant and promise to pay to the order of
Holder, its successors and assigns on the Principal Payment date, that
portion of the Principal Amount which has been borrowed by Maker and is
outstanding on the Principal Payment Date and on each of the Interest Payment
Dates interest at the Interest Rate accruing from the Commencement Date to
the first Interest Payment Date or from the immediately preceding Interest
Payment Date to the next succeeding Interest Payment Date, as the case may
be, without deduction or offset of any kind whatsoever in lawful money of the
United States of America, at Holder's option either (a) by delivering a check
at least two business days prior to the Principal Payment Date or Interest
Payment Date, as the case may be, or (b) in immediately available funds on
the Principal Payment Date or the Interest Payment Date, as the case may be.
7. Maker shall have the right to prepay all or any part of the
Principal Amount and the interest accruing thereon without penalty at any
time, except as follows: If the Holder has borrowed a sum equal to the
Principal Amount from an institutional investor in order to loan Maker the
Principal Amount (the "Institutional Loan") then Maker shall pay Holder, in
addition to all other payments then due and owing to Holder, a premium which
shall be equal to the premium, if any, charged by such institutional investor
to Holder because of the prepayment by Holder of sums owed under the
Institutional Loan (the "Prepayment Penalty"). All determinations of the
amount of the Prepayment Penalty shall be made by such institutional investor
and such institutional investor's determination shall be final, binding and
conclusive upon Maker. In such event, Holder shall submit to Maker
documentation evidencing such termination by such institutional investor.
8. Maker hereby makes the following covenants, warranties and
representations to Holder:
(a) Maker was duly organized and continues to exist as a general
partnership under the laws of the state of Washington.
(b) The execution and delivery of this Note was duly authorized by
Maker and represents the binding acts of Maker.
(c) Maker shall not assert a defense or claim, in any action or
proceedings initiated to collect the amounts due under this Note, that
the Interest Rate was usurious.
(d) Neither the execution nor the delivery by the Maker of this Note
shall constitute, either by itself or with the delivery of notice, the
passage of time, or both, an event of default under the terms of the
Joint Venture Agreement dated September 29, 1975 as amended on May 12,
1975, and as amended by a Second Amendment as of September 1, 1990, and
as amended by a Third Amendment as of September 1, 1990, or any other
agreement or instrument to which the Maker is a party or under which the
Maker is obligated.
9. The occurrence of any of the following events shall constitute an
"Event of Default" hereunder":
(a) The failure by Maker to make the payment of Principal and
interest hereunder when such Principal and interest become due, which
failure shall not have been cured within ten (10 days after delivery by
Holder of written notice of such nonpayment.
(b) the failure by Maker to perform or abide by any of the
covenants, conditions, provisions or terms contained in this Note or the
breach of any warranty made by Maker under this Note provided that such
failure or breach shall not have been cured within thirty (3) days after
the delivery by Holder to Maker of written notice of such default.
(c) Maker becomes insolvent or unable to pay its debts as they
mature or bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar proceedings are instituted by or against Maker
under any
Exhibit A, Page 2 of 13
bankruptcy, insolvency or similar law now or hereafter in effect; provided
that in the case of proceedings instituted against Maker, Maker shall have
a period thirty (30) days in which to cause such proceeding to be
terminated.
10. Upon the occurrence of any Event of Default, the Holder may, at its
sole option, declare this Note, all interest accrued thereon, and any and all
other moneys which may be due and owing by Maker to Holder, to be
immediately due and payable without notice of any kind; any expenses incurred
by Holder in so doing shall be deemed to be additional principal indebtedness
under the terms of this Note and shall bear interest at the Interest Rate
accruing from the date such expenses were incurred by Holder. In the event of
such acceleration because of an Event of Default, the Maker shall pay the
Prepayment Penalty, and such unpaid Principal Amount and any other sum owed
by Maker pursuant to this Note shall accrue interest at a variable interest
rate equal to the sum of the Corporate Base Rate charged from time to time by
the Xxxxxxx'x National Bank of St. Louis plus three percent (3%).
11. If this Note is not paid when due, whether at maturity or by
acceleration, or if it is collected through a bankruptcy, probate or other
court, whether before or after the Payment Date, or should this Note be
placed in the hands of attorneys for collection after the occurrence of an
Event of Default, Maker agrees to pay all costs of collection, including but
not limited to, reasonable attorneys' fees incurred by the Holder in such
collection.
12. Maker as well as all others who may become liable for all or any
part of this Note expressly, jointly and severally waive presentment for
payment, protest and demand, notice of protest, demand and dishonor, and
non-payment of this Note as well as diligence of collection and hereby
consent that Holder may extend the time of payment or otherwise modify the
terms of payment of any part of the whole of the debt evidenced by this Note,
which extensions and modifications shall not affect the liability of any
party hereto; and they further agree that Holder (a) may accept, by way of
compromise or settlement, from any one or more of the parties liable
hereunder, a sum or sums less than the amount of this Note, and (b) may give
releases to any parties without affecting the liability of any other party
for the unpaid balance. Any such renewals or extensions may be made and any
such partial payments accepted or releases given without notice to any
parties.
13. Holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Holder, and then only to the extent specifically set
forth in writing. A waiver as to one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy to a subsequent
event.
14. Any notice to or demand upon the parties hereto shall be in writing
and shall be deemed to have been sufficiently given or served for all
purposes herein set forth if mailed by registered or certified mail,
addressed to such party at the address first set forth in this Note, or to
such other address in lieu thereof for such party as it may designate by
written notice made to the other party hereto in accordance with this
Paragraph 14.
15. This instrument shall be governed by and construed according to the
laws of the State of Missouri.
Exhibit A, Page 3 of 13
16. Whenever used, the singular number shall include the plural, the
plural the singular, the use of any gender shall be applicable to all
genders, and the word "Holder" and "Maker" shall be deemed to include the
respective heirs, personal representatives, successors and assigns of Holder
and Maker.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned have hereunto set their hands and seals the day and year first
above written.
VANCOUVER MALL
Attest: By: May Centers of Vancouver,
Inc., general partner
By:
--------------------------- ---------------------------
Witness: By: Vancouver Associates
By:
--------------------------- ---------------------------
Xxxxx Xxxxxx, Xx.
Witness:
By:
--------------------------- ---------------------------
XxXxx X. Xxxxxxx
Exhibit A, Page 4 of 13
STATE OF )
--------- ) SS.
OF )
------ ---------
On this _____ day of ____________, 19__, before me personally appeared
______________ and ______________ to me known to be the ______________ and
______________, respectively of May Centers of Vancouver, Inc., a general
partner of Vancouver Mall that executed the within and foregoing instrument,
and acknowledged this instrument to be the free and voluntary act and deed of
such corporation and partnership, for the uses and purposes therein
mentioned, and on oath stated that they were authorized to execute this
instrument and that the seal affixed is the corporate seal of such
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand an affixed my official
seal the day and year first above written.
------------------------------
Notary Public
My Commission Expires:
STATE OF )
--------- ) SS.
OF )
------ ---------
On this _____ day of ______________, 19__, before me personally appeared
_______________ a general partner of Vancouver Associates, a general partner
of Vancouver Mall that executed the within and foregoing instrument, and
acknowledged this instrument to be the free and voluntary act and deed of such
corporation and partnership, for the uses and purposes therein mentioned, and
on oath stated that they were authorized to execute this instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
------------------------------
Notary Public
My Commission Expires:
Exhibit A, Page 5 of 13
STATE OF _______________)
) SS.
_________ of ___________)
On this _______ day of _____________, 19__, before me personally
appeared _______________ a general partner of Vancouver Associates, a general
partner of Vancouver Mall that executed the within and foregoing instrument,
and acknowledged this instrument to be the free and voluntary act and deed
of such corporation and partnership, for the uses and purposes therein
mentioned, and on oath stated that they were authorized to execute this
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
_____________________________________
Notary Public
My Commission Expires:
210/90/424
Exhibit A, Page 6 of 13
EXHIBIT A
TO
PROMISSORY NOTE
TOTAL NET PRINCIPAL
PORTION OF PRINCIPAL PRINCIPAL AMOUNT BORROWED
DATE AMOUNT BORROWED AMOUNT REPAID AND OUTSTANDING
---- -------------------- ------------- -------------------
Exhibit A, Page 7 of 13
GUARANTY
THIS GUARANTY (the "Guaranty") is made as of the ____ day of __________,
____, by MAY CENTERS OF VANCOUVER, INC. (the "Guarantor"), to and for the
benefit of MAY CENTERS, INC., a Missouri corporation ("MCI").
RECITALS:
(A) Guarantor is a general partner of Vancouver Mall, a Washington
general partnership ("Maker").
(B) Concurrently herewith, Maker has executed a promissory note (the
"Promissory Note") in favor of MCI in the principal amount of up to One
Million Six Hundred Thousand Dollars ($1,600,000.00) (the "Principal Amount").
(C) Guarantor shall be responsible for paying fifty percent (50%) of (i)
the outstanding Principal Amount and (ii) all other sums owed pursuant to the
Promissory Note.
(D) It is a condition precedent to the execution of the Promissory Note
that Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of and as an inducement to the loan by
MCI of money pursuant to the Promissory Note, and in consideration of the
above recitals and other good and valuable consideration paid by MCI to
Guarantor and intending to be legally bound hereby, Guarantor does hereby
covenant and agree as follows:
1. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to MCI that Guarantor is and shall be directly liable to MCI, for
the full and prompt payment of fifty percent (50%) of all amounts (including,
but not limited to, principal and interest) due from time to time under the
Promissory Note (the "Guaranteed Obligations") and Guarantor does hereby
become surety to Landlord, its successors and assigns, for and with respect
to the Guaranteed Obligations.
2. Guarantor does hereby covenant and agree to and with MCI, that if
default shall at any time be made by Maker, in the payment of any sums payable
by Maker under the Promissory Note or in the performance of any of the
obligations under the Promissory Note, Guarantor will pay such sums to MCI,
any arrearages thereof (including, without limitation, any and all interest
or additional charges as provided in the Promissory Note), and will faithfully
perform and fulfill all of such obligations up to the amount of the Guaranteed
Obligations, and will pay to MCI all damages and all costs and expenses up
to the amount of the Guaranteed Obligations that may arise in consequence of
any default by Maker under the Promissory Note (including, without limitation,
all attorneys' fees and any and all expenses incurred by MCI or caused by any
such default and/or by the enforcement of this Guaranty).
3. This Guaranty is an absolute and unconditional guaranty of payment and
of performance and is a surety agreement. Guarantor's liability hereunder is
direct and may be enforced immediately without MCI being required to resort
to any other right, remedy or security and this Guaranty shall be enforceable
Exhibit A, Page 8 of 13
immediately against Guarantor, without the necessity for any suit or
proceedings on MCI's part of any kind or nature whatsoever against Maker or
any other guarantor and without the necessity of any notice of non-payment,
non-performance or non-observance or the continuance of any such default or
of any notice of acceptance of this Guaranty or of MCI's intention to act
in reliance herein or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly waives; and
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no manner be terminated, affected,
or impaired by reason of the assertion or the failure to assert by MCI
against Maker or any other guarantor or of any of the rights or remedies
reserved to MCI pursuant to the provisions of the Promissory Note.
4. This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the
liability and obligation of Guarantor hereunder shall be absolute and
unconditional irrespective of:
(i) any amendment or modification of, or supplement to, or
extension or renewal of the Promissory Note or any assignment or
transfer thereof. Notwithstanding the foregoing, Guarantor shall not be
liable for any increased obligation of Maker under the Promissory Note,
which obligation has been increased because of any amendment,
modification, or supplement to the Promissory Note between Maker and any
assignee or transferee after an assignment or transfer of the Promissory
Note, unless Guarantor has given its written consent of such amendment,
modification or supplement to MCI;
(ii) any exercise or non-exercise of any right, power, remedy or
privilege under or in respect to the Promissory Note or this Guaranty or
any waiver, consent or approval by MCI with respect to any of the
covenants, terms, conditions or agreements contained in the Promissory
Note or any indulgences, forbearances or extensions of time for
performance or observance allowed to Maker from time to time, at any
time for any length of time;
(iii) any lack of validity or enforceability of the Promissory Note
or any other agreement or instrument relating thereto;
(iv) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition or liquidation or similar proceedings relating
to Maker, or its properties or creditors;
(v) any impairment, modification, change, release or limitation of
liability or obligation of Maker under the Lease (including, but
not limited to, any disaffirmance or abandonment by a trustee of Maker),
resulting from the operation of any present or future provision of the
Bankruptcy Reform Act of 1978 or any other similar federal or state
statute, or from the decisions of any court;
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Maker in respect of the
Promissory Note or the Guarantor in respect of the Promissory Note or
the Guarantor in respect of this Guaranty.
Exhibit A, Page 9 of 13
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the sums and any and all other
charges by Maker, under the Promissory Note, or performance and observance of
any and all of the obligations under the Promissory Note are rescinded,
cancelled or otherwise must be returned by MCI upon the insolvency,
bankruptcy or reorganization of Maker, all as though such payment had not
been made and/or such performance and observance had not occurred.
5. All of MCI's rights and remedies under the Promissory Note and under
this Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy therein or herein mentioned is intended to be in exclusion of
or a waiver of any of the others. No termination of the Promissory Note shall
deprive MCI of any of its rights and remedies against Guarantor under this
Guaranty. This Guaranty shall apply to Maker's obligations pursuant to any
extension, renewal, amendment, modification and supplement of or to the
Promissory Note as well as to Maker's obligations thereunder during
the original term thereof in accordance with the original provisions thereof.
6. As a further inducement to MCI to make and enter into the loan as
documented by the Promissory Note and in consideration thereof, Guarantor
covenants and agrees that in any action or proceeding brought on, under or by
virtue of this Guaranty, Guarantor shall and does hereby waive trial by
jury. Guarantor agrees to pay MCI's reasonable attorneys' fees and all costs
and other expenses incurred in any collection or attempted collection or in
any negotiations relative to the obligations hereby guaranteed or in
enforcing this Guaranty against the undersigned.
7. This Guaranty shall be legally binding upon Guarantor, its successors
and assigns, heirs and personal representatives and shall inure to the benefit
of MCI, its successors and assigns. The word Maker is used herein to include
Maker as well as its successors and assigns.
8. This Guaranty shall be governed by, and constructed in accordance
with, the laws of the state or Missouri.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby, has
caused this Guaranty to be executed as of the date first written above.
GUARANTOR
ATTEST: MAY CENTERS OF VANCOUVER, INC.
__________________________________ By: __________________________________
210/90/424
Exhibit A, Page 10 of 13
GUARANTY
THIS GUARANTY (the "Guaranty") is made as of the ____ day of __________,
____, by Vancouver Associates, a California limited partnership (the
"Guarantor"), to and for the benefit of MAY CENTERS, INC., a Missouri
corporation ("MCI").
RECITALS:
(A) Guarantor is a general partner of Vancouver Mall, a Washington
general partnership ("Maker").
(B) Concurrently herewith, Maker has executed a promissory note (the
"Promissory Note") in favor of MCI in the principal amount of up to One
Million Six Hundred Thousand Dollars ($1,600,000.00) (the "Principal Amount").
(C) Guarantor shall be responsible for paying fifty percent (50%) of (i)
the outstanding Principal Amount and (ii) all other sums owed pursuant to the
Promissory Note.
(D) It is a condition precedent to the execution of the Promissory Note
that Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of and as an inducement to the loan by
MCI of money pursuant to the Promissory Note, and in consideration of the
above recitals and other good and valuable consideration paid by MCI to
Guarantor and intending to be legally bound hereby, Guarantor does hereby
covenant and agree as follows:
1. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to MCI that Guarantor is and shall be directly liable to MCI, for
the full and prompt payment of fifty percent (50%) of all amounts (including,
but not limited to, principal and interest) due from time to time under the
Promissory Note (the "Guaranteed Obligations") and Guarantor does hereby
become surety to Landlord, its successors and assigns, for and with respect
to the Guaranteed Obligations.
2. Guarantor does hereby covenant and agree to and with MCI, that if
default shall at any time be made by Maker, in the payment of any sums payable
by Maker under the Promissory Note or in the performance of any of the
obligations under the Promissory Note, Guarantor will pay such sums to MCI,
any arrearages thereof (including, without limitation, any and all interest
or additional charges as provided in the Promissory Note), and will faithfully
perform and fulfill all of such obligations up to the amount of the Guaranteed
Obligations, and will pay to MCI all damages and all costs and expenses up
to the amount of the Guaranteed Obligations that may arise in consequence of
any default by Maker under the Promissory Note (including, without limitation,
all attorneys' fees and any and all expenses incurred by MCI or caused by any
such default and/or by the enforcement of this Guaranty).
3. This Guaranty is an absolute and unconditional guaranty of payment and
of performance and is a surety agreement. Guarantor's liability hereunder is
direct and may be enforced immediately without MCI being required to resort
to any other right, remedy or security and this Guaranty shall be enforceable
Exhibit A, Page 11 of 13
immediately against Guarantor, without the necessity for any suit or
proceedings on MCI's part of any kind or nature whatsoever against Maker or
any other guarantor and without the necessity of any notice of non-payment,
non-performance or non-observance or the continuance of any such default or
of any notice of acceptance of this Guaranty or of MCI's intention to act
in reliance herein or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly waives; and
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no manner be terminated, affected,
or impaired by reason of the assertion or the failure to assert by MCI
against Maker or any other guarantor or of any of the rights or remedies
reserved to MCI pursuant to the provisions of the Promissory Note.
4. This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the
liability and obligation of Guarantor hereunder shall be absolute and
unconditional irrespective of:
(i) any amendment or modification of, or supplement to, or
extension or renewal of the Promissory Note or any assignment or
transfer thereof. Notwithstanding the foregoing, Guarantor shall not be
liable for any increased obligation of Maker under the Promissory Note,
which obligation has been increased because of any amendment,
modification, or supplement to the Promissory Note between Maker and any
assignee or transferee after an assignment or transfer of the Promissory
Note, unless Guarantor has given its written consent of such amendment,
modification or supplement to MCI;
(ii) any exercise or non-exercise of any right, power, remedy or
privilege under or in respect to the Promissory Note or this Guaranty or
any waiver, consent or approval by MCI with respect to any of the
covenants, terms, conditions or agreements contained in the Promissory
Note or any indulgences, forbearances or extensions of time for
performance or observance allowed to Maker from time to time, at any
time for any length of time;
(iii) any lack of validity or enforceability of the Promissory Note
or any other agreement or instrument relating thereto;
(iv) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition or liquidation or similar proceedings relating
to Maker, or its properties or creditors;
(v) any impairment, modification, change, release or limitation of
liability or obligation of Maker under the Lease (including, but
not limited to, any disaffirmance or abandonment by a trustee of Maker),
resulting from the operation of any present or future provision of the
Bankruptcy Reform Act of 1978 or any other similar federal or state
statute, or from the decisions of any court;
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Maker in respect of the
Promissory Note or the Guarantor in respect of the Promissory Note or
the Guarantor in respect of this Guaranty.
Exhibit A, Page 12 of 13
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the sums and any and all other
charges by Maker, under the Promissory Note, or performance and observance of
any and all of the obligations under the Promissory Note are rescinded,
cancelled or otherwise must be returned by MCI upon the insolvency,
bankruptcy or reorganization of Maker, all as though such payment had not
been made and/or such performance and observance had not occurred.
5. All of MCI's rights and remedies under the Promissory Note and under
this Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy therein or herein mentioned is intended to be in exclusion of
or a waiver of any of the others. No termination of the Promissory Note shall
deprive MCI of any of its rights and remedies against Guarantor under this
Guaranty. This Guaranty shall apply to Maker's obligations pursuant to any
extension, renewal, amendment, modification and supplement of or to the
Promissory Note as well as to Maker's obligations thereunder during
the original term thereof in accordance with the original provisions thereof.
6. As a further inducement to MCI to make and enter into the loan as
documented by the Promissory Note and in consideration thereof, Guarantor
covenants and agrees that in any action or proceeding brought on, under or by
virtue of this Guaranty, Guarantor shall and does hereby waive trial by
jury. Guarantor agrees to pay MCI's reasonable attorneys' fees and all costs
and other expenses incurred in any collection or attempted collection or in
any negotiations relative to the obligations hereby guaranteed or in
enforcing this Guaranty against the undersigned.
7. This Guaranty shall be legally binding upon Guarantor, its successors
and assigns, heirs and personal representatives and shall inure to the benefit
of MCI, its successors and assigns. The word Maker is used herein to include
Maker as well as its successors and assigns.
8. This Guaranty shall be governed by, and constructed in accordance
with, the laws of the state or Missouri.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby, has
caused this Guaranty to be executed as of the date first written above.
GUARANTOR
Witness: VANCOUVER ASSOCIATES
__________________________________ By: __________________________________
Xxxxx Xxxxxx, Xx.
general partner
Witness:
__________________________________ By: __________________________________
XxXxx X. Xxxxxxx
general partner
210/90/424
Exhibit A, Page 13 of 13
