FOURTH AMENDMENT
TO
JOINT VENTURE AGREEMENT
FOR VANCOUVER MALL
This Fourth Amendment (this "Amendment") to Joint Venture Agreement for
Vancouver Mall is made and entered into as of January 1, 1992, by and between
CENTERMARK PROPERTIES OF VANCOUVER, INC. ("CPV"), a Delaware corporation and
VANCOUVER ASSOCIATES ("Associates"), a California limited partnership.
Recitals:
A. CPV (formerly known as May Centers of Vancouver, Inc.) and Associates
have entered into a Joint Venture Agreement for Vancouver Mall dated as of
September 29, 1975, as amended by letter dated May 12, 1976, Second
Amendment to Joint Venture Agreement for Vancouver Mall dated as of
September 1, 1990, and Third Amendment to Joint Venture Agreement for
Vancouver Mall dated as of September 1, 1990 (as amended, 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. CenterMark Properties, Inc. ("CenterMark"), a Missouri corporation and
parent company of CPV desires to loan the Partnership funds up to and not
exceeding $10,000,000.00 (the "Loan") to provide interim funding of
costs of renovating and remodeling the shopping center owned by the
Partnership.
C. Section 7.5 of the Partnership Agreement sets forth certain terms and
conditions concerning loans made to the Partnership by CenterMark, among
others.
D. Section 11.5(B) of the Partnership Agreement provides, among other
things, for limitations on payments by the Partnership on certain loans.
THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, CPV and associates hereby agree
as follows:
1. CONSENT TO LOAN. CPV and Associates hereby consent to and approve
the making of the Loan by CenterMark to the Partnership and agree, in their
capacity as general partners of the Partnership, to execute a promissory note
on behalf of the Partnership to evidence the Partnership's obligation to
repay the Loan. Such note shall be substantially in the form of Exhibit A
attached hereto (as the same may be modified, renewed, extended or replaced,
the "Note"). This Amendment shall be deemed to satisfy any conditions or
covenants contained in the Partnership Agreement or in any other agreement
between the parties which may be construed to require prior approval of the
Loan or the execution of the Note.
2. CONFLICT WITH PARTNERSHIP AGREEMENT. CPV and Associates acknowledge
that the interest rate and certain payment terms of the Note may be
inconsistent with Sections 7.5 and 11.5 of the Partnership Agreement. In that
connection, the parties waive any right they may have to require the terms of
the Loan to be as set forth in Sections 7.5 and 11.5 of the Partnership
Agreement. To the extent of any conflict between the terms of the Note and
Section 7.5, Section 11.5 or any other provision of the Partnership
Agreement, the terms of the Note shall be deemed to control.
3. CONTINUED FORCE AND EFFECT. Except as specifically set forth
herein, the terms, conditions, and other provisions of the Partnership
Agreement are and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
effective as of the date first above written.
Witness: VANCOUVER ASSOCIATES
/s/ Xxxxxxxx Yorin By: /s/ Xxxxx Xxxxxx, Xx.
--------------------- -----------------------------
Xxxxx Xxxxxx, Xx.
General Partner
Witness:
/s/ Xxxxxxxx Yorin By: /s/ XxXxx X. Xxxxxxx
--------------------- -----------------------------
XxXxx X. Xxxxxxx
General Partner
Attest: CENTERMARK PROPERTIES OF
VANCOUVER, INC.
--------------------- By: Authorized Officer
------------------------------
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EXHIBIT A
PROMISSORY NOTE
$10,000,000.00 As of January 1, 1992
St. Louis, Missouri
This Promissory Note (this "Note") is give by Vancouver Mall, a
Washington general partnership ("Maker"), and with an address of c/o
CenterMark Properties, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, to CenterMark Properties, Inc., a Missouri corporation ("Holder"),
with an address at 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 from Holder
by Maker up to an amount of Ten Million Dollars ($10,000,000.00), which shall
be memorialized on the attached Exhibit A to this Promissory Note as each
portion of the Principal Amount is borrowed by Maker. Notwithstanding
anything to the contrary contained in this Note, Holder's obligation to
advance funds under this Note shall be contingent upon closing of the
permanent financing for Vancouver Mall shopping center extended or to be
extended by Eastrich No. 89 Corporation to Holder (the "Permanent
Financing"). Advances on this Note shall be made on an "as-needed" basis, as
determined in the discretion of Holder for the purpose of providing interim
funding of remodeling costs for the Vancouver Mall shopping center.
2. The term "Interest Rate" shall mean a per annum fixed rate of 9.78%.
3. The term "Commencement Date" shall mean January 1, 1992.
4. The term "Principal Payment Date(s)" shall mean the dates Maker
shall pay each portion of the Principal Amount to Holder which shall be at
the time of each of the fundings by Estrich No. 89 Corporation to Maker under
the Permanent Financing, but in no event later than June 31, 1993.
5. The term "Interest Payment Date(s)" shall mean the date(s) Maker
shall pay to Holder the interest accruing on the Principal Amount, which
shall be monthly commencing on the first day of the month following the first
month during which there is any amount outstanding under this Note and on the
first day of each month thereafter so long as there is any Principal Amount
outstanding under this Note.
6. Maker does hereby covenant and promise to pay to the order of
Holder, its successors and assigns, on each of the Principal Payment Dates,
that portion of the Principal Amount which has been advanced under this Note
and is then outstanding, 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 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 determination by such institutional investor.
8. Maker hereby makes the following covenants, warranties and
representations to Holder:
(a) Maker is a general partnership duly organized and existing in
good standing under the laws of the State of Washington.
(b) The execution and delivery of this Note has been duly
authorized by all requisite partnership action of Maker and its partners
and represents the binding act of Maker.
(c) Maker shall not assert a defense or claim, in any action or
proceeding 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 of Vancouver Mall dated May 12, 1976, as amended
by letter dated May 12, 1976, Second Amendment to Joint Venture
Agreement for Vancouver Mall dated as of September 1, 1990, Third
Amendment to Joint Venture Agreement for Vancouver Mall dated as of
September 1, 1990, or Fourth Amendment to Joint Venture Agreement for
Vancouver Mall dated of even date herewith, or any other agreement or
instrument to which the Maker is a party or under which the Maker is
organized.
9. The occurrence of any of the following events shall constitute an
"Event of Default" hereunder:
(a) The failure by Maker to make any payment of principal or
interest hereunder when such principal or interest becomes due, which
failure shall not have been cured
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within ten (10) days after delivery by Holder of written notice of such
nonpayment.
(b) The failure by Maker to perform or abide any of the covenants,
conditions, provisions or terms contained in this Note, which failure is
not cured within thirty (30) days after the delivery by Holder to Maker
of written notice of such default, or the breach of any warranty made by
Maker under this note.
(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 bankruptcy, insolvency or similar law now or hereafter in
effect; provided that in the case of proceeding instituted against
Maker, Maker shall have a period of 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, Maker shall pay the Prepayment Penalty, and the unpaid
Principal Amount and other sum owed by Maker pursuant to this Note shall
accrue interest, until paid, at a variable interest rate equal to the
Corporate Base Rate charged from time to time by The Boatmen's National Bank
of St. Louis plus three percent (3%) (such rate to change simultaneously with
any change in the Corporate Base Rate).
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 an attorney or 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, whether or not there is litigation.
12. Maker as well as others who may become liable for all or any part
of this Note hereby waive presentment for payment, protest, demand, notice of
protest, dishonor and all other notice, and diligence of collection, and
consent and agree that Holder may extend the time of payment or otherwise
modify the terms of payment of any part of the whole of the indebtedness
evidenced by this Note, which extensions and modifications shall not affect
this liability of any party hereto; and Maker further agrees that Holder (a)
may accept, by way 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
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balance. Any such renewals or extensions may be made and any such partial
payments may be accepted or releases given without notice to any parities.
13. Holder shall not be deemed, by any act or omission, to have waived
any of its right 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 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.
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.
VANCOUVER MALL, a Washington general
partnership
By: CENTERMARK PROPERTIES OF
VANCOUVER, INC., a Delaware
corporation
Attest:
------------------------ By:
----------------------------------
By: VANCOUVER ASSOCIATES, a California
limited partnership
Attest: By:
--------------------------------------
Xxxxx Xxxxxx, Xx. general partner
------------------------
By:
--------------------------------------
XxXxx X. Xxxxxxx, general partner
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EXHIBIT A
TO
$10,000,000.00 PROMISSORY NOTE
BY
VANCOUVER MALL
TO
CENTERMARK PROPERTIES, INC.
Total Net Principal
Portion of Principal Principal Amount Borrowed
Date Amount Borrowed Amount Repaid and Outstanding
---- -------------------- ------------- -------------------
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