AMENDMENT XX. 00
XXXXXXXXX XX. 00, dated as of December 9, 1998 (this "Amendment"),
between TrizekHahn Centers Inc., a California corporation ("THCI"), and The
Xxxxx Company, a Maryland corporation ("Xxxxx"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Xxxxx, the "Acquirors").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, THCI, Xxxxx and Westfield are parties to an Asset Purchase
Agreement, dated as of April 6, 1998, as amended by Amendment No. 1 dated as of
July 31, 1998, by the letter agreement dated as of July 31, 1998, by Amendment
No. 2 dated as of August 31, 1998, by Amendment No. 3 dated as of September 23,
1998, by Amendment No. 4 dated as of September 25, 1998, by Amendment No. 5
dated as of October 7, 1998, by Amendment No. 6 dated as of October 22, 1998, by
Amendment No. 7 dated as of October 30, 1998, by Amendment No. 8 dated November
17, 1998 and by Amendment No. 9 dated December 3, 1998 (the "Asset Purchase
Agreement"; terms defined in the Asset Purchase Agreement and not otherwise
defined herein being used herein as therein defined);
WHEREAS, THCI, Xxxxx and Westfield desire to amend the Asset Purchase
Agreement as set forth in this Amendment; and
WHEREAS, pursuant to Section 12.09 of the Asset Purchase Agreement,
the Asset Purchase Agreement may be amended by the parties hereto.
NOW THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
Section 1.01 1% Capital Mall Company Partnership Interest.
(a) On October 7, 1998 (the "Initial Capital Mall Closing Date"),
THCI sold a 49% Partnership Interest in Capital Mall Company to Capital Shopping
Center LLC (a wholly owned subsidiary of Westfield). On or about December 8,
1998, THCI will sell its remaining 1% Partnership Interest in Capital Mall
Company (the "1% Interest") to Capital Shopping Center Inc., a Delaware
corporation ("CSCI") (a wholly owned subsidiary of Westfield). Notwithstanding
anything in the Asset Purchase Agreement to the contrary, for purposes of
calculating prorations pursuant to Section 2.07 of the Asset Purchase Agreement,
the
sale of the 1% Interest to CSCI shall be deemed to have occurred on the Initial
Capital Mall Closing Date.
(b) At the Closing for the 1% Interest, Westfield shall cause
CSCI to pay to THCI the Adjusted Allocated Purchase Price for the 1% Interest
(which THCI and Westfield have agreed is $44,781, subject to the final
calculation of prorations pursuant to the Asset Purchase Agreement), plus 7%
interest on said Adjusted Allocated Purchase Price from the Initial Capital Mall
Closing Date to the date of said Closing.
ARTICLE II
GENERAL PROVISIONS
Section 2.01 Authority; Effect on Asset Purchase Agreement.
(a) THCI hereby represents as follows:
(i) THCI has all necessary corporate power and authority to
execute and deliver this Amendment, to perform its obligations under the
Asset Purchase Agreement (as amended by this Amendment) and to consummate
the transactions contemplated by the Asset Purchase Agreement (as amended
by this Amendment).
(ii) The execution and delivery of this Amendment by THCI
and the consummation by THCI of the transactions contemplated by the Asset
Purchase Agreement (as amended by this Amendment) have been duly and
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of THCI are necessary to authorize this Amendment
or to consummate the transactions contemplated by the Asset Purchase
Agreement (as amended by this Amendment).
(iii) This Amendment has been duly and validly executed and
delivered by THCI and, assuming the due authorization, execution and
delivery by Xxxxx and Westfield, the Asset Purchase Agreement (as amended
by this Amendment) constitutes the legal, valid and binding obligation of
THCI, enforceable against THCI in accordance with its terms (except insofar
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or principles governing the availability of equitable remedies).
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(b) Xxxxx and Westfield each, severally but not jointly, hereby
represents as follows:
(i) Such Acquiror has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its obligations
under the Asset Purchase Agreement (as amended by this Amendment) and to
consummate the transactions contemplated by the Asset Purchase Agreement)
as amended by this Amendment).
(ii) The execution and delivery of this Amendment by such
Acquiror and the consummation by them of the transactions contemplated by
the Asset Purchase Agreement (as amended by this Amendment) have been duly
and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Acquiror are necessary to authorize
this Amendment or to consummate the transactions contemplated by the Asset
Purchase Agreement (as amended by this Amendment).
(iii) This Amendment has been duly and validly executed and
delivered by such Acquiror and, assuming the due authorization, execution
and delivery by THCI, the Asset Purchase Agreement (as amended by this
Amendment) constitutes the legal, valid and binding obligation of such
Acquiror, enforceable against such Acquiror in accordance with its terms
(except insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganiza tion, moratorium or similar laws affecting
creditors' rights generally, or principles governing the availability of
equitable remedies).
(c) Except as amended hereby, the provisions of the Asset
Purchase Agreement are and shall remain in full force and effect.
Section 2.02 Counterparts. This Amendment may be executed in two or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
[BALANCE OF THE PAGE INTENTIONALLY LEFT BLANK]
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Section 2.03 Governing Law. This Amendment shall be governed in the
same manner as provided in Section 12.10 of the Asset Purchase Agreement.
IN WITNESS WHEREOF, THCI, Xxxxx and Westfield have caused this
Amendment to be executed as of the date first written above by their respective
officers "hereunto duly authorized."
TRIZECHAHN CENTERS INC.
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Vice President
THE XXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Secretary
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Section 2.03 Governing Law. This Amendment shall be governed in the
same manner as provided in Section 12.10 of the Asset Purchase Agreement.
IN WITNESS WHEREOF, THCI, Xxxxx and Westfield have caused this
Amendment to be executed as of the date first written above by their respective
officers "hereunto duly authorized."
TRIZECHAHN CENTERS INC.
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Vice President
THE XXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Secretary
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Section 2.03 Governing Law. This Amendment shall be governed in the
same manner as provided in Section 12.10 of the Asset Purchase Agreement.
IN WITNESS WHEREOF, THCI, Xxxxx and Westfield have caused this
Amendment to be executed as of the date first written above by their respective
officers "hereunto duly authorized."
TRIZECHAHN CENTERS INC.
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Vice President
THE XXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Secretary
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