EXHIBIT 10.4
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of September 23, 1998 (this "Amendment"), between
TrizecHahn 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:
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WHEREAS, THCI, Xxxxx and Westfield are parties to an Asset Purchase
Agreement, dated as of April 6, 1998, as amended by letter agreement dated as of
July 30, 1998, Amendment No. 1 dated as of July 31, 1998 and Amendment No. 2
dated as of August 31, 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
AMENDMENT TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01. Amendment to Section 5.01(e). Section 5.01(e) of the Asset
Purchase Agreement is hereby amended by deleting the fourth sentence thereof and
replacing such sentence with the following:
"At the Applicable Closing, the Acquirors shall cause an Affiliate of
either Acquiror to purchase the TC Interest of the applicable Co-
Tenant (and, at such time, all amounts owed between the co-tenants
shall be settled) and, thereafter the Acquirors shall cause each
associated Property to continue to be held as a Tenancy under the
applicable tenancy-in-common agreement until the earlier of (i) the
sale to an unaffiliated third party by the applicable Acquiror's
associated co-tenants of the entire Property Assets associated with
such Property or (ii) January 1, 2001, in the case of North County
Fair, and January 1, 2000, in the case of Fashion Show;
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provided that nothing contained herein shall prevent Acquiror's
associated co-tenants from transferring partial co-tenancy interests
in each associated Property."
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).
(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
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all necessary corporate action and no other corporate proceedings on the
part of such Acquiror is 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, reorganization, 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.
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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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
thereunto duly authorized.
TRIZECHAHN CENTERS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
THE XXXXX COMPANY
By /s/ R.E. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
