EXHIBIT 10.6
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of October 7, 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:
- - - - - - - - - -
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 and by Amendment No. 4 dated as of September 25, 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:
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ARTICLE I
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01. Amendment to Section 5.01(c). Section 5.01(c) of the Asset
Purchase Agreement is hereby defined in its entirety and replaced with a
statement that such section has been "Intentionally Omitted."
ARTICLE II
ADDITIONAL AGREEMENTS
SECTION 2.01. Fashion Outlet. (a) The parties hereby agree that,
notwithstanding anything to the contrary contained in the Asset Purchase
Agreement, the obligations of the Acquirors to acquire Fashion Outlet or
Partnership Interests (direct or indirect) in Fashion Outlet pursuant to the
Asset Purchase Agreement or to pay the Adjusted Allocated Purchase Price
therefor are hereby terminated, and the obligations of THCI to transfer, or
cause to be transferred, Fashion Outlet or such Partnership Interests to the
Acquirors pursuant to the Asset Purchase Agreement are hereby terminated.
(b) The Acquirors hereby agree: (i) to return to THCI and to cause their
attorneys, accountants and other representatives (the "Acquiror
Representatives") to return to THCI, as soon as practicable and in any event
within ten (10) Business Days after the date of this Amendment, all written
information regarding Fashion Outlet (A) in the possession of the Management
Company or (B) provided to the Acquirors or the Acquiror Representatives by THCI
and its representatives and all copies thereof; and (ii) use its commercially
reasonable efforts to destroy, or cause to be destroyed, all analyses,
compilations, notes, abstracts, forecasts, studies and other materials (and all
electronic records thereof) prepared by the Acquirors or any of the Acquiror
Representatives based on such information or based on any oral information
provided to the Acquirors or any of the Acquiror Representatives by THCI or any
of its representatives. A duly authorized officer of each of the Acquirors shall
certify to THCI in writing that the provisions of the immediately preceding
sentence have been complied with.
(c) Except as required by Law or the rules of any securities exchange on
which the securities of either party hereto may be traded (in which case the
disclosing party shall use all reasonable efforts to provide prior notification
to the other party), no party to this Agreement shall make any public
announcement in respect of this Amendment or the transactions contemplated
hereby or otherwise communicate with any news media without
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giving prior notification thereof to the other party, and the parties shall each
consult with the other as to the timing and contents of any such announcement.
(d) The Acquirors hereby agree not to solicit, for a period of 18
months after the date hereof, existing tenants of Fashion Outlet (or prospective
tenants of Fashion Outlet known to the Acquirors prior to the date hereof) to
become tenants in any other shopping mall or shopping center in the greater Las
Vegas, Nevada market (including Xxxxx, Nevada) which is owned, in whole or in
part, or managed, by either Acquiror or any Affiliate of either of them in lieu
of becoming a tenant or remaining a tenant of Fashion Outlet.
SECTION 2.02. Westdale Mall. The Acquirors hereby agree that, to the
extent such net worth is required pursuant to that certain letter agreement (the
"Side Letter"), dated September 1, 1980, between THCI and JMB Income Properties,
Ltd. - VII, the Acquirors will indemnify and hold harmless THCI for any loss,
cost or damage suffered by THCI as a result of any failure by the Acquirors to
cause the entity that acquires the Partnership Interests in H-N-W Associates
pursuant to the Asset Purchase Agreement to have a net worth greater than or
equal to $24,500,000. The Acquirors agree that, to the extent such net worth is
required under the terms of the Side Letter and is required by JMB Income
Properties, Ltd. - VII., the Acquirors will promptly cause such entity to have
such a net worth.
SECTION 2.03. Towson Town Center. Pursuant to Section 2.01(d) of the
Asset Purchase Agreement, THCI hereby notifies the Acquirors that the Closing
Date for the Towson Town Center Property Assets shall be October 22, 1998,
subject to all other terms and conditions of the Asset Purchase Agreement
(including THCI's right to deliver an Exclusion Notice). The Acquirors
acknowledge that no further Subsequent Closing Date Notice shall be required
to set such Closing Date.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. 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
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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 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 3.02. 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
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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 3.03. Governing Law. This Amendment shall be governed in the same
manner as provided in Section 12.10 of the Asset Purchase Agreement.
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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/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
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
