EXHIBIT 10.8
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of December 3, 1998 (this "AMENDMENt"),
between TrizecHahn Centers Inc., a California corporation ("THCI"), 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 the following amendments:
Amendment No. 1 dated as of July 31, 1998, Amendment No. 2 dated as of August
31, 1998, Amendment No. 3 dated as of September 22, 1998, Amendment No. 4 dated
as of September 25, 1998, Amendment No. 5 dated as of October 7, 1998, Amendment
No. 6 dated as of October 22, 1998, Amendment No. 7 dated as of October 30,1998
and Amendment No. 8 dated as of November 17, 1998 (together, the "ASSET PURCHASE
AGREEMENT"; terms not otherwise defined herein are defined in the Asset Purchase
Agreement);
WHEREAS, THCI, Xxxxx and Westfield desire to further 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 PURCHASE AGREEMENT
SECTION 1.0 Bridgewater Commons. Pursuant to that certain Purchase
and Sale Agreement (the "Bridgewater Sale Agreement"), dated July 31, 1998,
between Bridgewater Commons Associates ("BCA") and Xxxxx-Xxxxxxxxxxx Commons,
LLC ("Xxxxx-Xxxxxxxxxxx"), BCA has agreed to sell the Bridgewater Property to
Xxxxx-Xxxxxxxxxxx. Pursuant to Section 7 of the Bridgewater Sale Agreement,
except as provided to the contrary in the Bridgewater Sale Agreement, all
agreements, covenants, apportionments, representations, warranties,
indemnifications and other matters pertaining to the Bridgewater Property
contained in the Asset Purchase Agreement are incorporated in the Bridgewater
Sale Agreement.
Pursuant to Agreement and Articles of Merger dated December 3, 1998
and filed on December 3, 1998, BCA was merged with and into Bridgewater Commons
Mall, LLC, a Maryland limited liability company ("BCM-LLC"). As of the date
hereof, the sole member of BCM-LLC is Bridgewater Commons Associates, a New
Jersey general partnership formed immediately after the merger ("New BCA") which
is wholly-owned by THCI and its Affiliates. New BCA shall constitute a "THCI
Partnership" and BCM-LLC shall constitute a "Partnership" for purposes of the
Asset Purchase Agreement (and the provisions thereof incorporated into the
Bridgewater Sale Agreement). In addition, the 100% membership interest held by
New BCA in BCM-LLC shall constitute a "Partnership Interest" for purposes of the
Asset Purchase Agreement (and the provisions thereof incorporated into the
Bridgewater Sale Agreement).
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 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 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.
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/ Xxxxxxx X. 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
