EXHIBIT 10.7
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of October 22, 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, and Amendment No. 5 dated as of October 7, 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 1.01. Towson Town Center. THCI and certain of its Affiliates are
now the owner of 100% of the partnership interests in Towson Town Center
Associates, a Maryland general partnership ("TTCA"). Pursuant to Articles of
Organization dated October 15, 1998 and filed on October 19, 1998, TTCA was
converted into Towson TC, LLC, a Maryland limited liability company ("Towson TC,
LLC "). The sole member of Towson TC, LLC is Towson Town Center Associates, a
Maryland general partnership formed on October 19, 1998 ("New TTCA"). New TTCA
shall constitute a "THCI Partnership" and Towson TC, LLC shall constitute a
"Partnership" for purposes of the Asset Purchase Agreement. In addition, the
100% membership interest held by New TTCA in Towson TC, LLC shall constitute a
"Partnership Interest" for purposes of the Asset Purchase Agreement. Towson Town
Center, Inc. a Delaware corporation, shall constitute a "THCI Subsidiary" for
purposes of Section 9.02(a)(iv) of the Asset Purchase Agreement. Section 1.01(A)
of the THCI Disclosure Schedule for the Towson Town Center Property (item P.) is
hereby amended by (i) under the Partnership column (in row P.), deleting "H-T
Associates" and substituting therefor "Towson TC, LLC", (ii) under the Second
Tier Partnership column (in row P.), deleting "Towson Town
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Center Associates", and (iii) under the Transfer of column (in row P.), deleting
"Property Assets" and substituting therefor "Partnership Interest in Towson TC,
LLC."
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
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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 CENTER 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
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