EXHIBIT 10.8
AMENDMENT NO. 7
TO ASSET PURCHASE AGREEMENT
DATED AS OF APRIL 6, 1998
This AMENDMENT NO. 7 to Asset Purchase Agreement is, dated as of
October 30, 1998 (this "Amendment"), among 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 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 and by Amendment No. 6 dated October 22, 1998 ( the
"Asset Purchase Agreement"; terms defined in the Asset Purchase Agreement and
not otherwise defined 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 Amendment to Section 5.10(b) of the Asset Purchase
Agreement. Section 5.10(b) of the Asset Purchase Agreement is hereby amended and
restated as follows:
"(b)(1) THCI and the Acquirors acknowledge that Affiliates of THCI
entered into an agreement dated as of October 27, 1998 with all of the partners
in DPA, L.P. (all of such partners, excluding DPA, being the "DP Partners",)
pursuant to which THCI's Affiliates will acquire the limited partner interests
of the DP Partners in DPA, L.P. for an aggregate purchase price of $18,032,000
on the Applicable Closing Date for Downtown Plaza (and the general partner
interest of one DP Partner will be redeemed for $368,000 (the "Redeemed
Interest")) (the "THCI Purchase"). On the Applicable Closing Date for Downtown
Plaza, THCI shall cause to be
sold to the Acquirors, and the Acquirors shall purchase from DPA, L.P., the
Downtown Plaza Property Assets for the Adjusted Allocated Purchase Price
therefor, in lieu of THCI selling and the Acquirors acquiring 100% of the stock
of DPA.
(2) The Acquirors and THCI agree that Canadian Imperial Bank of
Commerce ("CIBC"), holder of the Existing Debt on Downtown Plaza (the "CIBC
Loan"), has required payment of the following fees (each, a "CIBC Fee" and
collectively, the "CIBC Fees") in connection with the assumption by an affiliate
of Westfield of the CIBC Loan and the extension of the maturity date of the CIBC
Loan until June 2, 1999: (i) a fee of $184,952 on the Applicable Closing Date;
(ii) the Second Fee (as defined in the Assignment and Assumption, Release and
Modification of Loan Documents Agreement, dated as of the Applicable Closing
Date for Downtown Plaza); and (iii) CIBC may require the payment of attorneys'
fees and title endorsement fees in connection with such assumption. THCI agrees
to pay each CIBC Fee when due and the Acquirors shall reimburse THCI for 50% of
each such payment of a CIBC Fee on such Closing Date with respect to the
$184,952 CIBC Fee and, with respect to the other CIBC Fees, within five (5)
Business Days after THCI notifies the Acquirors that THCI has paid the subject
other CIBC Fee.
(3) The Acquirors acknowledge that the Guarantee of Indebtedness (the
"THCI Guaranty"), dated November 27, 1991 made by THCI in favor of CIBC of the
CIBC Loan will not be released on the Applicable Closing Date for Downtown
Plaza. Westfield hereby confirms that the terms of Section 5.05(d) shall
continue to apply to the THCI Guaranty. In addition to the foregoing, Westfield
agrees that if the THCI Guaranty has not been released prior to Xxxxx 0, 0000,
Xxxxxxxxx shall on or prior to March 2, 1999 offer to CIBC its guaranty in
substitution of the THCI Guaranty in substantially the same form thereof and to
prepay $10,000,000 of the CIBC Loan in exchange for CIBC releasing the THCI
Guaranty, and if such offer is accepted by CIBC, Westfield shall make such
prepayment and deliver such guaranty (the "Replacement Guaranty") on the date
agreed to by CIBC. Such offer shall be unconditional and shall not be subject to
any other modification of the CIBC loan documents, except for the release of the
THCI Guaranty. In the event that Westfield fails to make such offer on or prior
to March 2, 1999, then THCI shall have the right, at any time thereafter, on
behalf of Westfield, to offer to CIBC a $10,000,000 prepayment of the CIBC Loan
and/or the Replacement Guaranty in exchange for CIBC releasing the THCI
Guaranty, and, if CIBC accepts such offer, (i) Westfield (if requested) will
deliver the Replacement Guaranty, (ii) conditioned only upon delivery of the
Replacement Guaranty, THCI shall make such prepayment to CIBC and (iii)
Westfield shall reimburse THCI for the full amount of such prepayment upon
demand the indemnity of Westfield hereunder shall apply to such reimbursement
obligation without regard to the Threshold Amount. Westfield agrees not to
extend or otherwise amend the CIBC Loan (as extended until June 2, 1999) or any
of the documents relating thereto unless the THCI Guaranty is released at the
time of such extension or amendment."
SECTION 1.02. Amendment to definition of "Adjusted Allocated Purchase
Price" in Section 1.01. Section 1.01 of the Asset Purchase Agreement is hereby
amended by adding the following at the end of the definition of "Adjusted
Allocated Purchase Price":
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"(f) Notwithstanding clause (a) above, the Adjusted Allocated Purchase
Price for the Downtown Plaza Property Assets shall equal the sum of (i) Thirty-
six Million One Hundred Thousand Dollars ($36,100,000), plus or minus, as
applicable one hundred percent (100.0%) of the net amount of prorations made in
accordance with Section 2.07(a) for the Downtown Plaza Property Assets as of the
day preceding the Applicable Closing Date, plus (ii) Eighteen Million Four
Hundred Thousand Dollars ($18,400,000) which shall be used by THCI to consummate
the THCI Purchase, plus (iii) the Capital Costs paid on or prior to the
Applicable Closing by THCI or DPA, L.P., with respect to such property under
leases and construction contracts that are executed and delivered after the date
of this Agreement and renewals and extensions, exercised or executed after the
date of this Agreement, of leases executed on or prior to the date of this
Agreement, in each case in accordance with the terms of this Agreement, plus
(iv) the cash (net of outstanding payments) held by the Management Company for
the benefit of DPA, L.P., minus $700,000."
"(g) The "Adjusted Allocated Purchase Price" for Xxxxxx Plaza shall be
reduced by $75,000 on account of certain alleged defective floor covering work
performed at Xxxxxx Plaza."
SECTION 1.03. Completion of Performance of ADA Work. THCI agrees (i)
to cause, at no cost or expense to the Acquirors and in a good and xxxxxxx-like
manner and in compliance with all Laws, the performance of the remediation
obligations of THCI and/or its Affiliates (the "Remediation Work") pursuant to
the settlement agreement relating to Civil Case Number S-96-1605 LKK/GGH
currently pending in United States District Court for the Eastern District of
California, and (ii) to keep Downtown Plaza free of liens arising from the
Remediation Work. THCI, DPA, L.P., DPA-H, Inc. and their respective agents and
contractors shall have the right to enter Downtown Plaza for the purpose of
completing the Remediation Work during reasonable and customary hours for the
performance of construction work of the same type and character as the
Remediation Work. THCI agrees to indemnify the Acquirors from and against any
and all losses, damages or claims suffered by the Acquirors as a result of any
such entry. Upon completion of the Remediation Work, THCI will cause the
assignment to the Acquirors without representation or warranty of any and all
express or implied warranties received from the contractors and their
subcontractors performing the Remediation Work.
SECTION 1.04. Amendment to Definition of "Excluded Property Assets" in
Section 101. Section 1.01 of the Asset Purchase Agreement is hereby amended by
adding the following at the end of the definition of "Excluded Property Assets":
"In addition, with respect to Xxxxxx Plaza only, the term
`Excluded Property Assets' shall also include (A) that certain
Standard Form of Agreement Between Owner and Contractor dated February
l2, 1998 by and between Xxxxxx Xxxxxx Construction Company and
HSD/Xxxxxx Associates, a California general partnership (the `Xxxxxx
Plaza Construction Contract') and the construction obligations
thereunder (the `Xxxxxx Plaza Construction Work')."
SECTION 1.05. Xxxxxx Plaza Construction Work. THCI agrees (i) to
cause, at no cost or expense to the Acquirors, the completion of that portion of
the Xxxxxx Plaza
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Construction Work represented by the punch lists attached hereto as Exhibit "A"
(the "Xxxxxx Plaza Punchlist Work") in a good and workmanlike manner and in
compliance with all Laws and (ii) to keep Xxxxxx Plaza free of liens arising
from the Xxxxxx Plaza Punchlist Work. THCI, HSD Xxxxxx Associates and their
respective agents and contractors shall have the right to enter Xxxxxx Plaza for
the purpose of completing the Xxxxxx Plaza Punchlist Work during reasonable and
customary hours for the performance of construction work of the same type and
character as the Xxxxxx Plaza Punchlist Work. THCI agrees to indemnify the
Acquirors from and against any and all losses, damages or claims suffered by the
Acquirors as a result of any such entry. Upon completion of the Xxxxxx Plaza
Punchlist Work, THCI will assign or cause to be assigned to the Acquirors
without representation or warranty any and all express or implied warranties
received from the contractor and its subcontractors under the Xxxxxx Plaza
Construction Contract.
SECTION 1.06. Xxxxxx Plaza CAM Claim.
(a) THCI acknowledges that Nordstrom Inc. claims that HSD/Xxxxxx
Associates has over collected common area maintenance costs and merchants
association dues in the amount of $652,348 and that THCI is responsible for the
amount of any such over collection (and any interest thereon). THCI shall cause
HSD/Xxxxxx Associates to investigate the validity of such claim and use its
diligent efforts to resolve such claim in full to Nordstrom Inc.'s and
Westfield's reasonable satisfaction within thirty (30) days of the date hereof.
(b) If THCI has not resolved such claim to Nordstrom's and Westfield's
reasonable satisfaction by the earlier of (i) provided the Acquirors are not
then in breach of their obligation to close the acquisition of Los Cerritos
Mall, November 30, 1998, or (ii) the Applicable Closing Date for Los Cerritos
Mall, the Acquirors shall receive a credit against the Adjusted Allocated
Purchase Price for Los Cerritos Mall in the amount of such claim less the sum of
(i) any portion of such claim which THCI has paid and (ii) any portion of such
claim which THCI demonstrates to Westfield's reasonable satisfaction as being
without merit (or, if the Applicable Closing Date for Los Cerritos Mall has not
occurred by November 30, 1998, provided Acquirors are not then in breach of
their obligation to close the acquisition of Los Cerritos Mall, THCI shall pay
such amount to Westfield). Westfield agrees to promptly pay to Nordstrom, Inc.
the full amount of such credit or payment received by Westfield. Nothing
contained in this Section 1.06(b) shall limit THCI's responsibility for the
Nordstrom's claim or THC1's indemnification obligations with respect thereto
pursuant to Section 9.02(a)(iv) of the Agreement.
SECTION 1.07. Preliminary Adjustment of Prorations.
The word "prior" in Section 1.03 of Amendment No. 4 is hereby deleted
and replaced with "on or prior."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. Authority; Effect on Asset Purchase Agreement.
(a) THCI hereby represents as follows:
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(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 past 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 va1idly 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
THC1, 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 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,
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moratoriums 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
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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 hereunto duly authorized.
TR1ZECHAHN CENTERS INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
THE XXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
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