EXHIBIT 10.3
AMENDMENT NO.2
AMENDMENT NO.2, dated as of August 31, 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 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 (the "Asset Purchase Agreement"); terms
defined in the Asset Purchase Agreement and not otherwise defined herein being
used herein as therein defined;
WHEREAS, the Asset Purchase Agreement was amended pursuant to that certain
Amendment No. 1 dated as of July 31, 1998, between THCI and Xxxxx and Westfield
("Amendment No. 1");
WHEREAS, following the execution hereof, pursuant to that certain
Assignment and Assumption of Management Agreement of even date herewith, Santa
Xxxxx Management Company, a Delaware corporation and wholly-owned subsidiary of
THCI ("Santa Xxxxx Management"), will assign to the Management Company all of
its right, title, interest, obligations and duties under the agreement between
Xxxxx Associates and Santa Xxxxx Management then in effect pursuant to which
Santa Xxxxx Management agreed to operate and manage Santa Xxxxx Fashion Park
(the "Management 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 1
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
Section 1.01. Indemnification by THCI. Paragraph (a) of Section 9.02 of the
Asset Purchase Agreement is hereby amended by (1) deleting the word "and"
immediately prior to clause (v) and substituting a comma in lieu thereof, (2)
deleting the period following the words "Section 5.15" at the end of the clause
(v) and substituting the word "and" in lieu thereof, and (3) adding a new clause
(vi) immediately following clause (v):
"(vi) the operation, management and maintenance of Santa Xxxxx Fashion
Park by Santa Xxxxx Management Company, a Delaware corporation ("Santa Xxxxx
Management"), pursuant to the property management agreement with Xxxxx
Associates in effect on September 1, 1998 (the "Management Agreement"), from and
after the Initial Closing and prior to the assignment by Santa Xxxxx Management
of its right, title, interest, duties and obligations under the Management
Agreement to the Management Company pursuant to that certain Assignment and
Assumption of Management Agreement dated as of September 1, 1998."
ARTICLE II
ADDITIONAL AGREEMENTS
SECTION 2.01. Agreements Regarding the Management of Santa Xxxxx Fashion
Park. (a) Termination or Assignment of the Management Agreement. Notwithstanding
anything to the contrary contained in Amendment No. 1, the parties hereto agree
that in the event THCI's interest in Santa Xxxxx Fashion Park is not transferred
to the Acquirors pursuant to the Asset Purchase Agreement and the Asset Purchase
Agreement is terminated (with respect to Santa Xxxxx Fashion Park or THCI's
interest therein), then (i) THCI, Xxxxx Associates or Xxxx-UPI may terminate the
Management Agreement by giving written notice to the Management Company or its
assignee of such termination or (ii) upon the Management Company's or its
assignee's receipt of written notice from THCI, the Management Company or its
assignee shall assign its rights under the Management Agreement to THCI or an
entity designated by THCI. THCI, Xxxxx Associates or Xxxx-UPI, as the case may
be, shall designate the date on which such termination or assignment is to be
effective, which date shall not be more than ninety (90) days after the date of
such notice. The Acquirors shall cause the Management Company or its assignee to
perform their respective obligations under this Section (a).
(b) THCI's On-Site Employees. Notwithstanding anything to the contrary
contained in Amendment No. 1, the Acquirors shall cause the Management Company
or its assignee to hire all of "TrizecHahn's On-Site Employees" (as such term is
defined in the Employee Utilization Agreement of even date herewith by and
between THCI and Xxxxx Associates, such agreement being referred to herein as
the "Santa Xxxxx Employee Utilization Agreement") who are working on-site at
Santa Xxxxx Fashion Park and employed by THCI in accordance with the Santa Xxxxx
Employee Utilization Agreement at the time THCI's interest in Santa Xxxxx
Fashion Park is transferred to the Acquirors pursuant to the Asset Purchase
Agreement, on terms equivalent to the terms applicable at such time to such
employees in their positions as employees of THCI; provided, however, the
Management Company or its assignee shall not be required to hire any
TrizecHahn's On-Site Employee who the Management Company or its assignee has
requested THCI to terminate or reassign pursuant to the provisions of the Santa
Xxxxx Employee Utilization Agreement. With respect to any TrizecHahn's On-Site
Employee who is not hired by the Management Company or its assignee pursuant to
the foregoing, the provisions of Section 6.08 of the Asset Purchase Agreement
(as modified by Amendment No. 1) shall apply to any payments made to such
employee which are required to be made pursuant to any plan described in Section
6.03(I)(A) or 6.03(II)(A) of the THCI Disclosure Schedule. If any TrizecHahn's
On-Site Employee does not follow directions given by the Management Company or
its assignee or Manager's On-Site Employees (as such term is defined in the
Santa Xxxxx Employee Utilization Agreement) because THCI instructs such employee
not to follow such directions, then any act or
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failure to act by such employee which results from such instructions of THCI
shall be considered an act or omission of THCI and not of the Management Company
for purposes of Section 2.06 of the Asset Purchase Agreement.
(c) Fee Paid to Owner. As consideration for Xxxxx Associates allowing, or
causing THCI to allow, the Management Company or its assignee to direct
TrizecHahn's On-Site Employees pursuant to the Santa Xxxxx Employee Utilization
Agreement, the Acquirors shall cause the Management Company or its assignee to
pay Xxxxx Associates a fee of Ten Thousand Dollars ($10,000) (the "Fee"). The
Fee shall be paid in its entirety on the date of the Closing of the transfer of
THCI's interest in Santa Xxxxx Fashion Park to the Acquirors pursuant to the
Asset Purchase Agreement.
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 undo the Asset
Purchase Agreement (as amended by this Amendment and Amendment No. 1) and
to consummate the transactions contemplated by the Asset Purchase Agreement
(as amended by this Amendment and Amendment No. 1).
(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 and Amendment No. 1) have been duly
and validly authored 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 and Amendment No. 1).
(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 and Amendment No. 1) constitutes the legal valid and
binding obligation of THCI, enforceable again 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 Amendment No. 1) and to
consummate
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the transactions contemplated by the Asset Purchase Agreement (as amended
by this Amendment and Amendment No. 1).
(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 and Amendment No. 1) 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 and Amendment
No. 1).
(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 and Amendment No. 1) 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 and by Amendment No. 1, 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 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/ 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
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