EXHIBIT 10.22
FIRST AMENDMENT TO
GSP OPTION AGREEMENT
THIS FIRST AMENDMENT TO GSP OPTION AGREEMENT, dated as of May __,
1997, is made by and between WESTFIELD CAPITAL CORPORATION FINANCE PTY.
LIMITED, a corporation organized under the laws of New South Wales, Australia
("Grantor"), and WESTFIELD AMERICA, INC., a Missouri corporation (formerly
known as CenterMark Properties, Inc.) ("Grantee").
W I T N E S S E T H :
WHEREAS, the Grantor and Grantee are parties to that certain GSP
Option Agreement (the "Original GSP Option Agreement"), dated as of July 1,
1996, pursuant to which the Grantor granted to the Grantee the option to
acquire all of the outstanding common stock of Westland Realty, Inc.; and
WHEREAS, the Grantor and the Grantee desire to amend the Original
GSP Option Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Grantor and the Grantee
agree as follows:
1. DEFINITIONS: All capitalized terms used herein without
definition shall have the respective meanings set forth in the Original GSP
Option Agreement.
2. AMENDMENT TO SECTION 2. Section 2 of the Original GSP Option
Agreement is hereby amended by deleting such section in its entirety and
substituting the following therefor:
"2. OPTION TERM.
(a) The Grantee's right to exercise the Option shall
commence on the first business day after the date of delivery of
the Valuation Notice (as such term is defined in Section 5.2(b))
and shall continue until 5:00 p.m. (e.s.t.) on the 120th
consecutive day thereafter (the "Option Period").
(b) The Grantor shall deliver written notice (the
"Stabilization Notice") to the Grantee, delivered in the manner
provided in Section 16.5 hereof, upon the earlier to occur of the
following events:
(i) the completion and stabilization of the current
expansion of the property (as more generally described on
Exhibit A hereto) which shall be deemed to have occurred
when 95% of the gross leasable area of the expansion
(excluding premises leased to anchor tenants) has been
leased to bona fide third party tenants; or
(ii) the date 18 months after the Grantee receives written
notice, delivered as provided in Section 16.5, from the
Grantor stating that the construction of the expansion has
been substantially completed.
(c) The valuation procedure resulting in the Valuation
Notice shall commence upon the earlier to occur of the following
events (the "Valuation Procedure Commencement Events"):
(i) The Grantee's delivery of written notice to the
Grantor, delivered at any time after the Grantee's receipt
of the Stabilization Notice, stating that the Grantee has
elected to commence the valuation procedure; or
(ii) January 3, 2000, as such date may be extended by
agreement of the Grantor and the Grantee;
provided that in any such case the Grantee shall deliver written
notice to the Grantor of its election to commence the valuation
procedure prior to 5:00 p.m. (e.s.t.) on January 3, 2000.
3. AMENDMENT TO SECTION 5.1(B). Section 5.1(b) of the Original GSP
Option Agreement is amended by deleting the reference to "Class B-2 common
stock" and substituting "common stock" therefor.
4. AMENDMENT TO SECTION 5.2(A). Section 5.2(a) of the Original GSP
Option Agreement is amended by deleting such section in its entirety and
substituting the following therefor:
"(a) Promptly after the receipt by the Grantor of notice
from the Grantee under Section 2(c)(i) of the Grantee's
election to commence the valuation procedure, the Grantor
and the Grantee shall appoint ▇▇▇▇▇▇▇▇ Real Estate
Counselors ("▇▇▇▇▇▇▇▇") or such other independent real
estate appraiser as shall be agreed upon by the Grantor and
the Grantee as the appraiser to determine the fair market
value of the Property (the "Fair Market Value of the
Property"). ▇▇▇▇▇▇▇▇ or such other mutually agreed upon
appraiser shall be defined herein as the "Appraiser". If
the Grantor and/or the Grantee shall desire to appoint
another appraiser but cannot agree on the identity of such
other appraiser for any reason or no reason within 15
business days of the date of the Grantee's notice under
Section
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2(c), the Appraiser shall be ▇▇▇▇▇▇▇▇. The determination
of the Fair Market Value of the Property determined by the
Appraiser shall be binding upon the Grantor and the Grantee,
and shall be delivered by the Appraiser in writing to the
Grantor and the Grantee within 30 days of the appointment of
the Appraiser."
5. AMENDMENT TO SECTION 16.1. Section 16.1 of the Original GSP
Option Agreement is amended by deleting clause (iv) thereof in its entirety and
renumbering clause (v) to be clause (iv).
6. AMENDMENT TO SCHEDULE I. Schedule I to the Original GSP Option
Agreement is hereby amended by substituting the Schedule I attached hereto
therefor so as to recognize that the $145,000,000 loan being made by the Grantee
to Westland Realty as of the date hereof may remain outstanding upon any
exercise of the Option.
7. AMENDMENT TO EXHIBIT A. Exhibit A to the Original GSP Option
Agreement is hereby amended by substituting the Exhibit A attached hereto
therefor.
8. RATIFICATION. Except as amended hereby, the Original GSP Option
Agreement is hereby ratified and remains in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument with the same effect as if all parties hereto had all signed the
same signature page. Any signature page of this Agreement may be detached from
any counterpart of this Agreement without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Agreement
identical in form hereto but having attached to it one more additional signature
pages.
10. EFFECTIVE DATE. This Agreement shall be effective as of the
closing of the initial public offering of common stock of the Grantee pursuant
to its Registration Statement on Form S-11 (No. 333-22731).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
WESTFIELD AMERICA, INC.
By:______________________________________________
Name:
Title:
WESTFIELD CAPITAL CORPORATION
FINANCE PTY. LIMITED
By:______________________________________________
Name:
Title:
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SCHEDULE I
SUBSIDIARY DEBT
1. $145,000,000 loan by Grantee to Westland Management, Inc. and Westfield
Partners, Inc.
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EXHIBIT A
DESCRIPTION OF EXPANSION
The expansions consist of (i) the two department store and
200,000 square feet of additional mall gross leasable area expansion that
opened in the Fall of 1996 and (ii) the expansion currently under
construction scheduled to open in the Summer of 1997 of approximately 50,000
square feet of mall gross leasable area connecting the food court to the
lower level of the expansion area.
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