EXHIBIT 10.5
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of September 25, 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, and Amendment No. 3 dated as of September 22, 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 ASSET PURCHASE AGREEMENT
SECTION 1.01. 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";
"(1)" THCI shall be obligated to pay $10,000 of the Acquirors'
title insurance costs at the first Subsequent Closing."
SECTION 1.02. Amendment to Definition of "Excluded Property Assets" 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 "Excluded Property Assets"
"In addition, with respect to Parkway Plaza only, the term 'Excluded
Property Assets' shall also include (A) those agreements described on
Schedule I attached
hereto and (B) any and all other construction obligations of the owner
of the Parkway Plaza Property in connection with the initial
construction of a Regal Cinemas Movie Theater which THCI or H and H -
El Cajon committed to contractors or other third parties
(collectively, the 'Parkway Plaza Construction Contracts' and the
construction obligations thereunder, the 'Parkway Plaza Construction
Work')."
SECTION 1.03. Amendment to Section 2.07(c). Section 2.07(c) of the Asset
Purchase Agreement is hereby amended by adding the following at the end thereof.
"A preliminary adjustment of the amounts prorated hereunder (i) with
respect to all Properties or Partnership Interests conveyed hereunder
prior to October 30, 1998 shall occur on November 30, 1998 and (ii)
with respect to any other Property or Partnership Interest, on the
date which is 45 days after the Subsequent Closing with respect to
such Property or Partnership Interest. An appropriate interim
settlement shall be made as soon as practicable after such preliminary
adjustments. The terms of Section 5.03(b) of the Asset Purchase
Agreement shall be applicable to such preliminary adjustments and
interim settlements."
SECTION 1.04. Amendment to Section 5.05. Section 5.05 of the Asset Purchase
Agreement is hereby amended by adding the following new paragraph (f) at the end
thereof:
"(f) THCI agrees (i) to cause, at no cost or expense to the
Acquirors, the completion of the Parkway Plaza Construction Work in
accordance with the terms of the Parkway Plaza Construction Contracts and
in a good and xxxxxxx-like manner and in compliance with all Laws and (ii)
to keep Parkway Plaza free of liens arising from the Parkway Plaza
Construction Work. THCI, H & H - El Cajon and their respective agents and
contractors shall have the right to enter Parkway Plaza for the purpose of
completing the Parkway Plaza Construction Work during reasonable and
customary hours for the performance of construction work of the same type
and character as the Parkway Plaza Construction 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. THCI shall
advise the Acquirors of the times when the final punch list is to be
prepared so as to permit the Acquirors to participate in the preparation
thereof. Upon completion of the Parkway Plaza Construction Work, THCI will
cause H & H - El Cajon to assign to the Acquirors without representation or
warranty any and all express or implied warranties received from the
contractors and their subcontractors and its subcontractors under the
Parkway Plaza Construction Contracts."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. Authority; Effect on Asset Purchase Agreement.
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(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).
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(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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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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/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
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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SCHEDULE 0
XXXXXXX XXXXX CONSTRUCTION CONTRACTS
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Consultant: Xxxxxx-Xxxxx Architecture-Planning
Contract: Independent Contractor Consulting Agreement (sign planning and
design services)
Date: 12/5/97
Signatures: Xxxxxx-Xxxxx Architecture-Planning
Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Oscar's: SC Company, Inc.
Consultant: Xxxxxx-Xxxxx Architecture-Planning
Contract: Independent Contractor Agreement (modification plans)
Date: 2/9/98
Signatures: Xxxxxx-Xxxxx Architecture-Planning
Xxxx: H and H El Cajon by TrizecHahn Centers Inc.
Oscar's SC Company, Inc.
Consultant: Centre Builders, Inc.
Contract: AIA A111
Date: 2/5/98
Consultant: Geotechnical Professionals, Inc.
Contract: Independent Contractor Agreement (geotechnical
construction-phase services)
Date: 3/13/98
Signatures: Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Geotechnical Professionals Inc.
Consultant: Professional Services Industries
Contract: First and Second Amendments to Independent Contractor Agreement
(construction materials testing and inspection)
Date: 5/5/97
Signatures: Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Professional Services Industries
Consultant: Professional Services Industries
Contract: Independent Contractor Consulting Agreement (construction
materials testing and inspection)
Date: 12/1/98
Signatures: Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Professional Services Industries
Consultant: Xxxx Xxxxxx & Associates, Inc.
Contract: Independent Contractor Agreement (finalization of fire
protection report)
Date: 7/7/98
Signatures: Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Xxxx Xxxxxx & Associates
Consultant: Graphic Solutions
Contract: Independent Contractor Agreement (sign planning and design
services)
Date: 1/20/98
Signatures: Xxxx: H and H - El Cajon by TrizecHahn Centers Inc.
Graphic Solutions Environmental Graphic Design
