EXHIBIT 10.27
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT(hereinafter called the "Agreement"), dated
as of May __, 1997, among WESTFIELD AMERICA, INC., a Missouri corporation (the
"Company"), XXXXX X. XXXX, XXXXX X. XXXX, XXXXX X. XXXX and XXXXXX X. XXXX
(collectively, the "Xxxx Family").
RECITALS
WHEREAS, the Company is in the business of owning, operating, leasing,
developing, redeveloping and acquiring shopping centers and powers centers
(collectively, the "Centers") in the United States;
WHEREAS, the Xxxx Family and interests associated with the Xxxx Family
currently have significant ownership interests and significant management
involvement in the operations of Westfield Holdings Limited, an Australian
corporation ("WHL", and together with its subsidiaries, the "Westfield Group"),
and WHL is a shareholder of the Company; and
WHEREAS, the Company plans to undertake an initial public offering
(the "Public Offering") of shares of common stock, par value $.01 per share (the
"Common Stock"), and, in connection therewith, the Xxxx Family has agreed to
enter into certain restrictive covenants on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. NON-COMPETITION. Each member of the Xxxx Family shall not,
directly or indirectly, acquire any ownership interest in shopping center
properties or power centers in the United States (a "Competitive Business") or
own an interest in, as a partner, member, stockholder, co-venturer or otherwise,
any corporation, company, partnership, firm, association, enterprise or other
entity that owns any ownership interest in a Competitive Business, PROVIDED that
nothing contained in this Section 1 shall prohibit or restrain any member of the
Xxxx Family from (a) owning any interest in WHL (which is the owner of Garden
State Plaza Shopping Center in Paramus, New Jersey) or Westfield America
Trust, an Australian public property trust organized under the laws of New
South Wales, (b) acquiring shares of
capital stock or other equity interests in any entity where such shares or
interests represent a minority interest of 5% or less of such entity's
outstanding capital stock or equity interests, PROVIDED that such entity is not
controlled by members of the Xxxx Family or WHL or any of its subsidiaries and
employees of the Westfield Group do not serve as an executive officer, director,
manager or advisor to such entity, (c) acquiring indebtedness of any person, (d)
acquiring by asset purchase, stock purchase, merger, consolidation or otherwise
of any corporation, partnership or other business entity partially engaged in
the Competitive Business, PROVIDED that such activities relating to the
Competitive Business do not exceed 5% of the revenues or net equity of such
entity or such entity disposes of such Competitive Business within one year of
such acquisition, or (e) acquiring any interest in airport projects or the
retail portions thereof. The non-compete covenants contained in this Agreement
shall only apply to the members of the Xxxx Family for so long as (i) any member
of the Westfield Group is the Advisor (as defined in the Advisory Agreement,
dated as of July 1, 1996, as amended, between the Company and the Advisor) and
the Manager (as defined in the Management Agreements, dated as of July 1, 1996,
as amended, between the Company and/or its affiliates and the Manager) of the
Centers, and (ii) interests associated with the Xxxx Family have significant
ownership interests and significant management involvement in the operations of
WHL.
2. NOTICES. All notices, requests, demands and other communications
made in connection with this Agreement shall, except as otherwise expressly
herein provided, be in writing and shall be (a) mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
(b) transmitted by hand delivery or telecopy, addressed as follows:
(i) if to the Company, to:
Westfield America, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Co-President
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with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
(ii) if to any member of the Xxxx Family, to such member at:
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Telecopy: 011-612-9358-7165
Telephone: 000-000-0000-0000
with a copy to:
Xxxxx Xxxxxx
Wentworth Associates
Xxxxx 00
XXX Xxxxxx
Xxxxxx Xxxxx, Xxxxxx
XXX 0000 Xxxxxxxxx
Telecopy: (00-0) 0000-0000
Telephone: (00-0) 0000-0000
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
3. REMEDIES. The parties hereto agree that in the event of any
violation by any member of the Xxxx Family of the provisions of Section 1 of
this Agreement, the Company will be irreparably damaged. Accordingly, the
Company shall be entitled to an injunction (either preliminary, permanent or
both) restraining any violation of the provisions of Section 1 of this Agreement
by any member of the Xxxx Family or to any other appropriate decree of specific
performance.
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4. SEVERABILITY. If any provision of this Agreement is inoperative
or unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable, unless to give effect to any
such remaining provision or provisions would frustrate the purpose and intention
of the parties hereunder. The invalidity of any one or more phrases, sentences,
clauses, sections or subsections of this Agreement shall not affect the
remaining portions of this Agreement.
5. HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
6. ENTIRE AGREEMENT. This Agreement, together with all exhibits
hereto, constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
7. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and both of which shall
together constitute one and the same instrument.
8. GOVERNING LAW. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the internal laws of the
State of New York.
9. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, executors, administrators and successors.
10. AMENDMENT; WAIVERS. No amendment, modification or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought.
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
WESTFIELD AMERICA, INC.
By: ________________________________
Name:
Title:
____________________________________
Xxxxx X. Xxxx
____________________________________
Xxxxx X. Xxxx
____________________________________
Xxxxx X. Xxxx
____________________________________
Xxxxxx X. Xxxx
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