<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 25, 1998
WESTFIELD AMERICA, INC.
_____________________________________________________
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MISSOURI 1-12923 43-0758627
- ---------------------------- ------------------------ --------------------
(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NUMBER)
11601 WILSHIRE BOULEVARD
12TH FLOOR
LOS ANGELES, CALIFORNIA 90025
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICERS)
_________________________________________
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 310/445-2427
NO CHANGE
_______________________________
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
<PAGE>
ITEM 2. Acquisition or Disposition of Assets.
------------------------------------
On September 28, 1998, Westfield America, Inc. (the "Company") announced
its acquisition, on September 25, 1998, of a 39.7% interest in Santa Anita
Fashion Park, located in Arcadia, California, and 100% interests in each of
Parkway Plaza, located in El Cajon, California and Solano Mall, located in
Fairfield, California (the "September Acquisition"). On October 7, 1998, the
Company announced its acquisition on that date of a 49% interest in Capital
Mall, located in Olympia, Washington, and 100% interests in each of Fox Hills
Mall, located in Culver City, California and Oakridge Mall, located in San Jose,
California (the "October Acquisition"). The acquisitions were made pursuant to
an Asset Purchase Agreement, dated as of April 6, 1998, between TrizecHahn
Centers, Inc. ("TrizecHahn") and The Rouse Company and the Company, as amended
by Amendment No. 1 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 and by Amendment No. 5 dated as of October
7, 1998.
The acquisitions were made through separate limited liability companies
wholly-owned by Westfield America Limited Partnership, the operating partnership
through which the Company conducts substantially all of its business. The
Company paid a total consideration of $308 million for the September Acquisition
and $184 million for the October Acquisition to affiliates of TrizecHahn,
including the assumption of approximately $62 million of mortgage indebtedness
and $76 million of mortgage indebtedness, respectively. The amount of
consideration was determined by arm's length negotiations. The funds for these
acquisitions came from borrowings under the Company's unsecured corporate credit
facility with a group of banks led by National Australia Bank and borrowings
under a bridge financing provided by a consortium of banks led by Union Bank of
Switzerland.
Santa Anita Fashion Park is a super regional shopping center with 1,097,000
square feet of gross leasable area. It has 146 specialty stores and four
anchors: Nordstrom, Macy's, Robinsons-May and JCPenney.
Parkway Plaza is a super regional shopping center with 1,032,000 square
feet of gross leasable area. It has 175 specialty stores and four anchors:
Robinsons-May, JCPenney, Sears and Mervyn's.
Solano Mall is a super regional shopping center with 1,012,000 square feet
of gross leasable area. It has 145 specialty stores and four anchors: Macy's,
JCPenney, Sears and Mervyn's.
Capital Mall is a regional shopping center with 602,000 square feet of
gross leasable area. It has 93 specialty stores and four anchors: JCPenney,
Mervyn's, Bon Marche and Lamonts.
<PAGE>
Fox Hills Mall is a super regional shopping center with 889,000 square feet
of gross leasable area. It has 132 specialty stores and three anchors: Macy's,
Robinsons-May and JCPenney.
Oakridge Mall is a regional shopping center with 797,000 square feet of
gross leasable area. It has 102 specialty stores and three anchors: Macy's,
Sears and Montgomery Ward.
The Company intends to continue to operate each of Santa Anita Fashion
Park, Parkway Plaza, Solano Mall and Fox Hills Mall as a super regional shopping
center and each of Capital Mall and Oakridge Mall as a regional shopping center
for the foreseeable future.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The Company will file financial statements of the businesses acquired and
pro forma financial information within sixty days of the date of this filing.
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<C> <S>
10.1 Asset Purchase Agreement, dated as of April 6, 1998, between
TrizecHahn, and The Rouse Company and the Company, incorporated
herein by reference to Exhibit 10.1 to the Company's Form 10-Q
for the quarter ended June 30, 1998.
10.2 Amendment No. 1, dated as of July 31, 1998, between TrizecHahn,
and The Rouse Company and the Company, incorporated herein by
reference to Exhibit 10.2 to the Company's Form 8-K dated July
31, 1998.
10.3 Amendment No. 2, dated as of August 31, 1998, between TrizecHahn,
and The Rouse Company and the Company.
10.4 Amendment No. 3, dated as of September 23, 1998, between
TrizecHahn, and The Rouse Company and the Company.
10.5 Amendment No. 4, dated as of September 25, 1998, between
TrizecHahn, and The Rouse Company and the Company.
10.6 Amendment No. 5, dated as of October 7, 1998, between TrizecHahn,
and The Rouse Company and the Company.
99.1 Copy of the Press Release, dated September 28, 1998, issued by
the Company, publicly announcing the activities reported therein.
99.2 Copy of the Press Release, dated October 7, 1998, issued by the
Company, publicly announcing the activities reported therein.
</TABLE>
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WESTFIELD AMERICA, INC.
Date: October 13, 1998 By: /s/ Irv Hepner
-------------------------------------
Irv Hepner
Secretary
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<C> <S>
10.1 Asset Purchase Agreement, dated as of April 6, 1998, between
TrizecHahn, and The Rouse Company and the Company, incorporated
herein by reference to Exhibit 10.1 to the Company's Form 10-Q
for the quarter ended June 30, 1998.
10.2 Amendment No. 1, dated as of July 31, 1998, between TrizecHahn,
and The Rouse Company and the Company, incorporated herein by
reference to Exhibit 10.2 to the Company's Form 8-K dated July
31, 1998.
10.3 Amendment No. 2, dated as of August 31, 1998, between TrizecHahn,
and The Rouse Company and the Company.
10.4 Amendment No. 3, dated as of September 23, 1998, between
TrizecHahn, and The Rouse Company and the Company.
10.5 Amendment No. 4, dated as of September 25, 1998, between
TrizecHahn, and The Rouse Company and the Company.
10.6 Amendment No. 5, dated as of October 7, 1998, between TrizecHahn,
and The Rouse Company and the Company.
99.1 Copy of the Press Release, dated September 28, 1998, issued by
the Company, publicly announcing the activities reported therein.
99.2 Copy of the Press Release, dated October 7, 1998, issued by the
Company, publicly announcing the activities reported therein.
</TABLE>
<PAGE>
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 Rouse
Company, a Maryland corporation ("Rouse"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Rouse, the "Acquirors")
W I N E S S E T H:
- - - - - - - - -
WHEREAS, THCI, Rouse 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 Rouse 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
Anita Management Company, a Delaware corporation and wholly-owned subsidiary of
THCI ("Santa Anita Management"), will assign to the Management Company all of
its right, title, interest, obligations and duties under the agreement between
Anita Associates and Santa Anita Management then in effect pursuant to which
Santa Anita Management agreed to operate and manage Santa Anita Fashion Park
(the "Management Agreement");
WHEREAS, THCI, Rouse 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):
<PAGE>
"(vi) the operation, management and maintenance of Santa Anita Fashion
Park by Santa Anita Management Company, a Delaware corporation ("Santa Anita
Management"), pursuant to the property management agreement with Anita
Associates in effect on September 1, 1998 (the "Management Agreement"), from and
after the Initial Closing and prior to the assignment by Santa Anita 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 Anita 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 Anita 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 Anita Fashion Park or THCI's
interest therein), then (i) THCI, Anita Associates or Hahn-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, Anita Associates or Hahn-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 Anita Associates, such agreement being referred to herein as
the "Santa Anita Employee Utilization Agreement") who are working on-site at
Santa Anita Fashion Park and employed by THCI in accordance with the Santa Anita
Employee Utilization Agreement at the time THCI's interest in Santa Anita
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
Anita 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 Anita Employee Utilization Agreement) because THCI instructs such employee
not to follow such directions, then any act or
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<PAGE>
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 Anita Associates allowing, or
causing THCI to allow, the Management Company or its assignee to direct
TrizecHahn's On-Site Employees pursuant to the Santa Anita Employee Utilization
Agreement, the Acquirors shall cause the Management Company or its assignee to
pay Anita 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 Anita 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 Rouse 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) Rouse 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
-3-
<PAGE>
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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, THCI, Rouse 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/ Douglas L. Hageman
---------------------------------------------
Name: Douglas L. Hageman
Title: Senior Vice President and General Counsel
THE ROUSE COMPANY
By: /s/ R.E. Galen
---------------------------------------------
Name: Richard E. Galen
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Irv Hepner
---------------------------------------------
Name: Irv Hepner
Title: Secretary
-5-
<PAGE>
EXHIBIT 10.4
AMENDMENT NO. 3
AMENDMENT NO. 3, dated as of September 23, 1998 (this "Amendment"), between
TrizecHahn Centers Inc., a California corporation ("THCI"), and The Rouse
Company, a Maryland corporation ("Rouse"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Rouse the "Acquirors").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, THCI, Rouse and Westfield are parties to an Asset Purchase
Agreement, dated as of April 6, 1998, as amended by letter agreement dated as of
July 30, 1998, Amendment No. 1 dated as of July 31, 1998 and Amendment No. 2
dated as of August 31, 1998 (the "Asset Purchase Agreement"; terms defined in
the Asset Purchase Agreement and not otherwise defined herein being used herein
as therein defined;
WHEREAS, THCI, Rouse 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
AMENDMENT TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01. Amendment to Section 5.01(e). Section 5.01(e) of the Asset
Purchase Agreement is hereby amended by deleting the fourth sentence thereof and
replacing such sentence with the following:
"At the Applicable Closing, the Acquirors shall cause an Affiliate of
either Acquiror to purchase the TC Interest of the applicable Co-
Tenant (and, at such time, all amounts owed between the co-tenants
shall be settled) and, thereafter the Acquirors shall cause each
associated Property to continue to be held as a Tenancy under the
applicable tenancy-in-common agreement until the earlier of (i) the
sale to an unaffiliated third party by the applicable Acquiror's
associated co-tenants of the entire Property Assets associated with
such Property or (ii) January 1, 2001, in the case of North County
Fair, and January 1, 2000, in the case of Fashion Show;
<PAGE>
2
provided that nothing contained herein shall prevent Acquiror's
associated co-tenants from transferring partial co-tenancy interests
in each associated Property."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. 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 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 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 Rouse 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) Rouse 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
<PAGE>
3
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).
(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).
(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]
<PAGE>
IN WITNESS WHEREOF, THCI, Rouse 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/ Douglas L. Hageman
-------------------------------------
Name: Douglas L. Hageman
Title: Senior Vice President
and General Counsel
THE ROUSE COMPANY
By /s/ R.E. Galen
--------------------------------------
Name: Richard E. Galen
Title: Vice President
WESTFIELD AMERICA, INC.
By /s/ Irv Hepner
--------------------------------------
Name: Irv Hepner
Title: Secretary
<PAGE>
EXHIBIT 10.5
AMENDMENT NO. 4
AMENDMENT NO. 4, dated as of September 25, 1998 (this "Amendment"),
between TrizecHahn Centers Inc., a California corporation ("THCI"), The Rouse
Company, a Maryland corporation ("Rouse"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Rouse the "Acquirors").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, THCI, Rouse 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, Rouse 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
<PAGE>
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 workman-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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<PAGE>
(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 Rouse 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) Rouse 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).
-3-
<PAGE>
(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]
-4-
<PAGE>
IN WITNESS WHEREOF, THCI, Rouse 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/ Neil Jacob
----------------------
Name: Neil Jacob
Title: Vice President
THE ROUSE COMPANY
By: /s/ R.E. Galen
----------------------
Name: Richard E. Galen
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Irv Hepner
---------------------
Name: Irv Hepner
Title: Secretary
-5-
<PAGE>
SCHEDULE 1
PARKWAY PLAZA CONSTRUCTION CONTRACTS
------------------------------------
<TABLE>
<C> <S>
Consultant: Schuss-Clark Architecture-Planning
Contract: Independent Contractor Consulting Agreement (sign planning and
design services)
Date: 12/5/97
Signatures: Schuss-Clark Architecture-Planning
Hahn: H and H - El Cajon by TrizecHahn Centers Inc.
Oscar's: SC Company, Inc.
Consultant: Schuss-Clark Architecture-Planning
Contract: Independent Contractor Agreement (modification plans)
Date: 2/9/98
Signatures: Schuss-Clark Architecture-Planning
Hahn: 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: Hahn: 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: Hahn: 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: Hahn: H and H - El Cajon by TrizecHahn Centers Inc.
Professional Services Industries
</TABLE>
<PAGE>
<TABLE>
<C> <S>
Consultant: Rolf Jensen & Associates, Inc.
Contract: Independent Contractor Agreement (finalization of fire
protection report)
Date: 7/7/98
Signatures: Hahn: H and H - El Cajon by TrizecHahn Centers Inc.
Rolf Jensen & Associates
Consultant: Graphic Solutions
Contract: Independent Contractor Agreement (sign planning and design
services)
Date: 1/20/98
Signatures: Hahn: H and H - El Cajon by TrizecHahn Centers Inc.
Graphic Solutions Environmental Graphic Design
</TABLE>
<PAGE>
EXHIBIT 10.6
AMENDMENT NO. 5
AMENDMENT NO. 5, dated as of October 7, 1998 (this "Amendment"),
between TrizecHahn Centers Inc., a California corporation ("THCI"), and The
Rouse Company, a Maryland corporation ("Rouse"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Rouse the "Acquirors").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, THCI, Rouse 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 and by Amendment No. 4 dated as of September 25, 1998 (the "Asset Purchase
Agreement"; terms defined in the Asset Purchase Agreement and not otherwise
defined herein being used herein as therein defined);
WHEREAS, THCI, Rouse 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:
<PAGE>
2
ARTICLE I
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01. Amendment to Section 5.01(c). Section 5.01(c) of the Asset
Purchase Agreement is hereby defined in its entirety and replaced with a
statement that such section has been "Intentionally Omitted."
ARTICLE II
ADDITIONAL AGREEMENTS
SECTION 2.01. Fashion Outlet. (a) The parties hereby agree that,
notwithstanding anything to the contrary contained in the Asset Purchase
Agreement, the obligations of the Acquirors to acquire Fashion Outlet or
Partnership Interests (direct or indirect) in Fashion Outlet pursuant to the
Asset Purchase Agreement or to pay the Adjusted Allocated Purchase Price
therefor are hereby terminated, and the obligations of THCI to transfer, or
cause to be transferred, Fashion Outlet or such Partnership Interests to the
Acquirors pursuant to the Asset Purchase Agreement are hereby terminated.
(b) The Acquirors hereby agree: (i) to return to THCI and to cause their
attorneys, accountants and other representatives (the "Acquiror
Representatives") to return to THCI, as soon as practicable and in any event
within ten (10) Business Days after the date of this Amendment, all written
information regarding Fashion Outlet (A) in the possession of the Management
Company or (B) provided to the Acquirors or the Acquiror Representatives by THCI
and its representatives and all copies thereof; and (ii) use its commercially
reasonable efforts to destroy, or cause to be destroyed, all analyses,
compilations, notes, abstracts, forecasts, studies and other materials (and all
electronic records thereof) prepared by the Acquirors or any of the Acquiror
Representatives based on such information or based on any oral information
provided to the Acquirors or any of the Acquiror Representatives by THCI or any
of its representatives. A duly authorized officer of each of the Acquirors shall
certify to THCI in writing that the provisions of the immediately preceding
sentence have been complied with.
(c) Except as required by Law or the rules of any securities exchange on
which the securities of either party hereto may be traded (in which case the
disclosing party shall use all reasonable efforts to provide prior notification
to the other party), no party to this Agreement shall make any public
announcement in respect of this Amendment or the transactions contemplated
hereby or otherwise communicate with any news media without
<PAGE>
3
giving prior notification thereof to the other party, and the parties shall each
consult with the other as to the timing and contents of any such announcement.
(d) The Acquirors hereby agree not to solicit, for a period of 18
months after the date hereof, existing tenants of Fashion Outlet (or prospective
tenants of Fashion Outlet known to the Acquirors prior to the date hereof) to
become tenants in any other shopping mall or shopping center in the greater Las
Vegas, Nevada market (including Primm, Nevada) which is owned, in whole or in
part, or managed, by either Acquiror or any Affiliate of either of them in lieu
of becoming a tenant or remaining a tenant of Fashion Outlet.
SECTION 2.02. Westdale Mall. The Acquirors hereby agree that, to the
extent such net worth is required pursuant to that certain letter agreement (the
"Side Letter"), dated September 1, 1980, between THCI and JMB Income Properties,
Ltd. - VII, the Acquirors will indemnify and hold harmless THCI for any loss,
cost or damage suffered by THCI as a result of any failure by the Acquirors to
cause the entity that acquires the Partnership Interests in H-N-W Associates
pursuant to the Asset Purchase Agreement to have a net worth greater than or
equal to $24,500,000. The Acquirors agree that, to the extent such net worth is
required under the terms of the Side Letter and is required by JMB Income
Properties, Ltd. - VII., the Acquirors will promptly cause such entity to have
such a net worth.
SECTION 2.03. Towson Town Center. Pursuant to Section 2.01(d) of the
Asset Purchase Agreement, THCI hereby notifies the Acquirors that the Closing
Date for the Towson Town Center Property Assets shall be October 22, 1998,
subject to all other terms and conditions of the Asset Purchase Agreement
(including THCI's right to deliver an Exclusion Notice). The Acquirors
acknowledge that no further Subsequent Closing Date Notice shall be required
to set such Closing Date.
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 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
<PAGE>
4
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 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 Rouse
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) Rouse 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 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, moratorium 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 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
<PAGE>
5
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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, THCI, Rouse 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/ Neil Jacob
-----------------------
Name: Neil Jacob
Title: Vice President
THE ROUSE COMPANY
By /s/ R.E. Galen
-----------------------
Name: Richard E. Galen
Title: Vice President
WESTFIELD AMERICA, INC.
By /s/ Irv Hepner
-----------------------
Name: Irv Hepner
Title: Secretary
<PAGE>
EXHIBIT 99.1
FOR IMMEDIATE RELEASE
SEPTEMBER 28, 1998
FOR MORE INFORMATION,
PLEASE CONTACT:
RANDALL J. SMITH, (310) 445-6822
WEBSITE: www.westfieldamercia.com
------------------------
WESTFIELD AMERICA, INC. (NYSE: WEA) ANNOUNCES ACQUISITION OF
SANTA ANITA FASHION PARK, PARKWAY PLAZA AND SOLANO MALL.
Los Angeles, CA. September 28, 1998- Westfield America, Inc. (NYSE:WEA)
announced that it has completed the acquisition of a 39.7% interest in Santa
Anita Fashion Park located in Arcadia, CA., and 100% interests in Parkway Plaza
in El Cajon, CA., and in Solano Mall in Fairfield CA. The interest in the
three super regional centers was acquired for $308 million from TrizecHahn
Corporation. With these acquisitions Westfield America has purchased five
regional shopping centers from TrizecHahn. The total acquisition cost for the
portfolio will be approximately $1.4 billion including the assumption of debt.
The closings of the remaining TrizecHahn centers are scheduled to occur before
the end of the year.
Santa Anita Fashion Park is a super regional shopping center with 1,097,000
square feet adjacent to the Santa Anita Race Track. The center is anchored by
Nordstrom, Macy's, Robinsons-May and JC Penney. The center has 146 specialty
stores including Ann Taylor, bebe, Brookstone, GapKids, Baby Gap, Godiva,
Talbots Petites and Williams Sonoma. The center is well positioned, just off of
the Interstate 210 freeway, and serves the affluent Pasadena-Arcadia market.
Total annual sales are approximately $250 million with specialty store sales of
$303 per square foot.
Parkway Plaza is a super regional shopping center with 1,032,000 square feet
located in El Cajon, CA. Parkway Plaza is anchored by Robinsons-May, Sears,
JCPenney, and Mervyn's. The mall has 175 specialty stores. Parkway Plaza's
total sales were approximately $210 million in 1997, with specialty store sales
of $297 per square foot. The center serves the growing eastern suburbs of San
Diego.
Solano Mall is a super regional shopping center with 1,012,000 square feet
located in Fairfield, CA. Solano Mall is anchored by Macy's, JCPenney, Sears
and Mervyn's. The center has 145 specialty stores. Solano Mall's total sales
were approximately $170 million in 1997, with specialty store sales of $269 per
<PAGE>
square foot. The center is well positioned along Interstate 80 between San
Francisco and Sacramento, and serves the Fairfield and Napa Valley markets.
Westfield America, Inc. (NYSE:WEA), a real-estate investment trust, is one of
the nation's leading owners of regional shopping centers. With this acquisition
the company owns interests in 32 major shopping centers, and after the
TrizecHahn acquisition, assuming that all the TrizecHahn properties are
acquired, the company will have interests in 38 major shopping centers,
encompassing 35.2 million square feet in the states of California, Colorado,
Connecticut, Maryland, Missouri, New York, North Carolina, and Washington.
<PAGE>
EXHIBIT 99.2
FOR IMMEDIATE RELEASE
OCTOBER 7, 1998
FOR MORE INFORMATION,
PLEASE CONTACT:
RANDALL J. SMITH, (310) 445-6822
WEBSITE: www.westfieldamerica.com
------------------------
WESTFIELD AMERICA, INC. (NYSE: WEA) ANNOUNCES ACQUISITION OF
CAPITAL MALL, FOX HILLS MALL AND OAKRIDGE MALL.
Los Angeles, CA. October 7, 1998 - Westfield America, Inc. (NYSE:WEA) announced
that it has completed the acquisition of a 49% interest in Capital Mall located
in Olympia, WA., and 100% interests in Fox Hills Mall in Culver City, CA., and
in Oakridge Mall in San Jose, CA. The interest in the three regional and super
regional centers was acquired for $184 million from TrizecHahn Corporation.
With these acquisitions Westfield America has purchased eight regional and super
regional shopping centers from TrizecHahn. The total acquisition cost for the
TrizecHahn portfolio will be approximately $1.4 billion including the assumption
of debt. The closings of the remaining TrizecHahn centers are scheduled to
occur before the end of the year.
Capital Mall is a regional shopping center with 602,000 square feet of retail
space located in Olympia, WA. The center is anchored by JCPenney, Mervyn's, Bon
Marche and Lamonts. The mall has 93 specialty stores. Capital Mall's total
sales were over $105 million in 1997, and the specialty stores produced $266 per
square foot. Capital Mall is the largest shopping center serving Olympia, which
is the state capital of Washington.
Fox Hills Mall is a super regional shopping center with 889,000 square feet of
retail space located in Culver City, CA. The center is anchored by Macy's,
Robinsons-May, and JCPenney. The mall has 132 specialty stores. Fox Hills
Mall's total sales were over $140 million in 1997, and the specialty stores
produced $269 per square foot. The center has excellent visibility along
Interstate 405, and serves the very densely populated Culver City/Westside Los
Angeles market.
Oakridge Mall is a regional shopping center with 797,000 square feet of retail
space located in San Jose, CA. The center is anchored by Macy's, Sears, and
Montgomery Ward. The mall has 102 specialty stores. Oakridge Mall's total
sales were approximately $170 million in 1997, and the
<PAGE>
specialty stores produced $322 per square foot. The mall serves the affluent San
Jose market, which is dominated by a high technology economy.
Westfield America, Inc. (NYSE:WEA), a real-estate investment trust, is one of
the nation's leading owners of regional shopping centers. With this acquisition
the company owns interests in 35 major shopping centers, and after the
TrizecHahn acquisition, assuming that all the TrizecHahn properties are
acquired, the company will have interests in 38 major shopping centers,
encompassing 35.2 million square feet in the states of California, Colorado,
Connecticut, Maryland, Missouri, New York, North Carolina, and Washington.
