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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)
July 31, 1998
WESTFIELD AMERICA, INC.
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(Exact Name of registrant as specified in its charter)
Missouri 1-12923 43-0758627
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(State of Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
11601 Wilshire Boulevard, 12th Floor, Los Angeles, California 90025
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (310) 478-4456
No Change
- -------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
This Current Report consists of 5 pages.
The Exhibit Index is located at page 5.
Page 1 of 5 pages
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On July 31, 1998, Westfield America, Inc. (the "Company") announced its
acquisition, on that date, of a 50% interest in Valley Fair Mall, located in
San Jose, California, and a 100% interest in University Towne Centre, located
in San Diego, California. 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 July
31, 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 $332 million for the
acquisitions to affiliates of TrizecHahn, including the assumption of
approximately $122 million of existing mortgage indebtedness. The amount of
consideration was determined by arm's length negotiations. The funds for
this acquisition came from borrowings under the Company's unsecured corporate
credit facility with National Australia Bank Limited, Australia and New
Zealand Banking Group Limited, Commonwealth Bank of Australia and Union Bank
of Switzerland.
Valley Fair is a super regional shopping center with 1,138,000 square feet
of gross leasable area. It has 161 specialty stores and three anchors:
Nordstrom, Macy's and a Macy's Men and Home store. The Company intends to
continue to operate Valley Fair as a super regional shopping center for the
foreseeable future.
University Towne Centre is an open air super regional shopping center with
1,033,000 square feet of gross leasable area. It has 148 specialty stores and
four anchors: Nordstrom, Robinsons-May, Macy's and Sears. The Company intends
to continue to operate University Towne Centre as a super regional 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.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
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<S> <C>
10.1 Asset Purchase Agreement, dated as of April 6, 1998, between
TrizecHahn Centers, Inc. and the Rouse Company
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and the Company, incorporated herein by reference to Exhibit 10.1
of 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
Centers Inc., and The Rouse Company and the Company.
99 Copy of the Press Release, dated July 31, 1998, issued by the
Company, publicly announcing the activities reported therein.
</TABLE>
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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: August 17, 1998 By: /s/ Irv Hepner
---------------------
Irv Hepner
Secretary
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
10.1 Asset Purchase Agreement, dated as of April 6, 1998, between
TrizecHahn Centers, Inc. and the Rouse Company and the Company,
incorporated herein by reference of the Exhibit 10.1 to 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
Centers Inc., and The Rouse Company and the Company.
99 Copy of the Press Release, dated July 31, 1998, issued by the
Company, publicly announcing the activities reported therein.
</TABLE>
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EXHIBIT 10.2
AMENDMENT NO.1
AMENDMENT NO. 1, dated as of July 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 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 (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
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01. 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 Park Meadows only, the term
'Excluded Property Assets' shall also include the Reimbursements and
the Project Cost Reimbursements (as defined in Section 2.07(e) of this
Agreement) and (A) those agreements between Park Meadows Mall, Ltd.
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and Centre Builders, Inc. pertaining to work-in-progress at Park
Meadows (i) dated March 23, 1998 regarding a parking deck, (ii) dated
March 3, 1998 regarding Entry No. I Revisions for J.C. Penney
addition, and (iii) dated March 3, 1998 regarding Crate and Barrel
expansion and (B) any and all other construction obligations of the
owner of the Park Meadows Property in connection with the initial
construction of the J.C. Penney space, the associated parking deck and
related improvements which THCI or Park Meadows Mall, Ltd. committed
to J.C. Penney, contractors or other third parties to perform for or
on behalf of J.C. Penney (collectively, the 'PARK MEADOWS CONSTRUCTION
CONTRACTS' and the construction obligations thereunder, the 'PARK
MEADOWS CONSTRUCTION WORK')."
SECTION 1.02. 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":
"(c) Notwithstanding clause (b) above, the Adjusted
Allocated Purchase Price for the Partnership Interest in HNW
Associates ('HNW') shall equal the sum of (i) Fourteen Million Four
Hundred Thousand Dollars ($14,400,000), plus or minus, as
applicable, twenty and fifty-one/one-hundredths percent (20.51%) of
the net amount of prorations made in accordance with Section
2.07(a) as of the day preceding the Applicable Closing Date, plus
(ii) any prepayment premiums, breakage costs or similar payments
required to be made by THCI or Plaza Properties of America Inc.
('PPA') (or, if made by HNW or Westdale Associates, THCI's and
PPA's share thereof) as a result of a Qualified Prepayment of
Existing Debt associated with the Westdale Property, plus (iii) the
Capital Costs paid on or prior to the Applicable Closing by THCI or
PPA (or, if by HNW or Westdale Associates, THCI's and PPA's share
thereof), with respect to such Property under leases and
construction contracts that are executed and delivered after the
date of this Agreement and renewals and extensions, exercised or
executed after the date of this Agreement, of leases executed on or
prior to the date of this Agreement, in each case in accordance
with the terms of this Agreement.
(d) Notwithstanding clause (a) above, the Adjusted Allocated
Purchase Price for the Valley Fair Property Assets shall be reduced by
ten million dollars ($10,000,000). THCI shall be obligated to pay
$140,000 of the Acquirors' title insurance costs at the Initial
Closing.
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(e) The respective obligations of the parties for payments of
Capital Costs and Expansion Costs as provided in this Agreement shall
survive each Closing. Without limiting the foregoing, in the event
that either party shall receive any invoices for any such Capital
Costs or Expansion Costs after any Closing which the other party is
obligated to pay in accordance with the terms of this Agreement, such
receiving party shall deliver such invoice to the other party which
shall promptly pay such invoice."
SECTION 1.03. AMENDMENT TO SECTION 2.01(b). Section 2.01(b) of
the Asset Purchase Agreement is hereby amended by adding the following at the
end thereof:
"(iii) Notwithstanding the foregoing, the parties acknowledge
that (A) prior to the Initial Closing, the Management Company has
assigned its interest in the THCM Property Management and Leasing
Agreement between the Management Company and Fashion Outlet of Las
Vegas Associates, relating to Fashion Outlet (the 'FO AGREEMENT') to a
wholly owned subsidiary of THCI (the 'FO SUBSIDIARY'), (B) the FO
Agreement will not be included in the assets of the Management Company
on the Initial Closing Date, and (C) no adjustment to any Allocated
Purchase Price or Adjusted Allocated Purchase Price shall be made as a
result thereof. On the Closing Date for Fashion Outlet, THCI shall
assign to the Acquirors (or, at the Acquirors' election, to a wholly
owned subsidiary of either of them or to the Management Company) (the
'FO ASSIGNEE'), and the FO Assignee shall accept, all of the stock in
the FO Subsidiary, free and clear of all liens and encumbrances (or
the Acquirors may elect to have THCI cause the FO Subsidiary to be
merged into the FO Assignee or to assign the FO Agreement to the FO
Assignee). The FO Assignee shall accept the assignment of such stock
or of the FO Agreement or enter into such merger notwithstanding that
any consents required to the assignment of such stock or of the FO
Agreement or such merger may not have been obtained. The management
fee under the FO Agreement shall be pro-rated as of the Closing Date
for Fashion Outlet. In addition, the terms of Section 2.07(d) shall
apply to the assignment of the stock of the FO Subsidiary or of the FO
Agreement to (or merger into) the FO Assignee. From and after the
date of transfer, the terms of Section 9.02(a)(iii) shall apply to the
FO Subsidiary in the same manner as applied to the Management Company.
THCI shall not permit the FO Subsidiary to incur any debt or to
conduct any business other than in connection with carrying out its
duties under the FO Agreement in the ordinary course of business.
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Notwithstanding anything contained in Section 9.02(a)(iii) (as
incorporated into this Section 2.01 (b)(iii)) and without being
subject to any of the limitations in Section 9.03, the Acquirors shall
indemnify and hold harmless THCI for any loss, claim or damage
suffered by THCI as a result of any failure of THCI, the Acquirors or
the FO Subsidiary to obtain any consent that may be required to the
assignment of the stock of the FO Subsidiary or of the FO Agreement to
the FO Assignee (or to such merger)."
SECTION 1.04. AMENDMENTS TO SECTION 2.07. (a) Section
2.07(a)(xii) of the Asset Purchase Agreement is hereby deleted in its
entirety and the following provision is substituted into the Asset Purchase
Agreement in lieu thereof:
"(a)(xii) On the Applicable Closing Date, the Acquirors shall
receive a credit (each, a 'GIFT CERTIFICATE CREDIT') for all amounts
on deposit in bank accounts maintained by THCI to fund the redemption
of gift certificates issued by THCI ('THCI GIFT CERTIFICATES'). THCI
represents that, prior to the Initial Closing, it has discontinued
issuing new gift certificates at all Properties. THCI agrees that,
prior to the Applicable Closing Date, THCI shall make withdrawals from
such accounts only to fund redemptions of THCI Gift Certificates. The
Acquirors shall assume all liability for the redemption of all THCI
Gift Certificates from and after the Applicable Closing Date; PROVIDED
that THCI shall reimburse the Acquirors promptly after demand therefor
(accompanied by appropriate supporting documentation), for the amount,
if any, by which (A) the aggregate amount of all redemptions of THCI
Gift Certificates funded by the Acquirors for all Properties
theretofore acquired by the Acquirors, exceeds (B) the aggregate
amount of all Gift Certificate Credits received by the Acquirors for
such Properties."
(b) Section 2.07(a) of the Asset Purchase Agreement is hereby
amended by inserting the following clause (xiv) at the end thereof:
"(xiv) The Acquirors shall receive a credit for (A) the excess
of (i) the deficit amount, if any, as of December 31, 1997 of the
marketing fund and advertising fund for the applicable Property,
determined on an aggregate basis, over (ii) $25,000, and (B) the
aggregate amount, if any, on deposit in such funds on the day
preceding the Applicable Closing Date."
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(c) Section 2.07 of the Asset Purchase Agreement is hereby amended
by adding the following new paragraph (e) at the end thereof:
"(e)(I) Prior to the Initial Closing, Park Meadows Mall, Ltd.
will not have received (i) any reimbursement (the 'INTERCHANGE
REIMBURSEMENT') to which it may be entitled pursuant to that certain
Contract dated December 20, 1995 by and among the County of Douglas,
Park Meadows Mall, Ltd. and Park Meadows Metropolitan District (the
'INTERCHANGE IMPROVEMENT FUNDING AGREEMENT') and (ii) $177,721 of the
reimbursement (the 'UTILITY INFRASTRUCTURE REIMBURSEMENT') to which it
may be entitled pursuant to agreements between Park Meadows Mall, Ltd
and Public Service Company of Colorado relating to the reimbursement
of costs incurred by Park Meadows Mall, Ltd. for utility
infrastructure work, including but not limited to, those certain
Agreements entitled (A) Gas and Electrical Facilities Pre-Construction
Requirements and (B) Electrical Distribution Facilities Extension
Agreement, both dated July 31, 1995 by and between Public Service
Company of Colorado and Park Meadows Mall, Ltd. (the Utility
Infrastructure Reimbursement and the Interchange Reimbursement are
collectively referred to as the 'REIMBURSEMENTS'). The Acquirors
acknowledge that the Reimbursements and any claims thereto shall
continue to be owned by Park Meadows Mall, Ltd. following the Initial
Closing and the Acquirors agree to reasonably cooperate with the
efforts of Park Meadows Mall, Ltd. and THCI to collect the
Reimbursements including, but not limited to, paying the
Reimbursements as directed by THCI should they be paid to the
Acquirors and, in the case of the Utility Infrastructure
Reimbursement, tendering a deposit to Public Service Company of
Colorado in a form reasonably acceptable to Public Service Company of
Colorado provided such deposit will result in the immediate payment of
the Utility Infrastructure Reimbursement to Park Meadows Mall, Ltd.
and such deposit does not exceed the amount of such reimbursement and
is on other terms and conditions reasonably acceptable to the
Acquirors including terms pertaining to the return of such deposit to
the depositor.
(II) Additionally, prior to the Initial Closing, Park Meadows
Mall, Ltd. will not have received reimbursement (the 'PROJECT COST
REIMBURSEMENT') of certain 'Project Costs' to which it is entitled
from the 'Cost of Issuance Fund' maintained by Norwest Bank Colorado,
N.A. ('TRUSTEE') pursuant to that certain Amended and Restated Trust
Indenture dated September 29, 1997 (the 'TRUST INDENTURE') by and
between Park
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Meadows Mall, Ltd. and Trustee for the benefit of Bayerische
Hypotheken - Und Wechsel Bank Aktiengesellschaft (New York Branch)
('HYPO BANK') as the single 'Registered Owner' of the 'Bond' (all
capitalized terms in this sentence not otherwise defined are
defined in the Trust Indenture). Application for the Project Cost
Reimbursement will be made by Park Meadows Mall, Ltd. immediately
before or after the Initial Closing. The Acquirors shall cooperate
with the efforts of Park Meadows Mall, Ltd. to receive the Project
Cost Reimbursement including (i) consenting to the same if
considered necessary by the Trustee provided the application for
the same is acceptable to Hypo Bank and (ii) turning over such
reimbursement to Park Meadows Mall, Ltd. should it be received by
the Acquirors."
SECTION 1.05. AMENDMENT TO SECTION 5.01. Section 5.01 of the
Asset Purchase Agreement is hereby amended by inserting at the end thereof
the following additional subsection (e):
"(e) Between the Initial Closing Date and the Applicable Closing
Date for each Property not transferred to the Acquirors on the Initial
Closing Date (other than the Santa Anita Property and Fashion Outlet),
the Acquirors shall have the right to request in writing sent to such
address as THCI shall specify in writing from time to time (such
writing to include a statement in bold faced type that failure to
respond within 5 Business Days shall result in deemed approval) that
THCI consent to, and to cause the applicable THCI Subsidiary,
Partnership or Second Tier Partnership to enter into, any leases
(including anchor tenant leases) of such Property with tenants
identified by the Acquirors and on terms and conditions proposed by
the Acquirors. THCI shall either grant or deny each such approval
within five (5) Business Days after request (such approval not to be
unreasonably withheld), and if the approval is denied, THCI shall
include in its denial a description of the reasons therefor. In the
event THCI shall fail to respond within such five (5) Business Day
period, the request shall be deemed approved. Subject to the final
sentence of this paragraph, all leases shall be drafted, at the
Acquirors' election, using the THCI's or the Acquirors' standard form.
If THCI consents to any proposed lease, THCI shall cause the
applicable THCI Subsidiary, Partnership or Second Tier Partnership to
enter into such lease in the final form approved by THCI and the
Acquirors. THCI shall enter into appropriate documentation delegating
to the Acquirors the authority to execute leases approved (or deemed
approved) as herein provided.
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Notwithstanding the foregoing, THCI shall not be required to comply
with its obligations under this subsection (e) to the extent that
THCI determines in its good faith that compliance with such
obligations would violate any duty owed to any lender, partner or
other third party."
SECTION 1.06. AMENDMENT TO SECTION 5.03. Section 5.03 of the
Asset Purchase Agreement is hereby amended by adding the following new
paragraph (d) at the end thereof:
"(d) Notwithstanding the provisions of Sections
5.03(b) and 5.03(c), with respect to the books and records (the
'SPECIFIED RECORDS') currently stored by THCI and the Management
Company in a storage facility operated by Cor-O-Van Moving and
Storage Inc. ('COR-O- VAN') located in Poway, California, a portion
of which relates to properties not subject to this Agreement (the
Specified Records relating to Properties which are the subject of
this Agreement being the 'JOINT RECORDS' the Specified Records not
relating to Properties which are the subject of this Agreement
being the 'THCI RECORDS'), the parties hereto agree that, until the
fifth anniversary of the Initial Closing Date, the existing storage
arrangement with Cor-O-Van shall be continued or replaced in
accordance with the last sentence of this Section 5.03(d) and that
THCI and each of the Acquirors: (i) shall each be a joint owner of
the Specified Records; (ii) shall each have responsibility to
preserve and keep the Specified Records; (iii) shall each have
access to the Specified Records without giving notice to any other
party hereto, provided that (A) use by THCI of Joint Records shall
be governed by Sections 5.03(b) and 5.03(c) (and THCI shall give
the Acquirors not less than two (2) Business Days notice prior to
retrieving any Joint Records), (B) THCI (and only THCI) shall use
THCI Records and (C) THCI may relocate THCI Records to any other
place it chooses at any time. The Acquirors shall pay 50% of the
costs of document storage and retrieval with respect to the
Specified Records and THCI shall pay 50% of such costs. The
parties shall implement a tracking system for the Specified Records
reasonably acceptable to each party. After the fifth anniversary
of the Closing Date, the provisions of Sections 5.03(b) and 5.03(c)
shall apply to the Specified Records. THCI and the Acquirors
hereby agree to cause the necessary arrangements to be made to
renew the storage agreement with Cor-O-Van from time to time until
the fifth anniversary of the Closing Date or to cause the necessary
arrangements to be made to relocate the Specified Records to
another storage facility in the Los Angeles area selected by the
Acquirors."
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SECTION 1.07. AMENDMENT TO SECTION 5.05. Section 5.05 of the Asset
Purchase Agreement is hereby amended by adding the following new paragraph
(e) at the end thereof:
"(e) THCI agrees (i) to cause, at no cost or expense to the
Acquirors, the completion of the Park Meadows Construction Work in
accordance with the terms of the Park Meadows Construction Contracts
and in a good and workman-like manner and in compliance with all Laws
and (ii) to keep Park Meadows free of liens arising from the Park
Meadows Construction Work. THCI, Park Meadows Mail, Ltd. and their
respective agents and contractors shall have the right to enter Park
Meadows for the purpose of completing the Park Meadows Construction
Work during reasonable and customary hours for the performance of
construction work of the same type and character as the Park Meadows
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 Park Meadows Construction Work, THCI will cause
Park Meadows Mall, Ltd. to assign to the Acquirors without
representation or warranty any and all express or implied warranties
received from Centre Builders, Inc. and its subcontractors under the
Park Meadows Construction Contracts."
SECTION 1.08. AMENDMENT TO SECTION 6.08. Section 6.08 of the
Asset Purchase Agreement is hereby deleted in its entirety and the following
provision is substituted into the Asset Purchase Agreement in lieu thereof:
"SECTION 6.08. REIMBURSEMENT FOR CERTAIN PAYMENTS. (a) THCI shall,
on behalf of the Management Company and, except as provided in Section
6.08(b), at the Management Company's expense, make all payments
required to be made on or following the Initial Closing Date pursuant
to the Employee Plans listed in Section 6.03 of the THCI Disclosure
Schedule. The Management Company or the Acquirors shall reimburse
THCI for the full amount of such payments promptly upon receipt of
supporting documentation reasonably acceptable to the Acquirors;
PROVIDED, HOWEVER, that if THCI provides to the Acquirors, not later
than the close of business on the second Business Day prior to the
Initial Closing Date, an estimate of any such payments to be made on
the Initial Closing Date, the aggregate amount thereof shall be
reimbursed to THCI
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by the Acquirors at the Initial Closing and appropriate settlement
made as soon as practicable after the final determination of the
actual amount so paid on the Initial Closing Date.
(b) Notwithstanding anything to the contrary contained in
Section 6.08(a), (i) payments made on or following the Initial Closing
Date with respect to the Employee Plans listed in Section 6.03 of the
THCI Disclosure Schedule, other than Section 6.03(I)(A) and (II)(A)
thereof, shall be at the expense of THCI (which shall receive no
reimbursement therefor) to the extent that the aggregate payments made
under such plans on or following the Initial Closing Date exceed
US$6.6 million and (ii) all payments made on or following the Initial
Closing Date with respect to the Employee Plans listed in Section
6.03(I)(A) and (II)(A) of the THCI Disclosure Schedule shall be at the
expense of THCI (which shall receive no reimbursement therefor)."
ARTICLE II
ADDITIONAL AGREEMENTS
SECTION 2.01. APPORTIONMENTS FOR THE INITIAL CLOSING. (a) The
parties hereby agree that, notwithstanding anything to contrary contained in
the Asset Purchase Agreement, for purposes of the apportionments contemplated
by Section 2.07 of the Asset Purchase Agreement with respect to the
Properties being transferred at the Initial Closing, THCI shall be
responsible for those items of expense and credited with those items of
income attributable to the period ending on 11:59 p.m. EDT on July 31, 1998
(the "SPECIFIED TIME") and the Acquirors shall be responsible for those items
of expense and credited with those items of income that are attributable to
the period after the Specified Time.
(b) THCI hereby agrees to pay one day's interest, at a rate of 7.0%
per annum (calculated based on a 365 day year) on the amount paid by the
Acquirors at the Initial Closing as the aggregate Adjusted Allocated Purchase
Price with respect to the Properties and Management Company Shares
transferred at the Initial Closing. THCI shall pay the amount of such
interest to the Acquirors at the Initial Closing.
SECTION 2.02. EXCESS PARK MEADOWS PARCEL AT THE INITIAL CLOSING.
As of the Initial Closing THCI will cause Park Meadows Mall Ltd. ("PMML") to
convey to Rouse-Park Meadows, LLC ("RPM") the Park Meadows Property described
in the deed
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from PMML to RPM dated as of July 31, 1998 (the "PMM DEED") all subject to
the terms of the Asset Purchase Agreement. The parties acknowledge that
there may be an additional parcel of land ("SECOND TRACT D") pertaining to
the Park Meadows Property known as "Tract D Park Meadows Town Center Filing
No. 1 -A, 1st Amendment, recorded August 4, 1995 at Reception No. 9535841,
Douglas County, Colorado." Rouse has ordered a title search of Second Tract
D. If PMML or a Partner therein is the legal owner of the fee title to
Second Tract D, then the parties agree that it shall be part of the Park
Meadows Property and shall be subject to and governed by all of the terms of
the Asset Purchase Agreement except that it shall not be a default of THCI
that the Second Tract D was not conveyed at the Initial Closing. As soon as
practicable after the confirmation of ownership, if PMML owns Second Tract D,
PMML shall execute and deliver to RPM a deed in the same form as the PMM Deed
to convey such title as PMML owns to RPM, subject only to the Permitted
Encumbrances, all in accordance with the remaining terms of the Asset
Purchase Agreement. THCI makes no representations or warranty whatsoever
with respect to the status of title to Second Tract D as of the date hereof.
SECTION 2.03. AGREEMENTS REGARDING THE MANAGEMENT OF THE
PROPERTIES. (a) TERMINATION OR ASSIGNMENT OF THE MANAGEMENT AGREEMENT. The
parties hereto agree that in the event THCI's interest in a Property (other
than Fashion Outlet of Las Vegas and 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 such Property or
THCI's interest therein), then (i) THCI, the THCI Subsidiary, the
Partnership, the THCI Partnership or the Second Tier Partnership which holds
legal title to such Property (an "OWNER") may terminate the agreement between
such Owner and the Management Company in effect on the date hereof pursuant
to which the Management Company agreed to operate, manage and maintain such
Property for the Owner (each a "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 applicable Management Agreement to THCI or an entity designated by
THCI. Owner or THCI, 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. The Acquirors shall cause the
Management Company or its assignee to hire all of "TrizecHahn's On-Site
Employees" or "Owner's On-Site Employees" (as such terms are defined in the
applicable Employee
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Utilization Agreement, dated as of July 29, 1998: (i) in the case of Horton
Plaza, Parkway Plaza and Fashion Show Mall, by and between the applicable
Owner, on one hand and the Management Company (with respect to Horton Plaza
and Parkway Plaza only) and Rouse Property Management, Inc., a Maryland
corporation (with respect to Fashion Show Mail only), on the other hand, and
(ii) in the case of all other Properties except Fashion Outlet of Las Vegas
and Santa Anita Fashion Park, by and between THCI and the applicable Owner,
each such agreement being an "EMPLOYEE UTILIZATION AGREEMENT") who are
working on-site at the applicable Property and employed by THCI or Owner in
accordance with the applicable Employee Utilization Agreement at the time
such Property 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 or Owner, as the case may
be; PROVIDED, HOWEVER, the Management Company or its assignee shall not be
required to hire any TrizecHahn's On-Site Employee or Owner's On-Site
Employee who the Management Company or its assignee has requested THCI or
Owner, as the case may be, to terminate or reassign pursuant to the
provisions of the applicable Employee Utilization Agreement. With respect to
any TrizecHahn's On-Site Employee or Owner's On-Site Employee, as the case
may be, 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 hereby) 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 or Owner's On-Site Employee, as the case may
be, 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
applicable Employee Utilization Agreement) because THCI or Owner, as the case
may be, instructs such employee not to follow such directions, then any act
or failure to act by such employee which results from such instructions of
THCI or Owner, as the case may be, shall be considered an act or omission of
THCI or Owner, as the case may be, 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 an Owner allowing, or
causing THCI to allow, the Management Company or its assignee to direct
TrizecHahn's On-Site Employees or Owner's On-Site Employees, as the case may
be, pursuant to the Employee Utilization Agreement to which such Owner is a
party, the Acquirors shall cause the Management Company or its assignee to
pay such Owner a fee of ten thousand dollars ($10,000) (the "FEE"). The Fee
shall be paid in its entirety on the Initial Closing Date.
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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
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).
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(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 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 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. 1 0 of the Asset Purchase
Agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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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/ Richard Steets
-----------------------------------
Name: Richard Steets
Title: Executive Vice President
THE ROUSE COMPANY
By /s/ Richard E. Galen
-----------------------------------
Name: Richard E. Galen
Title: Vice President
WESTFIELD AMERICA, INC.
By /s/s Richard E. Green
-----------------------------------
Name: Richard E. Green
Title: Co-President
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EXHIBIT 99
FOR IMMEDIATE RELEASE [Logo of Westfield America, Inc.]
JULY 31, 1998
FOR MORE INFORMATION,
PLEASE CONTACT:
RANDALL J. SMITH, (310) 445-6822
WEBSITE: www.westfieldamerica.com
------------------------
WESTFIELD AMERICA, INC. (NYSE: WEA) ANNOUNCES
ACQUISITION OF THE FIRST TWO TRIZECHAHN SHOPPING CENTERS
Los Angeles, CA, July 31, 1998 -- Westfield America, Inc. today announced
that it has acquired a 50% interest in Valley Fair, located in San Jose, CA
and a 100% interest in University Towne Center, located in San Diego, CA for
$332 million. The acquisition of these centers expands our market position
in the West Coast to 13 shopping centers.
Valley Fair is a super regional shopping center with 1,138,000 square feet
located in San Jose, CA. The center is anchored by Nordstrom and Macy's.
Valley Fair has 161 upscale specialty stores including Coach, Crate &
Barrel, Godiva, Liz Claiborne, Polo/Ralph Lauren, Pottery Barn, Talbot's and
Williams-Sonoma. Valley Fair is one of the most successful shopping centers
in the United States with total annual sales exceeding $500 million and
specialty store sales per square foot of $634.
University Towne Center is an open-air super regional shopping center with
1,033,000 square feet located in San Diego, CA. The center is anchored by
Nordstrom, Robinsons-May, Macy's and Sears. University Towne Center has 148
primarily upscale specialty stores including Ann Taylor, bebe, Crate &
Barrel, Eddie Bauer, Laura Ashley and Williams-Sonoma Grande Cuisine. The
center is well positioned along Interstate 5 and serves the affluent beach
communities north of San Diego and the immediate University City and LaJolla
market. Total annual sales are more than $300 million with specialty store
sales per square foot of $373.
Peter Lowy, President, said, "Valley Fair and University Towne Center are
the first two centers that we are acquiring in the Hahn portfolio. Today,
Westfield also assumed management responsibilities for all of the Hahn
centers it is acquiring. Subsequent closings will follow with the final
closing scheduled to occur before the end of the year. Both Valley Fair and
University Towne Center are premier centers in each of their markets and
enhance our existing portfolio."
Westfield America, Inc. (NYSE: WEA), a real estate investment trust, is one
of the nation's leading owners of regional retail centers. With this
acquisition, the company owns interests in 28 major shopping centers, and
after the TrizecHahn acquisition, assuming that all of
<PAGE>
TrizecHahn properties are acquired, the Company will have interests in 37
major shopping centers, encompassing 34.4 million square feet in the states
of California, Colorado, Connecticut, Maryland, Missouri, New York and
Washington.
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