EXHIBIT 8.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
August 8, 2000
Westfield America, Inc.
11601 Wilshire Boulevard, 12th Floor
Los Angeles, California 90025-1748
Re: Federal Income Tax Matters
Dear Sirs:
You have requested our opinion concerning certain Federal
income tax considerations in connection with the Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on the date
hereof (the "Registration Statement") by Westfield America, Inc., a
Missouri corporation (1) ("WEA," and together with the subsidiary
corporations, limited liability companies and partnerships in which WEA
owns a direct or indirect interest, the "Company"). Capitalized terms used
herein but not defined shall have the meanings set forth in the
Registration Statement.
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(1) Westfield America, Inc. was formerly known as CenterMark Properties, Inc.
We have acted as special tax counsel to the Company in
connection with, and have assisted in the preparation of, tax aspects of
the Registration Statement and certain other documents. You have provided
to us and we have reviewed certain documents (collectively, the
"Documents") that we have deemed necessary or appropriate as a basis for
our opinion, including, without limitation (i) organizational documents of
the entities comprising the Company, (ii) copies of certain leases,
management contracts and other agreements, (iii) responses to
questionnaires describing the Company's properties and their operation,
(iv) a certificate executed by a duly appointed officer of WEA (the "Officer's
Certificate") setting forth certain factual representations and covenants,
and (v) certain schedules, memoranda, financial information and other
records. For purposes of our opinion, we have not made an independent
investigation of the facts set forth in the Documents. We have,
consequently, relied on your representations that the information presented
in the Documents or otherwise furnished to us accurately and completely
describes all material facts relevant to our opinion.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies, and the authenticity of the originals of such copies.
Where documents have been provided to us in draft form, we have assumed
that the final executed versions of such documents will not differ
materially from such drafts.
Our opinion is based on the correctness of the following
specific assumptions: (i) WEA and each of the entities comprising the
Company has been and will continue to be operated in accordance with the
laws of the jurisdiction in which it was formed and in the manner described
in the relevant partnership agreement or other organizational documents;
(ii) there will be no changes in the applicable laws of the States of
Missouri or Delaware or any other state under the laws of which any of the
entities comprising the Company have been formed; (iii) each of the
representations contained in the Officer's Certificate are true, correct
and complete without regard to any qualifications as to knowledge or
belief; and (iv) WEA, Westfield Subsidiary REIT 1, Inc. ("New REIT 1"), and
Westfield Subsidiary REIT 2, Inc. ("New REIT 2"), each will comply with the
covenants made by them in the Officer's Certificate, and WEA will take all
steps necessary to insure that New REIT 1 and New REIT 2 will qualify, at
all times after their respective dates of incorporation, as real estate
investment trusts for U.S. Federal income tax purposes.
In rendering our opinion, we have also considered and relied
upon the Internal Revenue Code of 1986, as amended (the "Code"), the
regulations promulgated thereunder by the Treasury Department (the
"Regulations"), administrative rulings, and the other interpretations of
the Code and the Regulations by the courts and the Internal Revenue
Service, all as they exist at the date of this letter. With respect to the
latter assumption, it should be noted that statutes, regulations, judicial
decisions, and administrative interpretations are subject to change at any
time and, in some circumstances, with retroactive effect. A material change
that is made after the date hereof in any of the foregoing bases for our
opinion could affect our conclusions.
We express no opinion as to the laws of any jurisdiction other
than the Federal laws of the United States of America to the extent
specifically referred to herein.
Based on the foregoing, we are of the opinion that:
1. Commencing with WEA's taxable year ended December 31, 1994,
WEA was organized in conformity with the requirements for qualification as
a real estate investment trust ("REIT") under the Code, and its actual
method of operation from February 12, 1994 through the date of this letter
has enabled, and its proposed method of operation will enable, it to meet
the requirements for qualification and taxation as a REIT under the Code.
The foregoing opinion takes into account WEA's interest in Westland
Properties, Inc. ("WPI") during the period that WPI was not a qualified
REIT subsidiary under section 856(i)(2) of the Code. Moreover, such
qualification and taxation as a REIT depends upon WEA's having met and
continuing to meet, through actual annual operating results, certain
requirements, including requirements relating to distribution levels,
diversity of stock ownership, and the various qualification tests imposed
under the Code, the results of which are not reviewed by us. Accordingly,
no assurance can be given that the actual results of WEA's operations for
any particular taxable year satisfy such requirements.
2. The discussion in the Registration Statement under the
heading "FEDERAL INCOME TAX CONSIDERATIONS" is a fair and accurate summary
of the material Federal income tax consequences of the purchase, ownership
and disposition of the shares of WEA stock being registered in such
Registration Statement, subject to the qualifications set forth therein.
Other than as expressly stated above, we express no opinion on
any issue relating to WEA, the Company or to any investment therein.
This opinion is intended for the exclusive use of the Company
and its shareholders and, except as set forth herein, it may not be used,
circulated, quoted or relied upon for any other purpose without our prior
written consent. We consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to Skadden, Arps, Slate,
Meagher & Flom LLP in the Registration Statement. In giving this consent,
we do not thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations of the Securities and Exchange
Commission thereunder. This opinion is expressed as of the date hereof, and
we disclaim any undertaking to advise you of any subsequent changes in the
matters stated, represented, or assumed herein or any subsequent changes in
applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
