EXHIBIT 10.16
ENFIELD CENTER
FIRST AMENDMENT TO
MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT, dated as of May ,
1997, by and between WESTFIELD AMERICA, INC., a Missouri corporation (formerly
known as CenterMark Properties, Inc.) ("Owner"), and CENTERMARK MANAGEMENT
COMPANY, a Delaware partnership ("Manager").
W I T N E S S E T H:
WHEREAS, Owner and Manager are parties to that certain Management
Agreement (the "Original Management Agreement"), dated as of July 1, 1996,
relating to Enfield Center, Enfield, Connecticut; and
WHEREAS, Owner and Manager desire to amend the Original Management
Agreement in the manner hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Owner and Manager agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition
shall have the respective meanings set forth in the Original Management
Agreement.
2. AMENDMENT TO ARTICLE II OF THE ORIGINAL MANAGEMENT AGREEMENT.
Article II of the Original Management Agreement is hereby amended by deleting
the third sentence of the first paragraph thereof and substituting the
following therefor:
"Manager agrees that during the term of this Agreement it will not,
directly or indirectly, act as the property manager for any
shopping center which directly competes with the Property (a
"Competing Mall"), PROVIDED that the foregoing restriction shall
not be deemed to be violated if Manager shall acquire, either
directly or indirectly, all or substantially all of the assets of,
or an interest in, an entity that does not have any ownership
interest in shopping center properties or power centers in
the United States which is engaged in the property management
business and which manages, among other properties, a shopping
center which is a Competing Mall."
3. AMENDMENT TO ARTICLE XVI OF THE ORIGINAL MANAGEMENT AGREEMENT.
Article XVI of the Original Management Agreement is hereby amended by
deleting subsections A and B thereof in their entirety and substituting the
following therefor:
"A. TERM. From and after the date of the First Amendment to
Management Agreement, dated as of May , 1997, between Owner and
Manager, the term of this Agreement shall be for an initial term of
three years expiring on May , 2000. Thereafter, until this
Agreement is terminated in accordance with its terms, this Agreement
shall be deemed renewed automatically each year for an additional one
year period unless the trustee (the "WAT Trustee") of the Westfield
America Trust, an Australian publicly listed property trust, and 75%
of the Independent Directors (as such term is defined in the Third
Amended and Restated Articles of the Owner) of the Owner's Board of
Directors agree that either (i) there has been unsatisfactory
performance by the Manager that is materially detrimental to the Owner
or (ii) the fees payable to Manager are not fair, PROVIDED that Owner
shall not have the right to terminate this Agreement under clause (ii)
above if Manager agrees to continue to provide management services for
the Property at a fee that the WAT Trustee and 75% of the Independent
Directors have determined to be fair and PROVIDED FURTHER that the WAT
Trustee's agreement with respect to the matters set forth in clauses
(i) or (ii) will
only be required if the WAT Trustee is the owner of 10% or more of
the outstanding capital stock of the Owner. If Owner shall elect
not to renew the term of this Agreement at the expiration of the
initial term or any extended term as set forth above, Owner
shall deliver to Manager prior written notice of Owner's determination
not to renew this Agreement based on the terms set forth in this
subparagraph A not less than 30 days prior to the expiration of the
then existing term. If Owner elects not to renew this Agreement,
Owner shall designate the date, not less than 60 nor more than 180
days from the date of the notice, on which the Manager shall turn over
management of the Property to Owner and this Agreement shall terminate
as of such date.
B. NON-CURABLE TERMINATING EVENTS. (1) Owner may terminate this
Agreement on not less than 15 days written notice to Manager upon the
occurrence of any of the following events:
(i) the Bankruptcy of Manager;
(ii) Owner sells or transfers 100% of its interest in the
Property (other than to a Related Person), whether directly or
indirectly;
(iii) any of the Other Management Agreements are validly
terminated by Owner or one of its Affiliates in accordance with
their terms by reason of Manager's material default thereunder;
(iv) the foreclosure by any mortgagee upon the Property or
the taking of possession thereof by deed-in-lieu of foreclosure,
except as otherwise agreed in writing by Manager and such
Mortgagee;
(v) an act of fraud, embezzlement or theft constituting a
felony against Owner or its Affiliates which causes it material
injury is perpetrated by Manager or by Developer or by Advisor in
its corporate capacity (as distinguished from the acts of any
employees of such entities which are taken without the approval
or complicity of the Board of Directors of Manager's managing
general partner) under this Agreement, the Advisory Agreement,
the Development Framework Agreement, any Development Agreement or
any Leasing Agreement;
(vi) the Property or a substantial part of the Property is
damaged or destroyed where the Owner has determined not to
rebuild or reconstruct, provided, however, that in such event
Manager will continue to operate the Property for a reasonable
period of time until Owner winds down the operation of the
Property, and provided further that (i) this Agreement shall be
automatically reinstated if, within twenty-four (24) months after
the date of such damage or destruction, Owner determines to
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rebuild the Property or develop a new shopping center as a
replacement for the Property, and (ii) in the case of the
destruction of only a substantial part of the Property, if Owner
elects to continue the operation of the remaining portion of the
Property, this Agreement shall remain in effect with respect to
the portion of the Property to be operated; or
(vii) an Event of Default (as defined therein) shall have
occurred and be continuing under that certain Pledge and Security
Agreement, dated as of May , 1997, among the Company, Westland
Management, Inc., Westfield Partners, Inc. and Westland
Realty, Inc.
(2) This Agreement shall terminate if Manager shall notify Owner
that management of regional shopping centers shall cease to be one of
the principal business undertakings of Westfield Holdings Limited and
its affiliates in the United States, PROVIDED that this Agreement
shall continue for a period of 180 days after delivery of such notice
to Owner if Owner shall be reasonably satisfied with Manager's ability
to continue managing the Property during such period."
(vii) an Event of Default (as defined therein) shall have
occurred and be continuing under that certain Pledge and
Security Agreement, dated as of May , 1997, among the
Company, Pledgee, Westland Management, Inc., Westfield Partners,
Inc. and Westland Realty, Inc.
4. RATIFICATION. Except as amended hereby, the Original Management
Agreement is hereby ratified and remains in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument, with the same effect as if all parties hereto had all signed
the same signature page. Any signature page of this Amendment may be detached
from any counterpart of this Amendment without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Amendment
identical in form hereto but having attached to it one more additional signature
pages.
6. EFFECTIVE DATE. This Amendment shall be effective as of the
closing of the initial public offering of common stock of the Owner pursuant to
its Registration Statement on Form S-11 (No. 333-22731).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
OWNER:
WESTFIELD AMERICA, INC.
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Name:
Title:
MANAGER:
CENTERMARK MANAGEMENT COMPANY
By: Westfield Services, Inc.
a general partner
By:
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Name:
Title:
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