EXHIBIT 10.9
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, dated as of the 1st day of July, 1996, is
made by and between CENTERMARK PROPERTIES, INC., a Missouri corporation (the
"Owner"), and WESTFIELD U.S. ADVISORY, L.P., a Delaware limited partnership (the
"Advisor").
W I T N E S S E T H:
WHEREAS, the Owner is incorporated under the laws of the State of
Missouri and currently qualifies as a "real estate investment trust" as defined
in the Internal Revenue Code of 1986, as amended (the "Code"), to make
investments of the type permitted for qualified real estate investment trusts
under the Code;
WHEREAS, the Owner desires to avail itself of the experience, sources
of information, advice, assistance and certain facilities of or available to the
Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of and subject to the supervision of the Owner,
as provided in this Advisory Agreement; and
WHEREAS, the Advisor is willing to undertake to render such services,
subject to the supervision of the Owner, on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
I. DEFINITIONS
1.1 DEFINITIONS.
As used in this Advisory Agreement, the following capitalized terms
shall have the meanings set forth below.
(a) "Advisor" means Westfield U.S. Advisory, L.P., a Delaware
limited partnership;
(b) "Advisory Fee" shall have the meaning set forth in Section 3.1
hereof;
(c) "Affiliate" means with respect to any Person (the "Subject
Person"), any other Person controlling, controlled by or under common
control with the Subject Person. As used in this definition of
"Affiliate," the term "control" means, with respect to any Person, the
right to the exercise, directly or indirectly, of 50% or more of the voting
rights attributable to such Person;
(d) "Bankruptcy" of any Person means the occurrence of any of the
following events:
(i) if such Person shall file a voluntary petition in bankruptcy
or shall be adjudicated a bankrupt or insolvent, or shall file any petition
or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under
the present or any future Federal bankruptcy act or any other present or
future applicable Federal, state or other statute or law relating to
bankruptcy, insolvency, or other relief for debtors, or shall seek or
consent to the appointment of any trustee, receiver, conservator or
liquidator of such Person of all, or substantially all, of its property; or
(ii) if a court of competent jurisdiction shall enter an order,
judgment or decree approving a petition filed against such Person seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future Federal
bankruptcy act, or any other present or future Federal, state or other
statute or law relating to bankruptcy, insolvency, or other relief for
debtors, and such order, judgment or decree shall remain unvacated and
unstayed for a period of ninety (90) days from the date of entry thereof,
or any trustee, receiver, conservator or liquidator of such Person or of
all or substantially all of its property shall be appointed without the
consent of such Person and such appointment shall remain unvacated and
unstayed for a period of ninety (90) days or if such Person shall file an
answer admitting the material allegations of a petition filed against it in
any bankruptcy, reorganization or insolvency proceeding; or
(iii) if such Person shall admit in writing its inability to pay
its debts as they mature; or
(iv) if such Person shall make a general assignment for the
benefit of creditors or take any other similar action for the protection or
benefit of creditors; or
(v) if any assets of such Person are attached, seized or
subjected to a garnishment or other action by a creditor of such Person
seeking to realize upon a judgment against such Person, and such
attachment, seizure, garnishment or
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other action is not vacated, stayed or otherwise resolved within ninety (90)
days thereafter;
(e) "Code" shall have the meaning set forth in the recitals hereto;
(f) "Development Agreements" mean the Design, Development and
Construction Agreements executed in accordance with the Master Development
Framework Agreement;
(g) "Directors" means members of the Board of Directors of the Owner;
(h) "Indemnified Party" shall have the meaning set forth in
Section 6.2(a) hereof;
(i) "Independent Director" means a director who (i) is not, and has
not for the last 12 months been, an officer or employee of the Owner or its
subsidiaries, (ii) is not an Affiliate (as such term is defined below) of
the Owner or its subsidiaries or an officer or employee of an Affiliate (as
such term in defined below), (iii) is not a Member of the Immediate Family
(as such term is defined below) of any natural person described in clauses
(i) and (ii) above, and (iv) is free from any relationship that would
interfere with the exercise of independent judgment as a director. With
respect to any particular matter, a director is also interested if he or
she has a financial interest in the matter. For purposes of the definition
of "Independent Director," an "Affiliate" means any Person directly or
indirectly controlling, controlled by, or under common control with, such
other Person; "Control" means the power to exercise a controlling influence
over the management or policies of a company, unless such power is solely
the result of an official position with the Owner; and "Member of the
Immediate Family" means any parent, spouse of a parent, child, spouse of a
child, spouse, brother or sister and includes step and adoptive
relationships;
(j) "Leasing Agreements" means the Leasing Agreements executed in
accordance with the Master Development Framework Agreement;
(k) "Management Agreements" means those agreements listed on SCHEDULE
I attached hereto;
(l) "Master Development Framework Agreement" means that certain
Master Development Framework Agreement, dated as of July 1, 1996, between
the Owner and Westfield Corporation, Inc.;
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(m) "Net Equity Value" means the net equity value of the Owner in
United States dollars for the relevant quarterly period determined as of
the end of each calender quarter as reflected in the most recent quarterly
financial statements of Owner (whether audited or unaudited), which
financial statements shall, to the extent necessary, be adjusted to reflect
the appraised value of the Owner Properties (which, with respect to any
property held by a joint venture between Owner and one or more third
parties, shall only include Owner's pro-rata share of such appraised
value), after deducting any mortgage and long term indebtedness of Owner
(which, with respect to any property held by a joint venture between Owner
and one or more third parties, shall only include Owner's pro-rata share of
such indebtedness) with respect to such Owner Properties. The parties
agree that the Net Equity Value as of the date hereof based on the current
appraisals of the Owner Properties and the current indebtedness of the
Owner is $941,301,000. Upon receipt of any new appraisal for any of the
Owner Properties pursuant to Section 2.11 hereof, the Net Equity Value
shall be appropriately adjusted.
(n) "Person" means an individual, partnership, joint venture,
corporation, trust, unincorporated association or other entity;
(o) "Owner" means CenterMark Properties, Inc. and its subsidiaries;
(p) "Owner Property" means any real property or interest therein and
associated personal property owned by the Owner or any interest held by the
Owner in a joint venture with third parties;
(q) "Wages and Salaries" means wages, salaries and other
compensation, including so-called fringe benefits such as life, disability,
medical and health insurance pension plans, social security taxes and
workers' compensation insurance;
(r) "Westfield America Trust" means Westfield America Trust, a public
trust constituted by the Trust Deed of Westfield America Trust, dated March
26, 1996, as amended, between Westfield America Management Limited and
Perpetual Trustee Company Limited; and
(s) "Westfield Holdings Limited" means Westfield Holdings Limited, a
company incorporated in New South Wales and having its registered office at
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx.
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1.2 ACCOUNTING PRINCIPLES.
Except as otherwise provided herein, all accounting and financial
terms used herein shall be determined in accordance with a basis of presentation
as agreed upon by Owner and Advisor from time to time.
II. DUTIES OF THE ADVISOR
2.1 GENERAL.
The Advisor shall use its commercially reasonable efforts to perform
each of the duties set forth in this Advisory Agreement and shall have the
authority to take all actions and to execute all documents and instruments that
it deems necessary or advisable in connection with the management and operations
of the Owner and the fulfillment of its duties as set forth herein, subject in
each matter to the supervision of the Directors and to the investment policies
of the Owner, and with respect to purchases, development, financing and sales of
real property, to the prior approval of the Directors.
2.2 ANNUAL STRATEGIC PLAN.
The Advisor will prepare annually a strategic plan which incorporates
a specific business strategy, an annual operating budget, investment and
disposition objectives and capitalization and funding strategies. This plan
will be presented in the fourth quarter of the year prior to the year for which
such plan applies (other than the initial year hereof) to the Directors for
their review and approval. The plan for the initial year hereof will be
prepared and presented within six months of the date of execution hereof.
Consistent with the annual strategic plan, and subject to supervision by the
Directors, the Advisor will provide acquisition, financing and disposition
services including the following:
(a) Investigation and selection of possible acquisitions, property
analysis, market and economic surveys, on-site physical inspections, review
and projection of income and operating expenses and, when desired,
supervising and negotiating the arrangement of financing;
(b) Conducting negotiations with real estate brokers, owners of
property and their agents, investment bankers and owners of privately and
publicly held real estate companies;
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(c) Engaging and supervising, on behalf of the Owner, independent
contractors which provide real estate brokerage, investment banking and
leasing services, mortgage brokerage and other financial services and such
other services as may be required relating to the Owner Properties;
(d) Negotiating on behalf of the Owner for the sale, exchange or
other disposition of any Owner Properties; and
(e) Coordinating and managing operations of the joint venture
interests held by the Owner and conducting all matters with the joint
venture partners in the joint ventures.
2.3 ASSET MANAGEMENT.
The Advisor shall coordinate and supervise on behalf of the Owner all
property managers, leasing agents and developers for administration, leasing,
management and development of the Owner Properties. The Owner has engaged the
Advisor or its Affiliates to provide property management, leasing services
and/or development services for Owner Properties pursuant to the Management
Agreements and the Master Development Framework Agreement..
2.4 GENERAL ADMINISTRATIVE DUTIES.
The Advisor shall perform, or supervise the performance of, the
necessary administrative functions in the day-to-day management of the Owner and
its operations, including, without limitation, internal and external financial
reporting, property accounting, shareholder relations, joint venture partner
relations, supervision of stock registrar and transfer services, and other
necessary services.
2.5 REAL ESTATE INVESTMENT ADVICE.
The Advisor shall advise the Owner with respect to policy decisions to
be made by the Directors, shall investigate and evaluate investment
opportunities consistent with the real estate investment policies and the
objectives of the Owner and recommend them to the Directors, and shall provide
research, economic and statistical data in connection with the Owner's real
estate investments and policies.
2.6 SHORT-TERM INVESTMENTS.
The Advisor may invest and reinvest any moneys and securities of the
Owner in short-term investments pending investment in the Owner Properties,
payment of expenses and other amounts in accordance with approved budgets, or
payment of divi-
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dends to shareholders of the Owner. Unless a specific policy is developed by
the Advisor and approved by the Directors, the Advisor may invest and reinvest
any monies and securities of the Owner, pending investment in the Owner
Properties, in accordance with current practice of the Owner. The Advisor shall
develop and submit such a policy within 30 days of the execution hereof.
2.7 AGENCY.
The Advisor shall act as agent of the Owner in making, acquiring,
financing and disposing of investments, disbursing and collecting the Owner's
funds, paying the debts and fulfilling the obligations of the Owner, supervising
the performance of the managers and any developer of the Owner Properties and
handling, prosecuting and settling any claims of or against the Owner, the
Directors, holders of the Owner's securities or the Owner's representatives or
properties.
2.8 RETENTION OF SERVICES.
The Advisor may retain for and on behalf of the Owner such services of
accountants, legal counsel, appraisers, insurers, brokers, transfer agents,
registrars, developers, investment banks, financial advisors, banks and other
lenders and others as the Advisor deems necessary or advisable in connection
with the management and operations of the Owner and the fulfillment of the
Advisor's duties as set forth herein.
2.9 BANK ACCOUNTS.
The Advisor may establish one or more bank accounts in the name of the
Owner or in its own name and may deposit into and disburse from such accounts
any moneys on behalf of the Owner, provided that no funds in any such account
shall be commingled with funds of the Advisor, and the Advisor shall as
requested by the Directors render appropriate accountings to the Directors of
such deposits and disbursements. Advisor and all officers and employees of
Advisor who may handle or are responsible for the handling of receipts or
disbursements shall be covered by insurance maintained by Advisor, at its sole
cost and expense, in an amount not less than One Million Dollars ($1,000,000)
for employee dishonesty coverage against any and all loss, theft, embezzlement
or other fraudulent acts on the part of Advisor or Advisor's employees, and not
less than One Hundred Thousand Dollars ($100,000) for money and securities on
and off the premises, transit and depositors forgery coverage, indemnifying
Owner, as obligee, against any and all loss, theft, embezzlement or other
fraudulent acts on the part of Advisor or Advisor's employees.
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2.10 BOOKS AND RECORDS.
The Advisor shall maintain all accounting and reporting systems, books
and records of the Owner, including books of account and records relating to
services performed by the Advisor, and shall make such books and records
accessible for inspection by the Directors at any time during ordinary business
hours.
2.11 APPRAISALS AND REPORTING.
As frequently as the Advisor may deem necessary or advisable and, so
long as WAT is a shareholder in the Owner, as frequently as may be required by
the WAT Trustee, the Advisor shall, at the cost and expense of Owner, prepare,
or cause to be prepared, with respect to each of the Owner Properties (a) an
appraisal prepared by an independent real estate appraiser, (b) reports and
information on the Owner's operations and asset performance and (c) other
information reasonably requested by the Owner. All appraisals prepared pursuant
to clause (a) above shall be performed by Xxxxxxxx Real Estate Counselors or
such other real estate appraiser as may be mutually agreed upon by the Owner and
the Advisor. Notwithstanding anything to the contrary contained herein, the
Owner and the Advisor agree that appraisals will be performed with respect to
each individual Owner Property not less than once every three years, which
appraisals may be performed on a rolling basis, and that an appraisal shall be
performed with respect to an Owner Property upon the completion of any
redevelopment of such Owner Property.
2.12 REPORTS, ETC.
The Advisor shall prepare, or cause to be prepared, all reports,
financial or otherwise, with respect to the Owner reasonably required by the
Directors or required by Westfield America Trust (so long as it is a shareholder
in Owner) in order for it to comply with its organizational documents or any
securities law applicable to it, and all tax returns and any other reports or
other materials required to be filed with any governmental body or agency, and
shall prepare, or cause to be prepared, all materials and data necessary to
complete such reports and other materials including, without limitation, an
annual audit of the Owner's books of account by a nationally recognized
independent accounting firm.
2.13 FINANCING AND SECURITIES ISSUANCES.
The Advisor shall provide services to the Owner in connection with
negotiations by the Owner with investment banking firms, securities brokers or
dealers and other institutions or investors in connection with the sale of
securities of the Owner and the securing of loans for the Owner.
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2.14 REIT QUALIFICATION, ETC.
In the performance of its duties and responsibilities hereunder, the
Advisor shall refrain from any action (a) which, in its judgment, would
adversely affect the qualification of the Owner as a "real estate investment
trust" under the Code, (b) which, in its judgment, would have adverse tax
consequences to the holders of units of Westfield America Trust (so long as
Westfield America Trust is a shareholder in Owner), (c) which would violate any
law, rule or regulation of any governmental body or agency having jurisdiction
over the Owner or its securities, the violation of which could have a material
adverse effect on the Owner, or (d) which would otherwise not be permitted by
the certificate of incorporation of the Owner.
2.15 EXPERTS.
In performing its duties under this Article 2, the Advisor shall be
entitled to reasonably rely on qualified experts hired by the Advisor.
III. COMPENSATION
3.1 ADVISORY FEE.
The Owner shall pay to the Advisor a quarterly Advisory Fee equal to
.1375% (for an annual Advisory Fee of .55%) of the Net Equity Value of the Owner
for each quarter. The Advisory Fee shall be paid in U.S. dollars and shall be
payable in arrears on January 31, April 30, July 31 and October 31 of each
calendar year for the preceding calender quarterly period or part thereof, the
first such payments to be made on October 31, 1996 for the quarterly period
from the date hereof through and including September 30, 1996.
3.2 PAYMENT FOR ADDITIONAL SERVICES.
If the Owner shall request the Advisor to render services to the Owner
other than those required to be rendered by the Advisor hereunder, such
additional services, if performed, shall be compensated separately on terms to
be agreed upon from time to time between the Advisor and the Owner, which terms
shall not be less favorable to the Owner than the terms under which the Advisor
is then performing similar services for other Persons, taking into account the
full range of services and prices therefor provided by the Advisor to such other
Persons.
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3.3 EXPENSES OF THE ADVISOR.
Without regard to the amount of compensation received hereunder by the
Advisor, the Advisor shall bear the following expenses:
(a) Wages and Salaries of the Advisor's officers and employees; and
(b) rent and other overhead expenses of the Advisor.
3.4 REIMBURSABLE EXPENSES.
The Advisor shall pay, or cause to be paid out of the assets of the
Owner, the following operating expenses of the Owner and, if the Advisor
advances money for such expenses, it shall be entitled to reimbursement by the
Owner therefor:
(a) travel and other out-of-pocket expenses incurred by directors,
officers and employees of the Advisor in connection with the purchase,
financing, refinancing or sale of an Owner Property;
(b) costs of legal, accounting, tax, administrative and other
similar services rendered for the Owner by Persons retained by the Advisor
or, if provided by the Advisor's employees (other than with respect to
operational accounting services provided by the Owner's employees), in
amounts not greater than those that the Advisor determines in good faith
would have been charged by unrelated third Persons performing similar
services;
(c) all other costs and expenses relating to the Owner's operations,
including without limitation the costs and expenses of acquiring, owning,
protecting, maintaining, developing and disposing of the Owner's
investments, including appraisal, reporting, audit and legal fees;
(d) all insurance costs incurred in connection with the operation of
the Owner;
(e) expenses connected with payments of interest or distributions in
cash or any other form made or caused to be made by the Directors to or on
account of holders of securities of the Owner, including without limitation
expenses incurred in connection with any dividend reinvestment plan;
(f) expenses connected with communications to holders of securities
of the Owner and the other bookkeeping and clerical work necessary in main-
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taining relations with holders of securities and in complying with the
continuous reporting and other requirements of governmental bodies or agencies,
including the cost of printing and mailing certificates for securities and proxy
solicitation materials and reports to holders of the Owner's securities;
(g) transfer agent and registrar's fees and charges; and
(h) expenses relating to any office or office facilities maintained
for the Owner or the Owner Properties separate from the office or offices
of the Advisor.
3.5 RESTRICTIONS.
(a) Except with respect to the transactions contemplated pursuant to
that certain GSP Option Agreement, dated the date hereof, between Westfield
Capital Corporation Finance Pty. Limited and Owner, the Advisor shall not
consummate any transaction which would involve the acquisition by the Owner of
property in which the Advisor or any Affiliate thereof has an ownership interest
or the sale by the Owner of property to an Advisor or any Affiliate thereof,
unless approved by a majority of the Directors, including the Independent
Directors as required by the Owner's by-laws or certificate of incorporation or
any relevant shareholder agreement and unless, for so long as Westfield America
Trust is a shareholder in the Owner, all required approvals or consents under
the Australian Corporations Law or the Australian Stock Exchange Listing Rules
have been obtained.
(b) Other than advances of expenses pursuant to Section 3.4 hereof,
the Owner may not make loans to, or borrow money from, the Advisor or any
Affiliate thereof, unless a majority of the Directors (including the
Independent Directors as required by the Owner's by-laws or certificate of
incorporation or any relevant shareholder agreement) approve the transaction.
(c) The Owner shall not invest in joint ventures with the Advisor,
or any Affiliate thereof, unless a majority of the Directors (including the
Independent Directors as required by the Owner's by-laws or certificate of
incorporation or any relevant shareholder agreement) approve the transaction.
(d) All other material transactions between the Owner and the
Advisor, or any Affiliate thereof, shall require approval by a majority of the
Directors (including the Independent Directors as required by the Owner's
by-laws or certificate of incorporation or any relevant shareholder agreement)).
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IV. TERMINATION; TERM
4.1 TERMINATION.
(a) TERM. The term of this Advisory Agreement shall commence on the
date hereof and shall continue until terminated pursuant to this Article.
(b) NON-CURABLE TERMINATING EVENTS. (i) The Owner may terminate this
Advisory Agreement on not less than 30 days written notice to the Advisor upon
the occurrence of any of the following events:
(x) the Bankruptcy of the Advisor;
(y) an act of fraud, embezzlement or theft (which, in the case
of theft, constitutes a felony) against Owner or its Affiliates which
causes it material injury is perpetrated by Advisor or by Developer or
by Manager 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 such entities' managing
general partner) under this Agreement, the Management Agreements, the
Master Development Framework Agreement, any Development Agreement or
any Leasing Agreement; and
(z) the aggregate direct and indirect interest of Westfield
America Trust and Westfield Holdings Limited or their respective
Affiliates (including any investment vehicle sponsored, promoted or
managed by any such entity) in the Owner is less than 20%;
(ii) This Advisory Agreement shall terminate if the Advisor shall
notify the Owner that advisory services shall cease to be one of the major
business undertakings of Westfield Holdings Limited in the United States,
provided that this Advisory Agreement shall continue for a period of 180 days
after delivery of such notice to the Owner if the Owner shall be reasonably
satisfied with the Advisor's ability to continue providing the services required
hereunder during such period.
(c) CURABLE DEFAULTS. (i) Either the Owner or the Advisor may
terminate this Advisory Agreement by written notice to the other party in the
event that the other party shall default (the "Defaulting Party") in the
performance or observance of any material term, condition or covenant contained
in this Advisory Agreement or shall fail to perform or observe the same in
accordance with the required standard under this Advisory Agreement and such
default shall continue for a period of thirty (30) days after written notice
thereof shall have been received by the non-defaulting party (the "Non-
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Defaulting Party") specifying such default and requesting that the same be
remedied in such thirty-day period (a "Default Notice").
The Defaulting Party shall be deemed to have complied with a Default
Notice given under this Section 4.1 if the default is such that it cannot
reasonably be remedied within thirty (30) days, and the Defaulting Party shall,
in good faith, have commenced to remedy the default specified therein as soon as
is practicable after receiving such Default Notice, and, thereafter shall have
diligently prosecuted the cure to its completion.
(ii) A Non-Defaulting Party shall have the right to terminate this
Advisory Agreement based on a default by a Defaulting Party under this Section
4.1(c) only if such default is determined to constitute an Adjudicated Default
as provided below. If a Non-Defaulting Party believes that the other party has
defaulted in the performance of a material obligation under this Advisory
Agreement, and that such default remains uncured following the delivery of a
default notice and the expiration of the applicable cure period provided in this
Section 4.1(c), then such Non-Defaulting Party may deliver a written notice to
the other party setting forth its intention to terminate this Advisory Agreement
pursuant to this Section (a "Termination Notice"). If the Defaulting Party
desires to contest such termination, then the Defaulting Party shall so notify
the Non-Defaulting Party within ten (10) Business Days after receipt of the
Termination Notice, and a senior officer of each party shall meet promptly and
negotiate in good faith in order to resolve such dispute. If such senior
officers are unable to resolve the dispute within thirty (30) days after the
Defaulting Party's receipt of the Termination Notice, then the Defaulting Party
may institute an action in the appropriate judicial forum within thirty (30)
days thereafter to determine whether the Defaulting Party has defaulted in the
performance of a material obligation hereunder. An "Adjudicated Default" shall
be deemed to have occurred if:
(x) the parties' respective senior officers are unable to
resolve such dispute and the Defaulting Party does not institute a
judicial proceeding within thirty (30) days after its receipt of a
Termination Notice;
(y) a court renders a final decision finding that the Defaulting
Party has defaulted in the performance of a material obligation
hereunder, and the Defaulting Party does not deliver a notice of
appeal to the appropriate parties within the applicable appeal period;
or
(z) a court renders a final decision finding that the Defaulting
Party has defaulted in the performance of a material obligation
hereunder and an appeal is perfected by the Defaulting Party within
the applicable appeal period, and a second court renders a final
decision finding that the
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Defaulting Party has defaulted in the performance of a material
obligation hereunder.
(iii) Notwithstanding anything to the contrary contained herein, the
provisions of this subparagraph (c) relating to an Adjudicated Default shall not
apply to the termination events set forth in subparagraph (b) hereof.
V. ACTION UPON TERMINATION OR CANCELLATION
5.1 ACCOUNTING.
The Advisor shall immediately upon termination of this Advisory
Agreement:
(a) pay over to the Owner all moneys collected and held for the
account of the Owner pursuant to this Advisory Agreement, after deducting
any accrued compensation and reimbursement for its expenses to which it is
then entitled;
(b) deliver to the Owner a full accounting, including a statement
showing all payments collected by it and a statement of all moneys held by
it, covering the period following the date of the last accounting furnished
to the Owner;
(c) deliver to the Owner all property and documents of the Owner
then in the custody of the Advisor; and
(d) cooperate with the Owner and take all reasonable steps requested
to assist the Directors in making an orderly transition of the advisory
function.
VI. LIABILITY AND INDEMNIFICATION OF ADVISOR
6.1 LIMITATION ON LIABILITY.
The Advisor shall have no responsibility other than to render the
services and take the actions described herein in good faith and with the
exercise of due care and shall not be responsible for any action of the
Directors in following or declining to follow any advice or recommendation of
the Advisor. The Advisor, except by reason of its own gross negligence or
willful misconduct, shall not be liable for any action taken, omitted or
suffered to be taken by it in good faith and believed by it to be authorized or
within its
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discretion or rights or powers conferred upon it by this Advisory Agreement or
in reasonable reliance upon the written opinion of counsel of recognized
expertise.
6.2 INDEMNIFICATION.
(a) The Owner shall reimburse, indemnify and hold harmless the
Advisor and its directors, officers, shareholders, agents and employees, and
each other Person, if any, controlling the Advisor (an "Indemnified Party"), to
the full extent lawful, from and against any and all losses, claims, damages or
liabilities of any nature whatsoever with respect to or arising from any acts or
omissions of the Advisor in its capacity as such, except with respect to losses,
claims, damages or liabilities with respect to or arising out of the Advisor's
gross negligence or willful misconduct or fraud.
(b) Notwithstanding the indemnification provisions in Section 6.2(a)
above, indemnification will not be allowed for any liability imposed by
judgment, and costs associated therewith, including attorneys' fees, arising
from or out of a violation of state or federal securities laws associated with
the offer and sale of Owner shares. Indemnification will be allowed for
settlements and related expenses of lawsuits alleging securities law violations,
and for expenses incurred in successfully defending such lawsuits, provided that
a court either (i) approves the settlement and finds that indemnification of the
settlement and related costs should be made; or (ii) approves indemnification of
litigation costs if a successful defense is made. If indemnification is
unavailable as a result of this Section 6.2(b), the Owner shall contribute to
the aggregate losses, claims, damages or liabilities to which the Advisor or its
officers, directors, agents, employees or controlling Persons may be subject in
such amount as is appropriate to reflect the relative benefits received by each
of the Owner and the party seeking contribution on the one hand and the relative
faults of the Owner and the party seeking contribution on the other, as well as
any other relevant equitable considerations.
(c) Promptly after receipt by an Indemnified Party of notice of the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Owner, notify the Owner in writing of the
commencement thereof; but the omission so to notify the Owner shall not relieve
it form any liability that it may have to any Indemnified Party pursuant to
Section 6.2(a) hereof, unless the failure to so notify would itself constitute
gross negligence or willful misconduct. In case any such action shall be
brought against an Indemnified Party and it shall notify the Owner of the
commencement thereof, the Owner shall be entitled to participate therein and, to
the extent that it shall wish, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party and, after notice from the Owner to such
Indemnified Party of its election so to assume the defense thereof, the Owner
shall not be liable to such Indemnified Party under Section 6.2(a) hereof for
any legal expenses of other counsel or any of the expenses, in each case
subsequently incurred by such Indemnified Party, unless (i) the
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Owner and the Indemnified Party shall have mutually agreed to the retention of
such counsel or, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Owner and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate in the
reasonable opinion of the Indemnified Party, due to actual or potential
differing interests between them.
(d) The obligations of the Owner under this Section 6.2 shall be in
addition to any liability which the Owner otherwise may have.
6.3 REPRESENTATIONS, WARRANTIES AND COVENANT OF OWNER.
(a) The Owner represents and warrants as of the date hereof that:
(i) the Owner has full authority to enter into this Advisory
Agreement and to be bound by it;
(ii) the execution and performance of this Advisory Agreement by the
Owner will not conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in
any violation of, any agreement or instrument to which the Owner is
subject; and
(iii) the terms of this Advisory Agreement are in conformity with the
applicable laws governing the Owner.
(b) The Owner shall promptly advise the Advisor in writing of any
agreements or changes in any agreements, instruments, governing law, regulations
or interpretations thereof affecting the investments of the Owner or the duties,
responsibilities, liabilities or obligations of the Advisor.
VII. MISCELLANEOUS PROVISIONS
7.1 ENTIRE AGREEMENT.
This Advisory Agreement constitutes the entire agreement between the
parties with respect to the subject matter thereof. Any modification or
amendment of this Advisory Agreement shall be in writing executed by each of the
parties.
7.2 BINDING; ASSIGNMENT.
This Advisory Agreement shall be binding on the parties hereto. No
assignment by the Advisor shall be effective for any purpose without the written
consent
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and approval of the Owner, PROVIDED, however, that notwithstanding the
foregoing provisions of this Section 7.2, the Advisor shall have the right to
assign its rights and obligations under this Advisory Agreement without the
Owner's prior consent to any Affiliate of Westfield Holdings Limited as long as
the transferee Person or entity assumes the obligations and liabilities of the
Advisor hereunder from and after the effective date of such transfer and is
capable of performing hereunder. The transfer of an interest in the Advisor or
any constituent partner of the Advisor shall not be deemed an assignment of this
Agreement so long as Westfield Holdings Limited continues to own, directly or
indirectly, at least 50% of the voting and economic interest in the Advisor.
Upon any such transfer, the Advisor shall be released from all liabilities
arising hereunder from and after the effective date of such transfer.
7.3 NO PARTNERSHIP OR JOINT VENTURE.
The Owner and the Advisor are not, and shall not be deemed to be,
partners or joint venturers with each other.
7.4 SEVERABILITY.
If any terms or provision of this Advisory Agreement or the
application thereof to any Person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Advisory Agreement, or the
application of that term or provision to Persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Advisory Agreement shall be valid
and be enforced to the fullest extent permitted by law.
7.5 POLICY AND FINANCIAL INFORMATION.
The Directors shall keep the Advisor informed in writing concerning
the investment and financing policies of the Owner and shall promptly notify the
Advisor of any intention to make any new investments, to sell or dispose of any
existing investments or to enter into any agreement or understanding with any
third party. The Owner shall furnish the Advisor a certified copy of all
financial statements, a signed copy of each report prepared by independent
public accountants, a certified copy of each amendment to the certificate of
incorporation of the Owner, the By-Laws of the Owner and such other information
with regard to the Owner's affairs as the Advisor from time to time reasonably
may request.
7.6 DOCUMENTS; NOTICES.
In order to be deemed effective, all documents to be delivered and all
notices, approvals, authorizations and/or consents to be given or obtained by
any party to
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this Advisory Agreement shall be in writing and shall be given by personal
delivery, or sent by express mail or nationally recognized overnight courier, or
by registered or certified mail, postage prepaid, return receipt requested, or
by facsimile (with confirmed receipt), addressed as follows:
To the Advisor: Westfield U.S. Advisory, L.P.
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Executive Director
To the Owner: CenterMark Properties, Inc.
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: President
The above addresses may be changed for future communications or delivery of
notice hereunder by giving notice of such change to the others listed above in
the manner prescribed by this Article. All notices shall be deemed effective
when received by all applicable parties at the addresses set forth above (as
such addresses may be changed by the parties in accordance herewith).
Notwithstanding the foregoing, no notice shall be deemed ineffective because of
any party's refusal to accept delivery at the address specified for the giving
of such notice in accordance herewith.
7.7 HEADINGS.
The section headings used herein have been inserted for convenience of
reference only and shall not be considered in interpreting this Advisory
Agreement.
7.8 GOVERNING LAW.
This Advisory Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
7.9 DIRECTOR ACTION.
Whenever action on the part of the Owner or the Directors is
contemplated in this Advisory Agreement, unless otherwise indicated herein,
action by a majority of
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the Directors, including a majority of the Independent Directors in any case
where specifically required hereunder, shall constitute the action provided for
herein.
7.10 OTHER ACTIVITIES.
Directors, officers, employees and agents of the Advisor or any of its
Affiliates may serve as Directors, officers, employees, agents, nominees or
signatories of the Owner. When executing documents or otherwise acting in such
capacities for the Owner, such Persons shall use their respective titles in the
Owner. Such Persons shall receive from the Owner no compensation for their
services to the Owner in any such capacities.
7.11 AUTHORITY TO ACT.
The Owner shall furnish to the Advisor from time to time, upon request
of the Advisor, certified copies of appointments or designations setting forth
the names, titles and authorities of the individuals who are authorized to act
on behalf of the Owner with respect to the Owner investments, together with
specimen signatures of those individuals who are authorized to act for the
Advisor with respect to this Advisory Agreement. The Advisor shall furnish to
the Owner from time to time, upon request of the Owner, certificates setting
forth the names, titles and authorities of the Persons authorized to act on its
behalf and provide specimen signatures of those individuals who are authorized
to act on its behalf with respect to this Advisory Agreement.
7.12 COUNTERPARTS.
This Advisory Agreement may be executed in two counterparts and by
each of the parties hereto on separate counterparts; all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Owner and the Advisor have executed this
Advisory Agreement as of the day and year first above written.
CENTERMARK PROPERTIES, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: President
WESTFIELD U.S. ADVISORY, L.P.
By: Westfield Services, Inc.,
its sole general partner
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Vice President
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SCHEDULE I
LIST OF MANAGEMENT AGREEMENTS
