EXHIBIT 99(M)
WAIVER
This WAIVER (this "WAIVER"), dated February 14, 2001, is among Westfield
America Management Limited ("WAM"), in its capacity as responsible entity and
trustee of Westfield America Trust, a public unit trust constituted under the
laws of Australia ("WAT"), Westfield America, Inc., a Missouri corporation
(the "COMPANY"), Westfield America Limited Partnership, a Delaware limited
partnership ("XXXX"), and Security Capital Preferred Growth Incorporated, a
Maryland corporation ("SECURITY CAPITAL").
WHEREAS, in connection with an Agreement and Plan of Merger (the "MERGER
AGREEMENT") to be entered into among WAM, in its capacity as responsible entity
and trustee of WAT, the Company and Mall Acquisition Corp., a Delaware
corporation ("MERGER SUB"), WAM, on behalf of WAT, proposes to commence a tender
offer for all of the outstanding shares of common stock, par value $.01 per
share (the "COMMON STOCK"), of the Company, subject to the terms and conditions
set forth in the Merger Agreement (the "OFFER");
WHEREAS, pursuant to the Merger Agreement, upon completion of the Offer and
subject to stockholder approval, if required, Merger Sub will merge with and
into the Company, with the Company as the surviving corporation (the "MERGER");
WHEREAS, Security Capital beneficially owns 416,667 shares of Series C
Cumulative Convertible Redeemable Preferred Stock, par value $1.00 per share,
138,889 shares of Series C-1 Cumulative Convertible Redeemable Preferred Stock,
par value $1.00 per share, and 138,889 shares of Series C-2 Cumulative
Convertible Redeemable Preferred Stock, par value $1.00 per share (collectively,
the "PREFERRED SHARES"), the preferences and rights of which are set forth in
the Certificate of Designation for the Series C Preferred Shares, dated August
10, 1998 (the "SERIES C CERTIFICATE OF DESIGNATION"), the Certificate of
Designation for the Series C-1 Preferred Shares, dated December 17, 1998 (the
"SERIES C-1 CERTIFICATE OF DESIGNATION"), and the Certificate of Designation for
the Series C-2 Preferred Shares, dated December 17, 1998 (the "SERIES C-2
CERTIFICATE OF DESIGNATION" and, together with the Series C Certificate of
Designation and the Series C-1 Certificate of Designation, the "CERTIFICATES OF
DESIGNATION"), respectively;
WHEREAS, Security Capital is a party to the Series C Preferred Stock
Purchase Agreement, dated June 25, 1998, among Security Capital, the Company and
XXXX (the "SERIES C PURCHASE AGREEMENT"), the Series C-1 Preferred Stock
Purchase Agreement, dated December 17, 1998, among Security Capital, the Company
and XXXX (the "SERIES C-1 PURCHASE AGREEMENT"), and the Series C-2 Preferred
Stock Purchase Agreement, dated December 17, 1998, among Security Capital, the
Company and XXXX (the "SERIES C-2 PURCHASE AGREEMENT" and, together with the
Series C Purchase Agreement and the Series C-1 Purchase Agreement, the "PURCHASE
AGREEMENTS");
WHEREAS, Security Capital desires to waive certain of its rights in
connection with the Offer, the Merger and the other transactions contemplated in
the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. WAIVER.
(a) Subject to Section 2 below, Security Capital hereby waives any and all
rights under the following provisions:
(i) Section 6.10 with respect to amendments to the Agreement of
Limited Partnership, as currently in effect on the date hereof, of XXXX (the "OP
AGREEMENT"), in connection with the Offer and the Merger, and Section 6.17 of
the Series C Purchase Agreement;
(ii) Section 6.10 with respect to amendments to the OP Agreement in
connection with the Offer and Merger, and Section 6.16 of the Series C-1
Purchase Agreement; and
(iii) Section 6.10 with respect to amendments to the OP Agreement in
connection with the Offer and Merger, and Section 6.16 of the Series C-2
Purchase Agreement.
(b) Security Capital agrees that it shall not convert any Preferred Shares
into Common Stock of the Company until the earlier to occur of the termination
of this Agreement and the time immediately following consummation of the Merger.
(c) Security Capital agrees that it shall not undertake any sales of
Preferred Shares registered under the Registration Statement on Form S-3 of the
Company.
(d) All other provisions of the Purchase Agreements and the Certificates of
Designation shall remain in full force and effect and unaffected by this Waiver.
2. TERMINATION. This Agreement may be terminated at any time and thereafter
be of no further force and effect: (a) with the mutual consent of the parties
hereto; (b) by Security Capital if the Offer has been irrevocably withdrawn; (c)
by Security Capital if the Offer and the Merger have not been consummated on or
before December 15, 2001; (d) by Security Capital at any time following the
consummation of the Merger, or (e) by Security Capital if the board of directors
of the Company has executed a merger agreement
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or recommended in favor of a merger or tender offer other than the Merger
contemplated by the Merger Agreement.
3. AMENDMENT; MODIFICATION. No provision of this Agreement may be amended
or modified unless such amendment or modification is in writing and signed by
the parties hereto intending to be bound thereby.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, including any transferee of the Preferred Shares.
5. FURTHER ASSURANCES. Each party hereto shall do all such further acts and
execute, acknowledge, deliver and file all such other instruments and documents
as may be necessary or desirable to give effect to and carry out the
transactions contemplated by this Waiver.
6. GOVERNING LAW. This Waiver shall be governed by and construed in
accordance with the laws of the State of New York, including, without
limitation, Section 5-1401 of the New York General Obligations Law.
7. COUNTERPARTS. This Waiver may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall, taken
together, be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Waiver as of the date
first above written.
WESTFIELD AMERICA TRUST
a public unit trust constituted under the
laws of Australia
By: Westfield America Management Limited
in its capacity as responsible entity
and trustee of Westfield America Trust
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Director
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WESTFIELD AMERICA, INC.
a Missouri corporation
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
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Title: Chief Financial Officer & Treasurer
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WESTFIELD AMERICA LIMITED PARTNERSHIP
a Delaware limited partnership
By: Westfield America, Inc.
its managing general partner
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
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Title: Chief Financial Officer & Treasurer
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SECURITY CAPITAL PREFERRED GROWTH INCORPORATED
a Maryland corporation
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
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Title: Senior Vice President
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