EXHIBIT 10.28
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CENTERMARK PROPERTIES, INC.
AND
STICHTING PENSIOENFONDS ABP
SERIES A PREFERRED SHARES
AND
OPTIONS COVERING ORDINARY UNITS
OF WESTFIELD AMERICA TRUST
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SUBSCRIPTION AGREEMENT
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Dated as of June 14, 1996
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SUBSCRIPTION AGREEMENT
TABLE OF CONTENTS
Page
Section 1. Sale and Purchase. . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Place and Date. . . . . . . . . . . . . . . . . . . . . . 2
2.2. Purchase of Securities. . . . . . . . . . . . . . . . . . 2
2.3. Payment of Purchase Price . . . . . . . . . . . . . . . . 2
2.4. Failure of Conditions . . . . . . . . . . . . . . . . . . 2
2.5. Postponement of Closing . . . . . . . . . . . . . . . . . 3
Section 3. Conditions to the Obligations of the Purchaser . . . . . . . . 3
3.1. Representations and Warranties. . . . . . . . . . . . . . 3
3.2. Performance . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Memorandum . . . . . . . . . . . . . . . . . . . . . . 4
3.4. Proceedings and Documents . . . . . . . . . . . . . . . . 4
3.5. Opinions of Counsel. . . . . . . . . . . . . . . . . . 4
3.6. Material Adverse Change. . . . . . . . . . . . . . . . 5
3.7. Consents. . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Conditions to the Obligations of the Company . . . . . . . . . 6
4.1. Representations and Warranties. . . . . . . . . . . . . . 6
4.2. WAT Underwriting . . . . . . . . . . . . . . . . . . . 6
Section 5. Representations and Warranties of the Company. . . . . . . . . 7
5.1. Status; Power and Authority.. . . . . . . . . . . . . . . 7
5.2. No Violation or Conflict. . . . . . . . . . . . . . . . . 7
5.3. Securities. . . . . . . . . . . . . . . . . . . . . . . . 7
5.4. Obligations Binding . . . . . . . . . . . . . . . . . . . 8
PAGE
5.5. Federal Securities Law Matters. . . . . . . . . . . . . . 8
5.6. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . 8
5.7. Legal Proceedings.. . . . . . . . . . . . . . . . . . . . 8
5.8. Investment Company. . . . . . . . . . . . . . . . . . . . 9
5.9. REIT Status.. . . . . . . . . . . . . . . . . . . . . . . 9
Section 6. Representations and Warranties of the Purchaser. . . . . . . . 9
6.1. Organization and Standing . . . . . . . . . . . . . . . . 9
6.2. Agreement . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3. Governmental and Other Consents.. . . . . . . . . . . . . 9
6.4. ERISA Matters . . . . . . . . . . . . . . . . . . . . . . 10
6.5. Investment Representation; Transfer Restrictions. . . . . 10
6.6. Ownership . . . . . . . . . . . . . . . . . . . . . . . . 10
6.7. Investigation, Etc. . . . . . . . . . . . . . . . . . . . 10
Section 7. Restrictions on Transfer . . . . . . . . . . . . . . . . . . . 11
Section 8. Survival of Representations and Warranties . . . . . . . . . . 12
Section 9. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 10. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 13
Section 11. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 14
Section 12. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 14. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 15. Issuance and Other Taxes. . . . . . . . . . . . . . . . . . . 14
Section 16. No Delay; Waiver. . . . . . . . . . . . . . . . . . . . . . . 14
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PAGE
Section 17. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 18. Appointment of Agent for Service; Waiver or Immunity. . . . . 15
Section 19. Financial Statements and Other Information. . . . . . . . . . 15
Section 20. Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 21. Lost, etc., Certificates. . . . . . . . . . . . . . . . . . . 16
Exhibit A: Form of Restated Articles of Incorporation
Exhibit B: Form of Special Option Deed
Exhibits C-F:Forms of Counsel Opinions
Exhibit G: Form of Transfer Letter (Section 7)
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SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of June 14, 1996, between CENTERMARK
PROPERTIES, INC., a Missouri corporation (the "COMPANY"), and STICHTING
PENSIOENFONDS ABP, an entity established under the laws of The Kingdom of the
Netherlands, whose principal business is investing in funds held on behalf of
public sector employees of The Kingdom of the Netherlands(the "PURCHASER").
W I T N E S S E T H :
WHEREAS, the Company desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Company, 940,000 shares of Series A
Preferred Shares, par value $1 per share, of the Company (the "SHARES") having
the terms and conditions set forth in Article Fourth of the Company's Restated
Certificate of Incorporation, as amended, to be amended on or prior to the
Closing Date (as defined herein), in substantially the form set forth in Exhibit
A hereto (with such changes therefrom as shall not adversely affect the rights,
preferences or powers of the Shares), and 940,000 options (the "OPTIONS", the
Shares and the Options collectively referred to herein as the "SECURITIES")
issued by Westfield America Management Limited, a company organized under the
laws of New South Wales, Australia, as manager (in such capacity, the "MANAGER")
on behalf of Westfield America Trust ("WAT"), a public trust constituted by the
Westfield America Trust Deed, dated March 28, 1996, as amended on May 9, 1996
(the "WAT TRUST DEED"), with Perpetual Trustee Company Limited, a company
organized under the laws of New South Wales, Australia, as trustee of WAT (in
such capacity, the "WAT TRUSTEE"), the Options being options to be issued
pursuant to the Special Option Deed, dated May 14, 1996, attached as Exhibit B
hereto, to be amended on or prior to the Allotment Date pursuant to a Deed of
Variation in the form included in Exhibit B hereto (as so amended, the "OPTION
DEED"), and each Option shall
provide the right to purchase, on the terms and conditions set forth in the
Option Deed, such number of ordinary units of WAT (subject to recalculation as
provided therein) as shall equal the Special Option Number (as defined in the
Option);
NOW, THEREFORE, in consideration of the representations, warranties
and agreements herein contained, the parties hereto agree as follows:
Section 1. SALE AND PURCHASE. In reliance upon the representations
and warranties contained herein and subject to the terms and conditions hereof,
the Company agrees to sell to the Purchaser, and the Purchaser agrees to
purchase, on the Closing Date (as defined in Section 2), the Securities.
Section 2. CLOSING. 2.1. PLACE AND DATE. The closing of the sale
and purchase of the Securities (the "CLOSING") shall take place at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx, 00 Xxxxxxxxxxxx, Xxxxxx XX0X 0XX, at
9:00 a.m. New York time on July 1, 1996, or at such other time and place as may
be established pursuant to Section 2.5 or as the parties to this Agreement shall
agree (the "CLOSING DATE").
2.2. PURCHASE OF SECURITIES. Subject to all of the terms and
conditions of this Agreement, the Purchaser hereby subscribes for and shall
purchase, and the Company shall sell to the Purchaser at the Closing referred to
in Section 2.1 hereof, 940,000 Shares and 940,000 Options at an aggregate
purchase price of US$940,00,000 (the "PURCHASE PRICE"), of which U.S.$88,548,000
shall be allocated to the Shares and U.S.$5,452,000 shall be allocated to the
Options.
2.3. PAYMENT OF PURCHASE PRICE. Subject to all of the terms and
conditions of this Agreement, the Purchaser shall deliver at the Closing cash in
an amount equal to the Purchase Price by bank transfer or transfer in
immediately available funds to the account of ABN AMRO Bank N.V. ("ABN
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AMRO") at 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (account no. 57-40-70-00-29-41),
with instructions to ABN AMRO to deliver at the Closing such funds by bank
transfer or transfer in immediately available funds to such account of the
Company as shall be specified by written notice from the Company to ABN AMRO
given not less than 2 business days prior to the Closing Date, in full payment
for the Securities.
2.4. FAILURE OF CONDITIONS. If any of the conditions specified in
Section 3 or 4 hereof shall not have been fulfilled when and as required by this
Agreement to be fulfilled, the Agreement may be terminated by either party by
notice to the other party without liability to any other party, except for the
Delayed Closing Fee (as defined herein), if any, which shall be paid whether or
not the Closing occurs.
2.5. POSTPONEMENT OF CLOSING. Provided that the Allotment Date (as
defined in Section 3) has been postponed pursuant to the prospectus, as
registered with the Australian Securities Commission on 23 May, 1996, relating
to WAT's ordinary units (such prospectus, together with any amendment or
supplement thereto and any document incorporated by reference therein, being
herein referred to as the "MEMORANDUM") and the related underwriting agreements,
on or before the close of business (New York time) on June 27, 1996, the Company
may give notice to the Purchaser postponing the Closing Date to a date,
specified in such notice, which shall be the date which is one New York business
day following the Allotment Date so postponed, but not later than September 30,
1996. If the Closing Date is so postponed to a date after July 12, 1996 or if
this Agreement is terminated pursuant to the provisions hereof after July 12,
1996 and prior to a Closing Date, the Company shall pay to the Purchaser an
additional fee (the "DELAYED CLOSING FEE") for the period from and including
July 13, 1996 to but not including the Closing Date or the date of such
termination (the "DELAY PERIOD") calculated on the basis of the following
formula: the product of the Purchase Price and 8.5% multiplied by a fraction
the numerator of
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which shall be the number of days of the Delay Period and the denominator of
which shall be 365 (the "FRACTION") LESS the product of the Purchase Price and
the Applicable LIBID Rate multiplied by the Fraction. The "APPLICABLE LIBID
RATE" shall mean the rate determined on the basis of the bid rates for deposits
in U.S. dollars for a period of one month, as set forth on the Reuters Screen
LIBP page as of 10:00 a.m., New York time, on July 1, 1996, PROVIDED, HOWEVER,
that if two or more such bid rates appear on the Reuters Screen LIBP page, the
rate will be the arithmetic mean of such bid rates rounded upwards, if
necessary, to the nearest 1/16 of 1%.
Section 3. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser under this Agreement are subject to the fulfillment
prior to or at the time of allotment in Sydney (the "ALLOTMENT TIME") of WAT
ordinary units on the date of allotment thereof in Sydney (the "ALLOTMENT DATE")
as set forth in the Memorandum or, in the case of the conditions set forth in
Sections 3.5, 3.7 and 3.9, prior to or at the Closing, of the following
conditions:
3.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company set forth herein and in any written statement,
certificate or other instrument delivered to the Purchaser pursuant hereto shall
be true and correct in all material respects at the Allotment Time, and the
Purchaser shall have received a certificate of the chief financial officer of
the Company, dated as of the Allotment Date, to such effect.
3.2. PERFORMANCE. The Company shall have performed and complied in
all material respects with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at the
Allotment Time or the time of time of the Closing, as the case may be.
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3.3. MEMORANDUM. At the Allotment Time, all the conditions set forth
in Section 4.6 of the Memorandum shall have occurred and been completed in all
material respects to the satisfaction of the Purchaser (whether or not waived
pursuant to the terms of the Memorandum and the related underwriting agreements)
and contemporaneously with the Allotment Time approximately 400,000,000 ordinary
units of WAT shall have been allotted pursuant to the Memorandum. Since May 23,
1996 and prior to the Allotment Time, there shall have been no amendment of or
supplement to the Memorandum reflecting changes in the transaction and documents
described in the Memorandum which might reasonably be expected to materially and
adversely affect the holders of the Securities.
3.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated hereby and all documents and instruments
incidental thereto shall be reasonably satisfactory in substance and form to the
Purchaser, and the Purchaser shall have received all such originals or certified
or other copies of such documents as the Purchaser may reasonably request.
3.5. OPINIONS OF COUNSEL. The Purchaser shall have received (i) an
opinion of Debevoise & Xxxxxxxx, New York counsel to the Company, dated a date
not earlier than the Allotment Date and not later than the Closing Date; (ii) an
opinion of Xxxxx Xxxx or other counsel reasonably satisfactory to the Purchaser,
as special Missouri counsel for the Company, dated a date not earlier than the
Allotment Date and not later than the Closing Date, (iii) an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx, special U.S. tax counsel to the Company, dated a
date not earlier than the Allotment Date and not later than the Closing Date;
and (iv) an opinion of Xxxxxx Xxxxxxx, Australian counsel to WAT, dated a date
not earlier than the Allotment Date and not later than the Closing Date, in the
respective forms of Exhibits C, D, E and F hereto.
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3.6. MATERIAL ADVERSE CHANGE. There shall not have occurred at any
time at or prior to the Allotment Time since the respective dates as of which
information is given in the Memorandum, any material adverse change, or any act,
omission or thing which could reasonably be expected to result in a material
adverse change, in the business, operations or condition (financial or
otherwise) of either the Company, the Manager, the WAT Trustee or WAT and/or its
respective subsidiaries, in each case taken as a whole, whether or not arising
in the ordinary course of business.
3.7. CONSENTS. All authorizations and consents necessary for the
execution and delivery by the Company, the Manager or the WAT Trustee, as the
case may be, or on behalf of the Company, the Manager or the WAT Trustee, as the
case may be, of this Agreement and the Option Deed and the sale and delivery of
the Securities as contemplated herein and thereby will, at or prior to the
Closing, have been given and will be in full force and effect at the time of the
Closing. The form of the certificate representing the Options and the form of
transfer certificate attached to the Option Deed will comply with all applicable
requirements, including The Listing Rules of the Australian Stock Exchange
Limited.
3.8. NO VIOLATION. From the date of this Agreement to the Allotment
Time, (i) no law, rule or regulation to which the Purchaser is subject shall
have been enacted, (ii) no judicial or administrative order or decree to which
the Purchaser is subject shall have been entered and (iii) no standard,
fiduciary duty or policy established by applicable law which governs the
management and/or investment criteria of the Purchaser shall have been
established, which in any such event would prevent either (A) the ownership by
the Purchaser of a Share at a time when the Purchaser owns no Options or (B) the
ownership by the Purchaser of an Option at a time when the Purchaser owns no
Shares. At the Allotment Time, the purchase of and payment for the Securities
to be purchased by the Purchaser on the Closing Date shall not be prohibited by
any applicable law
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or governmental regulation (other than any such law or regulation of the
jurisdiction in which the Purchaser is organized which was in effect on the date
hereof).
3.9. EXERCISE OF GGP AND WHITEHALL OPTIONS. Each of the 1996 GGP
Option (the "1996 GGP OPTION), as defined in and pursuant to the GGP Option
Agreement, dated as of December 19, 1995, as amended, by and among the Company,
Westfield U.S. Investments Pty. Limited and GGP Limited Partnership, and the
Whitehall Option (the "WHITEHALL OPTION"), as defined in and pursuant to the
Whitehall Option Agreement, dated as of December 19, 1995, as amended, by and
among the Company, Westfield U.S. Investments Pty. Limited, Whitehall Street
Real Estate Limited Partnership III, Stone Street Real Estate Fund 0000, Xxxxx
Xxxxxx Xxxx Xxxxxx Fund 0000, Xxxxxx Xxxxxx Xxxx Xxxxxx Fund 1993 and Bridge
Street Real Estate Fund 1994, shall have been exercised.
3.10. OBLIGATIONS OF MANAGER UNDER OPTION DEED. At or prior to the
Allotment Date, either (a) the Option Deed shall have been amended to provide
that upon a breach by the Manager of its obligations thereunder, the holder of
the Option shall have recourse for damages incurred to the assets of WAT or (b)
Westfield Holdings Limited or another entity designated by the Company
reasonably satisfactory to the Purchaser shall have indemnified the holders of
the Option for damages or losses (including legal fees and expenses) incurred or
suffered by the Purchaser due to the failure or inability of the Manager to
perform its obligations under the Option Deed.
3.11. OPTION DEED. The Option Deed, including the Deed of Variation,
shall have been duly authorized, executed and delivered by each of the parties
thereto.
Section 4. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company under this Agreement are subject to the fulfillment
prior to or at the Allotment Time or, in the case of the conditions set forth
7
in Section 4.3, prior to or at the Closing, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser set forth herein and in any written statement,
certificate or other instrument delivered to the Company pursuant hereto shall
be true and correct in all material respects at the Allotment Time.
4.2. WAT UNDERWRITING. Prior to and at the Allotment Time, the
agreements with the underwriters referred to in the Memorandum shall not have
been terminated under the terms thereof.
4.3. EXERCISE OF GGP AND WHITEHALL OPTIONS. Each of the 1996 GGP
Option and the Whitehall Option shall have been exercised.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents, warrants and covenants to the Purchaser as follows:
5.1. STATUS; POWER AND AUTHORITY. The Company is a company duly
organized, validly existing and in good standing under the laws of the State of
Missouri and has all requisite power and authority to enter into and perform its
obligations under this Agreement and the Shares. WAT is a validly subsisting
public trust established under the WAT Trust Deed which has not been terminated.
The Manager is a company duly organized and validly existing under the laws of
New South Wales, Australia, and has all requisite power and authority to enter
into and perform its obligations under the Option Deed and the Options. The WAT
Trustee is a company duly organized and validly existing under the laws of New
South Wales, Australia, and has the power and authority under the WAT Trust Deed
to enter into and perform its obligations under the Option Deed and the Options.
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5.2. NO VIOLATION OR CONFLICT. The execution and delivery of this
Agreement by the Company and the Option Deed by each of the Manager and the WAT
Trustee and the consummation of the transactions contemplated herein and thereby
(including the sale and delivery of the Securities) will not result in a breach
by the Company, the Manager or the WAT Trustee, as the case may be, of, or
constitute a default by the Company, the Manager or the WAT Trustee, as the
case may be, under, (i) the charter or by-laws (or other governing document) or
any contract, agreement or instrument to which the Company, the Manager or the
WAT Trustee is a party or by which the Company, the Manager or the WAT Trustee
is bound or their respective properties may be subject or (ii) any existing
applicable law, rule, published regulation, judgment, order or decree of any
government, governmental instrumentality or court having jurisdiction over the
Company, the Manager or the WAT Trustee or any of their respective properties.
5.3. SECURITIES. Each of the Company, the Manager and the WAT
Trustee has full right, power and authority to sell, transfer and deliver the
Securities as contemplated by this Agreement and the Option Deed, as the case
may be; and upon delivery of the Securities and payment of the Purchase Price
therefore as contemplated by this Agreement, the Purchaser will receive good and
valid title to the Securities purchased by it, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind and
such Securities will be fully paid and non-assessable, except that there are
certain restrictions on ownership and transfer of the Securities described
herein, in the Company's Restated Certificate of Incorporation, as amended, and
in the Option Deed.
5.4. OBLIGATIONS BINDING. This Agreement has been duly authorized by
all necessary action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against it in accordance with the terms hereof,
except as such enforceability may be
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limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting the rights of creditors generally.
5.5. FEDERAL SECURITIES LAW MATTERS. (i) None of the Company, the
Manager or the WAT Trustee nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts in the United States
within the meaning of Regulation S ("REGULATION S") under the United States
Securities Act of 1933, as amended (the "SECURITIES ACT") with respect to the
Securities, (ii) it and they have complied with the offering restriction
requirements of Regulation S, (iii) none of the Company, the Manager, the WAT
Trustee or any person acting on its or their behalf has offered or will offer to
sell any of the Securities by means of any general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (iv) none of WAT, the Manager or the WAT Trustee, as
the case may be, is a "foreign issuer" within the meaning of Regulation S and
the Company reasonably believes that there is no "substantial U.S. market
interest" (as such term is defined in Regulation S) in the Securities.
5.6. DISCLOSURE. The Memorandum does not include, and at the
Allotment Time will not include, an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
5.7. LEGAL PROCEEDINGS. No legal or governmental proceedings are
pending to which the Company, the Manager or the WAT Trustee or to which the
property of the Company, the Manager or the WAT Trustee is subject which might
reasonably be expected to have a material adverse effect on the business,
operations or condition (financial or otherwise) of either the Company, the
Manager or the WAT Trustee and/or
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its respective subsidiaries, in each case taken as a whole, whether or not
arising in the ordinary course of business.
5.8. INVESTMENT COMPANY. Each of the Company, the Manager and the
WAT Trustee is not an "investment company", and is not directly or indirectly
controlled by any person which is required to register as an "investment
company", within the meaning of and under the U.S. Investment Company Act of
1940, as amended, and the transactions contemplated by this Agreement will not
cause the Company to become an "investment company" subject to registration
under such Act.
5.9. REIT STATUS. The Company is organized in conformity with the
requirements for qualification as a real estate investment trust ("REIT") under
Sections 856 through 860 of the U.S. Internal Revenue Code of 1986, as amended
(the "CODE"), and the present and contemplated method of operation of the
Company does and will enable the Company to meet the requirements for taxation
as a REIT under the Code.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents, warrants and covenants to the Company as follows:
6.1. ORGANIZATION AND STANDING. The Purchaser has all requisite
power and authority to enter into and perform its obligations under this
Agreement.
6.2. AGREEMENT. This Agreement has been duly authorized by all
necessary action on the part of the Purchaser, has been duly executed and
delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting the rights of creditors generally.
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6.3. GOVERNMENTAL AND OTHER CONSENTS. No consent, approval or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority or any other person is required to be
obtained by the Purchaser in connection with the execution, delivery or
performance of this Agreement by the Purchaser or of any of the transactions
contemplated hereby.
6.4. ERISA MATTERS. None of the funds proposed to be used by you to
purchase any Securities constitutes assets of an employee benefit plan within
the meaning of The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to ERISA.
6.5. INVESTMENT REPRESENTATION; TRANSFER RESTRICTIONS. The Purchaser
is acquiring the Securities (and, upon exercise of any Option, the WAT ordinary
units issued pursuant thereto) for its own account and not with a view to, or
for sale in connection with, any distribution thereof. The Purchaser
understands that the Securities (and such WAT ordinary units) are being offered
in a transaction not involving any public offering in the United States within
the meaning of the Securities Act, that the Securities (and such WAT ordinary
units) have not been and will not be registered under the Securities Act and
that (i) if it decides to resell, pledge or otherwise transfer such Securities
(and such WAT ordinary units), such Securities (and such WAT ordinary units) may
be offered, resold, pledged or otherwise transferred only (A) pursuant to an
effective registration statement under the Securities Act, (B) outside the
United States to a non-U.S. person in a transaction meeting the requirements of
Rules 903 and 904 of Regulation S and in accordance with any applicable
securities laws of any applicable jurisdiction, (C) to the Company and its
affiliates or WAT and its affiliates, or (D) in each case subject to the
restrictions on ownership and transfer set forth below in Section 7; and (ii)
the Purchaser will, and each subsequent holder is required to, notify any
subsequent purchaser from it of the resale restrictions set forth below in
Section 7.
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6.6. OWNERSHIP. No individual owns, directly or indirectly, more
than five percent of the beneficial interests of the Purchaser.
6.7. INVESTIGATION, ETC. The Purchaser confirms that it is not
entitled to rely on any investigation that ABN AMRO or any of its affiliates or
any person acting on its or their behalf may have conducted with respect to the
Company, WAT and the ordinary units of WAT.
6.8. NO VIOLATION. As of the date of this Agreement, neither (i) the
ownership by the Purchaser of a Share at a time when the Purchaser owns no
Options nor (ii) the ownership by the Purchaser of an Option at a time when the
Purchaser owns no Shares would contravene, violate or constitute a default under
(A) any document pursuant to which the Purchaser was organized and operates, (B)
any law, rule or regulation to which the Purchaser is subject (other than laws
of the United States, the District of Columbia or any State), (C) any judicial
or administrative order or decree to which the Purchaser is subject or (D) any
standard, fiduciary duty or policy which governs the management and/or
investment criteria of the Purchaser. As of the date of this Agreement, the
purchase of and payment for the Securities to be purchased by the Purchaser on
the Closing Date is not prohibited by any applicable law or governmental
regulation of the jurisdiction in which the Purchaser is organized.
Section 7. RESTRICTIONS ON TRANSFER. (i) The Purchaser understands
and agrees that any certificates evidencing the Shares purchased pursuant to
this Subscription Agreement shall be stamped or endorsed with legends in
substantially the following form and the Purchaser shall be subject to the
provisions of such legends:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES
13
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT
BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM AND AS SET FORTH HEREIN.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (2) INSIDE THE UNITED STATES TO A PERSON WHO
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a))(1),(2), (3) AND (7) UNDER THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (i) THE
RECEIPT BY THE ISSUER OF A LETTER IN SUBSTANTIALLY THE FORM ATTACHED
TO THE SUBSCRIPTION AGREEMENT PURSUANT TO WHICH THIS SECURITY WAS
ISSUED ,(ii) UNLESS THE TRANSFER IS OF SECURITIES WITH A PURCHASE
PRICE OF NOT LESS THAN US$ 250,000, THE RECEIPT BY THE ISSUER OF AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, AND
(iii) THE RECEIPT BY THE ISSUER OF SUCH OTHER EVIDENCE ACCEPTABLE TO
THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3)
OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULES 903 OR 904 OF REGULATION S UNDER
THE SECURITIES ACT, (4) TO THE ISSUER OR ITS AFFILIATES, OR (5) IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
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(ii) The Purchaser understands and agrees that, as of the Closing Date, the
Shares shall bear the following additional legend and that the Purchaser shall
be subject to the provisions of such legend:
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS AMENDED.
(iii) The Purchaser understands and agrees that, as of the Closing Date, the
Options will be subject to the transfer restrictions under the Option Deed and
shall be stamped or endorsed with legends in the forms set forth in the Option
Deed and that the Purchaser shall be subject to the provisions of such legends.
(iv) The Purchaser understands that the WAT ordinary units issuable upon
exercise of the Options will be subject to the transfer restrictions under the
WAT Trust Deed and the Option Deed and that the Trustee of WAT will not
recognize or effect transfers of ownership of the WAT ordinary units unless such
transfer restrictions are complied with and fully satisfied (so long as such
transfer restrictions shall apply to such WAT ordinary units).
Section 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the parties hereto contained in this Agreement
or otherwise made in writing in connection with the transactions contemplated
herein shall survive the making of this Agreement and transfer of the
Securities.
Section 9. NOTICES. All notices and other communications hereunder
shall be in writing and shall be delivered by hand or sent by first-class mail,
postage prepaid, or by telecopy, as follows:
15
If to the Purchaser, at:
X.X Xxx 0000
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
with a copy to:
U.S. Alpha Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Klijnen, Portfolio Manager
If to the Company, at:
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: President
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
or, in each case, at such address and to the attention of such person as either
party shall have furnished to the other by notice.
Section 10. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto. This Agreement may be modified or
terminated only by an instrument in writing signed by the parties hereto.
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Section 11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
on and shall inure to the benefit of the successors and assigns of the parties
hereto.
Section 12. HEADINGS. The headings of the sections of this Agreement
are solely for convenience of reference and shall not affect the meaning of any
of the provisions hereof.
Section 13. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of New York as applied to contracts made and fully performed
in New York.
Section 14. COUNTERPARTS. This Agreement may be executed in one or
more separate counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
Section 15. ISSUANCE AND OTHER TAXES. The Company shall pay or cause
to be paid all stamp, stamp duty, stamp duty reserve, documentary, registration,
transfer or similar taxes required to be paid in connection with the issuance to
the Company of the Options, the exercise of the Options and the issuance of
ordinary units of WAT pursuant thereto and the issuance and sale to the
Purchaser of the Securities, and shall have caused all appropriate stock
transfer tax stamps to be affixed to the certificates representing the
Securities so sold and delivered. The Company shall file, independently or
jointly with the Purchaser, as the law requires, all transfer tax filings
required to be filed by it in connection with the sale and delivery to Purchaser
of the Securities.
Section 16. NO DELAY; WAIVER. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall
17
any waiver on the part of any party of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege.
Section 17. SEVERABILITY. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
Section 18. APPOINTMENT OF AGENT FOR SERVICE; WAIVER OR IMMUNITY.
The Company represents to the Purchaser that it has appointed CT Corporation
System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx as the authorized agent of the Company
for service of process in any action, suit or proceeding against the Company
instituted by the Purchaser based on or arising under this Agreement in any
federal or state court in the State of New York, and expressly accepts the
non-exclusive jurisdiction of any such court in respect of any such suit or
proceeding. The Company represents to the Purchaser that it has notified CT
Corporation System of such designation and appointment and that CT Corporation
System has accepted the same in writing. The Company agrees to take any and all
action, including the execution and filing of all such instruments and
documents, as may be necessary to continue such designation and appointment in
full force and effect for so long as the Securities remain outstanding from the
Closing Date.
Section 19. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
will deliver (in duplicate) to the Purchaser, so long as the Purchaser shall
hold any of the Securities:
(a) as soon as practicable after the end of each semi-annual fiscal
period, a consolidated balance sheet of the Company and its subsidiaries as
at the end of
18
such period, and a consolidated statement of income and of retained
earnings of the Company and its subsidiaries for such period, setting forth
in each case, in comparative form, figures for the corresponding period of
the previous fiscal year, all in reasonable detail and certified as true
and correct by a principal financial officer of the Company, subject to
year-end adjustments;
(b) as soon as practicable after the end of each fiscal year, a
consolidated balance sheet of the Company and its subsidiaries and a
consolidated statement of income and of retained earnings of the Company
and its subsidiaries for such year, setting forth in each case, in
comparative form, figures for the previous fiscal year, all in reasonable
detail and certified by independent certified public accountants; and
(c) promptly upon transmission thereof, copies of all financial
statements, proxy statements, reports and returns sent by the Company to
any class of its stockholders and of all registration statements and
regular and periodic reports, if any, filed by it with the United States
Securities and Exchange Commission or any governmental authority succeeding
to the functions of such Commission.
Section 20. INSPECTION. The Company will permit any authorized
representatives designated by the Purchaser (so long as the Purchaser shall hold
any of the Securities) at the Purchaser's expense, to visit and inspect any of
the properties of the Company or any of its subsidiaries, and to discuss its and
their affairs, finances and accounts with its and their officers, all at such
reasonable times and as often as may be reasonably requested.
Section 21. LOST, ETC., CERTIFICATES. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate
19
representing any of the Shares and, in case of any such loss, theft or
destruction, upon delivery of indemnity satisfactory to the Company, or in case
of any such mutilation, upon surrender and cancellation of such certificate, the
Company will at its expense make and deliver a new certificate, of like tenor,
in lieu of such lost, stolen, destroyed or mutilated certificate. Upon
surrender of any certificate representing any of the Shares to the Company at
its principal office, the Company at its expense will issue in exchange therefor
and deliver to the holder of the surrendered certificate a new certificate or
certificates, in such denomination or denominations as may be requested by such
holder.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the date first above-written.
CENTERMARK PROPERTIES, INC.
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: Executive Vice President
STICHTING PENSIOENFONDS, ABP
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: MD ABP Investments
By: /s/ X. Xxxxxxxxx
--------------------------------------
Name: X. Xxxxxxxxx
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