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EXHIBIT 10.29
WESTFIELD AMERICA, INC.,
WESTFIELD AMERICA MANAGEMENT LIMITED,
PERPETUAL TRUSTEE COMPANY LIMITED
AND
STICHTING PENSIOENFONDS ABP
SERIES B PREFERRED SHARES
AND
OPTIONS COVERING ORDINARY UNITS
OF WESTFIELD AMERICA TRUST
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SUBSCRIPTION AGREEMENT
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Dated as of April ___, 1997
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SUBSCRIPTION AGREEMENT
TABLE OF CONTENTS
Page
Section 1. Sale and Purchase...............................................2
1.1. Sale and Purchase of the Shares.................................2
1.2. Sale and Purchase of the Options................................2
Section 2. Closing.........................................................2
2.1. Place and Date..................................................2
2.2. Purchase of Securities..........................................3
2.3. Payment of Purchase Price.......................................3
2.4. Failure of Conditions...........................................4
lSection 3. Conditions to the Obligations of the Purchaser..................4
3.1. Representations and Warranties..................................4
3.2. Performance.....................................................4
3.3. IPO.............................................................4
3.4. Proceedings and Documents.......................................4
3.5. Opinions of Counsel.............................................5
3.6. Material Adverse Change.........................................5
3.7. Consents........................................................5
3.8. No Violation....................................................5
3.9. Option Deed.....................................................6
3.10. Obligations of Manager under Option Deed........................6
Section 4. Conditions to the Obligations of the Company and WAT............6
4.1. Representations and Warranties..................................6
4.2. IPO.............................................................7
4.3. Amendment to Articles...........................................7
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
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...................................................9
6.5. Investment Representation; Transfer Restrictions...............10
6.6. Ownership......................................................10
6.7. Investigation, Etc.............................................10
6.8. No Violation...................................................10
6.9. Amendment to Articles..........................................10
Section 7. Restrictions on Transfer.......................................11
Section 8. Survival of Representations and Warranties.....................13
Section 9. Notices........................................................13
Section 10. Termination....................................................15
Section 11. Reconstructions................................................15
Section 12. Entire Agreement...............................................15
Section 13. Successors and Assigns.........................................15
Section 14. Headings.......................................................15
Section 15. Governing Law..................................................15
Section 16. Counterparts...................................................15
Section 17. Issuance and Other Taxes.......................................15
Section 18. No Delay; Waiver...............................................16
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Section 19. Severability...................................................16
Section 20. Financial Statements and Other Information.....................16
Section 21. Inspection.....................................................17
Section 22. Lost, etc., Certificates.......................................17
Section 23. Limitation of Liability........................................17
Section 24. WAT Trust Deed.................................................17
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SUBSCRIPTION AGREEMENT
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SUBSCRIPTION AGREEMENT (the "AGREEMENT"), dated as of April ___,
1997, between WESTFIELD AMERICA, INC., a Missouri corporation (formerly known
as CenterMark Properties, Inc.) (the "COMPANY"), WESTFIELD AMERICA MANAGEMENT
LIMITED ("WAM"), a company organized under the laws of New South Wales,
Australia, as manager (in such capacity, the "MANAGER") of Westfield America
Trust ("WAT"), a public trust constituted by the Westfield America Trust Deed,
dated March 28, 1996, as amended (the "WAT TRUST DEED"), 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"), 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"). References herein to obligations of WAT shall be deemed to refer
to obligations of either the Manager or the WAT Trustee, as applicable under the
WAT Trust Deed.
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, 400,000 shares of Series B
Preferred Shares, par value $1.00 per share, of the Company (the "SHARES")
having the terms described in Section 1.1;
WHEREAS, WAT desires to sell to the Purchaser, and the Purchaser
desires to purchase from WAT, 400,000 options (the "OPTIONS", the Shares and the
Options collectively referred to herein as the "SECURITIES") issued by WAM, the
Options being options to be issued pursuant to a Special Option Deed having the
terms described in Section 3.9 (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 Deed);
NOW, THEREFORE, in consideration of the representations, warranties
and agreements herein contained, the parties hereto agree as follows:
Section 1. SALE AND PURCHASE. 1.1. SALE AND PURCHASE OF THE
SHARES. 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 Shares. The Shares shall have, MUTATIS MUTANDIS,
substantially the same terms and conditions as the Company's Series A Preferred
Shares, par value $1.00 per share (the "SERIES A SHARES") (with such changes
therefrom as shall not adversely affect the rights, preferences or powers of the
Shares), except that (a) the dividend rate on the Shares will be the greater of
(i) $8.50 per annum, or an 8.5% yield, if the FFO Multiple (as defined below)
for the IPO is 11.7 or less or, if the FFO Multiple is 11.8 or more, the minimum
dividend yield will be reduced to an amount equal to one divided by the FFO
Multiple (such event, a "Yield Reduction Event"), with quarterly amounts
adjusted accordingly, including with respect to fractional dividends payable
upon redemption and liquidation, and (ii) the dividend rate on shares of Common
Stock issued in the IPO (as such terms are defined in Section 2), which shall be
based on a "Common Equivalent Amount" equal to (x) 100 divided by (x) the Price
to Public of shares of Common Stock sold by the Company in the IPO (as such
terms are defined in Section 2), (b) the earliest date for redemption shall be
the seventh anniversary of the date of issuance of the Shares, and (c) the
holders of the Series A Shares and the Shares shall vote together as a class on
all matters requiring a vote of such shares, including but not limited to the
election of one director upon the failure to declare dividends, and that, where
the vote of a majority of the Series A Shares is currently provided, the vote
required shall be a vote of a majority of the Series A Shares and the Shares,
voting together as a class. The "FFO Multiple" shall be determined by Xxxxxxx
Xxxxx & Co. and shall equal the multiple of the projected per share Funds from
Operations (as such term in defined in the Registration Statement defined in
Section 2.1 below) of the Company for the 1997 fiscal year available for Common
Stock distributions used for determining the Price to Public for shares of
Common Stock sold in the IPO. If a Yield Reduction Event occurs, neither the
Purchaser nor the Company shall have any obligation to purchase or sell the
Shares.
1.2. SALE AND PURCHASE OF THE OPTIONS. In reliance upon the
representations and warranties contained herein and subject to the terms and
conditions hereof, WAT agrees to sell to the Purchaser, and the Purchaser agrees
to purchase, on the Closing Date (as defined in Section 2), the Options having
the terms described in the Option Deed as set forth in Section 3.9.
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 Debevoise & Xxxxxxxx, 0 Xxxxx Xxxxx, 0 Xxxxxxx Xxxx, Xxxxxx XX0X 7 AA, at
9:00 a.m. New
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York time on the date of the closing of the company's initial public offering of
common stock, par value $.01 per share (the "COMMON STOCK"), of the Company (the
"IPO") pursuant to its Registration Statement on Form S-11 (No. 333-22731) (as
amended from time to time prior to the Closing Date, the "REGISTRATION
STATEMENT"), or at such other time and place as the parties to this Agreement
shall agree (the "CLOSING DATE"). The Closing Date shall not be later than June
15, 1997.
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, 400,000 Shares at a purchase price of
US[$100 less the amount of Option Purchase Price] per Share (the "SHARE
PURCHASE PRICE") and the Purchaser hereby subscribes for and shall purchase,
and WAT shall sell to the Purchaser at the Closing referred to in Section 2.1
hereof, 400,000 Options at a purchase price of US[$ ] per Option (the
"OPTION PURCHASE PRICE" and together with the Share Purchase Price, the
"PURCHASE PRICE"). The total number of each of the Shares and the Options
may be adjusted up or down if the total Price to Public of the shares of
Common Stock sold pursuant to the Registration Statement (other than shares
of Common Stock, if any, sold upon the exercise of the underwriters'
over-allotment option) [(the "IPO Gross Proceeds") is greater or less than
US$400 million so that the total number of each of the Shares and the Options
purchased at the Closing shall equal the IPO Gross Proceeds divided by 1,000;
PROVIDED, HOWEVER, that the Purchaser shall have no obligation to purchase more
than the lesser of (a) Shares and Options having a Purchase Price of 10% of the
IPO Gross Proceeds, (b) Shares and Options which, if such Shares were
convertible into Common Stock by multiplying the number of Shares by the Common
Equivalent Amount set forth in Section 1, would not exceed 10% of the Common
Stock issued in the IPO and (b) 400,000 Shares and 400,000 Options, at the
Purchase Price; and PROVIDED FURTHER, that the number of Shares and the number
of Options purchased by the Purchaser shall be the same. Prior to the Closing,
the Purchaser, the Company and WAT shall agree upon the allocation of the
Purchase Price between the Shares and 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 (i) the Share Purchase Price for all Shares purchased and
(ii) the Option Purchase Price for all Options purchased, in each case by bank
transfer or transfer in immediately available funds to such account of the
Company or WAT, as the case may be, as shall be specified by written notice from
the Company or WAT, as the case may be, to the Purchaser, such notice given not
less than two 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
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to be fulfilled, the Agreement may be terminated by the party for whom such
condition relates by notice to the other parties without liability to any other
parties.
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 on (a) the date (the "PRICING DATE") an underwriting agreement
relating to the sale of shares of Common Stock in the IPO is executed and
delivered by the Company and the underwriters named in the Registration
Statement or, (b) in the case of the conditions set forth in Sections 3.3, 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, and
the representations and warranties of WAT set forth in the Option Deed shall be
true and correct in all material respects on the Pricing Date, and the Purchaser
shall have received a certificate of the chief financial officer of the Company,
dated as of the Pricing Date, to such effect.
3.2. PERFORMANCE. The Company, WAT, the WAT Trustee and the Manager
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 on the Pricing Date or the Closing Date, as the case may
be, including without limitation, the execution of, and compliance with, an
agreement between the parties hereto with respect to the allocation of the
Purchase Price in accordance with Section 2.2 hereof.
3.3. IPO. The closing of the sale of Common Stock as contemplated by
the Registration Statement shall have occurred.
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.
Since March 4, 1997, there shall have been no amendment of or supplement to the
Registration Statement reflecting changes in the transaction and documents
described in the Registration Statement which might reasonably be expected to
materially and adversely affect the holders of the Securities.
3.5. OPINIONS OF COUNSEL. The Purchaser shall have received (a) an
opinion of Debevoise & Xxxxxxxx, New York counsel to the Company, dated a date
not
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earlier than the Pricing Date and not later than the Closing Date; (b) 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
Pricing Date and not later than the Closing Date, (c) an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx, special U.S. tax counsel to the Company, dated a
date not earlier than the Pricing Date and not later than the Closing Date; and
(c) an opinion of Xxxxxx Xxxxxxx, Australian counsel to WAT, dated a date not
earlier than the Pricing Date and not later than the Closing Date, in each case
covering, MUTATIS MUTANDIS, the matters covered in the opinions delivered to the
Purchaser by such firms pursuant to the Subscription Agreement, dated as of June
14, 1996, between the Company and the Purchaser.
3.6. MATERIAL ADVERSE CHANGE. There shall not have occurred at any
time at or prior to the Pricing Date since the respective dates as of which
information is given in the Registration Statement, 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 Pricing
Date, (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. On the Pricing Date, 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 or governmental regulation (other than any such law or regul
5
ation of the jurisdiction in which the Purchaser is organized which was in
effect on the date hereof).
3.9. OPTION DEED. The Option Deed, in substantially the form attached
hereto as Exhibit A, among the WAT Trustee, the Manager and the Company, shall
have been duly authorized, executed and delivered by each of the parties
thereto. The Company shall be responsible for any costs relating to the
preparation of the Option Deed, as well as all stamp duty, transfer taxes,
license fees and any other taxes on or relating to the Option Deed and the
exercise of the Options. The grant of the Options and the issue of ordinary
units of WAT as a consequence of the exercise of the Options shall have been
approved by the requisite vote of the unit holders of WAT. Upon the request of
any holder of the Options in connection with the transfer thereof, the Company
will promptly provide to such holder information regarding the stock ownership
(including by attribution) of the Company as determined under the Code (as
hereinafter defined) and the effect of the ownership limitation contained in the
Company's charter with respect to such transfer. The agreements of the Company
set forth in this Section 3.9 will survive the Closing hereunder.
3.10. OBLIGATIONS OF MANAGER UNDER OPTION DEED. 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.
Section 4. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AND WAT. The
obligations of the Company under this Agreement are subject to the fulfillment
prior to or at the Pricing Date or the time of the Closing, as applicable, 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 Closing Date. The Purchaser
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 Pricing Date or the of time of the Closing, as the
case may be, including without limitation, the execution of, and compliance
with, an agreement between the parties hereto with respect to the allocation of
the Purchase Price in accordance with Section 2.2 hereof.
6
4.2. IPO. The Closing of the sale of Common Stock as contemplated by
the Registration Statement shall have occurred.
4.3. AMENDMENT TO ARTICLES. The Purchaser shall have voted its Series
A Shares to amend the Articles (as defined in Section 6.9) as provided in
Section 6.9.
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.
5.2. NO VIOLATION OR CONFLICT. The execution and delivery of this
Agreement by the Company and, upon the approval of the execution and delivery of
the Option Deed and the exercise thereof by the unit holders of WAT, 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 and, upon the approval of the
execution and delivery of the Option Deed by the unit holders of WAT, and the
Manager 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
7
delivery of the Securities and payment of the Purchase Price therefor 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 Articles 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 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. At the Pricing Date, the Registration Statement will
not contain 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
8
Trustee and/or 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.
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.
9
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.
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 any other person 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.
6.9. AMENDMENT TO ARTICLES. The Purchaser covenants and agrees to
vote or cause to be voted all shares of Series A Shares owned or controlled by
it in
10
favor of, and to otherwise use its or his best efforts to cause, an amendment
(the "Amendment") to the Company's articles of incorporation, as amended (the
"Articles") (i) to amend Section 4.2A(e) of Article Fourth of the Articles to
provide that the holders of the Series A Shares (as defined in the Articles) and
the Shares (as defined in this Agreement) shall vote together as a class on all
matters requiring a vote of such shares, including but not limited to the
election of one director upon the failure to declare dividends, and that, where
the vote of a majority of the Series A Shares is currently provided, the vote
required shall be a vote of a majority of the Series A Shares and the Shares,
voting together as a class, and (ii) to make such other changes to the Articles
as shall not adversely affect the rights, preferences or powers of the Shares or
the Series A Shares as the Company may reasonably request. The Purchaser
covenants agrees to attend, in person or by proxy, any shareholders meeting at
which the shareholders of the Company are to vote for such amendments to the
Articles and to vote or cause to be voted all of its Series A Shares at each
such meeting as set forth herein.
Section 7. RESTRICTIONS ON TRANSFER. (i) The Purchaser understands
and agrees that any certificates evidencing the Shares purchased pursuant to
this 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 XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES
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 SUBSTAN-
11
TIALLY 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.
(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
12
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, as follows:
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, Xxxxxxxxxx 00000
Attention: Co-President
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
If to WAM, at
00
Xxxxxxxxx Xxxxxxx Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Attention: Company Secretary
with a copy to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxx
Attention: Xx. Xxxxx Xxxxxx
If to the WAT Trustee, at
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxx
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Westfield America Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XXX 0000
Xxxxxxxxx
Attention: Company Secretary
14
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. TERMINATION. In the event the Closing does not occur on
or before June 15, 1997, the Company or the Purchaser may terminate this
Agreement by written notice to the other parties, after which time the Company,
WAT and the Purchaser shall have no further liability or obligation to each
other under this Agreement, unless such date is extended by the consent of the
parties hereto.
Section 11. RECONSTRUCTIONS. The Company agrees that until the
expiration of the Special Option Period (as defined in the Option Deed), prior
to any Reconstruction (as defined in the Option Deed) of the Company, it will
provide not less than 30 days prior written notice of such transaction to the
Purchaser and to WAT.
Section 12. 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.
Section 13. 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 14. 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 15. 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 16. 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 17. 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 Purchaser 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, indepen-
15
dently 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 18. 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 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 19. 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 20. 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 reasonably practicable after the end of each quarterly
fiscal period, a consolidated balance sheet of the Company and its
subsidiaries as at the end of 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 Com-
16
mission or any governmental authority succeeding to the functions of such
Commission.
Section 21. 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 22. LOST, ETC., CERTIFICATES. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate 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.
Section 23. LIMITATION OF LIABILITY. As the WAT Trustee enters into
this Agreement only in its capacity as trustee of WAT, the WAT Trustee is liable
under this Agreement only up to the extent to which it is indemnified out of the
assets of WAT. The WAT Trustee is only personally liable to the extent that it
is fraudulent, negligent or in breach of trust. If the WAT Trustee is not
personally liable, the parties other than the WAT Trustee must not xxx the WAT
Trustee personally or seek to wind it up to recover any outstanding money, and
the WAT Trustee is entitled to plead this clause as a bar to the taking of any
such proceedings.
Section 24. WAT TRUST DEED. Each of the parties to this Agreement,
other than the WAT Trustee, acknowledges that it has received a copy of the WAT
Trust Deed (as amended) establishing WAT and that it understands the rights and
obligations of the WAT Trustee and the Manager therein.
17
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the date first above-written.
WESTFIELD AMERICA, INC.
By:
----------------------------------------------------
Name:
Title:
WESTFIELD AMERICA MANAGEMENT
LIMITED, in its capacity as manager of
Westfield America Trust
By:
----------------------------------------------------
Name:
Title:
PERPETUAL TRUSTEE COMPANY LIMITED,
in its capacity as trustee of Westfield America
Trust
By:
----------------------------------------------------
Name:
Title:
STICHTING PENSIOENFONDS, ABP
By:
----------------------------------------------------
Name:
Title:
By:
----------------------------------------------------
Name:
Title:
18
