WAT SUBSCRIPTION AGREEMENT
WAT SUBSCRIPTION AGREEMENT, dated as of June 25, 1998, between
Westfield America, Inc.(ARBN 082 554 541), a Missouri corporation (the
"COMPANY"), Perpetual Trustee Company Limited (ACN 000 001 007), an
Australian company (the "TRUSTEE"), and Westfield America Management
Limited (ACN 072 780 619), an Australian company (the "MANAGER").
W I T N E S S E T H:
WHEREAS, pursuant to the Trust Deed, dated March 28, 1996, as
amended (the "TRUST DEED"), between the Trustee and the Manager, Westfield
America Trust, an Australian public property trust ("WAT"), was created;
and the Trustee and the Manager have authority to act on behalf of WAT
under the Trust Deed;
WHEREAS, the Company wishes to sell and Security Capital
Preferred Growth Incorporated wishes to purchase $75,000,060 (U.S.) of
Series C Cumulative Convertible Redeemable Preferred Stock of the Company
pursuant to a Series C Stock Purchase Agreement (the "SERIES C STOCK
PURCHASE AGREEMENT");
WHEREAS, the Company wishes to sell and Westfield American
Investments Pty. Limited wishes to buy 277,778 shares of Series D
Cumulative Convertible Redeemable Preferred Stock of the Company, par
value $1.00 (the "SERIES D PREFERRED STOCK"); and
WHEREAS, the Manager has directed the Trustee on behalf of WAT
to subscribe for and purchase, and the Company desires to sell to the
Trustee on behalf of WAT, 416,667 shares of Series D Preferred Stock (the
"SHARES"), subject to the terms and conditions contained herein.
NOW, THEREFORE, to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereto hereby agree
as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to all of the terms
and conditions of this Agreement, the Company agrees to sell and the
Trustee on behalf of WAT agrees to purchase the Shares on the Closing Date
(as defined in Section 2) for consideration as provided in Section 2(b).
The Shares shall have the rights set forth in the Series D Certificate of
Designation, substantially in the form attached as Exhibit A hereto.
2. CLOSING.
(a) TIME AND PLACE. Subject to the satisfaction of the
conditions contained herein, the closing of the sale of the Shares (the
"CLOSING") shall take place simultaneously with the closing under the
Series C Preferred Stock Agreement (the "CLOSING DATE"). The Closing shall
occur at the offices of Westfield America Inc., 00000 Xxxxxxxx Xxxxxxxxx,
00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
(b) DELIVERY BY THE TRUSTEE. At the Closing, the Trustee shall
deliver to the Company its rights to the Money Market Term Deposit with
Bankers Trust Company ("BT") to be acquired by the Trustee on June 30,
1998 in an amount of $75,000,060, in form and substance satisfactory to
the Company, and duly assigned to the Company (the "BT DEPOSIT").
(c) DELIVERY BY THE COMPANY. At the Closing, the Company shall
deliver to the Trustee on behalf of WAT, a stock certificate registered in
the Trustee's name and representing Shares to be delivered at the Closing,
provided that the Company shall not issue the Shares and shall retain such
certificates until such time as the Company receives from the BT cash in
payment of the BT Deposit of an amount equal to $75,000,060.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Trustee as follows:
(a) AUTHORIZATION. The Company has full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been or will be duly authorized by the Company.
(b) THE SHARES. The Shares, to be delivered by the Company at
the Closing, as of the Closing Date, will have been duly authorized for
issuance and, when delivered in accordance with this Agreement, will be
validly issued, fully paid and non-assessable.
(c) SERIES C PREFERRED STOCK PURCHASE AGREEMENT. The
representations and warranties of the Company contained in the Series C
Preferred Stock Purchase Agreement are true and correct in all material
respects.
4. REPRESENTATIONS AND WARRANTIES OF TRUSTEE AND MANAGER. The
Manager and the Trustee hereby represent and warrant to the Company as
follows:
(a) AUTHORIZATION. If UnitHolder Approval is obtained, then each
of the Trustee and the Manager will have full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof and on behalf of
WAT. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will be, if UnitHolder Approval is
obtained, duly authorized by or on behalf of each of WAT, the Trustee and
the Manager.
"UnitHolder Approval" means the passing by a meeting of
unitholders of WAT of a resolution authorizing and empowering the Manager
and the Trustee to, amongst other things, enter into the transactions
contemplated by this Agreement for the purposes of the Listing Rules of
the Australian Stock Exchange Limited.
(b) ACQUISITION FOR INVESTMENT.
(i) The WAT Trustee is acquiring the Shares in its capacity as
Trustee of WAT for investment on behalf of WAT and not with a view to
or for sale in connection with any distribution thereof, and WAT has
no present intention or plan to effect any distribution thereof
within the meaning of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
(ii) The Trustee and the Manager understand that the Shares and
the common stock to be issued upon conversion thereof (the
"CONVERSION STOCK") have not been registered under the Securities Act
or applicable state securities laws and agree not to sell, pledge or
otherwise transfer any of the Shares or Conversion Stock in the
absence of such registration or an opinion of counsel reasonably
satisfactory to the Company that such registration is not required.
The Trustee and the Manager acknowledge that the Company is not
required to register the Shares or the Conversion Stock.
5. LEGENDS
The Manager acknowledges and agrees that any certificates
evidencing the Series D Preferred Stock purchased pursuant to this
Agreement and the Conversion Stock issuable upon conversion thereof shall
be stamped or endorsed with legends in substantially the following form
and shall be subject to the provisions of such legends:
"THE SECURITY 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) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (i) THE RECEIPT BY THE
ISSUER OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAT
SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND (ii) THE RECEIPT BY THE ISSUER OF SUCH OTHER EVIDENCE
REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, (3) TO THE ISSUER, ITS AFFILIATES, AND (4) IN THE CASE OF
A TRANSFER UNDER (1), (2) OR (3) 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."
The Manager acknowledges and agrees that each certificate in
respect of the Series D Preferred Stock shall bear the following additional
legend:
"THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION'S
MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL MAY BENEFICIALLY
OWN SHARE IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. IN GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY
OWN SHARES IN EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS
SET FORTH IN THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH
SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER
ARE VIOLATED, THE PREFERRED SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL TRUST AS
PROVIDED IN THE ARTICLES OF INCORPORATION."
The Manager acknowledges and agrees that the certificates in
respect of the Conversion Stock shall bear the following additional
legend.
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION'S
MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL MAY BENEFICIALLY
OWN SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. IN GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY
OWN SHARES IN EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS
SET FORTH IN THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH
SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER
ARE VIOLATED, THE COMMON SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL TRUST AS
PROVIDED IN THE ARTICLES OF INCORPORATION."
6. COVENANTS.
(a) COVENANTS OF THE COMPANY. The Company hereby covenants to
submit to a shareholder vote at its 1999 Annual Meeting (the "1999 ANNUAL
MEETING") or at a special shareholder meeting held prior to such time, the
question of whether the Series D Preferred Stock shall be convertible into
common stock, par value $0.01 of the Company (the "PROPOSITION").
(b) COVENANTS BY MANAGER.
WAT UNITHOLDER MEETING. The Manager hereby agrees to convene a
meeting of unitholders of WAT for the purpose of seeking UnitHolder
Approval as soon as practicable, but in no event later than August 1,
1998.
(c) COVENANTS BY THE TRUSTEE. 1999 ANNUAL MEETING. Subject to
the receipt by the Trustee of a legal opinion stating that the Trustee may
vote at such meeting, the Trustee agrees to attend, in person or by proxy,
the 1999 Annual Meeting or any special shareholder meeting held prior to
such time, and to vote upon the Proposition.
7. CONDITIONS.
(a) CONDITIONS TO THE OBLIGATIONS OF THE TRUSTEE. The obligation
of the Trustee to purchase the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) UnitHolder Approval;
(ii) The representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects at
and as of the date hereof, and true and correct in all material respects
at and as of the Closing Date as if made at and as of such time;
(iii) No Bankruptcy Event or Acceleration Event with respect to
the Company shall have occurred and be continuing, and the Trustee shall
have received a certificate of the president or a co-president, chief
financial officer or a vice president of the Company, dated as of the
Closing Date, to the effect that no such Bankruptcy Event or Acceleration
Event has occurred and is continuing (in each case, subject to clause (y)
of the definition of "Acceleration Event").
A "BANKRUPTCY EVENT" shall occur with respect to the Company if
(X) a court of appropriate jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Receiver of the Company or for all or
substantially all of its property or (C) orders the liquidation of the
Company; or (Y) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry
of an order for relief in an involuntary case, (C) consents to the
appointment of a Receiver of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its
creditors.
An "ACCELERATION EVENT" shall occur with respect to the Company
if theCompany defaults under the terms of any agreement or instrument
evidencing or under which the Company has at the date of this Agreement or
hereafter outstanding any Senior Indebtedness that is full recourse to the
Company and such Senior Indebtedness shall be accelerated so that the same
shall be or become due and payable prior to the date on which the same
would otherwise become due and payable and the aggregate principal amount
thereof so accelerated exceeds U.S.$150,000,000 and such acceleration is
not rescinded or annulled within 90 Business Days; PROVIDED, HOWEVER, that
(X) if such default under such agreement or instrument is remedied or
cured by the Company or waived by the holders of such Senior Indebtedness,
then the Acceleration Event hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived or (Y) if the
Company provides to the Trustee a certificate of the president or a
co-president, chief financial officer or a vice president of the Company
to the effect that the Company holds sufficient funds, or has sufficient
availability under its credit facilities, to discharge such Senior
Indebtedness, then for all purposes of this Agreement the Acceleration
Event shall be deemed not to have occurred.
For the purposes of this Section 6:
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a
day on which banking institutions in New York are authorized or obligated
by law or executive order to close.
"INDEBTEDNESS" means (I) the principal obligations of the
Company for borrowed money (other than (X) the deferred purchase price of
property or services and (Y) indebtedness to trade creditors and service
providers incurred in the ordinary course of business) and (II) the
principal obligations of the Company evidenced by bonds, notes, debentures
or other similar instruments.
"RECEIVER" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company that
is not subordinated in right of payment to any other Indebtedness of the
Company.
(iv) The Company shall have performed in all material respects
its obligations under this Agreement required to be performed by it at or
prior to the Closing Date pursuant to the terms hereof;
(v) The closing under the Series C Preferred Stock Purchase
Agreement shall be occurring simultaneously with the Closing of the
Shares.
(b) CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation
of the Company to sell the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) The representations and warranties of the Manager and the
Trustee contained in this Agreement shall be true and correct in all
material respects at and as of the date hereof, and true and correct
in all material respects at and as of the Closing Date as if made at
and as of such time; and
(ii) Each of the Trustee and the Manager shall have performed in
all material respects its obligations under this Agreement required
to be performed by it at or prior to the Closing Date pursuant to the
terms hereof.
8. CONDITIONS TO EFFECTIVENESS.
(a) This Agreement shall not be binding on any party hereto and
is to have no legal effect unless and until the Manager of WAT allots and
issues 82.2 million units on June 30, 1998 pursuant to the underwriting
agreement entered into concurrently with this Agreement with SBC Warburg
Dillon Read Australia Limited.
(b) The Trustee shall have no obligation to purchase the Shares
until the Trustee receives all of the following opinions in a form
reasonably acceptable to the Trustee: an Australian legal opinion and
United States legal opinion, an Australian taxation opinion and a United
States tax opinion.
9. MAINTENANCE OF REIT STATUS.
(a) So long as the Trustee on behalf of WAT owns any of the
Shares of Series D Preferred Stock, the Company will continue to be taxed
as a real estate investment trust pursuant to Sections 856 through 860 of
the Code.
(b) If the Company shall fail to continue to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of the Code
(a "REIT-TERMINATION EVENT"), the Trustee on behalf of WAT shall have the
right to require the Company, to the extent the Company shall have funds
legally available therefor, to repurchase any or all of the Series D
Preferred Shares held by the Trustee on behalf of WAT at a repurchase
price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal
to 115% of the Liquidation Preference (as defined in the Series D
Certificate of Designation) thereof, plus accrued and unpaid dividends
whether or not declared, if any to the date of repurchase or the date
payment is made available (the "REIT-REPURCHASE DATE").
(c) Within 15 days following the Company becoming aware that a
REIT-Termination Event has occurred, the Corporation shall mail by first
class mail or recognized overnight courier a notice to the Trustee and the
Manager stating (A) that a REIT-Termination Event has occurred and that
the Trustee on behalf of WAT has the right to require the Company to
repurchase any or all of the Series D Preferred Shares then held by the
Trustee on behalf of WAT, (B) the date of repurchase (which shall be a
Business Day (as defined in the Series D Certificate of Designation), no
earlier than 30 days and no later than 60 days from the date such notice
is mailed, or such later date as may be necessary to comply with the
requirements of the Securities Exchange Act of 1934, as amended), (C) the
repurchase price and (D) the instructions determined by the Company,
consistent with this subsection, that the Trustee must follow in order to
have the Series D Preferred Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to the extent
lawful, shall accept for payment Series D Preferred Shares or portions
thereof tendered by the holders thereof pursuant to the REIT-Repurchase
Offer and promptly, by wire transfer of immediately available funds to
such holders, as directed by such holders, send an amount equal to the
REIT-Repurchase Payment in respect of all Series D Preferred Shares, or
portions thereof so tendered.
(e) Notwithstanding anything else herein, to the extent they are
applicable to any REIT-Repurchase Offer, the Company will comply with any
federal and state securities laws, rules and regulations and all time
periods and requirements shall be adjusted accordingly.
10. TRUSTEE'S LIMITATION OF LIABILITY.
(a) The Trustee enters into this Agreement only in its capacity
as trustee of WAT and in no other capacity. Any liability arising under or
in connection with this Agreement will be limited to, and can be enforced
against the Trustee only to the extent to which such liability can be
satisfied out of, the property or assets of WAT from which the Trustee is
actually indemnified for such liability. This limitation of the Trustee's
liability under this Agreement will apply despite any other provision of
this Agreement and extends to all liabilities and obligations of the
Trustee in any way related to any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement, subject to
paragraph (c)(i) of this Section 10.
(b) Neither the Company nor the Manager may xxx the Trustee in
any capacity other than as trustee of WAT, including to seek the
appointment of a receiver (except in relation to the property or assets of
WAT), a liquidator, an administrator or any similar person with respect to
the Trustee or to prove in any liquidation, administration or arrangement
of or affecting the Trustee (except in relation to the property or assets
of WAT), subject to paragraph (c)(i) of this Section 10.
(c) Notwithstanding the foregoing paragraphs (a) and (b), the
provisions of this Section 10 shall not: (i) apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Trust Deed establishing WAT or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the
property or assets of WAT as a result of the Trustee's fraud, negligence
or breach of trust; or (ii) in any way limit the right of the Company to
bring any action or proceeding for the performance by the Trustee (in its
capacity as trustee of WAT) or the Manager of any of their respective
obligations under this Agreement or the Company's right to recover damages
from the property or assets of WAT.
11. MISCELLANEOUS.
(a) NOTICES. All notices and other communications made in
connection with this Agreement shall be in writing and shall be (A) sent
by facsimile, with a copy mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or (B) transmitted by
hand delivery, addressed as follows (or at such other address as may be
specified in writing to the other party hereto):
(i) if to the Company, to:
Westfield America, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: 000-000-0000
Attention: Xxx Xxxxxx, Secretary
(ii) if to the Manager, to:
Westfield America Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Telecopy: 011 612 93587077
Attention: Xxxxx Van der Laan, Secretary
(iii) if to the Trustee, to:
Perpetual Trustee Company Limited
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Telecopy: 011 612 92315606
Attention: Xxxxx Xxxxxx, National Manager-
Property Trusts
All such notices and communications shall be deemed to have been
received on the date of delivery.
(b) BINDING EFFECT; BENEFITS, ETC. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended or shall be construed to give any person
other than the parties to this Agreement or their respective successors or
assigns any benefit or any legal or equitable right, remedy or claim under
or in respect of any agreement or any provision contained herein.
(c) WAIVER; AMENDMENT. (i) WAIVER. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing and duly executed by the party against
whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver or instance shall constitute a waiver,
modification or discharge, as the case may be, only with respect to the
specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any
other time.
(ii) AMENDMENT. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Company, the
Trustee and the Manager.
(d) ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company, the Manager or the Trustee without the prior
written consent of the other parties.
(e) SEPARABILITY. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(f) GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
The Company, the Trustee and the Manager each irrevocably
submits to the non-exclusive jurisdiction of any New York State or United
States Federal court sitting in the City of New York over any suit, action
or proceeding arising out of or relating to this Agreement. The Company,
the Trustee and the Manager each irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in any such court and
any claim that any such proceeding brought in such court has been brought
in an inconvenient forum. The Company, the Trustee and the Manager each
agree that final judgment in any such suit, action or proceeding brought
in such a court shall be conclusive and binding on it and may be enforced
in any court to the jurisdiction of which it is subject by a suit upon
such judgment. The Company, the Trustee and the Manager each hereby
irrevocably consent to service of copies of the summonses and complaints
and any other process. Such service may be made by mailing or delivering a
copy of such process to their respective addresses set forth above or by
any other means provided for by applicable law.
(g) SECTION AND OTHER HEADINGS, ETC. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company, the Manager and the Trustee have
duly executed this WAT Subscription Agreement by their authorized
representatives as of the date first above written.
WESTFIELD AMERICA, INC.
By:/s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Co-President
WESTFIELD AMERICA MANAGEMENT LIMITED, As
Manager of Westfield America Trust
By:/s/ Xxxxx Van Der Laan De Vries
-------------------------------
Name: Xxxxx van der Laan de Vries
Title: Attorney Appointed under Power
of Attorney date 25 June 1998
PERPETUAL TRUSTEE COMPANY LIMITED, As
Trustee of Westfield America Trust
By:/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: National Manager Property
Trusts
