WAT SUBSCRIPTION AGREEMENT
WAT SUBSCRIPTION AGREEMENT, dated as of December 17, 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 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, 138,889 shares (the "Shares") of Series D-1
Cumulative Convertible Redeemable Preferred Stock of the Company, par value
$1.00 (the "Series D-1 Preferred Stock"), 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 Certificate of
Designation relating to the Series D-1 Preferred Stock, substantially in
the form attached as Exhibit A hereto (the "Series D-1 Certificate").
2. Closing.
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(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 on a date mutually agreed
upon by the parties hereto (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 $25,000,020 to the
Company by wire transfer of immediately
available funds to the following account:
Account Name: Westfield America
Limited Partnership
Account Number: 1420203965
Bank Name: Bank of America
Routing ABA Number: 000000000
(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 the Shares.
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-1 Preferred Stock Purchase Agreement.
The representations and warranties of the
Company contained in the Series C-1 Preferred
Stock Purchase Agreement, dated as of the date
hereof, among the Company, Westfield America
Limited Partnership and Security Capital
Preferred Growth Incorporated (the "Series C-1
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. Each of the Trustee and the
Manager has 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 have been
duly authorized by or on behalf of each of the
Trustee and the Manager.
(b) Acquisition for Investment.
(i) The 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"). The
Trustee and the Manager have received
copies of the Company's Report on Form
10-K for the year ended December 31,
1997, the reports filed with the
Securities and Exchange Commission
since December 31, 1997, pursuant to
Section 13 of the Securities Exchange
Act of 1934, as amended, and the
Company's Registration Statement on
Form S-3 (File No. 333-52977), as filed
with the Commission on June 1, 1998
(collectively, the "Disclosure
Documents"). The Trustee and the
Manager have been furnished the
opportunity to ask questions of and
receive answers from representatives of
the Company concerning the Disclosure
Documents and the business and
financial affairs of the Company.
(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-1 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-1 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 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 RESTATED 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 RESTATED 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 RESTATED 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 RESTATED 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-1 Preferred Stock shall
be convertible into common stock, par value
$0.01 of the Company (the "Proposition").
(b) Covenants by the Trustee. 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) 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;
(ii) 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 a Co- President, Chief
Financial Officer or the Secretary 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 the Company 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 7:
"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.
(iii) 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;
(iv) The closing under the Series C-1
Purchase Agreement shall be occurring
simultaneously with the Closing of the
issuance and sale 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. 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-1 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-1
Preferred Stock 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-1 Certificate)
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-1 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-1
Certificate), 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-1 Preferred Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to
the extent lawful, shall accept for payment
Series D-1 Preferred Stock 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-1 Preferred
Stock, or portions thereof so tendered.
(e) Notwithstanding anything else herein to the
contrary, 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. Dividends. The Trustee and the Manager hereby
acknowledge and agree that the Company will pay the dividends due and
payable on the Series D-1 Preferred Shares for the quarter ended December
31, 1998 concurrently with the dividends due and payable for the quarter
ended March 31, 1999.
12. Miscellaneous.
(a) Notices. All notices and other communications
made in connection with this Agreement shall
be in writing and shall be (i) sent by
facsimile, with a copy mailed by first-class,
registered or certified mail, return receipt
requested, postage prepaid, or (ii)
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
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: 213-687-5600
Attention: Xxxxx X. Xxxx, Esq.
(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. INCLUDING WITHOUT LIMITATION,
SECTIONS 5- 1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATION LAW AND NEW YORK CIVIL
PRACTICE LAWS AND RULES 327(b).
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, dated 14 December
1998
PERPETUAL TRUSTEE COMPANY LIMITED,
As Trustee of Westfield America Trust
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: National Manager Property Trusts
