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.
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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
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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
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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
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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."
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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;
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(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 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
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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
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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.
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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.
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(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
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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
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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,
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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
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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.
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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
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