EXHIBIT 99(d)(3)
PREFERRED STOCK TRANSACTION AGREEMENT
This PREFERRED STOCK TRANSACTION AGREEMENT (this "AGREEMENT") is made as of
the 14th day of February, 2001 by and between Westfield America Management
Limited (ACN 072 780 619) ("WAML"), a corporation organized under the laws of
New South Wales, Australia, in its capacity as responsible entity and trustee of
Westfield America Trust ("WAT") (Australia Registered Scheme No. 092 058 449), a
registered managed investment scheme organized under the laws of New South
Wales, Australia, and Security Capital Preferred Growth Incorporated, a Maryland
corporation (the "INVESTOR").
W I T N E S S E T H
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WHEREAS, Westfield America, Inc., a Missouri corporation (together with its
successor as herein contemplated, the "COMPANY"), has previously issued and sold
to the Investor, and the Investor has previously purchased from the Company, an
aggregate of 694,445 shares of the Company's Series C Cumulative Convertible
Redeemable Preferred Stock, $1.00 par value per share, Series C-1 Cumulative
Convertible Redeemable Preferred Stock, $1.00 par value per share, and Series
C-2 Cumulative Convertible Redeemable Preferred Stock, $1.00 par value per share
(together, the "SERIES C PREFERRED STOCK");
WHEREAS, WAML, in its capacity as responsible entity and trustee of WAT,
desires to commence a tender offer (the "OFFER") for all of the issued and
outstanding shares of common stock of the Company (other than common stock owned
by it, Westfield Corporation, Inc. and Westfield American Investments Pty.
Limited) pursuant to the terms of the Merger Agreement among WAML, in its
capacity as responsible entity and trustee of WAT, the Company and Merger Sub
(as defined below), as such agreement shall be amended from time to time (the
"MERGER AGREEMENT"), and, contingent upon the successful completion of the Offer
and, if required, upon approval by the shareholders of the Company, merge a
corporation ("MERGER SUB") owned by WAML (in its capacity as responsible entity
and trustee of WAT), Westfield Corporation, Inc. and Westfield American
Investments Pty. Limited with and into the Company pursuant to the terms of the
Merger Agreement (the "MERGER");
WHEREAS, WAML, in its capacity as responsible entity and trustee of WAT,
desires the Investor to enter into, and the Investor and WAML, in its capacity
as responsible entity and trustee of WAT, are executing contemporaneously with
this Agreement a waiver of the Investor's right to convert Series C Preferred
Stock under the terms of such stock into the Company's common stock, par value
$.01 per share ("COMMON STOCK"), in connection with the Offer and Merger;
WHEREAS, the Investor and WAML, in its capacity as responsible entity and
trustee of WAT, are executing contemporaneously herewith an Indemnification and
Tax Contest Agreement (the "TAX INDEMNITY AGREEMENT") with respect to certain
tax matters;
WHEREAS, WAML, in its capacity as responsible entity and trustee of WAT,
wishes to issue and sell to the Company as soon as practicable following the
Merger, special options (the "WAT OPTIONS"), the terms of which shall be as set
forth in the special option deed (the "WAT OPTION AGREEMENT") in substantially
the form of EXHIBIT A hereto, in accordance with and subject to the terms and
conditions set forth herein, and intends to convene meetings of members of WAT
for the approval of the transactions contemplated herein and otherwise
associated with the Offer and the Merger, including, without limitation, (i) the
proposed issue by WAML of other special options to the Company which will be
transferred by the Company to Westfield American Investments Pty. Limited, (ii)
the capital raisings by WAML to fund the Offer and Merger and (iii) the proposed
issue by WAML of other special options to Westfield Corporation, Inc.
(collectively, the "MEMBER APPROVAL"); and
WHEREAS, WAML and the Investor desire to enter into, and WAML desires to
cause the Company to enter into, certain other agreements contemporaneously with
or as soon as practicable after completion of the Merger, including the exchange
of the WAT Options and a new series of preferred stock of the Company, the
Series G Cumulative Convertible Redeemable Preferred Stock, $1.00 par value per
share (the "SERIES G PREFERRED STOCK"), for all of the issued and outstanding
Series C Preferred Stock, upon mutually acceptable terms and conditions (the
"EXCHANGE");
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
agreements and warranties herein contained, the parties hereby agree as follows:
1. AGREEMENTS RELATED TO TRANSACTION CLOSING. Subject to the terms and
conditions of this Agreement, as soon as practicable following the Merger, WAML
shall issue and deliver to the Company the WAT Option Agreement evidencing the
WAT Options and shall cause the Company to acquire the WAT Options. Subject to
the terms and conditions of this Agreement, as soon as practicable following the
closing of the Merger, the Investor shall enter into, and WAML shall cause the
Company and Westfield America Limited Partnership, a Delaware limited
partnership (the "OPERATING PARTNERSHIP"), to enter into, an exchange agreement
substantially in the form attached hereto as EXHIBIT B (the "EXCHANGE
AGREEMENT"). As further described in the Exchange Agreement, subject to the
terms and conditions contained herein and therein, at the closing under the
Exchange Agreement (the "TRANSACTION CLOSING"), WAML shall cause the Company to,
(a) adopt and file with the Secretary of State of Missouri the Series
G Preferred Stock Certificate of Designation substantially in the form
attached hereto as EXHIBIT C, and
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(b) transfer to the Investor 694,445 shares of Series G Preferred
Stock and transfer to the Investor the WAT Options, all in exchange for all
of the issued and outstanding Series C Preferred Stock.
2. EXPENSES.
(a) Each party shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement and the Tax Indemnity Agreement; PROVIDED, HOWEVER, that WAML
shall reimburse the Investor for its reasonable internal and external
costs, fees and expenses (including, without limitation, legal and
accounting costs, fees and expenses) in connection with the Investor's
assessment, due diligence review, structuring, negotiation, documentation
and consummation of the transactions contemplated hereby. Without in any
way limiting the payment of external costs, fees and expenses, because of
the difficulty of estimating certain internal costs, the parties have
agreed to the payment by WAML of such internal costs as set forth on
EXHIBIT D attached hereto. WAML shall reimburse the Investor for such
reasonable external costs, fees and expenses promptly upon presentation to
WAML of an invoice or xxxx, whether or not such invoice or xxxx is so
presented before, at or after the execution of, or the closing with respect
to, any of the agreements or transactions contemplated hereby or the
Transaction Closing, the termination of this Agreement or the payment for
the Series C Preferred Stock pursuant to SECTION 12. All such internal and
any unpaid external costs, fees and expenses shall be paid upon the earlier
to occur of (i) the Transaction Closing, (ii) the termination of this
Agreement or (iii) the date on which the payment in respect of purchase of
Series C Preferred Stock pursuant to SECTION 12 is made. If any action at
law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.
(b) Notwithstanding anything to the contrary in this Agreement, all
amounts payable to Investor pursuant to EXHIBIT D shall be placed into
escrow and shall be paid over to Investor from time to time to the extent
any amount payable to Investor by WAML pursuant to EXHIBIT D of this
Agreement (the "WAML PAYMENTS") does not exceed the Total Payment
calculated at such time. As used in this Agreement, "TOTAL PAYMENT" shall
be an amount equal to the lesser of (i) the WAML Payments and (ii) the sum
of (A) the maximum amount that can be paid to Investor without causing
Investor to fail to meet the requirements of Sections 856(c)(2) and (3) of
the Internal Revenue Code (the "CODE") determined as if the payment of such
amount did not constitute income described in Sections 856(c)(2)(A)-(H) and
856(c)(3)(A)-(I) of the Code ("QUALIFYING INCOME"), as determined by
independent accountants to Investor, and (B) in the event Investor receives
a letter from outside counsel (the "TOTAL PAYMENT TAX OPINION") indicating
that Investor's receipt of the WAML Payments would either constitute
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Qualifying Income or would be excluded from gross income of Investor within
the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT
REQUIREMENTS") or that the receipt by Investor of the remaining balance of
the WAML Payments would not be deemed constructively received prior
thereto, the WAML Payments less the amount paid under clause (A) above. Any
unpaid amounts shall remain in escrow and the escrow agent shall not
release any portion thereof to Investor unless and until the escrow agent
receives either one of the following: (i) a letter from Investor's
independent accountants indicating the maximum amount that can be paid at
that time to Investor without causing Investor to fail to meet the REIT
Requirements or (ii) a Total Payment Tax Opinion, and in either of such
events WAML shall cause the escrow agent to release to Investor the lesser
of the unpaid WAML Amount or the maximum amount stated in the letter
referred to in (B) above. The escrow agent shall return to WAML any unpaid
portion of the Total Payment on the date that is ten (10) years from the
date of this Agreement. The funds in the escrow shall be invested in U.S.
Treasury obligations. WAML shall have no liability to the Investor for any
loss of the escrowed funds or for damages resulting from payments by the
escrow agent to the Investor in excess of the REIT Requirements. The
parties will enter into an escrow agreement substantially in the form
attached hereto as Exhibit E as soon as reasonably practicable following
the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF WAML. WAML represents and warrants,
as of the date of this Agreement and as of the Transaction Closing, that:
(a) WAML has been incorporated as a company and is validly existing
and in good standing under the laws of New South Wales, Australia.
(b) WAML is the only responsible entity (as defined under the
Corporations Law as defined by Section 13(2) of the Corporation (New Xxxxx
Xxxxx) Xxx 0000 of New South Wales, Australia and including a reference to
the Regulations in that Section (the "CORPORATIONS LAW")) and trustee of
WAT and no action has been taken by WAML or proposed by WAML to remove WAML
as the responsible entity of WAT, nor is WAML aware of any proposed action
by the members of WAT as of the date hereof to requisition a meeting to
remove WAML as responsible entity under the Corporations Law. WAML is able,
under the terms of WAT's Trust Deed dated March 28, 1996 originally between
Perpetual Trustee Company Limited and WAML, as amended (the "WAT
CONSTITUTION"), to have recourse to the assets of WAT in the event (i) this
Agreement, the WAT Option Agreement or any other agreement between WAML and
the Investor contemplated hereby is breached or (ii) to satisfy WAML's
obligations (x) under the Tax Indemnity Agreement or (y) the WAML guaranty
set forth in SECTION 14 of this Agreement. The assets of WAT are sufficient
to satisfy WAML's right to be indemnified out of the assets of WAT and all
other obligations in respect of which WAML has a right to be indemnified
out of the assets of WAT.
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(c) WAT is a registered managed investment scheme duly constituted
and validly existing and in good standing under the laws of Australia. No
action has been taken by WAML or proposed by WAML to terminate WAT, nor is
WAML aware of any proposed action by members of WAT as of the date hereof
to requisition a meeting to wind up WAT in accordance with the Corporations
Law. WAML has full power and authority to own, lease and operate its
properties and conduct its business as now being conducted, and has been
duly qualified to transact business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where
the failure to so qualify would not have a WAT Material Adverse Effect.
"WAT MATERIAL ADVERSE EFFECT" means any material adverse effect on the
operations, assets, business, affairs, properties, or financial or other
condition of WAT, the Company and the subsidiaries (as defined in Rule
1.02(x) of Regulation S-X promulgated under the Securities Act of 1933, as
amended (the "SECURITIES ACT")) of the Company (the Company and its
subsidiaries being the "WAT SUBSIDIARIES"), taken as a whole.
(d) WAML has all requisite power and authority, and has taken all
required actions necessary, to execute, deliver and perform its obligations
under the Tax Indemnity Agreement. Except for Member Approval, WAML has all
requisite power and authority, and has taken all required actions
necessary, to execute, deliver, and perform its obligations under, this
Agreement and to issue and sell the WAT Options and to enter into the WAT
Option Agreement. This Agreement and the Tax Indemnity Agreement have been
duly executed and delivered by WAML and constitute, and the WAT Option
Agreement when it is executed and delivered by WAML will constitute, the
legal, valid and binding obligations of WAML enforceable against WAML in
accordance with their terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally,
and (ii) equitable principles of general applicability relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
(e) Subject to receipt of Member Approval, the WAT Options when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued and
nonassessable. The ordinary units of WAT issuable upon exercise of the WAT
Options (the "OPTION UNITS"), when issued upon such exercise in accordance
with the WAT Option Agreement will be duly and validly issued, fully paid
and nonassessable and, subject to the accuracy of the Investor's
representations contained therein, will be issued in compliance with all
applicable Australian and U.S. federal and state securities laws.
(f) It is not necessary in connection with the offer, sale and
delivery of the WAT Options and the Option Units in the manner contemplated
by this Agreement and the WAT Option Agreement to register the WAT Options
or the Option Units under
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the Securities Act. Subject to receipt of Member Approval, the offer,
issuance and sale of the WAT Options and the Option Units is in compliance
with all applicable Australian laws, including, without limitation, the
Corporations Law, including any applicable class orders issued by the
Australian Securities & Investments Commission and the Listing Rules of the
Australian Stock Exchange Limited (ACN 008 624 691) (together with the
stock market conducted by the Australian Stock Exchange, as applicable, the
"AUSTRALIAN STOCK EXCHANGE"), including without limitation Listing Rule 7.1
of the Australian Stock Exchange. Neither WAML nor any of its affiliates
(as defined in Rule 501(b) of Regulation D under the Securities Act) has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale
of the WAT Options in a manner that would require registration under the
Securities Act of the WAT Options or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
WAT Options (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.
(g) The execution, delivery and performance of the Tax Indemnity
Agreement and, subject to receipt of Member Approval, the execution,
delivery and performance of this Agreement and the WAT Option Agreement, by
WAML and the consummation by WAML of the transactions contemplated hereby
and thereby do not (i) result in a violation of the WAT Constitution, or
(ii) conflict with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which WAML or any of the WAT
Subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree applicable to WAML, WAT or any of the
WAT Subsidiaries or by which any property or asset of WAML, WAT or any of
the WAT Subsidiaries is bound or affected (except, in the case of CLAUSE
(II) above, for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not have a WAT
Material Adverse Effect or materially impair WAML's ability to perform its
obligations under this Agreement).
(h) The financial statements of WAT and its controlled entities
and the notes to such financial statements for the twelve months ended
December 31, 1999 and for the six months ended June 30, 2000 were, and for
the twelve months ended December 31, 2000 will be, prepared in accordance
with the Corporations Law and, in particular (i) give a true and fair view
of the financial position of WAT and its controlled entities as at the
dates on which they were made out, and of its performance for the period
which they cover, and (ii) comply with applicable Australian Accounting
Standards and other mandatory professional reporting requirements as
detailed therein.
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(i) Since December 31, 1999, (i) there has been no change in the
business, operations or financial condition of WAT and the WAT Subsidiaries
taken as a whole or in the earnings or the ability to continue to conduct
business in the usual and ordinary course of WAT and the WAT Subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business, which has had a WAT Material Adverse Effect, or with the passage
of time, could reasonably be expected to have a WAT Material Adverse
Effect; and (ii) except as contemplated by this Agreement, described in
WAT's Annual or Half Yearly Reports to Shareholders since December 31,
1999, or as set forth on SCHEDULE 4(i) hereto (collectively, the "WAT
DISCLOSURE DOCUMENTS"), there has been no transaction entered into by WAML
or any of the WAT Subsidiaries other than transactions in the ordinary
course of business or transactions which would not, individually or in the
aggregate, have a WAT Material Adverse Effect; and (iii) except as set
forth in the WAT Disclosure Documents, there have not been any changes in
WAT's issued capital (except as contemplated by this Agreement) or any
material increases in the debt of WAT and the WAT Subsidiaries considered
as one enterprise; and (iv) there has been no actual or, to the knowledge
of WAML, threatened revocation of, or default under, any material contract
to which WAML or any of the WAT Subsidiaries is a party, except as would
not have a WAT Material Adverse Effect.
(j) Each of the WAT Disclosure Documents (other than SCHEDULE
4(i) hereof) as of its date complied in all material respects with the
applicable requirements of the Australian Stock Exchange and the
Corporations Law and did not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading.
(k) Except as set forth in the WAT Disclosure Documents, there
is no action, suit or proceeding (whether or not purportedly on behalf of
WAML or WAT or any of their subsidiaries) before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of WAML or WAT, threatened against WAML, WAT or any of the WAT
Subsidiaries, except as would not have a WAT Material Adverse Effect or
materially impair WAML's ability to perform its obligations under this
Agreement, the Tax Indemnity Agreement or the WAT Option Agreement or the
compliance by WAML with the terms, conditions and provisions of the WAT
Options or the Option Units.
(l) Other than such other consents, approvals, authorizations,
declarations or filings as have already been obtained or made or which will
be made at or prior to the Transaction Closing, no consent, approval or
authorization of, or declaration or filing with, any governmental authority
on the part of WAML or WAT is required, other than Member Approval with
respect to this Agreement, the WAT Option Agreement and the WAT Options,
for the valid execution and delivery of this Agreement and the Tax
Indemnity Agreement or the performance hereunder or thereunder, the valid
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execution and delivery of, or performance under, the WAT Option Agreement
or the valid offer, issue, sale and delivery of the WAT Options as
contemplated by this Agreement.
(m) Attached hereto as EXHIBIT F is a true and correct copy of
the Merger Agreement substantially in the form in which it will be
executed.
(n) Except as may be authorized by the members of WAT pursuant
to the Member Approval, the WAT Constitution has not been amended since the
meeting of members of WAT held on May 4, 2000 and the current terms of the
WAT Constitution are identical to those contained in the WAT Constitution
provided by WAML to the Australian Stock Exchange on June 13, 2000.
(o) There are no reasonable grounds to believe that WAML is
unable to pay its debts as and when they become due and payable.
(p) SCHEDULE 3(p) discloses all of the material contracts and
agreements between WAML, in its capacity as responsible entity and trustee
of WAT, or the Company and their respective subsidiaries, on the one hand,
and Xxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxx and Xxxxxx Xxxx and their spouses
and descendants (whether natural or adopted), and any trust or other entity
solely for the benefit of any of the foregoing, Westfield Holdings Limited
(ACN 000 000 000), an Australian corporation ("WHL"), or its subsidiaries
(collectively, the "WHL GROUP"), on the other hand, in existence on the
date of this Agreement or to be entered into in connection with the Offer,
the Merger and related transactions. WAML does not have any present
intention to amend, alter or otherwise modify, or to cause the Company or
any other entity to amend, alter or otherwise modify, the terms of any of
such contracts or agreements, except as set forth on SCHEDULE 3(p).
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
represents and warrants, as of the date of this Agreement and as of the
Transaction Closing, that:
(a) The Investor is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Maryland. The
Investor has the requisite corporate power and authority, and has taken all
corporate action necessary, to execute, deliver, and perform its
obligations under, this Agreement and the Tax Indemnity Agreement and to
consummate the transactions contemplated hereby and thereby. This Agreement
and the Tax Indemnity Agreement have been duly executed and delivered by
the Investor and constitute legal, valid and binding obligations of the
Investor enforceable against the Investor in accordance with their terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors'
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rights generally, and (ii) equitable principles of general applicability
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
(b) The execution, delivery and performance of this Agreement
and the Tax Indemnity Agreement by the Investor and the consummation by the
Investor of the transactions contemplated hereby do not and will not (i)
conflict with or result in a violation of or default under the Investor's
charter or bylaws or (ii) conflict with, result in a violation of or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Investor is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree
applicable to the Investor or by which any property or asset of the
Investor is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as
would not, individually or in the aggregate, materially impair the
Investor's ability to perform its obligations under this Agreement). No
filing, consent, approval, order or authorization of any court,
administrative agency or other governmental entity or any other person or
entity is required to be obtained or made by the Investor in connection
with the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby by the Investor.
(c) The Investor is a person to whom disclosure to investors
under Chapter 6D of the Corporations Law is not required.
5. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT THE TRANSACTION
CLOSING. The Investor's obligation to consummate the Transaction Closing is
subject to the satisfaction or waiver by the Investor on or before the date
of the Transaction Closing of each of the following conditions:
(a) The Offer shall have been consummated.
(b) The Merger shall have been consummated.
(c) WAML shall have obtained Member Approval.
(d) The representations and warranties of WAML contained in
SECTION 3 hereof shall be true in all material respects on and as of the
date of the Transaction Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Transaction Closing.
(e) WAML shall have performed and complied in all material
respects with all agreements, obligations and conditions contained in this
Agreement that are
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required to be performed or complied with by it on or before the date of
the Transaction Closing.
(f) After the date of this Agreement and through the Transaction
Closing, there shall not have occurred any change or event that has had a
WAT Material Adverse Effect.
(g) The Investor shall have received copies of all documents
which the Investor may reasonably request in connection with the
transactions contemplated by this Agreement and copies of the records of
all proceedings of WAML in connection therewith that are not subject to the
attorney-client privilege.
(h) There shall not be in effect any order, decree or injunction
of a court or agency of competent jurisdiction which enjoins or prohibits
consummation of the transactions contemplated hereby or by the Exchange
Agreement, the Tax Indemnity Agreement or the WAT Option Agreement and
there shall be no actual or threatened action, suit, arbitration, inquiry,
proceedings or investigation by or before any Australian or U.S. Federal,
State or local governmental authority having or claiming jurisdiction over
the properties and assets of WAML or the Company (a "GOVERNMENTAL
AUTHORITY"), or of any other court or agency of competent jurisdiction,
which would reasonably be expected to materially impair the ability of WAML
or the Company to consummate the transactions contemplated hereby or by the
Exchange Agreement, the Tax Indemnity Agreement or the WAT Option Agreement
or to issue the WAT Options or the Option Units.
(i) The Investor shall have received from Xxxxxx Xxxxxxx,
Australian counsel to WAML, opinions substantially in the form attached
hereto as EXHIBIT G.
(j) WAML shall have delivered to the Investor on the date of the
Transaction Closing a certificate or certificates signed by an authorized
officer of such entity to the effect that the facts required to exist by
SECTIONS 5(a), 5(b), 5(c), 5(d), 5(e), 5(f), 5(g) and 5(h) continue to
exist on the date of the Transaction Closing.
(k) WAML shall have delivered to the Investor on the date of the
Transaction Closing a letter, substantially in the form attached hereto as
EXHIBIT J, signed by WHL and WAML.
6. CONDITIONS OF WAML'S OBLIGATIONS AT THE TRANSACTION CLOSING. The
obligation of WAML to consummate the Transaction Closing is subject to the
satisfaction or waiver by WAML on or before the date of the Transaction Closing
of each of the following conditions:
(a) The Merger shall have been consummated.
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(b) The Offer shall have been consummated.
(c) WAML shall have obtained Member Approval.
(d) The representations and warranties of the Investor contained
in SECTION 4 hereof shall be true in all material respects on and as of the
Transaction Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Transaction Closing.
(e) The Investor shall have performed and complied in all
material respects with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it
on or before the date of the Transaction Closing.
(f) There shall not be in effect any order, decree or injunction
of a court or agency of competent jurisdiction which enjoins or prohibits
consummation of the transactions contemplated hereby or by the Exchange
Agreement, the Tax Indemnity Agreement, or the WAT Option Agreement and
there shall be no actual or threatened action, suit, arbitration, inquiry,
proceedings or investigation by or before any Governmental Authority, court
or agency of competent jurisdiction, which would reasonably be expected to
materially impair the ability of the Investor to consummate the
transactions contemplated hereby or by the Exchange Agreement, the Tax
Indemnity Agreement or the WAT Option Agreement.
(g) The Investor shall have delivered to WAML at the Transaction
Closing a certificate or certificates signed by an authorized officer of
the Investor to the effect that the circumstances described in the
Certificate and the facts required to exist by SECTIONS 6(d) and 6(e)
continue to exist on the date of the Transaction Closing.
7. COVENANTS OF WAML.
(a) WAML shall use its commercially reasonable best efforts to
obtain Member Approval.
(b) After and contingent upon WAML, in its capacity as
responsible entity and trustee of WAT, having closed the Offer, WAML shall
use its commercially reasonable best efforts to cause the Merger to occur.
(c) WAML, in its capacity as responsible entity and trustee of
WAT, shall conduct the Offer in compliance in all material respects with
the applicable requirements of the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
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(d) After the date of this Agreement, WAML shall promptly, upon
filing with the Australian Stock Exchange or the Australian Securities &
Investments Commission, provide the Investor with copies of any document
publicly filed by or on behalf of WAML, WAT, WAT's Compliance Committee or
WAT's Compliance Plan Auditor with the Australian Stock Exchange or the
Australian Securities & Investments Commission, where, as a result of
filing, such document is to become publicly available.
(e) After the date of the Transaction Closing, WAML shall timely
file all documents required to be filed with the Australian Stock Exchange
and the Australian Securities & Investments Commission, and so long as any
of the Series G Preferred Stock or Conversion Stock (in each case as
defined in the Exchange Agreement) remain issued and outstanding and owned
by the Investor, WAML shall provide to the Investor as promptly as
practicable copies of all such documents, including, without limitation,
all financial statements WAML files with the Australian Stock Exchange and
the Australian Securities & Investments Commission, where, as a result of
such filings, such documents are to become publicly available, and all
supplemental information packages given to securities analysts or
investors.
(f) WAML shall use its best efforts to maintain the official
quotation of its ordinary units on the Australian Stock Exchange at all
times after the date hereof until the Investor ceases to hold Series G
Preferred Stock, Conversion Stock or Option Units. For avoidance of doubt,
this covenant does not prevent WAML from seeking and obtaining temporary
trading halts pending announcements, or from WAT units being suspended from
trading for a period of up to four Australian business days.
(g) For so long as the aggregate number of shares of Conversion
Stock held by the Investor or which the Investor has the right to obtain
pursuant to the conversion rights of the Series G Preferred Stock (the
"Converted Number") equals at least ten percent of the Converted Number as
of the date of the Transaction Closing, taking into account subsequent
adjustments to the conversion price of the Series G Preferred Stock
pursuant to the terms of Section 6 of the Series G Certificate of
Designation (the "THRESHOLD AMOUNT") the Investor shall have the following
rights and powers:
(i) The right to have reasonable access to senior executives of WAML,
Westfield Corporation, Inc., a Delaware corporation, Westfield
U.S. Advisory LP, a Delaware limited partnership, Westfield
Management Company, a Delaware partnership, Westfield Services
Inc., a Delaware corporation, and their respective subsidiaries.
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(ii) The right to inspect the books and statutory records of WAT and
the WAT Subsidiaries.
(iii) The right to receive semi-annual operating and financial reports
of WAT substantially in the form of EXHIBIT H attached hereto;
PROVIDED, HOWEVER, that such right shall be the right to receive
such information quarterly at any time that less than 75% of the
Consolidated EBITDA (as defined in the Series G Certificate of
Designation) of WAT is derived from the Company.
(iv) The right to be provided with detailed financial and operating
information concerning Major Transactions within ten Business
Days following the earlier to occur of (x) the public
announcement of such transactions or (y) the execution of
definitive documentation with respect to such transactions.
"MAJOR TRANSACTIONS" means (i) any acquisition or disposition of
any assets in any single transaction or any series of related
transactions where the aggregate purchase price paid or received
by WAML, WAT or their subsidiaries exceeds $100,000,000 (or the
Australian Dollar equivalent), or, in the case of dispositions,
where the purchase price received does not approximate the fair
market value of the asset sold and (ii) additional financings in
excess of $100,000,000 (or the Australian Dollar equivalent). For
purposes of this Agreement, "BUSINESS DAY" shall mean any day,
other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in New York City, New
York are authorized or required by law, regulation or executive
order to close.
WAML shall give reasonable advance notice to the Investor of all
conference calls initiated by WAML with securities analysts or
institutional investors, and shall permit the Investor to participate
therein.
The Investor agrees that the information provided by WAT or WAML
and their respective subsidiaries, officers, directors and employees on or
prior to the Transaction Closing and after the Transaction Closing pursuant
to this SECTION 7(g) will be used solely for the purpose of evaluating
Investor's investment in the Series G Preferred Stock, the WAT Options, the
Conversion Stock and the Option Units ("SOLE PURPOSE"); and such
information will be kept strictly confidential ("CONFIDENTIALITY
OBLIGATION") by Investor; provided that the foregoing Confidentiality
Obligation of Investor shall not (a) relate to any information that (i) is
or becomes generally available other than as a result of unauthorized
disclosure by Investor or by persons to whom Investor has made such
information available; or (ii) is or becomes available to Investor on a
non-confidential basis from a third party that is not, to Investor's
knowledge, bound
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by a confidentiality agreement with WAML, WAT or their subsidiaries; or (b)
prohibit disclosure of any information if required by law, rule,
regulation, court order, any regulatory or self regulatory organization,
any securities exchange on which any of the Investor's securities are then
listed or to which Investor has applied for listing of its securities or
other legal or governmental process.
The Investor acknowledges that as a result of receipt of such
information it may be in possession of information that is not generally
available and may be subject to the xxxxxxx xxxxxxx provisions of the
Corporations Law (Part 7.11 Division 2A) and agrees not to deal, or procure
or cause another person to deal, in any securities of WAT contrary to those
provisions or any other applicable securities law ("PROHIBITION ON
DEALING").
Notwithstanding any other provision in this agreement, WAML is
not required to provide the information described in this SECTION 7(g)
where WAML reasonably believes, based on advice of counsel, that to provide
that information would cause WAML to breach any of its duties and
obligations as a responsible entity under the Corporations Law or its
obligations under the Australian Stock Exchange Listing Rules, after taking
into account, among other things:
(a) the Investor's Confidentiality Obligation;
(b) the Investor's agreement to limit the use of that information to the
Sole Purpose; and
(c) the Prohibition on Dealing.
For purposes of this SECTION 7(g) "deal" has the same meaning as in the
Corporations Law.
(h) Prior to the Transaction Closing, none of WAT, WAML or any
Affiliate (as defined in the Exchange Agreement) of any such party will
solicit any offer to buy or offer to sell WAT Options or Option Units by
means of any form of 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. None of WAT or WAML or any Affiliate of any such party will
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which would be
integrated with the sale of the WAT Options or the Option Units in a manner
which would require registration under the Securities Act of the WAT
Options or the Option Units.
(i) WAML and the Investor will consult with each other before
issuing, and provide each other the opportunity to review, comment upon and
concur with
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and use reasonable efforts to agree on, any press release or other public
statements or disclosures with respect to the transactions contemplated by
this Agreement which refer to the Investor or its investment in the Company
or WAT, and shall not issue any such press release or make any such public
statement or disclosure prior to such consultation, except as any such
party may determine, following consultation with counsel, is required by
applicable law or court process or by obligations pursuant to any listing
agreement with any relevant securities exchange.
(j) For so long as the Investor holds the Threshold Amount,
within 45 days after the end of each quarter, WAML shall deliver to the
Investor a certificate signed by a Director of WAML as to (x) WAT's ratio
of Consolidated EBITDA derived from the Company to WAT's total Consolidated
EBITDA, (y) WAT's ratio of Consolidated EBITDA to Consolidated Fixed
Charges (both as defined in the Certificate of Designation for the Series G
Preferred Stock as attached to the Exchange Agreement (the "SERIES G
CERTIFICATE OF DESIGNATION")) and (z) WAT's ratio of Consolidated EBITDA
from U.S. source income to WAT's total Consolidated EBITDA, certifying
whether a Fixed Charge Coverage Violation (as defined in the Series G
Certificate of Designation, but with respect to WAT) has occurred and
setting forth calculations in such detail as is necessary to demonstrate
such compliance and the accuracy of such certificate.
(k) So long as any of the Series G Preferred Stock or Conversion
Stock remains outstanding and owned by Investor, (A) at least 51% of WAML's
Board of Directors shall consist of external directors (as defined under
Section 601JA(2) of the Corporations Law) or (B)(i) at least 51% of WAT's
Compliance Committee (or Board of Directors if WAT shall then have a Board
of Directors in lieu of a Compliance Committee) shall consist of external
directors or members (as defined under Section 601JB(2) of the Corporations
Law) and (ii) at least 51% of the Company's Board of Directors shall
consist of independent directors (as defined under Rule 303.01(B)(2)(a) of
the New York Stock Exchange Listed Company Manual). WAML agrees to do, and
to cause the Company to do, all things necessary to maintain external or
independent, as the case may be, directors to the extent set forth in this
SECTION 7(k), if and so long as required hereunder, including, without
limitation, obtaining the consent of WHL to such external or independent,
as the case may be, directors.
(l) If and whenever the Investor is entitled to elect directors
to the Board of Directors of the Company pursuant to the Series G
Certificate of Designation, the Investor shall have the right to appoint a
number of members to the Board of Directors of WAML such that the Investor
has the same percentage of appointed directors to the total number of WAML
directors as it has of the Board of Directors of the Company under the
Series G Certificate of Designation. WAML agrees to do all things necessary
to enable the Investor to exercise and make effective such right to appoint
members to the Board of Directors of WAML, including, without limitation,
obtaining
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the consent of WHL to such appointments and its agreement not to remove
such appointed directors.
(m) Upon the same terms and conditions offered to all other
purchasers of such securities, the Investor shall be entitled (subject to
the Corporations Law and any other applicable laws) to the right to
purchase or subscribe for up to 10% of the number of securities or
aggregate amount (whichever is greater) of any New Securities (as
hereinafter defined) which WAML may issue and sell; PROVIDED, HOWEVER, that
the Converted Number held by the Investor equals at least 33% of the
Converted Number as of the date of the Transaction Closing, taking into
account subsequent adjustments to the conversion price of the Series G
Preferred Stock pursuant to the terms of SECTION 6 of the Series G
Certificate of Designation. "NEW SECURITIES" shall mean any units
(including common and preferred units) of WAT, whether now authorized or
not, and rights, options or warrants to purchase units of WAT, and
securities of WAT of any type whatsoever that are convertible into units of
WAT or that carry any rights to purchase units of WAT; PROVIDED, that "New
Securities" shall not include (i) securities purchased under this
Agreement; (ii) securities issued pursuant to any acquisition by WAT or any
WAT Subsidiary of (y) any property or assets or (z) another corporation,
partnership, limited liability company or other entity; (iii) securities
issued to fund the redemption of any redeemable convertible preference
units issued by WAT (iv) securities issuable upon the exercise of any
option, warrant, subscription or conversion rights outstanding on the date
hereof; (v) securities issuable pursuant to any dividend/distribution
reinvestment plan or any rights to a bonus issue (as defined in the
Australian Stock Exchange Listing Rules) to existing members of WAT at any
time; (vi) securities issued to employees, officers, consultants or
directors of WAT pursuant to any option plan or purchase or bonus or
compensation arrangement; (vii) securities issuable in connection with the
Offer and the Merger, including, without limitation, securities issued to
restructure the investments of existing securityholders of WAT or any WAT
Subsidiary, and (viii) securities issued to satisfy obligations to the
Investor under the Exchange Agreement. WAML shall send notice of any such
proposed issuances by facsimile transmission with a copy sent by an
internationally recognized overnight courier to the Investor at the same
time as it commits to consummate such issuance to any other purchaser. Such
notice shall state the number of shares and aggregate amount of such
proposed issuance, the terms and conditions of the proposed issuance, the
proposed class and terms of the securities to be issued and the proposed
closing date for such issuance. Pursuant to such notice, the Investor shall
have the same amount of time allowed to any other purchasers (other than
any underwriter) following receipt of notice to notify WAML that the
Investor wishes to participate in such offering.
(n) For so long as the Investor holds any shares of Series G
Preferred Stock or Conversion Stock, WAML shall not take any action,
including without limitation any repurchase of its ordinary units, which
would reasonably be expected to
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result in the Investor being required to make notification under the
Australian Foreign Acquisitions and Takeovers Xxx 0000 to the Australian
Foreign Investment Review Board or to otherwise seek the approval of the
Australian Federal Treasurer in order to hold or exercise WAT Options or
hold Option Units.
(o) For so long as the Investor holds any shares of Series G
Preferred Stock or Conversion Stock, no later than three months after the
end of the financial year for WAT, WAML shall supply to the Investor
audited consolidated financial statements of WAT and its consolidated
subsidiaries which statements have been audited by an independent
Australian nationally recognized accounting firm that is or is an affiliate
of Xxxxxx Xxxxxxxx LLP, PricewaterhouseCoopers LLP, Ernst & Young LLP,
Deloitte & Touche LLP and KPMG LLP or their respective successors;
PROVIDED, that such financial statements shall be reconciled to United
States generally accepted accounting principles pursuant to the
requirements of Item 18 of Form 20-F under the Securities Act (or any
successor provision) at any time that less than 75% of WAT's Consolidated
EBITDA is derived from the Company.
(p) Subject to receipt of Member Approval, on or before the
Transaction Closing, WAML shall, (a) cause its Series A Preferred Shares
and the Series B Preferred Shares in the Company to be made subordinate in
right to receive dividends and payment upon liquidation to the Series G
Preferred Stock, (b) cause its Series A Preferred Shares and Series B
Preferred Shares in the Company to become convertible into capital stock
having the terms substantially as set forth in EXHIBIT I attached hereto
(the "JUNIOR PREFERRED") and (c) convert into Common Stock or Junior
Preferred, all other preferred stock of the Company held by it. WAML shall
cause such Series A Preferred Shares and Series B Preferred Shares to be
converted into Junior Preferred no later than sixty days after the receipt
of written notice from the Investor demanding such conversion; PROVIDED,
HOWEVER, that such notice shall not be given prior to September 30, 2003.
WAML shall give the Investor reasonably detailed written notice of this
conversion right not earlier than September 1, 2003 and not later than
September 30, 2003.
(q) If WAML proposes to enter into a transaction with an entity
or person that is or may be a "related party" as that term is defined in
Section 228 of the Corporations Law (or any successor provision), or if
Chapter 10 of the Listing Rules of the Australian Stock Exchange applies to
a transaction, WAML shall ensure that it obtains all required consents and
approvals required under the provisions of the Corporations Law governing
related party transactions (including, without limitation, Chapter 2E) or
under the Australian Stock Exchange Listing Rules.
(r) WAML shall not, and shall cause WAT and the Company not to,
enter into any transaction with any entity of the WHL Group other than on
arm's-length
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terms unless WAML shall first obtain the approval of such transaction from
a majority of the disinterested unitholders of WAT, PROVIDED that the
foregoing shall not apply to any arrangement (i) to be entered into in
connection with the Offer or the Merger or (ii) which is in existence on
the date hereof as set forth in SCHEDULE 3(p), including, without
limitation, the providing of development, advisory or management services
by the WHL Group to WAML and/or the Company.
(s) Upon the request of the Investor, WAT shall join the
Investor in making an election to treat WAT as a "taxable REIT subsidiary"
with respect to Investor within the meaning of Section 856(l) of the
Internal Revenue Code.
(t) At Investor's request, WAML agrees to exercise its right to
be indemnified out of the assets of WAT when (i) a default by WAML occurs
under this Agreement and has not been waived by the Investor in writing or
(ii) to satisfy the terms of the Tax Indemnity Agreement or the WAML
guaranty contained in Section 14 of this Agreement.
(i) WAML undertakes not to create or allow to exist any
encumbrance over its right of indemnity out of the assets of WAT.
(v) Prior to the Transaction Closing, WAML shall provide to the
Investor all documents it files publicly with the Securities and Exchange
Commission and the Australian Stock Exchange with respect to the Merger,
the Offer, the obtaining of Member Approval or any related financing.
(w) WAML shall notify the Investor immediately upon WAML's
making at any time, and from time to time, a written determination under
Section 253F of the Corporations Law (or any successor provision) of the
value of the Investor's interest in WAT and the percentage voting interest
in WAT attached to that interest.
(x) WAML shall reimburse the Investor for all reasonable costs
and expenses properly incurred by the Investor (including reasonable legal
fees and disbursements properly incurred of external legal counsel in
Australia or the United States) in connection with the preparation and
filing of any notices required to be filed with WAML, the Australian Stock
Exchange, the Australian Securities & Investments Commission or any other
person pursuant to Chapter 6C (Information about ownership of listed
companies and managed investment schemes) of the Corporations Law (or any
successor provision).
8. TERMINATION. This Agreement may be terminated at any time on or prior
to the Transaction Closing: (a) with the mutual consent of the Investor and
WAML; (b) by either party, if the Offer has been irrevocably withdrawn; (c) by
the Investor, if the board of directors of the
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Company has executed a merger agreement or recommended in favor of a merger or
tender offer other than the Merger or the Offer; (d) by either party, if the
Offer and the Merger have not been consummated by December 15, 2001 or (e) by
either party, if the Transaction Closing shall not have occurred by December 15,
2001 or such later date as may be mutually approved in writing by the Investor
and WAML.
If this Agreement is terminated pursuant to this SECTION 8, this Agreement
shall become void and of no further force or effect, except for the provisions
of SECTIONS 2, 9, 12, 13, 14, 15, 18(b) and 18(c) which shall survive such
termination.
In the event that prior to December 15, 2001, (a) the Offer has been
consummated, (b) the Merger has occurred, (c) Member Approval has been obtained,
(d) the Exchange Agreement has been executed by the Company and the Company is
not in material breach of its obligations thereunder, (e) the Series G
Certificate of Designation has been filed with, and accepted for recording by,
the Secretary of State of the State of Missouri and (f) the events in Section
7(p)(a) have occurred, then, if the Investor fails to close under the Exchange
Agreement for any reason, other than by reason of the circumstances described in
Section 4.7 of the Exchange Agreement, the Registration Rights Agreement dated
as of August 12, 1998 by and among the Company and the Investor, as amended by
the First Amendment thereto dated December 24, 1998, shall be terminated and of
no further force or effect.
9. INDEMNIFICATION. WAML agrees that it shall indemnify and hold harmless
Investor and Investor's Affiliates, which shall include, without limitation,
Security Capital Global Capital Management Group Incorporated, any director,
officer, agent or employee of Investor or any of Investor's Affiliates and each
other person, if any, controlling Investor or any of Investor's Affiliates
(hereinafter collectively referred to as the "INDEMNIFIED PARTIES"), to the full
extent lawful, from and against any losses, expenses, claims or proceedings
(other than losses, expenses, claims or proceedings relating to or arising from
Taxes (as defined in the Tax Indemnity Agreement)) including, without
limitation, actions brought by WAML or the Company or on WAML's, WAT's or the
Company's behalf (hereinafter collectively referred to as "LOSSES") related to
or arising out of the Offer and the Merger (the "PROPOSED TRANSACTION") and any
conduct in connection therewith; provided, however, WAML shall not indemnify the
Indemnified Parties for any losses related to or arising out of the Indemnified
Parties' breach of their agreements with WAML or failure by any Indemnified
Party to comply in all material respects with the Corporations Law and any other
applicable law. In the event that the foregoing indemnity is unavailable to the
Indemnified Parties for any reason, WAML agrees to contribute to any Losses
related to or arising out of the Proposed Transaction or conduct in connection
therewith. For such Losses, WAML and the Indemnified Parties shall contribute in
such proportion as is appropriate to reflect the relative benefits and relative
fault of WAML, on the one hand, and the Indemnified Parties, on the other hand,
in connection with the Proposed Transaction and any conduct in connection
therewith, as well as any other relevant equitable considerations; PROVIDED,
HOWEVER, that the Indemnified Parties shall not be responsible for any
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amounts in excess of the amount of the benefits received (or anticipated to be
received) by the Indemnified Parties. The parties hereto agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to above.
The foregoing agreement shall be in addition to any rights that the
Indemnified Parties may have at common law or otherwise. WAML agrees that it
will not, without the prior written consent of the Indemnified Parties, settle
any pending or threatened claim or proceeding related to or arising out of the
Proposed Transaction or conduct in connection therewith to the extent the
Indemnified Parties are a party to such claim or proceeding unless such
settlement includes a provision unconditionally releasing the Indemnified
Parties from and holding Indemnified Parties harmless against all liability in
respect of claims by any releasing party related to or arising out of such
Proposed Transaction or conduct in connection therewith. WAML also agrees to
promptly reimburse the Indemnified Parties for all expenses (including counsel
fees) as they are incurred by the Indemnified Parties in connection with
investigating, preparing or defending, or providing evidence in, any pending or
threatened claim or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnified Parties are
a party to such claim or proceeding) or in enforcing this SECTION 9.
10. RESPONSIBLE ENTITY'S LIMITATION OF LIABILITY. Except as otherwise
provided in this SECTION 10, because WAML enters into this Agreement only in its
capacity as responsible entity and trustee of WAT, WAML is liable under this
Agreement only up to the extent to which it is actually indemnified out of the
assets of WAT. WAML is only personally liable to the extent that it is not
actually indemnified because it is fraudulent, negligent, or in breach of trust.
If WAML is not personally liable, the parties other than WAML must not xxx WAML
personally or seek to wind it up to recover any outstanding money, and WAML is
entitled to plead this clause as a bar to the taking of any such proceedings.
Nothing contained in SECTION 10 limits the right of any party to bring action
for performance by WAML or limit any party's right to recover damages from the
assets of WAT to the extent that WAML is liable under this Agreement.
11. TERMINATION OF FEE AGREEMENT. The fee letter agreement dated December
20, 2000 between WAML and the Investor shall be terminated by this Agreement as
of the date hereof and shall be of no further force or effect.
12. PURCHASE OF SERIES C PREFERRED SHARES.
(a) If after consummation of the Offer and prior to December 15,
2001: (1) the Merger has not occurred; (2) the Member Approval has not been
obtained; (3) the Exchange Agreement has not been executed by the Company;
(4) the Company has materially breached its obligations under the Exchange
Agreement and as a result thereof the closing thereunder has not occurred;
(5) the Certificate of Designation has not been filed with and accepted for
recording by, the Secretary of State of the State of
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Missouri; (6) the events in SECTION 7(p)(a) have not occurred; or (7) a WAT
Material Adverse Effect has occurred that arose out of the Offer, the
Merger or the financing of either the Offer or the Merger, then, due to the
damages that will have occurred to the Investor's interest in the Series C
Preferred Stock, WAML shall offer to purchase for cash from the Investor
all of the Series C Preferred Stock held by the Investor at a price per
share of Series C Preferred Stock equal to 100% of the Liquidation
Preference (as defined in the certificate of designation for each of the
three series of Series C Preferred Stock) thereof plus accrued and unpaid
dividends whether or not declared, if any, to the date of such purchase.
(b) If any of the events described in clause (a) of this SECTION
12 occur as a result of a willful violation by WAML of its obligations
hereunder or by the Company under the Exchange Agreement, the offer price
by WAML under CLAUSE (a) above will be deemed increased to 105% of the
Liquidation Preference (as defined in the certificate of designation for
each of the three series of Series C Preferred Stock) thereof, plus accrued
and unpaid dividends, whether or not declared, if any, to the date of such
purchase.
The offer to purchase Series C Preferred Stock hereunder shall be made
on or before December 15, 2001. The Investor shall have fifteen days to
accept such offer. If accepted, the purchase described in this section shall
occur, and payment be made in immediately available funds, no later than
December 31, 2001 unless a longer period is required by applicable law.
13. SPECIFIC PERFORMANCE. In the event of a breach by WAML of its
obligations under SECTION 12 hereof, the Investor, in addition to its other
remedies, shall be entitled to an injunction compelling specific performance by
WAML of such obligations. WAML acknowledges that there are circumstances under
which damages at law would not be an adequate remedy for a failure by it to
fulfill such obligations, and WAML therefore agrees that such obligations may be
specifically enforced against it in any court of competent jurisdiction. Nothing
herein shall be construed as prohibiting the Investor from pursuing any other
remedies for such breaches under this Agreement.
14. WAML GUARANTY. Subject to receipt of Member Approval, as a material
inducement to enter into this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
WAML hereby unconditionally and irrevocably, as primary obligor and not merely
as surety, guarantees to the Investor the full and prompt payment and
performance when due and at all times thereafter, of all obligations of, and
amounts owing by, the Company or the Operating Partnership to the Investor under
the Exchange Agreement, the WAT Option Agreement, the Series G Certificate of
Designation or any other agreement contemplated hereby or thereby to which the
Company or the Operating Partnership is a party and indemnifies and holds
harmless the Investor from and against any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by the Investor in enforcing
any rights under this SECTION 14.
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15. LIQUIDATED DAMAGES. The parties acknowledge that it would be difficult
to determine the damage to the Investor should WAML default on its obligations
under SECTION 12 hereunder and the relief under SECTION 13 has not been obtained
for any reason. WAML accordingly agrees to pay the sum of $131,250,000 in
liquidated damages to the Investor should WAML default on its obligations to
repurchase Series C Preferred Stock pursuant to SECTION 12 above and relief
under Section 13 is not obtained by the Investor for any reason, whether or not
such relief is sought by the Investor. The parties agree that this is a
reasonable sum as liquidated damages and not a penalty. Upon payment in full to
the Investor under this Section 15, the Investor shall transfer the Series C
Preferred Stock to WAML.
16. STAMP DUTY.
(a) All stamp duty (including fines and penalties and any other
applicable payments) chargeable on the WAT Option Agreement, the WAT Options or
any related documents of transfer, in each case in relation to the transfer of
WAT Options from the Company to the Investor shall be borne by the Company and
WAML shall cause the Company to indemnify the Investor as a continuing indemnity
for and against any such stamp duty (including fines and penalties and any other
applicable payments) and any related costs and expenses including legal fees on
an indemnity basis. As between the parties, WAML shall cause the Company to be
primarily responsible for attending to payment of such stamp duty (including
fines and penalties and any other applicable payments) and WAML shall cause the
Company to provide the Investor with such information and progress reports on
such stamping as the Investor may reasonably require and the Investor shall be
entitled to pay (but need not pay) such duty itself and claim immediate
indemnification from the Company if the Investor reasonably believes that there
will otherwise be a failure to pay the stamp duty within the period required by
law.
(b) All stamp duty (including fines and penalties and any other
applicable payments) chargeable on or in relation to either: (i) the initial
transfer of each WAT Option by the Investor to a transferee (each an "Initial
Transferee"); and (ii) the first subsequent transfer by any such Initial
Transferee of such WAT Option to a subsequent transferee, shall be borne by WAML
and WAML hereby indemnifies the Investor and each such Initial Transferee as a
continuing indemnity for and against any such stamp duty (including fines and
penalties and any other applicable payments) and any related costs and expenses
including legal fees on an indemnity basis. WAML shall be primarily responsible
for attending to payment of such stamp duty (including fines and penalties and
any other applicable payments) and WAML shall provide the Investor and each
Initial Transferee with such information and progress reports on such stamping
as the Investor or the Initial Transferee may reasonably require and the
Investor or the Initial Transferee shall be entitled to pay (but need not pay)
such duty itself and to claim immediate indemnification from WAML if the
Investor or the Initial Transferee reasonably believes that there will otherwise
be a failure to pay the stamp duty within the period required by law.
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17. FURTHER ASSURANCES. Investor agrees to take all necessary and
appropriate action to enable WAML to accomplish the corporate proceedings
necessary to carry out the transactions contemplated hereby, including, without
limitation, voting in favor of the amendments to the Articles, the Series B
Certificate of Designation, the Series D Certificate of Designation, the Series
D-1 Certificate of Designation, the Series E Certificate of Designation and the
Series F Certificate of Designation.
18. MISCELLANEOUS.
(a) Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties hereto. Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
(b) 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 Obligations
Law and New York Civil Practice Law and Rule 327(b).
(c) All disputes, litigation, proceedings or other legal actions
by a party to this Agreement in connection with or relating to this
Agreement or any matters described or contemplated in this Agreement shall
be instituted in the courts of the State of New York sitting in New York
County, New York or of the United States sitting in the Southern District
of New York. Each party to this Agreement irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York sitting in
New York County, New York and of the United States sitting in the Southern
District of New York in connection with any such dispute, litigation,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated by this Agreement. Each party further agrees that
any service of process or summons in connection with any such dispute,
litigation, action or proceeding may be served on it by delivering a copy
of such process or summons to it at its address set forth, and in the
manner provided, in SECTION 18(f), with such service deemed effective on
the fifteenth day after the date of such delivery.
Each party to this Agreement irrevocably waives to the fullest
extent permitted by applicable law, any defense or objection it may now or
hereafter have to the laying of venue of any proceeding relating to this
Agreement or the transactions contemplated by this Agreement brought in the
courts of the State of New York sitting in New York County, New York or of
the United States sitting in the Southern District of New York and any
claim that any proceeding under this Agreement brought in any such court
has been brought in an inconvenient forum.
-23-
EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A TRIAL
BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT,
ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR
THEREIN, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO
EFFECT SUCH WAIVER.
(d) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(e) The title and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
(f) Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified,
(b) on the next Business Day after dispatch via nationally recognized
overnight courier or (c) upon confirmation of transmission by facsimile,
all addressed to the party to be notified at the address indicated for such
party below, or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties. Notices should be
provided in accordance with this Section at the following addresses:
If to the Investor, to:
Security Capital Preferred Growth Incorporated
00 Xxxxx XxXxxxx Xxxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and to:
-24-
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
New South Wales, Australia
Attn: Xxxxx Xxxxxxxx
Facsimile: 61 2 9230 5333
If to WAML or WAT, to:
Westfield America Management Limited
Xxxxx 00, Xxxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx, Xxxxxx
New South Wales, Australia, 2011
Attention: Company Secretary
Facsimile: (000) 0000-0000
and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
(g) Any term of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only
with the written consent of the Investor and WAML.
(h) If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement
-25-
and the balance of this Agreement shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its terms.
(i) This Agreement, the Waiver Letter, the Tax Indemnity
Agreement and all other documents referred to in this Agreement constitute
the entire agreement among the parties with respect to the subject matter
hereof and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
[SIGNATURE PAGE FOLLOWS]
-26-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SECURITY CAPITAL PREFERRED
GROWTH INCORPORATED
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Its: Senior Vice President
WESTFIELD AMERICA MANAGEMENT
LIMITED, as Responsible Entity and
Trustee of Westfield America Trust
By: /s/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Its: Director
------------------------------------
