<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Westfield America, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
959910 10 0
-------------------------------------------------------
(CUSIP Number)
Robert P. Bermingham
c/o Westfield America, Inc.
11601 Wilshire Boulevard
12th Floor
Los Angeles, CA 90025
(310) 478-4456
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 19, 1997
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on the following pages)
<PAGE> 2
CUSIP No. 959910 10 0 13D Page 2 of 17 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Westfield Holdings Limited
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC, BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
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7 SOLE VOTING POWER
NUMBER OF 0
SHARES -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 62,684,430
REPORTING -------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
-------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
62,684,430
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
62,684,430
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
79.1%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE> 3
CUSIP No. 959910 10 0 13D Page 3 of 17 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Westfield Corporation, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC, BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
NUMBER OF 4,564,210
SHARES -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0
REPORTING -------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
4,564,210
-------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,564,210
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.8%
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14 TYPE OF REPORTING PERSON
CO
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CUSIP No. 959910 10 0 13D Page 4 of 17 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Westfield American Investments Pty. Limited
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC, BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
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7 SOLE VOTING POWER
NUMBER OF 8,666,462
SHARES -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0
REPORTING -------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
8,666,462
-------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,666,462
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.9%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE> 5
CUSIP No. 959910 10 0 13D Page 5 of 17 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Westfield America Management Limited
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
Other -- See Item 3 of Statement
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 49,453,758
REPORTING -------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
-------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
49,453,758
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,453,758
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
62.4%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE> 6
Page 6 of 17 Pages
Statement on Schedule 13D
The Reporting Persons (as defined below in Item 2) are together making
this filing because they may be deemed to constitute a "group" for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Act").
Information in respect of each Reporting Person is given solely by such
Reporting Person and no Reporting Person has responsibility for the accuracy or
completeness of information supplied by any other Reporting Person.
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
common stock, par value $.01 per share (the "Common Stock"), issued by Westfield
America, Inc., a Missouri corporation (the "Company"), which has its principal
executive office at 11601 Wilshire Boulevard, 12th Floor, Los Angeles, CA 90025.
Item 2. Identity and Background.
(a) Reference is made to Rows 1 and 6 of the cover pages for the names
and citizenship or place of organization, respectively, of the persons filing
this Schedule 13D (the "Reporting Persons" and individually a "Reporting
Person").
The following persons are directors or executive officers of Westfield
Holdings Limited ("WHL"):
Frank P. Lowy
David H. Lowy
David M. Gonski
Frederick G. Hilmer
Steven M. Lowy
Peter S. Lowy
Stephen P. Johns
Robert A. Ferguson
Maria C. Spender
Dean R. Wills
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Page 7 of 17 Pages
The following persons are directors or executive officers of Westfield
Corporation, Inc. ("WCI"):
Frank P. Lowy
Richard E. Green
Peter S. Lowy
Mark Stefanek
Robert Bermingham
Dimitri Vazelakis
Peter Koenig
The following persons are directors or executive officers of Westfield
American Investments Pty. Limited ("Pty"):
Frank P. Lowy
David H. Lowy
Steven M. Lowy
Peter S. Lowy
Stephen P. Johns
The following persons are directors or executive officers of Westfield
America Management Limited ("WAM"):
Frank P. Lowy
David H. Lowy
David M. Gonski
Frederick G. Hilmer
Steven M. Lowy
Peter S. Lowy
Stephen P. Johns
Robert A. Ferguson
Maria C. Spender
Dean R. Wills
WCI, WAM and Pty are each wholly-owned subsidiaries of WHL.
(b) The business address for each of the following persons listed in
Item 2, is c/o WHL, Level 24 Westfield Towers, 100 William Street, Sydney, NSW
2011, Australia:
WHL, Pty, WAM, Messrs. Johns, Frank P. Lowy, David H. Lowy and
Steven M. Lowy.
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Page 8 of 17 Pages
The business address for each of the following persons listed in Item 2
is 11601 Wilshire Boulevard, Los Angeles, CA 90025:
WCI, Messrs. Green, Stefanek, Bermingham, Vazelakis and Koenig and
Mr. Peter S. Lowy.
The business address for Mr. Hilmer is c/o Port Jackson Partners
Limited, Level 29, 50 Bridge Street, Sydney, New South Wales 2000.
The business address for Mr. Ferguson is c/o Bankers Trust Australia
Limited, Level 15, The Chifly Tower, 2 Chifly Square, Sydney, New South Wales
2000.
The business address for Mr. Wills is c/o Coca Cola Amatil Limited,
71-79 Macquarie Street, Sydney, New South Wales 2000.
The business address for Ms. Spender is c/o Carlo Zampatti Pty.
Limited, 437 Kent Street, Sydney, New South Wales 2000.
(c) WHL, with its subsidiaries, is an international developer, builder
and manager of shopping centers and manager and adviser to public real estate
investment entities.
WCI, with its subsidiaries, is a developer, builder and manager of
shopping centers and manager and adviser to public real estate investment
entities in the U.S.
Pty is an investment holding company for various investments held by
WHL and its subsidiaries.
WAM manages Westfield America Trust ("WAT"), an Australian public
property trust.
Messrs. Green, Stefanek, Bermingham, Vazelakis, Koenig and Peter S.
Lowy are employed by WCI, 11601 Wilshire Boulevard, Los Angeles, CA 90025.
Frank P. Lowy is Chairman of the Board of WHL. Messrs. Johns, David H.
Lowy and Steven M. Lowy are employed by WHL. Mr. Gonski is a principal of
Wentworth Associates Pty. Limited, which provides corporate advisory services,
Level 38, MLC Center, Sydney, New South Wales, 2000 Australia. Mr. Hilmer is
Professor of Business Studies at the Australian Graduate School of Management,
University of New South Wales, Botany Street, Randwick, Sydney, New South Wales
2031. Mr. Ferguson is Managing Director of Bankers Trust Australia Limited, an
Australian merchant bank, Level 15, The Chifly Tower, 2 Chifly Square, Sydney,
New South Wales 2000. Mr. Wills is Non-Executive Chairman of Coca Cola Amatil
Limited, a corporation, 71-79 Macquarie Street, Sydney, New South Wales 2000.
Ms. Spender is Executive Chairman of Carlo Zampatti Pty. Limited, a fashion
designer and retail corporation, 437 Kent Street, Sydney New South Wales 2000.
(d) No person listed in Item 2 of this Statement on Schedule 13D has
been convicted during the last five years in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) No person listed in Item 2 of this Statement on Schedule 13D has
been during the last five years a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
is or has been subject to any civil judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
<PAGE> 9
Page 9 of 17 Pages
federal or state securities laws or finding any violation in respect to such
laws.
(f) All natural persons listed in Item 2 of this Statement on Schedule
13D are citizens of Australia, except that Messrs. Green, Stefanek, Bermingham,
Vazelakis and Koenig are citizens of the U.S. WHL, WAM and Pty are organized
under the laws of Australia. WCI is organized under the laws of Delaware.
Item 3. Source and Amount of Funds or Other Consideration.
WAM may be deemed solely for purposes of U.S. securities laws to share
beneficial ownership of the Common Stock owned by Perpetual Trustee Company
Limited (the "WAT Trustee"), as Trustee of WAT. WAM disclaims beneficial
ownership of such shares. References to beneficial ownership are made herein
solely with respect to U.S. securities laws and are not intended to refer or
apply in any respect to Australian legal matters. In July 1996, the WAT Trustee
purchased an aggregate of 19,631,543 shares of Common Stock of the Company and a
warrant (the "1996 WAT Warrant") to purchase 6,246,096 shares of such Common
Stock for cash consideration in the amount of $314.3 million and WAT's agreement
to issue certain ordinary options and special options to the Company or certain
of its shareholders. In July 1996, the WAT Trustee also acquired 11,711,427
shares of Common Stock in exchange for units in WAT and cash consideration of
$130.5 million. In January 1997, the WAT Trustee purchased 8,151,155 shares of
Common Stock of the Company for cash consideration of $130.5 million. The cash
consideration for the above transactions was obtained by the WAT Trustee from a
public offering of WAT units and the placement of units in WAT. In May 1997,
the WAT Trustee acquired 1,623,985 shares of Common Stock in exchange for units
in WAT upon the exercise of certain of the ordinary options issued by WAT, and
was issued an additional warrant (the "1997 WAT Warrant") to purchase 2,089,552
shares of Common Stock for cash consideration of $2,528,358 from cash on hand
and the sale of options to third parties.
WCI purchased (i) in December 1995, 2,264,210 shares of the Common
Stock of the Company for cash consideration of $36,250,000 and (ii) on May 21,
1997, 2,300,000 shares of the Common Stock for cash consideration of
$34,500,000, which funds were provided by available cash on hand and loans from
National Australia Bank Limited.
In February 1994, Pty purchased 6,402,252 shares of the Common Stock of
the Company for cash consideration. In December 1995, Pty purchased 2,264,210
shares of the Common Stock of the Company for cash consideration of $36,250,000.
<PAGE> 10
Page 10 of 17 Pages
Item 4. Purpose of Transaction.
WAM may be deemed solely for purposes of U.S. securities laws to share
beneficial ownership of the Common Stock held by the WAT Trustee. WAM disclaims
beneficial ownership of such shares. WHL may be deemed solely for purposes of
U.S. securities laws to share beneficial ownership of the Common Stock
beneficially owned by each of the other Reporting Persons but disclaims
beneficial ownership of such shares. References to beneficial ownership are
made herein solely with respect to U.S. securities laws and are not intended to
refer or apply in any respect to Australian legal matters. WAT is an Australian
public property trust. Pty and WCI acquired the Common Stock held by them,
respectively, to obtain and increase the equity interest of WHL in the Company.
The WAT Trustee and WCI each acquired additional Common Stock in order to
increase the equity interests of the WAT Trusteee and WHL, respectively, in the
Company.
The Reporting Persons do not have any plans or proposals which may
relate to or would result in:
(a) the acquisition by any person of additional securities of the
Company or the disposition of securities of the Company other than
participation in any dividend reinvestment plan adopted by the Company;
(b) an extraordinary corporate transaction such as a merger,
reorganization or liquidation of the Company, involving the Company or any of
its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Company or
any of its subsidiaries;
(d) any change in the present board of directors or management of the
Company, including any plans or proposals to change the number of term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or corporate
structure including but not limited to, if the Company is a registered
closed-end investment company, any plans or proposals to make any changes in its
investment policy for which a vote is required by section 13 of the Investment
Company Act of 1940;
<PAGE> 11
Page 11 of 17 Pages
(g) changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person;
(h) causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) a class of securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Company.
(a) Reference is made to rows (11) and (13) on the cover page for each
Reporting Person.
WAM may be deemed solely for purposes of U.S. securities laws to share
beneficial ownership of the Common Stock held by the WAT Trustee. WAM disclaims
beneficial ownership of such shares. References to beneficial ownership are made
herein solely with respect to U.S. securities laws and are not intended to refer
or apply in any respect to Australian legal matters.
Messrs. Frank P. Lowy, David H. Lowy and Peter S. Lowy may be deemed
solely for purposes of U.S. securities laws to beneficially own the securities
deemed beneficially owned by WHL and by the WAT Trustee. The Messrs. Lowy
disclaim beneficial ownership of such securities. References to beneficial
ownership are made herein solely with respect to U.S. securities laws and are
not intended to refer or apply in any respect to Australian legal matters.
Messrs. Hilmer, Stefanek and Green own 16,000, 17,000 and 100,000 shares
of Common Stock, respectively, each representing less than 1% of the outstanding
Common Stock. Messrs. Frank P., David H., and Peter S. Lowy may be deemed solely
for purposes of U.S. securities laws to beneficially own 600,000 shares of
Common Stock owned by Cordera Holdings Pty. Limited ("Cordera"), which is
approximately 0.8% of the outstanding Common Stock. The Messrs. Lowy disclaim
beneficial ownership of such securities.
To the extent Mr. Steven M. Lowy may be deemed solely for purposes of
U.S. securities laws to beneficially own the securities deemed beneficially
owned by WHL, the WAT Trustee or Cordera, Mr. Steven M. Lowy disclaims
beneficial ownership of such shares.
(b) WAM has shared power with the WAT Trustee to vote and dispose of
all of the shares of Common Stock that are owned by the WAT
<PAGE> 12
Page 12 of 17 Pages
Trustee. WCI and Pty each has sole power to vote and dispose of the shares of
Common Stock referenced in rows (7) - (10) of their respective cover pages. The
WAT Trustee is organized under the laws of Australia, has its business address
at 1 Castlereagh Street, Level 7, Sydney, Australia, is a public property trust,
and, during the last five years, has not been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), and has not been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Messrs. Hilmer, Stefanek and Green each has sole power to vote and
dispose of the shares of Common Stock they own. Cordera has sole power to vote
and dispose of the shares of Common Stock it owns.
(c) On May 19, 1997, the WAT Trustee acquired 1,623,985 shares of the
Common Stock in exchange for units in WAT in a private transaction. On May 21,
1997, the WAT Trustee was issued by the Company the 1997 WAT Warrant (together
with the 1996 WAT Warrant, the "WAT Warrants")to purchase 2,089,552 shares of
the Common Stock for cash consideration of $2,528,358. On May 21, 1997, WCI
acquired 2,300,000 shares of the Common Stock for cash consideration in the
amount of $15.00 per share.
On May 21, 1997, Messrs. Hilmer, Stefanek and Green acquired 16,000,
17,000 and 100,000 shares of Common Stock, respectively, in an initial public
offering at a price of $15.00 per share. On May 21, 1997, Cordera acquired
600,000 shares of Common Stock for cash consideration in the amount of $15.00
per share.
(d) Holders of WAT units will receive economic benefits from the Common
Stock held by the WAT Trustee. WHL may be deemed solely for purposes of U.S.
securities laws to own beneficially 28.5%, and each of Messrs. Frank P., David
H. and Peter S. Lowy, may be deemed to own beneficially 36.8%, 36.7% and 36.7%,
respectively, of WAT units. The Messrs. Lowy each disclaims beneficial ownership
of the WAT units. References to beneficial ownership are made herein solely with
respect to U.S. securities laws and are not intended to refer or apply in any
respect to Australian legal matters.
<PAGE> 13
Page 13 of 17 Pages
(e) Not applicable.
Item 6. Contract Arrangements, Understandings or Relationships
With Respect to Securities of the Company.
WCI, WAM and Pty are each wholly-owned subsidiaries of WHL. Frank P.
Lowy is the father of each of David H., Peter S. and Steven M. Lowy.
Under the Trust Deed, dated March 28, 1996, as amended (the "Trust
Deed") (i) the WAT Trustee has the power to vote certain shares of the Common
Stock in its absolute discretion, except that the shares may be voted for the
election of directors only as approved by the holders of WAT units, (ii) the WAT
Trustee has the power to vote the remaining shares of the Common Stock as
directed by WAM and (iii) the WAT Trustee and WAM share investment power over
the shares of Common Stock owned by the WAT Trustee. Reference is made to the
response to Item 5(b).
Under the WAT Warrants, WAT has the right to purchase, at any time and
from time to time, in whole or in part, (i) 6,246,096 shares of the Common Stock
at an exercise price of $16.01 per share, subject to adjustment in certain
events, which right will expire on July 1, 2016 and (ii) 2,089,552 shares of the
Common Stock at an exercise price of $15.00 per share, subject to adjustment in
certain events, which right will expire on May 21, 2017.
Under the Investors Agreement, dated as of May 21, 1997, if WAT should
elect to sell the WAT Warrants, WHL has a right of first refusal with respect
thereto.
Item 7. Materials to be Filed as Exhibits.
Exhibit A Joint Filing Agreement
Exhibit B Trust Deed
Exhibit C Investors Agreement
Exhibit D WAT Warrants
<PAGE> 14
Page 14 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to the
undersigned is true, complete and correct.
Dated: May 29, 1997
Westfield American Investments Pty.
Limited
By: /s/ Peter S. Lowy
------------------------
Name: Peter S. Lowy
Title: Managing Director
<PAGE> 15
Page 15 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to the
undersigned is true, complete and correct.
Dated: May 29, 1997
Westfield Holdings Limited
By: /s/ Peter S. Lowy
------------------
Peter S. Lowy
Managing Director
<PAGE> 16
Page 16 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to the
undersigned is true, complete and correct.
Dated: May 29, 1997
Westfield America Management Limited
By: /s/ Peter S. Lowy
------------------
Peter S. Lowy
Managing Director
<PAGE> 17
Page 17 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to the
undersigned is true, complete and correct.
Dated: May 29, 1997
Westfield Corporation, Inc.
By: /s/ Peter S. Lowy
------------------
Peter S. Lowy
Vice President
<PAGE> 18
EXHIBIT INDEX
Item No. Description
-------- -----------
Exhibit A Joint Filing Agreement
Exhibit B Trust Deed
Exhibit C Investors Agreement
Exhibit D WAT Warrants
<PAGE> 1
Exhibit A
Joint Filing Agreement
The undersigned hereby agree to the joint filing of the Schedule 13D to
which this Agreement is attached and to the joint filing of all amendments
thereto.
This Agreement may be executed in one or more counterparts, each of
which shall be considered an original counterpart, and shall become a binding
agreement when each of the parties designated as signatories shall have executed
one counterpart.
Dated: May 29, 1997
WESTFIELD AMERICAN INVESTMENTS PTY.
LIMITED
By: /s/ Peter S.Lowy
--------------------
Peter S. Lowy,
Managing Director
WESTFIELD HOLDINGS LIMITED
By: /s/ Peter S. Lowy
---------------------
Peter S. Lowy,
Managing Director
WESTFIELD AMERICA MANAGEMENT LIMITED
By: /s/ Peter S. Lowy
---------------------
Peter S. Lowy,
Managing Director
<PAGE> 2
WESTFIELD CORPORATION, INC.
By: /s/ Peter S. Lowy
---------------------
Peter S. Lowy,
Vice President
<PAGE> 1
Exhibit B
Dated 28th March 1996
TRUST DEED
WESTFIELD AMERICA MANAGEMENT LIMITED
(ACN 072 780 619)
AND
PERPETUAL TRUSTEE COMPANY LIMITED
(ACN 000 001 007)
WESTFIELD AMERICA TRUST
T.G. Walsh
Solicitor
Level 24, Westfield Towers
100 William Street
Sydney NSW 2011
Telephone (02) 358 7000
Fax (02) 358 7077
DX 1399 Sydney
Ref TGW:KF
<PAGE> 2
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CONTENTS TRUST DEED
- ------------------------------------------------------------------------
1 Interpretation 1
1.1 Definitions 1
1.2 Interpretation 5
1.3 Parties Bound 6
2 Corporations Law 6
2.1 Corporations Law 6
2.2 ASX Listing Rules 7
2.3 Supremacy 7
3 The Trusts 7
3.1 The Trust 7
3.2 First Trustee and Manager 7
3.3 Assets Vest in Trustee 7
3.4 Appointment of Custodian 7
3.5 Maximum Number of Units 8
4 Duration of each Trust 8
4.1 Initial Settlement 8
4.2 Termination 8
4.3 Termination Date 8
4.4 No Dissolution 9
5 Interest of Unit Holders 9
5.1 Units 9
5.2 Fractions 9
5.3 Partly Paid Units 9
5.4 Consolidation and Division 9
5.5 Restrictions 9
5.6 Additional Units 9
5.7 Stock Exchange Listing 9
5.8 Quotation 10
6 Applications for Units and Options 10
6.1 Procedure 10
6.2 Non-cash Contributions 10
6.3 Payment to Trustee 10
<PAGE> 3
-ii-
6.4 Uncleared Funds 10
6.5 Manager may Reject 10
6.6 Minimum Application 11
6.7 Issue Date 11
6.8 Nomination of Holder 11
6.9 Option 11
6.10 Option Terms 11
6.11 Option Exercise 11
6.12 Calls by Manager 11
6.13 Excluded Offers 12
7 Redemption, Repurchase and Forfeiture of Units 12
7.1 Redemption Notice 12
7.2 Repurchase and Redemption 12
7.3 Suspension while Units Quoted 12
7.4 Minimum Holding 12
7.5 Small Parcels 13
7.6 Minimum Redemption or Repurchase 13
7.7 Notice Irrevocable 13
7.8 Order 13
7.9 Sums owed to Manager 13
7.10 Transfer of Assets 13
7.11 Forfeiture of Unit 13
7.12 Direction to Forfeit 14
7.13 Sale of Forfeited Unit 14
7.14 Cessation of Status of Unit Holder 15
7.15 Asset Disposals for Redemptions 15
8 Unit Price and Valuation 15
8.1 Application Price 15
8.2 Application Price where Units Officially Quoted 15
8.3 Rights Issues 15
8.4 Re-offer 16
8.5 Placement 16
8.6 Reinvestment 16
8.7 Periodic Valuations 17
8.8 Valuation Methods 17
8.9 Rounding 17
8.10 Redemption or Repurchase Price 17
<PAGE> 4
- iii -
9 Trustee 17
9.1 Powers 17
9.2 Liabilities of Trust & Unit Holder Approved 19
9.3 Delegation 20
9.4 Agents and Advisors 20
9.5 Retirement 20
9.6 New Trustee 20
9.7 Removal 21
9.8 Release 21
9.9 Futures Contracts 21
10 Manager 22
10.1 Powers 22
10.2 Delegation 22
10.3 Agents and Advisers 22
10.4 Retirement 22
10.5 Removal 22
10.6 New Manager 23
10.7 Appointment of Receiver 23
10.8 Section 1074 Meeting 23
10.9 Change in Terms of Appointment 23
10.10 New Manager 23
10.11 Release 24
10.12 Name of Trust 24
11 Investment 24
11.1 Manager's Role 24
11.2 Investment Policy 24
11.3 Voting 24
11.4 Acquisition or Disposal of Real Estate 25
11.5 Investment Procedure 25
11.6 Acceptance by Trustee 25
11.7 Rejection of Proposal 26
11.8 Deemed Acceptance 26
11.9 Unit Holders Meeting to Approve Proposal 26
11.10 Insurance 26
12 Income and Distributions 26
12.1 Distributable Income 26
12.2 Entitlement and Distribution Dates 27
12.3 Distribution Ranking 27
<PAGE> 5
-iv-
12.4 Unit Holders Entitlements 27
12.5 Closing Date 27
12.6 Distribution of Capital to Distribution Account 27
12.7 Separate Accounts 28
12.8 Other Distributions 28
12.9 Reinvestment 28
12.10 Payment 28
12.11 Withholding Tax Adjustment 28
12.12 Distributions Paid in Different Currencies 29
13 Accounts and Audit 29
13.1 Accounts 29
13.2 29
13.3 Distribution Statement 30
13.4 Audit 30
13.5 30
14 Administration and Reporting 31
14.1 Register 31
14.2 Register 31
14.3 Certificates 31
14.4 Uncertified Trading 31
14.5 Transfers 31
14.6 Death, Legal Disability 31
14.7 Payments 32
14.8 Deductions 32
14.9 Reports 32
15 Meetings of Unit Holders 32
15.1 Notice 32
15.2 Trustee to Convene Meeting 32
15.3 Notice Period 32
15.4 Non-receipt 32
15.5 Quorum 33
15.6 No Quorum 33
15.7 Chairman 33
15.8 Adjournment 33
15.9 Voting 33
15.10 Poll 33
15.11 Casting Vote 34
15.12 Proxies 34
15.13 Representatives 34
<PAGE> 6
-v-
15.14 Other Attendees 34
15.15 Resolutions Binding 34
15.16 Minutes 34
16 Rights and Liabilities of Manager and Trustee 34
16.1 Holding Units 34
16.2 Other Capacities 35
16.3 Limitation on Liability 35
16.4 Specific Limitations - Manager 35
16.5 Specific Limitation - Trustee 36
16.6 Waiver 37
16.7 Exercise of Discretion 37
16.8 Indemnity 37
16.9 Limitation of Liability to Contracting Parties 37
17 Liability of Unit Holders 38
17.1 Liability Limited 38
17.2 Recourse Limited 38
18 Remuneration and Expenses 38
18.1 Manager 38
18.2 Trustee 39
18.3 Waiver of fees 40
18.4 Expenses 40
18.5 Deferral 41
19 Termination 41
19.1 Procedure 41
19.2 Final Distribution 42
20 Amendments to Trust Deed 42
21 Beneficial Ownership of Units 42
21.1 Definitions 42
21.2 Primary Notice 42
21.3 Secondary Notice 43
21.4 Separate Register 43
21.5 Information 44
21.6 Inspection 44
21.7 Disposal 44
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-vi-
21.8 Non-Compliance 44
21.9 Branch Register 44
21.10 Effecting Transfer 44
21.11 Sale Proceeds 45
21.12 Operation of Provisions 45
21.13 Sanction or Penalty 45
21.14 Application 45
21.15 No Liability 45
22 Limitation on Unit Holdings and Notification of Substantial
Unit Holdings 45
22.1 Interpretation 45
22.2 Acquisitions Exceeding 20% 48
22.3 Exemptions 48
22.4 Compulsory Acquisition 48
22.5 Substantial Unit Holdings 48
22.6 Register 49
22.7 Inspection of Register 49
22.8 Voting Restriction 49
22.9 Registration and Divestiture 49
22.10 Infringement 49
22.11 Sale of Units 50
22.12 Transfer to Principal Register 50
22.13 Effecting Sale 50
22.14 Proceeds of Sale 50
22.15 No Liability 50
22.16 Information Requirements 51
22.17 No Effect 51
22.18 Conformity with Listing Rules 51
22.19 Application 51
23 Schemes of Arrangement 51
23.1 Definitions 51
23.2 Notice by Proposing Party 51
23.3 Details of Notice 51
23.4 Binding Compromise 52
23.5 Copy to Unit Holders and Trustee 52
23.6 Further Assurances 52
24 Preservation of REIT Status 53
24.1
<PAGE> 8
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25 General 53
25.1 Relevant Law 53
25.2 Submission to Jurisdiction 54
25.3 Notices between Manager and Trustee 54
25.4 Notices to Unit Holders and Option Holders 54
<PAGE> 9
1
TRUST DEED
WESTFIELD AMERICA TRUST
This trust deed is made on 28th March 1996
Between:
WESTFIELD AMERICA MANAGEMENT LIMITED
(A.C.N. 072 780 619)
And:
PERPETUAL TRUSTEE COMPANY LIMITED
(A.C.N. 000 001 007)
1 INTERPRETATION
DEFINITIONS 1.1 In this deed these words and phrases have this meaning
unless the contrary intention appears:
ACCRUAL PERIOD: the period from the commencement of the
Trust until 31 December 1996 and thereafter six monthly
periods commencing on 1 January and 1 July or such
other period as the Manager determines.
APPLICATION PRICE: in respect of a Unit, the price
determined in accordance with clause 8 at which that
Unit is issued.
ASC: the Australian Securities Commission.
ASX: Australian Stock Exchange Limited.
ASSETS: all the property, rights and income of the
Trust.
AUDITOR: the auditor for the time being of the Trust.
CLASS: means the class or listing description under
which a Unit is traded on the ASX as designated by the
ASX from time to time.
CUSTODIAN: a corporation appointed by the Trustee for
the purposes or clause 3.4.
DISTRIBUTABLE INCOME: the amount determined by the
Manager under clause 12.1 as being the distributable
income of the Trust for an Accrual Period.
EXCHANGE RATE: means the spot rate for the exchange of
Australian Dollars to US Dollars determined for the
date upon which the exchange of currencies is to take
place as quoted on the Reuters Screen "HSRA" or any
equivalent replacement reference page at 4.00 p.m. on
that date provided
<PAGE> 10
2
that if no such rate is available then the "Exchange
Rate" means the average of mid-rates as quoted by any
two of National Australia Bank Commonwealth Bank of
Australia, Westpac Banking Corporation and Australia
and New Zealand Banking Group Limited at 4.00 p.m. on
that date.
EXPERT: means an expert selected by the Manager or the
Trustee as applicable for the purposes of paragraph (c)
of the Definition "Market Price" being a member of the
following panel:
SBC Australia Equities Limited, ABN Amro Australia
Hoare Govett, Mcintosh & Company Limited, BT Securities
(Australia) Limited, James Capel Australia Limited and
ANZ McCaughan Limited and/or such other members as the
Manager and the Trustee shall agree from time to time.
FINANCIAL YEAR: a year ending on 31 December, or that
part of such a year occurring at the commencement or
termination of the Trust.
HOME EXCHANGE: that state branch of the ASX designated
as such for the Trust, to the Trustee or Manager by the
ASX.
LAND: land under the Trustee Act 1925 (NSW) or land
located anywhere in the world.
LIABILITIES: includes all borrowing's, unpaid costs,
charges, expenses, outgoings and fees, any provision
which the Manager decides in consultation with the
Auditor should be taken into account in determining the
liabilities of the Trust and all other liabilities
determined in accordance with accounting standards and
generally accepted accounting principles (including
liabilities accrued but not yet paid.
LISTING RULES: the official listing rules of the ASX.
MANAGER: the manager, from time to time, of the Trust,
and includes the Trustee, from time to time, when
acting as the manager.
MARKET PRICE: in respect of any business day means:-
(a) the last sale price per Unit for the applicable
Class ("ASX sale price") recorded on the ASX on
that business day or if no Units were traded on
the ASX on that business day the last ASX sale
price recorded on the ASX; or
(b) if the Manager or the Trustee believes that the
calculation in paragraph (a) does not provide a
fair reflection of the market price of a Unit on
that business day, the mid-point of the bid and
offer prices per Unit recorded on the ASX at the
close of trading on that
<PAGE> 11
3
business day (whether or not a sale is recorded on
that business day); or
(c) if the Manager or the Trustee as the case may be
wishes to have the calculation referred to in
paragraph (b) reviewed by an Expert and has given
written instructions (with a copy to the Manager
or the Trustee as applicable) to that Expert for
that purpose, the price determined by that Expert
having considered all representations made in
relation to the matter by the Manager or the
Trustee as applicable.
MARKET RATE: the average mid rate for bills of exchange
which have a tenor of 3 months which average is
displayed on the "BBSW" page of the Reuters Monitor
System on the first day of the period for which the
rate is to be determined, or if there is a manifest
error in the calculation of that average rate or is it
not displayed by 10.30am Sydney time on that day then
the rate specified in good faith by the Manager as the
average rate for bills of that tenor bid and offered by
at least 4 leading financial institutions in Sydney on
that date (whether such bids and offers are displayed
on the "BBSW" page or otherwise evidenced).
MONTH: calendar month.
NET ACCOUNTING INCOME: subject to the Manager (in
conjunction with the Auditor) being able to decide the
classification of any item as being on income or
capital account and the extent to which reserves or
provisions need to be made, the Net Accounting Income
of the Trust for an Accrual Period is the income of the
Trust net of expenses determined in accordance with
generally accepted Australian accounting standards.
NET ASSETS: the Assets of the Trust less its
Liabilities.
NET ASSET VALUE: the value of the Net Assets of the
Trust.
NET INCOME: the Net Income for an Accrual Period is the
"net income" of the Trust determined in accordance with
subsection 95(1) of the Income Tax Assessment Act 1936
("the Act") on the assumption that the Accrual Period
is a year of income but reduced by any amount that
would, on the assumption that an Accrual Period were a
year of income, be included in the assessable income of
the Trust in accordance with Sections 6AC or 160AQT of
the Act.
OFFICIALLY QUOTED: quoted on the main board of the ASX
from time to time, and includes a period of suspension
from quotation for a continuous period not exceeding 60
days.
OPTION: an option to subscribe for a Unit.
<PAGE> 12
4
OPTION HOLDER: a person registered as the holder of an
Option (including persons registered jointly)
QUARTER: a period of 3 calendar months ending on 31
March, 30 June, 30 September and 31 December in each
year.
RELIEF: any declaration or modification made or
exemption granted by the ASC at any time, and continuing
in force and applicable to the Trust.
RESOLUTION:
(a) a resolution passed at a meeting of Unit Holders
of the Trust:-
(i) on a show of hands, by the required majority
of Unit Holders present in Person or by
proxy or representative; or
(ii) if a poll is duly demanded, by the required
majority of the number of Units held by Unit
Holders present and voting on the poll, in
person or by proxy or representative; or
(b) where the law allows, a resolution in writing
signed by Unit Holders holding the required
majority of the Units in the Trust.
Except where this deed or any applicable law provides
otherwise, the "required majority" is a simple majority.
SPECIAL RESOLUTION: a Resolution where the required
majority is 75%.
SUBSCRIPTION AMOUNT: in respect of an application for a
Unit, the Application Price less the Uncalled Amount.
TAX: all kinds of taxes, duties, deductions and charges
imposed by any government or other authority, together
with interest and penalties thereon.
TRANSACTION COSTS:
(a) when calculating the Application Price of a Unit
in accordance with clause 8:
The Manager's estimate of the total transaction
costs, (or a portion of total transaction costs,
if appropriate, having regard to actual
transaction costs which would be incurred because
of the issue or
<PAGE> 13
5
sale of the Units taking into account
contemporaneous redemptions) which would be
incurred in acquiring afresh the Assets of the
Trust.
(b) when calculating the redemption price of a Unit
in accordance with clause 8.10:
The Manager's estimate of the total transaction
costs (or a portion of the total transaction
costs, if appropriate, having regard to the actual
transaction costs which would be incurred because
of the redemption or the buy-back, as the case may
be, taking into account contemporaneous issues and
sales of Units) which would be incurred in selling
the Assets of the Trust.
TRUST: the trust hereby constituted and to be known as
the "Westfield America Trust", (subject to clause
10.11).
TRUSTEE: the trustee of the Trust from time to time, and
includes the Manager when acting as the trustee.
UNCALLED AMOUNT: in respect of a Unit, the Application
Price less the amount remaining unpaid and which has not
been called.
UNIT: an undivided share in the beneficial interest in
the Trust as provided in this deed.
UNIT HOLDER: the person registered as the holder of a
Unit (including persons jointly registered).
US DOLLAR EQUIVALENT: means, in relation to Australian
Dollars, the equivalent at any time of that amount in US
Dollars determined by multiplying the Australian Dollar
amount by the Exchange Rate at that time.
VALUATION TIME: a time at which the Manager calculates
Net Asset Value.
VALUER: an independent qualified valuer nominated by the
Trustee and approved by the Manager.
INTERPRETATION 1.2 Unless the contary intention appears, in this deed
(including its schedules and appendices):
(a) terms defined in the Corporations Law are used
with their defined meaning;
<PAGE> 14
6
(b) a reference to a statute, ordinance, code or other
law includes regulations and other iustruments
under it and consolidations, amendments,
re-enactments or replacements;
(c) the singular includes the plural and vice versa;
(d) the words "including" and "for example" when
introducing a list of items does not exclude a
reference to other items, whether of the same
class or genus or not;
(e) amend includes delete or replace;
(f) person includes a firm, a body corporate, an
unincorporated association or an authority;
(g) headings and marginal notes are for convenience
only and do not affect interpretation of this
deed;
(h) a reference to a "business day" is to a day other
than a Saturday or Sunday on which banks are open
for general banking business in Sydney and
Melbourne; and
(i) a reference to a "foreign person" has the same
meaning as in the Foreign Acquisitions and
Takeovers Act 1975 (Commonwealth).
Parties Bound 1.3 This deed as amended binds the Trustee, the Manager and
the Unit Holders of the Trust and any person claiming
through any of them as if each of them had been a party
to this deed.
2 CORPORATIONS LAW
Corporations Law 2.1 The Trustee and the Manager covenant with each other and
with each Unit Holder, and each Unit Holder covenants
with each of the Trustee and the Manager, subject to the
Corporations Law and to any Relief, in terms of and to
comply with:-
(a) the covenants required by section 1069 of the
Corporations Law;
(b) division 5 of part 7.12 of the Corporations Law;
and
(c) any conditions of, and any covenants required to
be contained in this deed as a condition of, the
Relief.
If the ASC makes a declaration or grants an exemption on
condition that this deed contains covenants other than,
or inconsistent with, those referred to in clause 2.1 or
otherwise included in this deed, then those covenants
are deemed to be iccorporated in this deed and, to the
extent of any inconsistency, prevail over such
covenants, as if the Corporations Law required them to
be included in this deed.
This clause 2.1 prevails over all other provisions of
this deed (including any which purport to prevail).
<PAGE> 15
7
ASX Listing Rules 2.2 The Manager and the Trustee covenant with one another
respectively and the Unit Holders covenant with the
Trustee with effect throughout the duration of the
scheme to which this deed relates in terms of and to
comply with the relevant provisions of the Listing Rules
including paragraph 1A(1)(c) and section 2F of the
Listing Rules subject to the terms of any waivers or
Relief from any provision of the Listing Rules granted
by the ASX and not revoked. The obligations imposed by
this covenant are additional to those imposed by any
other covenant of this deed. Subject to clause 2.1, this
clause 2.2 prevails over all other provisions of this
deed.
Supremacy 2.3 If any covenant incorporated or deemed to be
incorporated in this deed by the Corporations Law or
Corporations Regulations or Listing Rules is
inconsistent with any other provision contained or
deemed to be contained in this deed, the covenants or
provisions will prevail in the following order of
priority:-
(a) covenants incorporated or deemed to be
incorporated in this deed by the Corporations Law;
(b) covenants incorporated or deemed to be
incorporated in this deed by the Corporations
Regulations;
(c) provisions required to be contained in this deed
by the Listing Rules; and
(d) the other provision contained in this deed.
3 THE TRUST
The Trust 3.1 There is constituted by this deed the Trust under which
property shall be vested in and held by the Trustee upon
trust for the Unit Holders, subject to the terms and
conditions of this deed.
First Trustee 3.2 Perpetual Trustee Company Limited agrees to act as
and Manager trustee of the Trust. Westfield America Management
Limited agrees to act as manager of the Trust.
Assets Vest in 3.3 The Trustee must hold the Assets of the Trust on trust
Trustee for the Unit Holders. The Asssts of the Trust vest in
the Trustee, but must be held as a separate fund which
is not available to meet liabilities of any other trust.
Appointment of 3.4 The Trustee, subject to its covenants in this deed, may
Custodian from time to time with the approval of the Manager,
appoint in relation to the Trust any one or more
corporations to perform the following actions in the
name of the Trustee or in the name of the Custodian:
(a) purchase or sell Assets at the direction of the
Trustee and execute all transfers and assurances
necessary for that purpose;
<PAGE> 16
8
(b) receive and hold on behalf of the Trustee Assets
and any document of title relating to the Trust in
safe custody;
(c) receive all income on behalf of the Trustee
arising from any of the Assets referred to in
paragraph (b) of this sub-clause;
(d) procure registration of those Assets;
(e) hold and disburse monies in the name of the
Trustee at the direction of the Trustee; and
(f) perform all actions incidental to any of the above
powers.
The Trustee, by the terms of an appointment under clause
3.4 may insert provisions for the protection and
convenience of other dealing with the Custodian as it
thinks fit. If the Trustee appoints a Custodian, the
Trustee remains liable for any act or omission of the
Custodian as if the act or omission was an act or
omission of the Trustee.
The Trustee is responsible for payment of the fees and
expenses of the Custodian but is entitled to be
reimbursed out of the Trust in respect of those fees
and expenses subject to a maximum in any Financial Year
of 1% of the Assets under the control of the Custodian.
If the aggregate of the fees and expenses of the
Custodian exceeds the above maximum in any Financial
Year, the excess is to be paid to the Trustee by the
Manager from the Manager's own funds.
Maximum Number 3.5 The maximum number of issued Units in the Trust at any
of Units time must not exceed 100,000,000,000.
4 DURATION OF TRUST
Initial Settlement 4.1 The Trust commences when the Manager or a nominee of the
Manager pays $100 to the Trustee as an Asset of the
Trust. The Trustee must issue the Manager with 100 Units
in the Trust in return for that payment.
Termination 4.2 The Trust terminates if:-
(a) the Trust terminates in accordance with another
provision of this deed or by law; or
(b) the Unit Holders so resolve by a special
resolution passed at a general meeting of Unit
Holders convened by the Manager or the Trustee.
Termination Date 4.3 The Trust terminates on the earlier of:-
(a) the 8Oth anniversary of the day the Trust
commenced; or
(b) the date on which the Trust is terminated under
this deed or by law.
<PAGE> 17
9
No Dissolution 4.4 Notwithstanding any other provision of this Deed the
death, insanity, bankruptcy, retirement, resignation or
expulsion of a Unit Holder or of the Trustee or Manager
will not of itself cause or result in the dissolution or
termination of the Trust.
5 INTERESTS OF UNIT HOLDERS
Units 5.1 Subject to the other provisions of this deed and the
terms of issue of a Unit, each Unit confers an equal
undivided interest in the Assets, and does not confer
any interest in a particular Asset, but only an interest
in the Assets of the Trust as a whole, subject to the
Liabilities of the Trust.
Fractions 5.2 Fractions of a Unit may be issued calculated to such
number of decimal places as the Manager determines. In
spite of any other provision of this deed, any right or
interest conferred by a fraction of a Unit will be
calculated in accordance with that fraction. If the
Manager determines not to issue fractional Units, any
application moneys that would otherwise result in a
fraction of a Unit becomes an Asset of the Trust.
Partly Paid Units 5.3 Units may be issued on the basis that the Application
Price is payable at such time or times as the Manager
may determine. In spite of any other provision of this
deed, if Units are issued on that basis and until such
time as the Application Price has been paid in full, the
interest conferred by those Units, and the rights
attaching to them will be reduced by the same proportion
as the Uncalled Amount for the time being bears to the
Application Price at which those Units were issued.
Consolidation 5.4 Units may be consolidated or divided as determined by
and Division the Manager.
Restrictions 5.5 A Unit Holder must not:-
(a) interfere with any rights or powers of the Manager
or Trustee under this deed;
(b) exercise a right in respeet of an Asset or lodge a
caveat or other notice affecting an Asset or
otherwise claim any interest in an Asset; or
(c) require an Asset to be transferred to the Unit
Holder.
Additional Units 5.6 The Manager may from time to time issue additional Units
in accordance with the procedure set out in clause 6 and
the other provisions of this deed.
Stock Exchange 5.7 The Manager will apply for Official Quotation of Units
Listing and admission of the Trust to the official list of the
ASX. The Manager and the Trustee must use their best
endeavours to ensure that the Units are Officially
Quoted and that such official quotation is maintained.
<PAGE> 18
10
Quotation 5.8 To the extent permitted by the Listing Rules and the
ASX, Units may be listed for quotation on the ASX in
Australian dollars, United States dollars and any other
currency whatsoever.
6 APPLICATIONS FOR UNITS AND OPTIONS
Procedure 6.1 An applicant for Units must complete a form approved by
the Manager if the Manager requires this. The form must
be accompanied by the Application Price or, where the
Application Price is to be partly paid, the Subscription
Amount, for each Unit applied for either by payment in
a form that the Manager approves, or by the transfer of
property of a kind able to be vested in the Trustee, and
must be payable to the Trustee in accordance with clause
6.3.
Non-cash 6.2 If the Manager intends to accept property rather than
Contributions cash as a contribution to the Trust, the Manager must
obtain:
(a) an effective transfer to the Trustee of title to
the property, confirmed in a manner approved by
the Trustee; and
(b) a valuation acceptable to the Trustee stating the
market value of that property.
Payment to Trustee 6.3 The payment or transfer of property under clause 6.1
must be paid or transferred by the applicants directly
to the Trustee to be placed by the Trustee in a special
trust account until such time as the minimum
subscription (under any prospectus or offering
memorandum) or minimum application (in the case of an
excluded issue, offer or invitation) has been reached,
and the Manager has advised the Trustee that it proposes
to proceed to allotment of Units. Until such time as the
Manager decides to proceed to allotment of Units, the
Trustee shall hold such money or property as the case
may be as bare trustee for the applicants. The Trustee
may invest any such money in accordance with the power
to invest set out in clause 9.1(n). Any interest
received in respect of such money shall form part of the
Assets. The Manager covenants with the Trustee that it
will comply with all obligations imposed on it by law,
the Listing Rules or this deed, in the same manner as it
would be required to do if it were a company offering
shares for subscription or purchase.
Uncleared 6.4 The issue of Units against application money paid other
Funds than as cleared funds is void if the funds are not
subsequently cleared.
Manager may 6.5 Subject to Listing Rule 3D(1C), the Manager may in its
Reject absolute discretion reject an application for Units in
whole or part without reason.
<PAGE> 19
11
MINIMUM 6.6 The Manager may set a minimum application amount for the
APPLICATION Trust, and alter that amount at any time.
ISSUE DATE 6.7 Units are taken to be issued when the Trustee has
received the Manager's notification that the Manager
proposes to proceed to allotment of the Units.
NOMINATION OF 6.8 The Manager alone may nominate the person to be
HOLDER registered as the holder of a Unit, and the Manager and
the Trustee may treat the registered holder as the
absolute owner of the Unit. The Manager's power of
nomination ceases once a person has been registered as
the holder of a Unit. The Manager and Trustee need not
recognise any claim or interest in a Unit by any person
other than the registered holder or holders of the Unit,
even if they have notice of such interest.
OPTION 6.9 The Manager may from time to time create Options.
OPTION TERMS 6.10 Options may be issued:-
(a) for no consideration or at a consideration, as
determined by the Manager;
(b) on the basis that the Application Price for a Unit
to be issued on exercise of the Option is a price
determined in accordance with clause 8 or
(provided that any relevant ASC instrument is
complied with) is a price not less than 50% of the
Application Price of a Unit as otherwise
determined in accordance with clause 8;
(c) only on terms that the Option does not confer:
(i) any right to vote at Unit Holder meetings;
or
(ii) any right to require the Manager to redeem
or repurchase the Option; or
(iii) except as expressly provided in this deed or
the terms and conditions of issue of the
Option, any other entitlement under this
deed, consequent upon holding the Option;
and
(d) otherwise on terms and conditions determined by
the Manager and approved by the Trustee.
OPTION EXERCISE 6.11 On exercise of an Option in accordance with its terms
and conditions of issue, the Option Holder is entitled
to subscribe for and be allotted one Unit, credited as
fully paid.
CALLS BY MANAGER 6.12 The Manager may call on each Unit Holder to pay all or
any part of the Uncalled Amount of the Application Price
of Units to the Trustee at any time. The Manager may
only make a call in respect of Units of a Unit
<PAGE> 20
12
Holder if the Manager also makes the same call on all
other Unit Holders whose Units are similarly partly
paid.
EXCLUDED OFFERS 6.13 If the Manager is requested to issue Units pursuant to
an excluded issue or make an offer or invitation for
units as an excluded offer, the Manager and the
Trustee may rely on information provided by other
persons to determine if the issue is an excluded issue
or the offer or invitation is an excluded offer or
invitation. Each Unit Holder indemnifies the Manager
and the Trustee for any loss, damage or other
consequence which may arise if such issue, offer or
invitation of Units to that Unit Holder is not an
excluded issue, offer or invitation. If, as a result of
such an issue, offer or invitation which is not an
excluded issue, offer or invitation, a Unit Holder
receives Units, the Manager may take any action which
the Manager considers appropriate including, without
limitation, selling or causing the redemption of the
Units, paying any expenses, and retaining the balance
until the Manager is satisfied that no amount will
become payable under the indemnity in this clause
6.13. The Manager may apply that balance in
satisfaction of any such amount and account to the
Unit Holder for any remaining balance. Without
limitation to clause 16, the Manager is to be under no
liability for any action it takes (or refrains from
taking) under this clause 6.13.
7 REDEMPTION, REPURCHASE AND FORFEITURE OF UNITS
REDEMPTION NOTICE 7.1 A Unit Holder may give the Manager a redemption notice
in such form as may be approved by the Manager from time
to time specifying the name of the Trust and the number
of Units to be redeemed or repurchased or (with the
Manager's approval) the amount of the proceeds which the
Unit Holder wishes to receive from the redemption or
repurchase. A redemption notice shall be accompanied by
any Unit certificates the Unit Holder may hold in
respect of the Units which are the subject of the
redemption notice.
REPURCHASE AND 7.2 Subject to the other provisions of this deed, on receipt
REDEMPTION of a redemption notice pursuant to clause 7.1, the
Manager shall repurchase or cause to be repurchased or
redeemed (as specified in the redemption notice) all of
the Units required by the Unit Holder to be repurchased
or redeemed (as the case may be) at a price calculated
in accordance with clause 8.10.
SUSPENSION WHILE 7.3 Notwithstanding clause 7.2, the Manager is not obliged
UNITS QUOTED to repurchase or redeem Units under this clause 7 while
the Units are Officially Quoted.
MINIMUM HOLDING 7.4 If compliance with a redemption notice would result in
the Unit Holder holding Units having a value less than
the then current minimum application amount, the Manager
may treat the redemption notice as relating to the Unit
Holder's entire holding of Units.
<PAGE> 21
13
SMALL PARCELS 7.5 The Manager may in its discretion from time to time
instruct the Trustee to redeem or sell any Units held by
a Unit Holder without request by the Unit Holder,
provided that the Units are Officially Quoted and the
total number of Units held by the Unit Holder is less
than a minimum parcel as provided in the Listing Rules.
The Manager must give the Unit Holder not less than 6
weeks notice of its intention to cause the redemption or
sale of the Units and the Manager may only so instruct
the Trustee if the Manager has not received from the
Unit Holder a written notice of objection and the Unit
Holder has not increased his holding so that he holds at
least a minimum parcel of Units. If a holding of Units
is redeemed under this clause 7.5, the repurchase price
is to be the price calculated under clause 8.10. The
proceeds of the redemption or sale shall not be remitted
until such time as the Manager is in receipt of the
certificate (if issued) relating to the redeemed or sold
Units.
MINIMUM 7.6 If a Unit Holder gives a redemption notice under clause
REDEMPTION OR 7.1, the Manager need not cause redemption
REPURCHASE or repurchase of Units having a value less than the
minimum application amount (if any) for Units of that
class, unless the redemption notice relates to all of
the Unit Holder's holding.
NOTICE IRREVOCABLE 7.7 A Unit Holder may not withdraw or revoke a redemption
notice unless the Manager agrees.
ORDER 7.8 Unless the Manager decides otherwise, the first Units
issued to a Unit Holder are the first to be redeemed or
repurchased.
SUMS OWED TO 7.9 The Trustee must deduct from the proceeds of redemption
MANAGER any unpaid moneys due by the Unit Holder to the Manager,
if the Manager requests.
TRANSFER OF ASSETS 7.10 The Manager may if the Unit Holder agrees direct the
Trustee to transfer Assets to a Unit Holder rather than
pay cash on redemption or repurchase of Units. These
Assets must be of equal value to the total proceeds of
redemption or repurchase actually due to the Unit Holder
(based on a valuation done within 2 months before the
date of the proposed transfer). Clause 8.7 applies to
the valuation.
FORFEITURE OF UNIT 7.11 If a Unit Holder fails to pay any call on a Unit made in
accordance with clause 6.13, the Manager may, at any
time during such time as any call or part thereof
remains unpaid, serve a notice on that Unit Holder
requiring payment of so much as is unpaid together with
interest at the Market Rate for each 3 monthly period
(determined at 3 monthly intervals commencing on the
date the call becomes payable) such interest to be
calculated on and accrue due and payable on the daily
balance from the date the call becomes payable to the
date of payment or forfeiture of the Units pursuant to
clause 7.12 whichever is the earlier. The notice must
state a further day (not
<PAGE> 22
14
earlier than the expiration of 14 days from the date
of service of the notice) on or by which the payment
as required by the notice is to be made, and must
state that in the event of non-payment on or before
the time appointed the Units in respect of which the
call is then due and owing will be liable to be
forfeited.
DIRECTION TO FORFEIT 7.12 If the requirements of a notice under clause 7.11
are not complied with, any Unit in respect of which
the notice has been given may at any time thereafter
before the required payment has been made, be
forfeited by a direction of the Manager to the
Trustee in writing of that fact. Such forfeiture
shall include all entitlements to income accrued in
respect of the forfeited Unit and not paid before
the forfeiture.
SALE OF FORFEITED 7.13(a) Subject to the terms of this deed, a
UNIT forfeited Unit may be sold or otherwise
disposed of by private sale at a price per Unit
calculated in accordance with any Relief or
equal to the prevailing Application Price of
Units at the date of the sale less the then
Uncalled Amount (if any) in respect of that
Unit, and such Unit will be:
(i) credited as paid up to the sum of the
amount paid up on the Unit on the day of
the forfeiture and the amount of the call
and the amount of any other calls becoming
payable on or before the day of the sale;
and
(ii) continue to be subject to a liability to
pay an amount equal to the Uncalled Amount
(if any) in accordance with this deed.
(b) At any time before a sale or disposition under
paragraph (a), forfeiture may be cancelled on
such terms as the Manager thinks fit and shall
be cancelled where the Unit Holder pays to the
Manager the full amount owing in respect of such
Units.
(c) On a sale or other disposition under paragraph
(a), the Trustee shall receive the proceeds of
such sale or disposition and may execute a
transfer of the forfeited Unit in favour of the
purchaser of the Unit, and such purchaser shall
thereupon be registered as the Unit Holder and
shall not be bound to see to the application of
the proceeds of such sale or disposition nor
shall his title to the Unit be affected by any
irregularity or invalidity in the proceedings in
relation to the forfeiture or sale or
disposition of the Units. The defaulting holder
of the Unit will remain liable to pay the amount
of the unpaid call.
(d) The proceeds of sale or disposition of any
forfeited Unit shall be applied first towards
the payment of all costs and expenses incidental
to the forfeiture and sale or disposition,
secondly toward the payment of any interest,
thirdly on account of the amount in respect
of which the notice referred to in clause 7.11
was given and
<PAGE> 23
15
fourthly in payment of the balance (if any)
remaining to the Unit Holder whose Units have
been forfeited and sold or otherwise disposed
of.
CESSATION OF STATUS 7.14 A Unit Holder whose Units have been forfeited shall
OF UNIT HOLDER cease to be a Unit Holder from the date when a
direction in relation to the Units so forfeited is
given by the Manager to the Trustee in accordance
with clause 7.12 in respect of the forfeited Units
but shall notwithstanding remain liable to pay to
the Manager all unpaid calls and interest in respect
of the Units and the costs and expenses of and
incidental to the forfeiture and sale or
disposition.
ASSET DISPOSALS 7.15 The Manager must provide to the Trustee details of
FOR REDEMPTIONS any Assets to be disposed of or transferred (as the
case may be), or any borrowing to be made, to
satisfy a request for the redemption of Units.
8 UNIT PRICE AND VALUATION
APPLICATION PRICE 8.1 Subject to clauses 4.1 and 6.10, while Units are not
Officially Quoted, a Unit must only be issued at an
application price calculated as:
Net Asset Value + Transaction Costs
-----------------------------------
number of Units in issue
The application price must be determined as at the
last Valuation Time before the Manager received (or
is taken to have received) the application for
Units.
APPLICATION PRICE 8.2 While Units are Officially Quoted, subject to
WHERE UNITS clauses 8.3, 8.4, 8.5 and 8.6, a Unit must only be
OFFICIALLY QUOTED issued at an application price equal to the weighted
average Market Price of Units during the ten ASX
business days immediately prior to the date upon
which the application price is to be calculated. The
price of Units or Options issued to an underwriter
may be reduced by such lawful fee, brokerage or
commission as the Trustee may approve.
RIGHTS ISSUES 8.3 The Manager may offer further Units for subscription
at a price determined by the Manager to those
persons who are Unit Holders on a date determined by
the Manager not being more than 30 days
immediately prior to the date of the offer,
provided that:
(a) the Trustee approves the application price and
terms of issue;
(b) all Unit Holders are offered Units at the same
application price on a pari passu basis
(whether or not the right of entitlement is
renounceable); and
<PAGE> 24
16
(c) where it is proposed to issue Units at an
application price less than the Market Price
not more than 5 ASX business days prior to the
date on which a prospectus pursuant to which
the offer is made is lodged with the ASC, the
relevant application price is not less than
50% of the Market Price as at a date not more
than 5 ASX business days prior to the date on
which the prospectus is lodged.
AND FURTHER PROVIDED THAT, subject to the Listing
Rules, the reference to all Unit Holders in
paragraph (b) excludes Unit Holders who are not
resident in Australia ("Overseas Unit Holders").
Where the right of entitlement is renounceable, the
Manager is, as the agent of each Overseas Unit
Holder, to sell the Overseas Unit Holder's
entitlement and account to the Overseas Unit Holder
for the proceeds of the sale, after deducting any
costs or Taxes incurred in connection with the sale.
Where the right of entitlement is not renounceable,
the Manager is to pay to each Overseas Unit Holder
an amount, determined by the Manager in consultation
with the Auditor and the Trustee, out of the Assets
being the fair value (if any) of the Overseas Unit
Holder's entitlement.
The Manager may adjust any entitlement to accord
with the Listing Rules and in the case of fractions,
clause 5.2 shall apply. Any Unit Holder may, unless
the terms of issue provide otherwise, renounce its
entitlement in favour of some other person.
RE-OFFER 8.4 Any Units offered under clause 8.3 which are not
subscribed for within the period during which the
offer is capable of acceptance may be offered for
subscription by the Manager to any person, provided
that the application price is not less than that at
which the Units were originally offered to Unit
Holders. If an underwriter has underwritten any
offer for subscription under clause 8.3, the
underwriter may take up any Units not subscribed for
by the Unit Holder.
PLACEMENT 8.5 The Manager may at any time issue Units to any
person at a price and on terms approved by the
Trustee, provided that the Corporations Law, the
Listing Rules and any Relief are complied with.
REINVESTMENT 8.6 While Units are Officially Quoted, the application
price payable for each additional Unit upon
reinvestment of distributions, is the weighted
average Market Price during the 5 ASX business days
after the date on which trading of the Units becomes
ex-entitlement to distributions, less such discount,
if any, not exceeding 10% as the Manager may with
the approval of the Trustee determine. If the amount
to be reinvested in additional Units results in a
fraction of a Unit, the money representing the
fraction is to be dealt with in accordance with
clause 5.2.
<PAGE> 25
17
PERIODIC VALUATIONS 8.7 Neither the Trustee nor the Manager is to be
regarded as having any special expertise in
valuation. The Manager or Trustee may cause an Asset
to be valued at any time by a Valuer using the
valuation method set out in clause 8.8. A copy of
any such valuation must be given to the Auditor. An
Asset which is real property must be valued at least
once every 3 years by a Valuer and more frequently
if the Trustee so requires. The Manager may
determine Net Asset Value at any time in its
absolute discretion, including more than once on
each day, but unless Units are Officially Quoted
must do so at least once every Quarter.
VALUATION METHODS 8.8 The valuation method or the manner of valuation of
an Asset is to be determined by the Valuer and
approved by the Trustee.
ROUNDING 8.9 The Manager may round the application price and
redemption price of a Unit calculated under clauses
8.1 and 8.10 respectively to the nearest fraction of
a cent as determined by the Manager.
REDEMPTION OR 8.10 (a) Subject to paragraph (b) and the terms of
REPURCHASE PRICE issue of any Units, a Unit must only be
redeemed or repurchased at a price calculated
as:-
Net Asset Value - Transaction Costs
-----------------------------------
number of Units on issue
(b) If a Unit is to be redeemed or repurchased out
of the proceeds or an application for a Unit
made at the same time as the redemption notice,
the Unit may be redeemed at the Application
Price. A certificate from the Manager will be
conclusive evidence as to whether or not this
paragraph (b) applies to the redemption of a
Unit.
(c) The prices in paragraphs (a) and (b) must be
determined as at the last Valuation Time before
the Units the subject of the redemption notice
are redeemed or repurchased.
9 TRUSTEE
POWERS 9.1 Subject to this deed, the Trustee shall have all the
powers over and in respect of the Assets and
Liabilities of the Trust that it is legally possible
for a natural person or a corporation to have as if
it were the absolute owner of the Assets. Without in
any way affecting the generality of the foregoing,
the Trustee shall be deemed to have the full and
absolute and beneficial powers of:-
(a) purchase and sale of any real or personal
property of any nature or investments for cash
or upon terms;
<PAGE> 26
18
(b) leasing and acceptance of surrender of leases
with power to compromise the lessees and others
and execute and pay for repairs and
improvements;
(c) instituting and compromising legal proceedings;
(d) attending and voting at meetings;
(e) paying all outgoings connected with this deed
which are not otherwise payable by the Manager;
(f) lending money with or without security;
(g) raising or borrowing money with or without
security and incurring all types of obligations
and liabilities;
(h) building, altering, repairing, extending,
replacing and re-building any real or personal
property;
(i) drawing, endorsing, discounting, selling,
purchasing and otherwise dealing with bills of
exchange either alone or jointly;
(j) entering into any financial facility or
agreement of any kind whatsoever;
(k) obtaining or providing guarantees, indemnities
or sureties on such terms and conditions as the
Trustee thinks fit, with or without security;
(l) entering into, purchasing or becoming a party
by any means (including without limitation
assignment or novation) to any contracts or
arrangements solely for the purpose of or
incidental to liability or debt management or
currency exchange management including (without
limitation):-
(i) the management of actual or contingent
interest rate or foreign exchange
exposures of the Trust in respect of any
existing or proposed borrowing or
obligation of the Trust;-
(ii) futures contracts traded on a futures
market;
(iii) options contracts;
(iv) currency swap, interest rate swap, forward
exchange rate contracts, forward interest
rate contracts or combinations or
variations of any of the foregoing;
(m) any scheme or undertaking, common enterprise or
investment contract (as defined in the
Corporations Law), or any equivalent or
substantially similar scheme or undertaking,
enterprise or investment contract in any other
jurisdiction, including, without limitation,
units in a unit trust or other prescribed
interest schemes, provided such scheme or
undertaking, enterprise or investment contract,
unit trust or prescribed interest scheme
complies with the Corporations Law (subject to
any Relief) or the corresponding law of any
relevant jurisdiction;
(n) investing (whether by way of purchase, lease,
acquisition of options or other rights, or
otherwise) in all or any of the following:-
<PAGE> 27
19
(i) real estate of every description including
(without limitation) Land and buildings,
fixtures and fittings and other
improvements erected or installed on Land;
(ii) plant, equipment, furnishings and fittings
whether used in association with buildings
or Land forming part of the Assets or
otherwise;
(iii) monies on deposit at any bank or building
society or with any company listed on any
stock exchange and debentures of any
company so listed;
(iv) negotiable instruments of every type and
description, including (without
limitation) promissory notes and bills of
exchange;
(v) monies deposited with authorised short
term money market dealers;
(vi) investment of money on security (whether
by way of mortgage taken severally or
otherwise) of any property of the type
referred to in paragraph (i) for a term
not exceeding 30 years and an amount which
when added to monies owing on any charge
ranking prior to or pari passu with a
security to be taken by the Trustee does
not exceed:-
(A) two-thirds; or
(B) if repayment of the whole of the
principal and interest under any
mortgages is insured under a mortgage
insurance policy acceptable to the
Trustee, then nine-tenths,
of the value of the property as
determined by a Valuer.
(vii) preference or ordinary shares or stock,
debentures, options, convertible notes
and other securities of any corporation.
LIABILITIES OF TRUST 9.2 Notwithstanding clause 9.1 or any other
& UNIT HOLDER provision of this deed:-
APPROVED
(a) the total Liabilities of the Trust must not, at
the time the relevant Liability is incurred,
create a situation whereby the Liabilities of
the Trust equal or exceed 60% of the total
tangible Assets of the Trust. If the Manager
becomes aware that the limit has been exceeded,
it must immediately notify the Trustee and take
steps to rectify the default as soon
as possible; and
(b) except on termination of the Trust, any sale or
disposal by the Manager or Trustee of the main
undertaking of the Trust shall be subject to
the prior approval of Unit Holders in general
meeting. At the meeting held to approve any
sale or disposal, any person who may benefit
(in the capacity other than only as a Unit
Holder
<PAGE> 28
20
of the Trust) from the sale or disposal and any
person who for the purposes of Part 1.2 Division 2
of the Corporations Law would be regarded as a
person associated with that person, shall not vote
on the Resolution.
DELEGATION 9.3 The Trustee may authorise, by power of attorney or
otherwise, one or more persons (whether or not related
to or associated with the Trustee) to act as its
delegate (in the case of a joint appointment, jointly
and severally) to hold title to any Asset, perform any
act or exercise any discretion within the Trustee's
powers provided that:
(a) in the case of a delegation to hold title to any
Asset, the delegate is not the Manager, an
associate of the Manager or a Unit Holder; and
(b) in the case of a delegation for any other purpose,
the delegate is not a Unit Holder.
The authorisation must be written. The Trustee remains
liable for the acts or omissions of a delegate. However,
the Trustee may include provisions in the authorisation
to protect and assist those dealing with the delegate as
the Trustee thinks fit.
AGENTS AND 9.4 The Trustee has the power to nominate the solicitor,
ADVISORS licensed land broker or conveyancer to act on the
purchase of any real estate on behalf of the Trust. The
Trustee is entitled to act upon the recommendation of
the Manager in selecting the solicitor, licensed land
broker or conveyancer.
RETIREMENT 9.5 The Trustee must retire as trustee of the Trust when
required to retire by law. The Trustee may retire by
giving 3 months' notice to the Manager or any shorter
notice the Manager accepts.
The Trustee must also retire as trustee of the Trust
when required by Special Resolution of Unit Holders at a
meeting called for that purpose in accordance with the
Listing Rules.
NEW TRUSTEE 9.6 If a vacancy in the office of Trustee occurs for any
reason, the Trust will not terminate and the following
procedures shall apply:
(a) the Manager may appoint a replacement Trustee within
seven days of the vacancy occuring;
(b) if the Manager has not appointed a replacement
Trustee within seven days of the vacancy occurring,
the Manager must convene a Meeting of Unit Holders
to consider the appointment of a new Trustee. Such
Meeting must be held no later than thirty days from
the date that the vacancy in the office of Trustee
occurs;
<PAGE> 29
21
(c) if the Unit Holders do not resolve to appoint a
replacement Trustee at the Unit Holders Meeting
referred to in clause 9.6, the Manager shall appoint
a replacement Trustee.
(d) pending the appointment of a replacement Trustee in
accordance with the procedures contained in this
clause 9.6, the Manager will act as Trustee.
REMOVAL 9.7 The Trustee may not be removed, except in accordance
with clause 9.5.
RELEASE 9.8 When it retires, the Trustee is released from all
obligations in relation to the Trust arising after the
date it retires except that the Trustee is still obliged
at the cost of the Trust to vest the Assets in the new
Trustee and to deliver all books and records relating to
the Trust to the new Trustee. On the retirement or
removal of the Trustee, the Trustee is indemnified out
of the Assets against any claims arising out of its
conduct as trustee except claims arising in respect of
negligence, fraud, breach of trust or breach of duty.
FUTURES CONTRACTS 9.9 Notwithstanding clause 9.1 or any other provision of
this deed, the Trustee shall not enter into or become a
party to any futures contract unless the following
conditions are fulfilled:
(a) where the futures contract is entered into for any
speculative purpose the total actual and
contingent liability of the Trustee pursuant to
such contract is limited to an amount not greater
than 10% of the Assets;
(b) the Trustee's liability in respect of such futures
contract is limited in a manner which the Trustee
in its sole discretion considers satisfactory;
(c) the Manager undertakes to provide to the Trustee at
least monthly and at such other times as the
Trustee may reasonably request a report identifying
all futures contracts then outstanding, certifying
that the limit of the Trustee's liability in
respect of any futures contract ended into for
speculative purposes does not exceed the amount
specified in paragraph 9.9(a) and specifying any
deposits, margin calls or other amounts lodged,
paid or provided out of the Assets in respect of
all such futures contracts;
(d) the Manager undertakes to ensure that at all times
the Assets include sufficient cash available to the
Trustee to make any deposits and/or pay any margin
calls in respect of any futures contracts as same
become due for payment.
<PAGE> 30
22
10 MANAGER
POWERS 10.1 The Manager must manage the Trust until it retires or is
removed. This power extends to the management of the
Assets and Liabilities of the Trust, and excludes the
Trustee from management except as set out in this deed.
DELEGATION 10.2 The Manager may authorise, by power of attorney or
otherwise, one or more persons (whether or not related
to or associated with the Manager but not being a Unit
Holder) to act as its delegate (in the case of a joint
appointment, jointly and severally) to perform any act
or exercise any discretion within the Manager's power.
The authorisation must be written. The Manager remains
liable for the acts and omissions of its delegate.
However, the Manager may include provisions in the
authorisation to protect and assist those dealing with
the delegate, as the Manager thinks fit.
AGENTS AND 10.3 The Manager may engage any agent, adviser, valuer,
ADVISERS broker, underwriter or other contractor to assist the
Manager in managing the Trust or dealing with any Asset.
RETIREMENT 10.4 The Manager must retire as manager of the Trust when
required to retire by law. The Manager may retire by
giving 3 months' notice to the Trustee or any shorter
notice the Trustee accepts.
The Manager must also retire as manager of the Trust
when required to do so by a Resolution of a simple
majority of Unit Holders at a meeting called for that
purpose or by the Trustee pursuant to clause 10.5.
REMOVAL 10.5 The Manager may not be removed except as provided by
law, by this deed or unless Unit Holders at a meeting
called for that purpose so resolve by way of ordinary
resolution. The Trustee may remove the Manager if:-
(a) the Manager fails to carry out any obligations
imposed on it by this deed;
(b) the Manager fails or neglects to carry out its
duties to the reasonable satisfaction of the
Trustee;
(c) the Trustee considers that it would be in the best
interests of the Unit Holders for the Manager to
retire; or
(d) the Manager goes into liquidation or provisional
liquidation (except for the purpose of amalgamation
or reconstruction), is placed in official
management, has a receiver or receiver and manager
appointed or ceases to carry on business.
<PAGE> 31
23
NEW MANAGER 10.6 If the Manager is removed under clause 10.5 the Trust
will not terminate and the following shall apply:
(a) subject to any approval required by law the Trustee
may appoint a replacement Manager within seven days
of the vacancy occurring having selected that
replacement by a method determined by the Trustee in
its absolute discretion;
(b) if the Trustee has not appointed a replacement
Manager within seven days of the vacancy occurring,
the Trustee must convene a Meeting of Unit Holders
to consider the appointment of a new Manager. Such
meeting must be held no later than 30 days from the
date that the vacancy in the office of Manager
occurs;
(c) if the Unit Holders do not resolve to appoint a
replacement Manager at the Unit Holders Meeting
referred to in clause 10.5, the Trustee shall
appoint a replacement Manager;
(d) pending the appointment of a replacement Manager in
accordance with the procedures contained in this
clause 10.5, the Trustee will act as Manager.
APPOINTMENT OF 10.7 While Units are Officially Quoted, the Trustee may
RECEIVER appoint a receiver of the Manager where it considers
that the Manager has failed to carry out any of its
obligations under this deed with the result that the
rights and interests of the Unit Holders have, in the
opinion of the Trustee, been materially prejudiced or
will be so prejudiced unless the receiver is appointed.
SECTION 1074 10.8 Where the Manager is being wound up or, in the opinion
MEETING of the Trustee, has ceased to carry on business or, to
the prejudice of Unit Holders, failed to comply with a
provision of this deed, the Trustee must convene a
meeting of Unit Holders under section 1074 of the
Corporations Law.
CHANGE IN TERMS 10.9 No change in the Manager or the terms and conditions
OF APPOINTMENT of appointment of the Manager may be made without the
approval of the Trustee.
NEW MANAGER 10.10 On its retirement, the Manager may appoint in writing
another corporation to be the manager of the Trust,
subject to the approval of the Trustee and any approval
required by law. If the Manager does not propose a
replacement at least 30 days before the Manager proposes
to retire or the Trustee does not approve of the
replacement proposed by the Manager, the Trustee may
appoint a corporation to act as a new manager as of the
date of the proposed retirement. An appointment is not
complete until the new manager executes a deed by which
is covenants to be bound by this deed. Until the
appointment is complete, the Trustee may act as manager
(subject to the law).
<PAGE> 32
24
RELEASE 10.11 When it retires, the Manager is released from all
obligations in relation to the Trust arising after the
date of its retirement but at the cost of the Trust is
obliged to deliver all books and records relating to the
Trust to any corporation validly appointed as the new
Manager of the Trust.
NAME OR TRUST 10.12 On retirement of the Manager, the Manager may require
the name of the Trust to be changed to a name which does
not include the current (or any former) name of the
Manager and which is not substantially or deceptively
similar to those names. In addition, the Manager may
change the name of the Trust at any time.
11 INVESTMENT
MANAGER'S ROLE 11.1 The Manager has absolute discretion as to how Assets are
invested or otherwise dealt with and (subject to its
obligations at law and under this deed) the Trustee must
give effect to the Manager's decisions.
The Manager must endeavour to cause sufficient Assets of
the Trust to be in cash, to enable the Trustee to give
effect to the Manager's decisions. Prior to termination
of the Trust, the Trustee must not acquire or dispose of
any Asset except as directed by the Manager.
Notwithstanding any other provision of this deed, the
Trustee need not give effect to a direction of the
Manager, or may exercise its powers without a direction
from the Manager, where the Trustee's duties require it
to do so, where there is insufficient cash in the Trust
to do so or where the Trustee will be inadequately
indemnified or where the Trustee acting reasonably
considers that its liability is not limited in a manner
which is acceptable to the Trustee.
INVESTMENT POLICY 11.2 The Manager must specify its principal investment policy
in the first prospectus or offering memorandum for the
Trust but may vary that policy from time to time.
VOTING 11.3 Subject to clause 11.3A, the Corporations Law and any
Relief applicable from time to time, the Trustee must
exercise all voting rights conferred by the Assets of
the Trust, as directed by the Manager.
11.3A If:
(a) the Manager or any of its associates controls voting
rights attached to voting securities in a body
corporate ("Manager Rights"); and
<PAGE> 33
25
(b) the Trust assets include voting securities in that
body corporate ("Trust Securities"),
then notwithstanding any direction of the Manager to the
contrary, if the voting rights conferred by the Trust
Securities, together with the Manager Rights (together,
"Total Rights") exceed 50% of all voting rights
attached to the voting securities of that body
corporate, then the Trustee may, in its absolute
discretion, exercise the voting rights conferred by that
number of Trust Securities equal to the difference
between:
(c) the number of securities to which the Total Rights
attach; and
(d) the number of voting securities to which 50% of all
voting rights of the body corporate attach.
ACQUISITION OR 11.4 The Manager must not direct the Trustee to acquire or
DISPOSAL OF REAL dispose of an Asset that constitutes real estate without
ESTATE first obtaining a valuation of that Asset by a Valuer.
All advisors appointed by the Manager for the purposes
of the Trust shall be subject to approval by the
Trustee.
INVESTMENT 11.5 The Manager shall from time to time provide to the
PROCEDURE Trustee proposals in writing for the investment of the
Assets of the Trust. Each such proposal shall:-
(a) contain a description of the proposed investment and
its cost or estimated cost;
(b) where the proposal is for the purchase of land or
investment in a mortgage, be accompanied by the
valuation or commercial appraisal of a Valuer; or
(c) where the proposal is for extensions, additions,
alterations to existing investments or the erection
of new improvements be accompanied by the valuation
or commercial appraisal thereof of a Valuer;
(d) where the proposal is for the purchase of shares or
stock in a corporation be accompanied by the
valuation or commercial appraisal of a Valuer if
required by the Trustee.
ACCEPTANCE BY 11.6 Subject to clause 11.1 the Trustee shall upon receipt of
TRUSTEE a proposal provided by the Manager under clause 11.5,
give written confirmation of receipt of that Proposal to
the Manager and accept such proposal unless in the
opinion of the Trustee:-
(a) the implementation of the proposal is not authorised
by this deed;
(b) where the proposal is for the purchase of land or
investment in a mortgage, the valuation or
commercial appraisal does not support the price
proposed to be paid; or
<PAGE> 34
26
(c) where the proposal is for extensions, additions,
alterations or to existing investments or the
erection of new improvements, the valuation or
commercial appraisal does not support the estimated
cost thereof;
REJECTION OF 11.7 Any rejection of a proposal made under clause 11.5 shall
PROPOSAL be made by the Trustee giving written notice to the
Manager within 10 business days of receipt by the
Trustee of the proposal (or such longer period as the
Manager and the Trustee shall agree).
DEEMED ACCEPTANCE 11.8 If Trustee does not reject a proposal in accordance with
clause 11.7, the Trustee shall be deemed to have
approved such proposal.
UNIT HOLDERS 11.9 If the Trustee rejects any proposal made by the Manager
MEETING TO APPROVE under clause 11.5, the Manager may summon a meeting of
PROPOSAL Unit Holders in accordance with clause 15, to consider
and, if thought fit, approve the proposal. The notice of
such meeting provided to Unit Holders must set out a
description of the proposal and the Trustee's reasons
for rejecting the proposal. If the proposal is approved
by an ordinary resolution of Unit Holders at the meeting
(or any adjournment of the meeting), such proposal shall
be authorised as if it were approved by the Trustee.
INSURANCE 11.10 The Manager must insure and keep insured in the name
of the Trustee for such amounts as the Manager believes
prudent (having regard to normal commercial practice)
all the real property and personal property investments
forming part of the Assets against fire, loss of rent
and other usual risks. If the Manager believes
prudent (having regard to normal commercial practice)
the Manager sha11 ensure that the property comprised in
every security constituting a mortgage investment
comprised in the Assets (other than intangible property)
is insured and kept insured in the names of the Trustee
and the mortgagors and other persons (if any) for the
respective interests, against fire, loss of rent and
other usual risks. The Manager shall:-
(a) whenever required by the Trustee produce for
inspection by the Trustee all insurance policies
effected pursuant to this clause 11.10; and
(b) at least once in each Financial Year certify to the
Trustee that the provisions of this clause 11.10
have been fully complied with.
12 INCOME AND DISTRIBUTIONS
DISTRIBUTABLE 12.1 The Manager must determine the Distributable Income
INCOME of the Trust for each Accrual Period. Unless, in its sole
and absolute discretion, the Manager determines that the
Distributable Income shall be some other amount, the
Distributable Income must equal the greater of (i) Net
Income
<PAGE> 35
27
for the Accrual Period, and (ii) Net Accounting
Income of the Trust for the Accrual Period.
ENTITLEMENT AND 12.2 The Manager must distribute all Distributable
DISTRIBUTION DATES Income of the Trust for each Accrual Period
within two months of the end of that Accrual
Period.
DISTRIBUTION 12.3 Units shall rank for distributions of
RANKING Distributable Income from the first day of the
month immediately following their creation so
that where Units are created during an
Accrual Period, such Units shall participate
in the Distributable Income in respect of
that Accrual Period in the proportion that
the part of the Accrual Period (calculated in
calendar months) for which such Units rank
for distribution of Distributable Income bears
to the whole of such Accrual Period and in
the case where such Units are partly paid for
the whole or part of an Accrual Period
("Partly Paid Units"), such Partly Paid Units
shall participate in the Distributable Income
in respect of that Accrual Period according
to the proportion or different proportions of
the issue price that has been paid up
thereon. For the purposes of such calculation
where an instalment of the issue price of a
Partly Paid Unit is paid into the Trust, the
Partly Paid Unit in respect of which such
payment is made shall thereby be entitled to
rank for an increased participation in
Distributable Income from the first day of the
month immediately following the date of such
payment.
UNITHOLDERS 12.4 Subject to clause 12.3 each person registered
ENTITLEMENTS as a Unit Holder on the last day of an
Accrual Period, shall be presently entitled
to the Distributable Income for the Accrual
Period in proportion to the number of Units
held by such Unit Holder to the total number
of Units then on issue.
CLOSING 12.5 The Manager must determine a date of the
DATE closing of the Unit Holders' register for the
purpose of determining entitlements to the
distribution ("the Closing Date"). The total
amount to be distributed in respect of a
distribution period is to be transferred to a
distribution account as soon as practicable
after the Closing Date. The payment by the
Manager of a Unit Holder's entitlement to
Distributable Income to the Unit Holder
registered in respect of those Units as at
the Closing Date shall be a good and
sufficient discharge to both the Manager and
the Trustee in respect of any liability that
they may have to any person in respect of
such entitlement.
DISTRIBUTION OR 12.6 If the Manager directs, the Trustee must
CAPITAL TO transfer capital to the distribution account,
DISTRIBUTION to enable distribution to Unit Holders of the
ACCOUNT minimum amount necessary to avoid the Trustee
becoming assessable for tax under section
99A of the Income Tax Assessment Act 1936.
<PAGE> 36
28
SEPARATE ACCOUNTS 12.7 The Manager may keep separate accounts of
different categories or sources of income and
may allocate income from a particular
category or source to particular Unit Holders.
The Manager must notify the Unit Holders
concerned of that allocation.
OTHER DISTRIBUTIONS 12.8 The Manager may at any time direct the
Trustee to distribute any amount of capital
or income to Unit Holders pro rata according
to the number of Units in the Trust held as
at a time decided by the Manager. The
distribution may be in cash or by way of
bonus Units.
REINVESTMENT 12.9 If the Manager offers a facility whereby Unit
Holders may receive distributions by way of
bonus Units, then by prior notice a Unit
Holder may elect to reinvest some or all of
any distribution by acquiring such bonus
Units in the Trust. In those cases, the
Manager is treated as having received an
application to reinvest distributions on the
first business day after the distribution has
been paid. The procedure for reinvestment of
distributions is to be determined by the
Manager and notified to Unit Holders from
time to time as and when the facility is
offered. The Manager may at any time
withdraw, amend or re-establish such a
facility.
A request to participate in such a facility
or cancellation of any such request is
effective if received at least 21 days before
the end of a Distribution Period.
PAYMENT 12.10 The Manager must prepare distribution cheques
or arrange for distributions to be paid.
Cheques not presented within 6 months may be
cancelled and reinvested in Units in the
Trust on behalf of the recipient Unit Holders
at the application price prevailing at the
time the cheque is cancelled.
WITHHOLDING TAX 12.11 Where the Net Income includes income derived
from sources outside Australia from which
withholding tax or its equivalent
("withholding tax") has been deducted as a
consequence of the application of any law of
any local or foreign jurisdiction (including
any treaty between the Australian Government
and the government of such foreign
jurisdiction) ("relevant law") and the amount
of such withholding tax is greater than would
be the case under the relevant law if Unit
Holders did not include persons who were not
residents of Australia ("non residents"), the
entitlement to Distributable Income of such
non residents may be adjusted by the Manager
so that the entitlement to Distributable
Income of all other Unit Holders is
equivalent to the amount they would receive
if Unit Holders did not include non
residents.
<PAGE> 37
29
DISTRIBUTIONS PAID 12.12 The Manager may provide a facility whereby
IN DIFFERENT Unit Holders may receive their entitlement to
CURRENCIES the Distributable Income of the Trust from
time to time in such currency or currencies
as they may request by notice to the Manager
in writing and which the Manager in its
absolute discretion may approve and in such
event the Manager may arrange to convert a
Unit Holder's entitlement to Distributable
Income into the currency in which it is to be
paid on a date being the date that the
Distributable Income in respect of an Accrual
Period is determined, the Closing Date in
respect of an Accrual Period, the date of
payment of distribution entitlements in
respect of an Accrual Period or such other
date as the Manager may determine and the
Trustee at the direction of the Manager may
maintain bank accounts in such currencies as
may be appropriate for this purpose.
13 ACCOUNTS AND AUDIT
ACCOUNTS 13.1 The accounts of the Trust must be prepared by
the Manager in accordance with generally
accepted accounting principles and must be
audited and reported on as required by the
Corporations Law and the Listing Rules. The
Manager covenants with the Trustee to keep
the accounts of each Trust.
13.2 Subject to the Corporations Law, the Listing
Rules and any Relief or waiver of the Listing
Rules applicable from time to time, the
accounts of the Trust must disclose:-
(a) gross earnings of the Trust which shall
be divided to show separately rent,
interest, dividends, capital profits on
the sale of investments and any other
items of revenue amounting to five per
cent or more of the gross revenue, and
shall state the extent (if any) to which
income has been used in writing down the
book value of investments;
(b) gross expenses of the Trust which shall
be divided to show separately:-
(i) rates, taxes and other outgoings
attached to properties owned by the
Trust if payable by the Trust;
(ii) legal, audit and other costs payable
by the Trust; and
(iii) fees and commissions payable to the
Manager itemised to show separately
initial service charges, management
fees or any other fees so paid;
(c) the period of the Trust and the
termination date;
(d) all investments of the Trust showing
separately:-
(i) a reasonable description;
(ii) date of acquisition;
<PAGE> 38
30
(iii) cost price; and
(iv) valuation and basis of valuation;
(e) sales of investments by the Trust
during the period to which the
accounts refer showing separately
for each investment:-
(i) sale proceeds;
(ii) book value; and
(iii) independent valuation of real
property sold as at the time of
sale;-
(f) purchases of investments by the Trust
during the period to which the accounts
refer showing separately for each
investment:-
(i) cost price; and
(ii) independent valuation of real
property purchased as at the time of
acquisition;
(g) net tangible asset backing at book value
of each Unit as at the balance date of
the accounts;
(h) the number of Units held (if any) by the
Manager or its nominees at the balance
date of the accounts;
(i) all matters required to be reported on
under the Corporations Law and
Corporations Regulations as if the
Trust was a company subject to the
Corporations Law.
DISTRIBUTION 13.3 The Trustee shall ensure that every
STATEMENT distribution statement sent to Unit Holders
is accompanied by a report as to the state of
the Trust and includes statements on:-
(a) the total gross and net income per Unit
for the period before charging management
fees;
(b) the net amount per Unit (after allowing
for charges and adjustments) recommended
to be distributed to Unit Holders out of
profits or reserves, together with the
gross equivalent attributable to the
distribution period; and
(c) the amount recommended to be carried to
reserves.
AUDIT 13.4 The Trustee must appoint an Auditor qualified
to act as required by the Corporations Law to
audit the Manager's and Trustee's accounts in
relation to the Trust. The Trustee may
replace the Auditor from time to time. The
Auditor may retire on one month's notice to
the Trustee. The Auditor's remuneration shall
be fixed from time to time by the Trustee.
13.5 The accounts must be maintained at the office
of the Manager in the state of the Home
Exchange.
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14 ADMINISTRATION AND REPORTING
REGISTER 14.1 The Manager must establish a principal
register of Unit Holders and Option Holders
(if any) and may establish branch registers
in such locations (other than the location of
the principal register) as it considers
appropriate. The Manager must decide what
information is to be recorded in the
principal and any branch register, in
consultation with the Trustee. The principal
and any branch register shall be kept up to
date and a complete copy of each register
must be provided to the Trustee within 3
business days after request. The Manager need
not enter notice of any trust on any
register. The Manager and the Trustee may
treat the registered Unit Holder as the
absolute owner of Units registered in that
Unit Holder's name and not be bound to take
notice of any trust or equity affecting any
Unit.
REGISTER 14.2 The register must be kept in accordance with
the Listing Rules.
CERTIFICATES 14.3 No certificates will be issued for Units. The
Manager at any time may send any Holder
details of Units held by, Unit transactions
of, or distributions to, the Holder.
UNCERTIFIED TRADING 14.4 The Trust is permitted to participate in any
system or scheme approved by the ASX which
allows for simultaneous settlement of
transfers of units and uncertificated
holdings, including (without limitation) the
CHESS and FAST systems.
TRANSFERS 14.5 Unit Holders may transfer Units. Option
Holders may transfer Options (subject to
their terms of issue). Transfers must be in a
form approved by the Manager and the ASX and
be presented for registration duly stamped. A
transfer is not effective until registered.
The Manager may refuse to register any
transfer of a Unit or Option that is not
Officially Quoted, in its absolute
discretion. The Manger may refuse to register
any transfer of an Officially Quoted Unit or
Option only where the Listing Rules or the
terms of any waiver granted by the ASX in
respect of the Listing Rules so permit. In
all other respects, the Manager must deal
with a transfer of an Officially Quoted Unit
or Option in accordance with the Listing
Rules.
DEATH, LEGAL 14.6 If a Unit Holder or Option Holder dies or
DISABILITY becomes subject to a legal disability such as
bankruptcy or insanity, only the survivor (in
the case of joint holders) or legal personal
representative (in any other case) will be
recognised as having any claim to Units or
Options registered in the Unit Holder's name.
<PAGE> 40
32
PAYMENTS 14.7 Money payable by the Trustee or Manager to a
Unit Holder or Option Holder may be paid in
any manner approved by the Manager and
Trustee. Only whole cents are to be paid. Any
remaining fraction of a cent becomes an Asset
of the Trust.
DEDUCTIONS 14.8 The Trustee and Manager may deduct from any
amount to be paid to a Unit Holder or an
Option Holder any amount of Tax (or an
estimate of it) which they are required or
authorised to deduct in respect of that
payment by law or by this deed or which the
Manager considers should be deducted.
REPORTS 14.9 The form and content of any report sent by
the Trustee or Manager to Unit Holders or
Option Holders is (subject to the law) at the
discretion of the person preparing it.
15 MEETINGS OF UNIT HOLDERS
NOTICE 15.1 A meeting of Unit Holders of the Trust must
be convened by notice in writing sent to
every Unit Holder entitled to attend and vote
at the meeting. The notice of meeting must
include a proxy form. The notice of meeting
need not set out the terms of any resolution
to be proposed, but must state the general
nature of the business to be transacted at
the meeting. Either the Manager or the
Trustee may convene a meeting. The Manager
and Trustee must comply with section
1069(1)(m) of the Corporations Law whether or
not this deed is approved under section 1067
of the Corporations Law.
TRUSTEE TO CONVENE 15.2 The Trustee must convene a meeting of Unit
MEETING Holders under clause 15.1 if the Trustee
receives a written requisition signed by not
less than 50, or 10% in number, whichever is
the less, of the Unit Holders. The
requisition must state the object of the
meeting and the terms of any proposed
resolution. The Trustee must serve a copy of
any such requisition on the Manager, together
with all other relevant information.
NOTICE PERIOD 15.3 Subject to the Corporations Law and (while
Units are Officially Quoted) the Listing
Rules, at least 10 ASX business days' notice
of a meeting must be given to the Trustee,
the Manager and the Unit Holders. In
addition, while Units are Officially Quoted,
the party or parties convening the meeting
must, at least 10 ASX business days prior to
the meeting, advertise the meeting in The
Sydney Morning Herald, The Australian
Financial Review, The Australian or any other
national newspaper, and notify the Home
Exchange.
NON-RECEIPT 15.4 If a Unit Holder does not receive a notice
(including if notice was accidentally omitted
to be given to them) the meeting is not
invalidated.
<PAGE> 41
33
QUORUM 15.5 The quorum for a meeting of Unit Holders is 5
Unit Holders present in person or by proxy
together holding between them a least 10% of
all issued Units.
NO QUORUM 15.6 If a quorum is not present within 30 minutes
after the scheduled time for the meeting, the
meeting is:
(a) if convened on the requisition of Unit
Holders - dissolved; or
(b) otherwise - adjourned to such place and
time as the Manager decides in
consultation with the Trustee.
At any adjourned meeting, those Unit Holders
present in person or by proxy constitute a
quorum.
CHAIRMAN 15.7 Subject to and to the extent permitted by the
Corporations Law, the Chairman of a meeting
of Unit Holders shall be a person nominated
by the Manager but need not be a Unit Holder,
provided that if any such person nominated is
not present within 30 minutes after the time
appointed for the holding of the meeting, the
Unit Holders present may choose one of their
number to preside as the Chairman.
ADJOURNMENT 15.8 The Chairman has power to adjourn a meeting
for any reason to such place and time as the
Chairman thinks fit.
VOTING 15.9 Voting is by a show of hands, unless a poll
is duly demanded or the resolution proposed
is required by this deed or by law to be
decided by a percentage of all Units. Each
Unit Holder present in person or by proxy has
one vote on a show of hands. On a poll, each
Unit Holder present in person or by proxy has
one vote for each whole fully paid Unit held
and a pro rata fraction of a vote equal to
the proportion which the amount paid up bears
to the total Application Price for each whole
partly paid or fractional Unit held. In the
case of joint holders, only the person whose
name appears first in the register may vote.
Subject to the law and this Deed, a
resolution is passed if a simple majority of
votes are cast in favour.
POLL 15.10 Every question arising at a general meeting
of Unit Holders shall be decided in the first
instance by a show of hands, provided that a
poll shall be taken in any case where:-
(a) it is required by this deed or by law
that the question be decided by a
majority which is to be measured by a
percentage of the votes of those present;
or
(b) it is demanded either before or
immediately after any question is put to
a show of hands by Unit Holders present,
personally or by proxy, not being less
than 10 in number and holding (or
<PAGE> 42
34
representing by proxy) between them not
less than 20,000 Units; or
(c) it is demanded by the Chairman either
before or immediately after any question
is put to a show of hands.
CASTING VOTE 15.11 If votes are equal, whether on a show of
hands or on a poll, the Chairman has a
casting vote in addition to the vote or
votes (if any) to which the Chairman is
otherwise entitled.
PROXIES 15.12 A Unit Holder may be represented at a meeting
by proxy. Proxies are governed by section
1069B of the Corporations Law as if all
meetings were convened under section 1069A.
A proxy shall have the same rights as its
appointing Unit Holder to vote whether on a
poll or a show of hands, to speak and to be
reckoned in a quorum. The Trustee is not
obligated to enquire whether a proxy has been
validly given. A proxy expires after 12
months. A proxy is still valid after it is
revoked or after the Unit Holder who gave it
dies or becomes under a legal disability,
unless the Trustee has received written
notice of that fact before the meeting at
which the proxy is used.
REPRESENTATIVES 15.13 A body corporate may be represented at a
meeting by a person appointed in the manner
provided in section 249(3) of the
Corporations Law. The Trustee may accept a
certificate under section 249(6) as evidence
of the person's appointment. The person may
exercise on the body's behalf the same powers
as the body could if it were a natural person
and the body is taken to be present at the
meeting in person.
OTHER ATTENDEES 15.14 The Trustee and its advisors, the Manager and
its advisors and the Auditor may attend and
speak at any meeting, or invite any other
person to attend and speak.
RESOLUTIONS BINDING 15.15 A Resolution binds all Unit Holders of the
Trust, whether or not they are present at the
meeting. No objection may be made to any vote
cast unless the objection is made at the
meeting. The decision of the Chairman on any
matter is final.
MINUTES 15.16 The minutes of a meeting of Unit Holders
signed by the Chairman of the meeting are
evidence of the matters stated in them unless
the contrary is proved.
16 RIGHTS AND LIABILITIES OF MANAGER AND TRUSTEE
HOLDING UNITS 16.1 The Manager and its associates may hold Units
and Options in the Trust. Neither the Trustee
nor its associates shall hold Units or
Options in the Trust other than in
circumstances where Units or Options are not
held for the benefit of the holder but are
held solely in a fiduciary or custodial
<PAGE> 43
35
capacity. Notwithstanding any other provision
of this Deed neither the Trustee nor its
associates shall be considered to have a
beneficial interest in the Trust because they
hold Units or Options in a fiduciary or
custodial capacity.
OTHER CAPACITIES 16.2 Subject to their acting at all times with
good faith to all Unit Holders and Option
Holders nothing in this deed restricts the
Manager, the Trustee or their respective
associates from:
(a) dealing with each other, the Trust or any
Unit Holder or Option Holder; or
(b) being interested in any contract or
transaction with the other of them or the
other's associates, the Trust or any Unit
Holder or Option Holder or retaining for
its own benefit any profits or benefits
derived from any such contract or
transaction (provided that the person's
interest in the contract or transaction
or that of any associate is disclosed to
the Manager or Trustee (as the case
requires) before the contract or
transaction is entered into); or
(c) acting in the same or a similar capacity
in relation to any other scheme,
and neither the Trustee, the Manager nor
their respective associates shall be liable
to account to the other of them or to any
Unit Holder in relation to any act, matter,
transaction or dealing of a kind described
in this clause 16.2.
LIMITATION ON 16.3 If the Manager or Trustee acts in good faith
LIABILITY and without default or negligence, it is not
responsible to the other or to Unit Holders
or Option Holders for any loss suffered in
respect of the Trust. The liability of the
Manager and Trustee in relation to the Trust
is in any case limited to the Assets of the
Trust.
SPECIFIC LIMITATIONS 16.4 Without limiting clause 16.3, when acting in
- -MANAGER good faith, without negligence, fraud,
breach of trust or breach of duty, the
Manager will not be liable to the Trustee or
any Unit Holder or any future Manager or
Trustee or any other person for loss caused
by:-
(a) the Manager's acts or omissions in
reliance on:-
(i) provided it has been maintained in
good faith by the Manager, the
register;
(ii) information or documents supplied
by the Trustee or any of its
agents;
(iii) the authenticity of any document;
(iv) opinion, advice or information of
any barrister, solicitor,
accountant, valuer or other
expert instructed by the Trustee
or the Manager;
<PAGE> 44
36
- --------------------------------------------------------------------------------
(v) information from any banker or the
Auditor; or
(vi) acting on any instruction or direction or
proposal properly given to it by the
Trustee under this deed;
provided the Manager has no reason to believe
the relevant material not to be authentic or the
expert not to have the relevant expertise;
(b) any act, omission, neglect or default of the
Trustee or any other person;
(c) any act or omission required by law or by any
court of competent jurisdiction;
(d) any particular price or reserve not having been
realised;
(e) any unnecessary payment having been made to
any fiscal authority;
(f) the Trustee waiving or excusing, subject to any
conditions the Trustee may think fit, any breach
by the Manager of the Manager's obligations
under this deed; or
(g) any act or omission of an operator of any
securities title, transfer or holding system;
SPECIFIC LIMITATION 16.5 Without limiting clause 16.3, when acting in good
- - TRUSTEE faith, without negligence, fraud, breach of trust or
breach of duty, the Trustee will not be liable to
the Manager or any Unit Holder or any future Manager
or Trustee or any other person: -
(a) for loss caused by:-
(i) the Trustee's acts or omissions in reliance
on:-
(A) the register;
(B) information or documents supplied by
the Manager or any of its agents;
(C) the authenticity of any document;
(D) opinion, advice or information of any
barrister, solicitor, accountant,
valuer or other expert instructed by
the Trustee or the Manager;
(E) information from any banker or the
Auditor; or
(F) acting on any instruction or
direction or proposal properly given
to it by the Manager under this deed,
provided the Trustee has no reason to
believe the relevant material not be
authentic or the expert not to have the
relevant expertise;
<PAGE> 45
37
- --------------------------------------------------------------------------------
(ii) any act, omission, neglect or default
of the Manager or any other person;
(iii) any act or omission required by law
or by any court of competent
jurisdiction;
(iv) any particular price or reserve not
having been realised;
(v) any unnecessary payment having been
made to any fiscal authority;
(vi) the act or omission of any operator
of any securities title, transfer or
holding system; or
(b) to any greater extent than the amount which the
Trustee is entitled to and does recover through
its right of indemnity from the Assets of the
Trust actually vested in the Trustee in
accordance with this deed.
WAIVER 16.6 The Trustee may in its absolute discretion waive or
excuse any breach by the Manager of the Manager's
obligations under this deed which is in the opinion
of the Trustee not to the material prejudice of Unit
Holders.
EXERCISE OF 16.7 The Trustee and Manager may each decide how and when
DISCRETION to exercise their powers in their absolute
discretion.
INDEMNITY 16.8 The Trustee is entitled to be indemnified out of the
Assets of the Trust for any liability incurred by
the Trustee in performing or exercising any of its
powers or duties in relation to the Trust. This
indemnity is in addition to any indemnity allowed
by law, but does not extend to liabilities arising:
(a) from a breach of trust; or
(b) where the Trustee fails to show the degree of
care and diligence required of a trustee having
regard to its powers, authorities and
discretions under this deed,
unless the Unit Holders decide otherwise by
Resolution under section 1076(2) of the Corporations
Law.
LIMITATION OR 16.9 Any material contract or agreement entered into by
LIABILITY TO the Trustee in its capacity as Trustee will
CONTRACTING PARTIES incorporate a term whereby the extent of the
Trustee's liability with respect to that it incurs
under such contract or agreement is limited to the
Assets of the Trust except for any liability which
the Trustee may have as a result of its fraud,
negligence, default or breach of duty.
<PAGE> 46
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17 LIABILITY OF UNIT HOLDERS
- --------------------------------------------------------------------------------
LIABILITY LIMITED 17.1 The liability of a Unit Holder is limited to the
Application Price paid or agreed to be paid for a
Unit. A Unit Holder need not indemnify the Trustee
or Manager if there is a deficiency in the Net
Assets of the Trust or meet the claim of any
creditor of the Trustee or Manager in respect of
the Trust. Any relationship or partnership or
agency between the Trustee, the Manager and any
Unit Holder is expressly excluded.
RECOURSE LIMITED 17.2 The recourse of the Trustee, the Manager and any
creditor is limited to the Assets of the Trust.
18 REMUNERATION AND EXPENSES
- --------------------------------------------------------------------------------
MANAGER 18.1 The Manager is entitled to a monthly management fee
which shall not exceed the amount determined by the
following formula ("Manager's Fee Formula"):
F= .006C - M
-----
12
Where:
F = the Manager's monthly fee expressed in US Dollars
which, if a negative amount, shall be deemed to
be zero;
C = the US Dollar Equivalent of the average market
capitalisation of the Trust in respect of the
month for which the Manager's fee is calculated
("Relevant Month") to be determined by:
(i) for each business day in the Relevant Month
multiplying the Market Price in respect of
each Class on that business day converted
to its US Dollar Equivalent by the total
number of Units on issue in each Class
at close of business on that business day;
(ii) adding the result of each calculation in
(i) above;
(iii) then dividing the result of the calculation
in (ii) by the total number of business
days in the Relevant Month.
M = the relevant proportion of all other fees
received by the Manager or its related bodies
corporate in respect of the Relevant Month for
funds management or advisory services (but not
property management or development services)
provided in relation to any corporation or other
entity in which an interest held directly or
indirectly by the Trustee comprises an Asset.
Such fees shall be converted to their US Dollar
Equivalent as at the date of receipt by the
Manager (except where received in US Dollars).
The relevant
<PAGE> 47
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proportion of such fees shall be the proportion
that the ownership interest held by the Trustee
bears to the total of all ownership interests in
such corporation or entity.
The Manager's monthly fee shall be paid in US Dollars
in arrears within 3 business days of the end of each
month. That period, being less than a month,
occurring at the commencement or immediately prior
to the termination of the Trust shall be deemed to
be a month for the purposes of the Manager's Fee
Formula. If at any time the income of the Trust is
not sufficient to pay any part of the monthly
management fee then due, the Manager's entitlement
to the shortfall will be carried forward until the
following month and so on until the income of the
Trust is sufficient to allow it to be paid.
TRUSTEE 18.2 The Trustee is entitled to an establishment fee of
$40,000 on execution of this Deed; and
(a) subject to paragraph (b) a minimum annual fee of
$40,000 together with such fees as the Trustee
may charge at its standard hourly charge out rate
applicable from time to time for specific work
required to be undertaken by the Trustee in
relation to any Unit Holders Meetings, Trust Deed
amendments, takeovers, asset reconstructions and
other matters not normally or routinely arising
in the normal course of administration of the
Trust;
(b) where the value of the Assets exceeds
$150,000,000 the Trustee's fee shall not exceed
the amounts determined in accordance with the
following table:
<TABLE>
<CAPTION>
Value of Assets Fee
------------------ ---
<S> <C>
$ 150,000,000 $ 45,000
up to $ 250,000,000 $ 75,000
up to $ 350,000,000 $105,000
up to $ 450,000,000 $135,000
up to $ 550,000,000 $165,000
up to $ 600,000,000 $180,000
up to $ 700,000,000 $210,000
up to $ 800,000,000 $240,000
up to $ 900,000,000 $270,000
up to $1,000,000,000 $300,000
up to $1,500,000,000 $325,000
up to $2,000,000,000 $450,000
up to $2,500,000,000 $575,000
</TABLE>
Where the value of the Assets exceeds $2,500,000,000
the Trustee's fee shall not exceed such amount as is
agreed between the Trustee and the Manager.
<PAGE> 48
40
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It is acknowledged that the Trustee may charge a fee
which is less than its fee entitlement determined
pursuant to this paragraph 18.2.
The Trustee's annual fee shall be paid in arrears in
two equal instalments which shall be payable
respectively on 30 June and 31 December in each year.
The Trustee's annual fee shall be paid first out of
the income of the Trust, then out of the capital of
the Trust.
WAIVER OF FEES 18.3 The Trustee or Manager may accept a lower fee than it
is entitled to receive under this deed, and may defer
payment of its fee for any period. Where payment is
deferred, the fee still accrues daily until paid.
EXPENSES 18.4 All expenses reasonably and properly incurred by the
Trustee or Manager in connection with the Trust or in
performing their obligations under this deed are
payable or reimburseable out of the Assets of the
Trust. This includes (without limitation) expenses
connected with:
(a) this deed and the formation of the Trust, any
supplemental deed and the approval of this deed
and of any supplemental deed by the ASC and
ASX;
(b) preparation, lodgement, registration,
distribution and promotion of any prospectus or
offering memorandum in respect of Units or
Options;
(c) the sale, purchase, insurance and custody of and
any other dealing with Assets;
(d) investigating and evaluating any proposed
investment;
(e) the administration, management and promotion of
the Trust, its Assets and Liabilities and
property and project management fees and
expenses;
(f) convening and holding meetings of Unit Holders,
the implementation of any Resolutions and
communications with Unit Holders and Option
Holders;
(g) Tax (provided it is not on the personal account
of the Trustee or Manager) and bank fees;
(h) the engagement of underwriters, agents, valuers,
legal (on a full indemnity basis) and other
advisers and contractors of all kinds;
(i) preparation and audit of the Taxation returns
and accounts of the Trust;
(j) termination of the Trust and the retirement or
removal or the Trustee or Manager and the
appointment of a new trustee or manager;
(k) institution, prosecution, defence and compromise
any court proceedings, arbitration or other
dispute concerning the Trust or any Asset or
Liability, including proceedings against the
Trustee or the Manager by the other of them
(except to the extent that the person incurring
the expenses is found by a court to be in breach
of trust, in default or to have been negligent);
and
<PAGE> 49
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(l) any costs incurred in connection with or as a
result of any agreement in connection with the
Trust to which any Unit Holder is a party and
any costs which such agreement provides are to
be borne by the Trust;
(m) interest, discount and acceptance fees for bill
facilities, all borrowing, hedging or facility
costs and like amounts;
(n) any actual or proposed investment, acquisition,
realisation, disposal, valuation, maintenance,
alteration, improvement, enhancement, receipt,
collection or distribution of any Assets;
(o) fees payable to any person (not associated with
the Trustee) authorised by the Trustee to hold
the Assets;
(p) establishing and maintaining the register of
Unit Holders and of Option Holders, the Trust
accounting system and records and the investment
register (including operation and development of
computer facilities, both software and hardware,
salaries and on costs);
(q) fees payable to the ASC or any other regulatory
authority;
(r) ASX and share registry fees (including listing
and quotation fees);
(s) preparing, printing and posting accounts,
cheques and documents, or making payments, to
Unit Holders;
(t) amounts payable to advisers, agents, brokers,
contractors, underwriters or other persons
engaged by the Trustee or the Manager under the
Deed (including legal costs on a full indemnity
basis);
(u) entering the Trust in any survey;
(v) fees payable to any ratings organisation;
(w) performance of the Trustee's or Manager's
duties, exercise of the Trustee's or Manager's
rights or powers, compliance with the law or
administration of the Trust;
(x) fees payable to Austraclear Limited or any other
securities system authorised by the Trustee to
hold Assets; and
(y) dealing with applications for and redemption of,
and determining the Issue Price and Redemption
Price of, Units.
DEFERRAL 18.5 The Trustee and Manager may with the other's approval
defer reimbursement of any or all expenses under
clause 18.4 for an agreed period.
19 TERMINATION
- --------------------------------------------------------------------------------
PROCEDURE 19.1 On termination of the Trust, the Trustee must realise
the Assets of the Trust. This must be completed in
180 days if practical and in any event as soon as
reasonably possible after that. The Trustee may make
partial distributions.
<PAGE> 50
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FINAL DISTRIBUTION 19.2 The net proceeds of realisation, after discharging or
providing for all Liabilities of the Trust and
meeting the expenses of termination, must be
distributed pro rata to Unit Holders according to the
number of Units they hold.
20 AMENDMENTS TO TRUST DEED
- --------------------------------------------------------------------------------
The Trustee and Manager may together by supplemental
deed alter this deed, provided that:
(a) where this deed has been approved under section
1067 of the Corporations Law, the amendment is
permitted by section 1069A of the Corporations
Law; or
(b) in any other case, either:-
(i) the amendment is made with the sanction of
a Resolution of a simple majority of Unit
Holders of the Trust; or
(ii) the Trustee and the Manager reasonably
believe that the amendment will not
adversely affect the rights of Unit Holders.
21 BENEFICIAL OWNERSHIP OF UNITS
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DEFINITIONS 21.1 For the purposes of this clause 21:-
(a) a person has a "relevant interest" in a Unit if
that person has power to exercise or to control
the exercise of, the right to vote attached to
that Unit or to dispose of or to exercise control
over the disposal of that Unit and the provisions
of sections 30 to 43 inclusive of the
Corporations Law apply to this clause except that
in the application of those provisions to this
clause, reference to a "share" or "voting share"
means "Unit", "body corporate" means "Trust" and
"directors" means "direction of the Manager";
(b) "relevant instructions" means instructions or
directions:
(i) in relation to the acquisition or disposal
of a Unit;
(ii) in relation to the exercise of any voting
or other rights attached to a Unit; or
(iii) in connection with any other matter
relating to a Unit.
PRIMARY NOTICE 21.2 The Manager, by notice in writing given to a Unit
Holder, may require the Unit Holder, within 14 days
after receiving the notice, to furnish to the Manager
a statement in writing setting out:-
<PAGE> 51
43
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(a) full particulars of the Unit Holder's relevant
interest in Units specified in the notice (the
"specified Units") and of the circumstances by
reason of which the Unit Holder has that interest;
and
(b) so far as it is known to the Unit Holder:-
(i) full particulars of the name and address of
every other person (if any) who has a
relevant interest in any of the specified
Units;
(ii) full particulars or each such interest and
of the circumstances in which the other
person has that interest; and
(iii) full particulars of the name and address of
each person (if any) who has given to the
Unit Holder relevant instructions in
relation to any of the specified Units, full
particulars of those relevant instructions,
and the date or dates on which those
relevant instructions were given.
SECONDARY NOTICE 21.3 The Manager, by notice in writing given to a Unit
Holder, may require that Unit Holder to procure the
person nominated in the notice or alternatively may
require the Unit Holder, within 14 days after
receiving the notice, to give to the Manager a
statement in writing setting out:-
(a) full particulars of any relevant interest that
the person nominated in the notice has in any
specified Units and of the circumstances by
reason of which the person nominated has that
interest; and
(b) so far as it is known to the Unit Holder or the
person nominated:
(i) full particulars of the name and address
of every other person (if any) who has a
relevant interest in any of the specified
Units;
(ii) full particulars of each such interest and
of the circumstances in which the other
person has that interest; and
(iii) full particulars of the name and address of
each person (if any) who has given to the
person to whom the notice is addressed
relevant instructions in relation to any
of the specified Units, details of those
relevant instructions, and the date or
dates on which those relevant instructions
were given.
SEPARATE REGISTER 21.4 Where the Manager, pursuant to a notice given to a
person under clauses 21.2 or 21.3, receives
information that a person other than the Unit Holder
has a relevant interest in Units, the Manager must
enter in a separate part of the register, in relation
to that Unit Holder, the name and address of each
other person who, according to the information
received by the Manager, has a relevant interest in
those Units, together with particulars
<PAGE> 52
44
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of that interest and of the circumstances by reason
of which the person has the interest and the date of
entry in the register.
INFORMATION 21.5 Where the Manager, pursuant to a notice given to a
person under clauses 21.2 or 21.3, receives
information that a person other than the Unit Holder
has given relevant instructions in relation to any
Units, the Manager must enter in a separate part of
the register in relation to that Unit Holder, the
name and address of each other person who, according
to information received by the Manager, has given
relevant instructions in relation to any of the
Units, together with particulars of the relevant
instructions and the date of entry in the register.
INSPECTION 21.6 The separate part of the register kept under clauses
21.4 and 21.5 is open to inspection by the Trustee,
the Manager, the Auditor and Unit Holders only and
the Manager must not furnish a copy of that part of
the register to any other person unless required to
do so by law.
DISPOSAL 21.7 Where the Manager is satisfied that a Unit Holder has
failed to comply with any request made by the Manager
under clauses 21.2 or 21.3, the Manager may require,
by notice in writing to that Unit Holder, the
disposal (but not the redemption) of the specified
Units or any part of them within the time specified
in the notice. In the absence of any such requirement
by the Manager, the Unit Holder concerned is not
entitled in any way to set aside or cancel any
transaction whereby the Unit Holder acquired a
relevant interest in any Units, nor to claim any
refund or to otherwise recover any money paid in
respect of the Units.
NON-COMPLIANCE 21.8 If the requirements of the notice referred to in
clause 21.7 are not complied with by the Unit Holder
within the time specified in the notice, the Manager
may cause the specified Units to be sold in a manner
determined by the Manager.
BRANCH REGISTER 21.9 If the Units sold in accordance with the provisions
of clause 21.7 are registered on a branch register
the Manager may cause those Units to be transmitted
to the principal register of the Trust.
EFFECTING TRANSFER 21.10 The Manager may:-
(a) appoint a person to effect as transferor a
transfer in respect of any Units sold in
accordance with the provisions of clause 21.8 and
to receive and give good discharge of the
purchase money for the Units; and
(b) register the transfer notwithstanding that the
certificate (if any) for the Units has not been
delivered to the Manager and may issue a
certificate (if required) to the transferee.
<PAGE> 53
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SALE PROCEEDS 21.11 The purchase money less the expenses of any sale made
in accordance with the provisions of clause 21.8 must
be paid to the Unit Holder whose Units were sold
provided the Unit Holder has delivered to the Manager
for cancellation the relevant certificate (if any).
Failing delivery, the Manager may sue the Unit Holder
in detinue for recovery of the certificate (if any)
and the Unit Holder is not entitled to deny or
dispute the Manager's ownership and right to
possession of the certificate in any legal action.
OPERATION OF 21.12 Subject to clause 21.13, clauses 21.7 to 21.11 shall
PROVISIONS have no effect provided that nothing in this clause
21.12 affects the operation of clause 21.14.
SANCTION OR PENALTY 21.13 Clause 21.12 shall have no force and effect on and
from any date on which it is permissible under the
Listing Rules and the Corporations Law to include
within this deed a sanction or penalty which entitles
the Manager, the Trustee or any other person (or any
of them) to enforce or give effect to any provisions
in this deed relating to takeover offers or
substantial Unit holdings.
APPLICATION 21.14 Clauses 21.7 to 21.11:-
(a) apply only at times when Units are Officially
Quoted; and
(b) create a personal right of action in each Unit
Holder, the Trustee and the Manager and may be
enforced by action of any one or more of the Unit
Holders, the Trustee or the Manager.
NO LIABILITY 21.15 Nothing in clause 21 renders the Manager or Trustee
liable or responsible by reason of any person
acquiring Units in the Trust in contravention of
clause 21 or failing to comply with the obligations
imposed by clause 21.
22 LIMITATION ON UNIT HOLDINGS AND NOTIFICATION OF SUBSTANTIAL UNIT
HOLDINGS
- --------------------------------------------------------------------------------
INTERPRETATION 22.1 In this clause 22 unless the context indicates a
contrary intention:
(a) In the application of the relevant provisions of
the Corporations Law to this clause 22 a
reference in the Corporations Law to:
(i) "TAKE-OVER OFFER" and "OFFER" means an
offer to acquire Units which is made
substantially in accordance with the
provisions of Part 6.3 of the Corporations
Law;
(ii) "OFFEROR" means a person who makes a
take-over offer or an offer;
<PAGE> 54
46
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(iii) "TAKE-OVER ANNOUNCEMENT" or "ON-MARKET
OFFER" means an offer to acquire Units
which is made substantially in accordance
with the provisions of Part 6.4 of the
Corporations Law;
(iv) "ON-MARKET OFFEROR" means a person who
makes a take-over announcement or
on-market offer;
(v) "COMPANY" means Trust;
(vi) "SHARE" means Unit and "SHARE IN A
CORPORATION" and "SHARES IN A BODY
CORPORATE" means units in a trust;
(vii) "MEMBER" or "SHAREHOLDER" means Unit
Holder; and
(viii) "ACQUISITION", "ACQUIRE" or "ACQUIRING"
shall exclude acquisition, acquire, or
acquiring by way of an allotment or issue
of Units.
(b) References in Part 1.2 Division 2 of the
Corporations Law to "the body's board" and in
section 621 of the Corporations Law to "the
directors of the company" mean the board of
directors of the Manager.
(c) References in Part 1.2 Division 5 of the
Corporations Law to "a share" or "the share"
means a unit in a trust or a share in a body
corporate, as the circumstances require.
(d) Subject to the provisions of this clause 22.1,
section 609, Part 1.2 Division 2 and Part 1.2
Division 5 of the Corporations Law applies
mutatis mutandis to this clause 22 as if
specifically incorporated therein.
(e) Reference in clause 22.2 to "the prescribed
percentage" has the meaning referred to in
section 615 of the Corporations Law.
(f) The provisions of Chapter 6 of the Corporations
Law requiring notices, statements and other
documents to be given to the company or the
target company shall be deemed to require such
notices, statements or other documents to be
given to the Manager and the Trustee.
(g) Reference in Chapter 6 of the Corporations Law to
the appointment of an expert shall be deemed to
be a reference to an expert nominated by the
Manager and approved and appointed by the
Trustee.
(h) Reference in clause 1 of each of Part B and
Part D of section 750 of the Corporations Law
to "each director of the target company" shall
be deemed to be a reference to each director of
the Manager.
(i) Reference in the relevant provisions of Chapter 6
of the Corporations Law to the approval or
requirement or consent of the Commission shall be
deemed to mean the approval or requirement
<PAGE> 55
47
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of consent of the Manager and the Trustee. If the
Manager and the Trustee fail to agree as to the
form of approval, requirement or consent the
opinion of the Trustee shall prevail.
(j) A person who proposes to make an offer to which
this clause 22 relates shall not serve a
statement that purports to be a Part A statement
on the Trust or make an offer unless:
(i) a copy of the statement and a copy of the
proposed offer to which the statement
relates have been served on the Trustee and
the Manager not less than 10 business days
before the day on which the statement is
proposed to be served; and
(ii) the Manager has either given the person who
proposes to make the offer notice in
writing of its acceptance of the statement
and the offer, or the Manager is deemed to
have accepted the statement and the offer
under clause 22.1(l).
(k) The Manager must not give its acceptance in
respect of a statement or an offer under clause
22.10 unless it is of the opinion upon any
information presented to it by the person who
proposes to make the offer that:-
(i) the statement and the proposed offer are in
such a form that, if they were a Part A
statement or a proposed offer required to be
lodged with the Commission under section 644
of the Corporations Law, both the statement
and the proposed offer would comply with the
requirements of the Corporations Law; and
(ii) to the knowledge of the Manager based on
that information neither the statement or
the proposed offer contains any matter that
is false in a material particular or that is
materially misleading.
(l) Subject to clause 22.1(k) the Manager will give
written notice of its acceptance of any statement
and proposed offer served on it under clause
22.10 within 10 business days of the date of
service of the statement and proposed offer
failing which the statement and proposed offer
will be deemed to have been accepted by the
Manager as at 5:00 pm on the day being 10
business days after the date of service of the
statement and proposed offer on the Trustee.
(m) A statement or an offer served in contravention
of clause 22.1(j) will have no force or effect.
(n) The Trustee agrees to be bound by any acceptance
or deemed acceptance by the Trustee of a proposed
statement and offer under clause 22.1(l).
<PAGE> 56
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ACQUISITIONS 22.2 Except as provided in this clause 22, a person shall
EXCEEDING 20% not, either alone or together with another person
or other persons, be eligible to acquire Units in
the Trust if:-
(a) any person who is not entitled to any Units or is
entitled to less than the prescribed percentage
of the Units on issue would immediately after the
acquisition, be entitled to more than the
prescribed percentage of the Units on issue; or
(b) any person (hereinafter referred to as the
"relevant person") who is entitled to not less
than the prescribed percentage, but less than
90% of the Units on issue would immediately
after the acquisition, be entitled to a greater
percentage of the number of Units on issue than
the percentage to which that relevant person was
entitled immediately before the acquisition.
EXEMPTIONS 22.3 The restrictions contained in clause 22.2 shall not
apply to or in relation to an acquisition of Units
made substantially in accordance with and in the
manner laid down by any of sections 616 to 633
(inclusive) of the Corporations Law, which shall
apply mutatis mutandis.
COMPULSORY 22.4 The provisions of the sub-sections 701(1) to (11)
ACQUISITION inclusive and sub-sections 703(1), (2) and (3) of the
Corporations Law shall apply to this clause 22 as if
specifically incorporated herein, provided that for
such purpose:
(a) the consideration referred to in sub-section
701(11) of the Corporations Law shall be paid or
made available to the Trustee; and
(b) all sums received by the Trustee under this
clause 22.4 shall be paid into a separate bank
account and those sums, and any other
consideration so received, shall be held on bare
trust by the Trustee for the several persons who
were the persons who were the holders of the
Units in respect of which they were respectively
registered (as advised by the Manager to the
Trustee) and (less expenses of the Trustee and
the Manager properly relating thereto) shall be
forwarded by post to the registered address of
those persons by the Manager within 60 days of
receipt. If any cheque representing moneys
forwarded to a person pursuant to this clause
22.4 is not presented and cleared within a
reasonable time such money will be dealt with in
accordance with the governing legislation
relating to treatment of unclaimed moneys held by
trustees.
SUBSTANTIAL UNIT 22.5 The provisions of sections 708 to 713 inclusive and
HOLDINGS 715 of the Corporations Law shall apply with such
adaptations as are necessary under this deed and with
respect to those sections and any regulations made,
or any forms prescribed, in relation thereto, and:-
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(a) any reference to share, shareholder and
shareholding shall be construed to mean Unit,
Unit Holder and Unit holding respectively; and
(b) any reference to company shall be construed to
mean either the Trust or the Manager as the
context may require.
REGISTER 22.6 The Manager shall keep a register for the Trust in
which it shall forthwith enter:-
(a) the names of persons from whom it has received
notices under clause 22.5; and
(b) against each name so entered the information
given in the notices.
INSPECTION OF 22.7 The register shall be open for inspection:-
REGISTER
(a) by any Unit Holder of the Trust, without charge;
and
(b) at the discretion of the Manager by any other
person upon payment for each inspection of such
amount as the Manager requires up to but not
exceeding the amount prescribed under section
715(2)(b) of the Corporations Law, or, where the
Manager does not require the payment of an
amount, without charge.
VOTING RESTRICTION 22.8 Where a person has acquired Units in a Trust in
contravention of clause 22.2, then any Units so
acquired will not be counted in voting by a poll on
any resolution at a meeting of Unit Holders.
REGISTRATION AND 22.9 Subject to Listing Rule 3D(1C), no Unit may be
DIVESTITURE allotted if the allotment would result in or have
the effect of causing a contravention of clause 22.2.
INFRINGEMENT 22.10 Where:-
(a) a person has acquired Units in a Trust in such
circumstances as would result in or have the
effect of causing an infringement or
contravention of clause 22.2 the Manager may
require, by notice in writing to such person,
the disposal of the Units so acquired, or any
part thereof, (in clause 22.10(a) and clause
22.11 referred to as the "SPECIFIED UNITS")
within such time as is specified in the notice,
provided that in the absence of any such
requirement by the Manager, the Unit Holder
concerned shall not be entitled in any way to
set aside or cancel any transaction whereby
they acquired the Specified Units, nor to claim
any refund or to otherwise recover any money
paid in respect thereof; or
(b) a Unit Holder has failed to comply with the
obligations imposed on him by clause 22.5, the
Manager may require, by notice in writing to such
Unit Holder, the disposal of the Units in the
Trust to which he is entitled, or any part
thereof, (in clause 22.10(b) and
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clause 22.11 referred to as the "SPECIFIED
UNITS") within such time as is specified in the
notice, provided that in the absence of any
such requirement by the Manager, the Unit
Holder concerned shall not be entitled in any
way to set aside or cancel any transaction
whereby he acquired the Specified Units, nor to
claim any refund or to otherwise recover any
money paid in respect thereof.
In so acting, the Manager shall consult the
Trustee and shall have regard to, without being
bound by, the recommendations of the Trustee.
SALE OF UNITS 22.11 If the requirements of any such notice are not
complied with by the person to whom the notice is
addressed within the time specified in the
notice, the Manager may cause the Specified
Units to be sold on any stock exchange on which
they are quoted, or, if they are not so quoted,
in a manner determined by the Manager.
TRANSFER TO 22.12 If the Units sold in accordance with the
PRINCIPAL provisions of clause 22.11 are registered on a
REGISTER branch register of the Trust, the Manager may
cause such Units to be transmitted to the
principal Register of the Trust.
EFFECTING SALE 22.13 The Manager may:-
(a) appoint a person to effect as transferor a
transfer in respect of any Units sold in
accordance with the provisions of clause
22.11 and to receive and give good discharge
of the purchase money therefor; and
(b) register the transfer notwithstanding that
the certificate (if any) for such Units may
not have been delivered to the Manager and
issue a new certificate (if required) to the
transferee, in which event the previous
certificate (if any) shall be deemed to have
been cancelled.
PROCEEDS OF SALE 22.14 The purchase moneys less the expenses of any sale
made in accordance with the provisions of clause
22.11 shall be paid to the Unit Holder whose
Units were sold provided he has delivered to
the Manager for cancellation the certificate
for the Units concerned (if any). Failing such
delivery, the Manager may sue such person in
detinue for recovery of such certificate (if
any) and the Unit Holder shall not deny or
dispute the Manager's ownership and right to
possession of such certificate (if any) in
any such action.
NO LIABILITY 22.15 Nothing in clauses 22.9 to 22.14 shall render the
Trustee or the Manager liable or responsible by
reason of any person acquiring Units in the
Trust in contravention of clause 22.2 or
failing to comply with the obligations imposed
by clause 22.5.
<PAGE> 59
51
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INFORMATION 22.16 The Manager may at any time require, by notice in
REQUIREMENTS writing, any person to furnish to the Manager such
information or evidence (on oath or otherwise
verified if the Manager should so require) as
the Manager may consider likely to be of assistance
in determining whether or not such person is eligible
to remain a Unit Holder.
NO EFFECT 22.17 Subject to clause 22.18, clauses 22.1 to 22.16 shall
have no effect provided that nothing in this clause
22.17 affects the operation of clause 22.19.
CONFORMITY WITH 22.18 Clause 22.17 shall have no force and effect on and
LISTING RULES from any date on which it is permissible under the
Listing Rules and the Corporations Law to include
within this deed a sanction or penalty which entitles
the Manager, the Trustee or any other person (or any
of them) to enforce or give effect to any provisions
in this deed relating to takeover offers or
substantial Unit holdings.
APPLICATION 22.19 This clause 22:-
(a) applies only at times when Units are
Officially Quoted; and
(b) creates a personal right of action in each
Unit Holder, the Trustee and the Manager and
may be enforced by action of any one or more
of the Unit Holders, the Trustee or the
Manager.
23 SCHEMES OF ARRANGEMENT
- --------------------------------------------------------------------------------
DEFINITIONS 23.1 A compromise or arrangement (collectively referred to
in this clause 23 as "a compromise") may be proposed
by the Trustee or the Manager and must be proposed by
the Trustee if it receives a written requisition
signed by not less than 50 or 10% in number,
whichever is the less, of the Unit Holders.
NOTICE BY 23.2 The Manager or the Trustee shall notify the other of
PROPOSING PARTY them in writing that it intends to propose a
compromise (a copy of which shall accompany such
notification) and prior to submitting its proposal
for a compromise, the proposing party (if the
Manager) shall procure the written agreement of the
Trustee to such proposal.
DETAILS OF 23.3 Subject to clause 23.2:-
NOTICE
(a) The Trustee shall, upon receipt of written
notice (or the written requisition referred
to in clause 23.2)(in this clause 23.3
referred to as "the Notice") within twenty
one (21) days of the notification stipulated
for in sub-clause 23.2, summon a meeting of
all Unit Holders PROVIDED THAT: -
<PAGE> 60
52
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(i) the Notice must state the objects
of the meeting and the terms of any
resolution proposed to be submitted
to the meeting;
(ii) the Notice must be signed by the
proposing party or requisitionists
(as applicable) and deposited at
the registered office of the
Trustee in New South Wales;
(iii) unless the proposing party is
the Manager, the Trustee shall
immediately upon receipt of such
Notice (or if the proposing party
is the Trustee upon such Notice
being deposited by the Trustee in
accordance with paragraph (ii)
above) serve a copy of the Notice
on the Manager and shall make
available all information in its
possession in connection with the
Notice;
(iv) if the Trustee does not within
fourteen (14) days from the date of
the Notice duly proceed to convene
a meeting of Unit Holders the
proposing party or requisitionists
(as applicable) may convene the
meeting within two (2) months from
the date of the Notice. Any meeting
so convened shall be convened in
the same manner as nearly as
possible as that in which meetings
are to be convened by the Trustee
or Manager;
(b) For the purposes of the meeting referred to
in clause 23.3(a) above, all Unit Holders
(whether of party paid or fully paid
Units) shall be treated as one class of Unit
Holders.
BINDING 23.4 A compromise shall be binding on all Unit Holders,
COMPROMISE the Trustee and the Manager where it is approved by
Unit Holders, being a majority in number of all Unit
Holders (whether or not attending the meeting)
holding Units which carry three quarters of the votes
of all Units Holders whose Units carry the right to
vote at the meeting present and voting either in
person or by proxy at the meeting (or any adjournment
thereof), convened in accordance with clause 23.3
above.
COPY TO UNIT 23.5 A copy of every compromise approved in accordance
HOLDERS AND with the foregoing provisions shall be sent by the
TRUSTEE Manager within seven (7) days of approval thereof to
all Unit Holders, and the Trustee.
FURTHER 23.6 Each Unit Holder irrevocably authorises and empowers
ASSURANCES the manager or any officer thereof to execute all
such transfer forms and other documents, and do all
such things as may be necessary for the full and
complete implementation of the provisions of any
compromise approved in terms of clause 23.4 above, to
receive on such Unit Holder's behalf any moneys
payable to him in terms thereof, such Unit Holder
undertaking to ratify anything lawfully done by the
Manager in accordance with these presents.
<PAGE> 61
53
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24 PRESERVATION OF REIT STATUS
- -------------------------------------------------------------------------------
24.1 Where the Assets comprise shares or stock in a corporation
("relevant corporation") which qualifies as a real estate
investment trust ("REIT") for the purposes of the Internal
Revenue Code of 1986 of the United States of America ("Code")
and the preservation of the status of the relevant corporation
as a REIT is advantageous to the Trust or to the Unit Holders
then subject to the requirements of and to the extent
permitted by the law, the Listing Rules, the terms of any
waiver of the Listing Rules and any Relief (collectively
"Requirements"), the Manager will take such measures as it is
able to ensure that the relevant corporation continues to
qualify as a REIT and will refrain from taking any action that
would impair the status of the relevant corporation as a REIT.
Without limiting the generality of the foregoing, but subject
to and to the extent permitted by the Requirements the Manager
may:
(a) refuse to register any transfer, which, if
registered, may result in the relevant corporation
being "closely held" within the meaning of Section
856(h) of the Code;
(b) by notice in writing to the Trustee cause an
appropriate number of Units in respect of which such
notice has been given to be forfeited in order to
ensure that the relevant corporation is not "closely
held" within the meaning of Section 856(h) of the
Code and in such event:
(i) subject to the terms of this Deed a
forfeited Unit may be sold or otherwise
disposed of by private sale at a price per
Unit calculated in accordance with any
Relief or equal to the prevailing
application price of Units at the date of
the sale;
(ii) at any time before a sale or disposition
under sub-paragraph (i), forfeiture may be
cancelled on such terms as the Manager
thinks fit;
(iii) on a sale or other disposition under
sub-paragraph (i) the Trustee shall receive
the proceeds of such sale or disposition and
may execute a transfer of the forfeited
unit in favour of the purchaser of the Unit
and such purchaser shall thereupon be
registered as the Unit Holder and shall not
be bound to see to the application of the
proceeds of such sale or disposition nor
shall his title to the Unit be affected by
any irregularity or invalidity in the
proceedings in relation to the forfeiture or
sale or disposition of the Units;
(iv) the proceeds of sale or disposition of any
forfeited Unit shall be applied first
towards the payment or all costs and
expenses incidental to the forfeiture and
sale or disposition and the balance, if any,
remaining shall be paid to the Unit Holder
whose Units have been forfeited and sold or
otherwise disposed of.
25 GENERAL
- -------------------------------------------------------------------------------
RELEVANT LAW 25.1 This deed is governed by the laws from time to time
in force in the state of New South Wales.
<PAGE> 62
54
- --------------------------------------------------------------------------------
SUBMISSION TO 25.2 Each party irrevocably and unconditionally submits to
JURISDICTION the non-exclusive jurisdiction of the Courts of New
South Wales.
NOTICES BETWEEN 25.3 Any notice, communication or information required by
MANAGER AND this deed to be given by the Manager to the Trustee
TRUSTEE or by the Trustee to the Manager, shall be in writing
(which includes facsimile) and signed by duly
authorised officer of the party giving such notice.
NOTICES TO UNIT 25.4 A notice required under this deed to be given to a
HOLDERS OR OPTION Unit Holder or Option Holder must be given in
HOLDERS writing (which includes a fax) and be delivered or
sent to the Unit Holder or Option Holder at the Unit
Holder's or Option Holder registered address or the
facsimile number (if any) last advised to the Manager
for delivery of notices. For joint Unit Holders or
Option Holders, this means the registered address or
the facsimile number of the Unit Holder or Option
Holder first named in the register. A notice sent by
post is taken to be received on the day after it is
posted and a facsimile is taken to be received one
hour after receipt by the transmittor of confirmation
of transmission from the receiving facsimile machine,
and proof of actual receipt is not required.
EXECUTED AS A DEED.
THE COMMON SEAL of WESTFIELD )
AMERICA MANAGEMENT LIMITED )
is affixed in accordance with its articles of ) [COMMON SEAL]
association in the presence of: )
<TABLE>
<S> <C>
/s/ Timothy Walsh /s/ Stephen P. Johns
- ------------------------------------ ---------------------------------
Signature of authorised person Signature of authorised person
Secretary Director
- ------------------------------------ ---------------------------------
Office held Office held
/s/ Timothy Walsh /s/ Stephen P. Johns
- ------------------------------------ ---------------------------------
Name of authorised person (block letters) Name of authorised person (block letters)
</TABLE>
<PAGE> 63
55
- --------------------------------------------------------------------------------
THE COMMON SEAL of PERPETUAL )
TRUSTEE COMPANY LIMITED is )
affixed in accordance with its articles of ) [COMMON SEAL]
association in the presence of: )
<TABLE>
<S> <C>
/s/ David Richards /s/ David Rowan White
- ------------------------------------ ---------------------------------
Signature of authorised person Signature of authorised person
SECRETARY DIRECTOR
- ------------------------------------ ---------------------------------
Office held Office held
/s/ David Richards DAVID ROWAN WHITE
- ------------------------------------ ---------------------------------
Name of authorised person (block letters) Name of authorised person (block letters)
</TABLE>
<PAGE> 64
Dated 9 May 1996
PERPETUAL TRUSTEE COMPANY LIMIrED
(A.C.N. 000 001 007)
AND
WESTFIELD AMERICA MANAGEMENT LIMITED
(A.C.N. 072 780 619)
DEED OF VARIATION
APPROVED PURSUANT TO SECTION 1067
OF THE CORPORATIONS LAW
/s/ Austin Palmar
--------------------------------------------------
A delegate of the Australian Securities Commission
Dated 14 May 1996
<PAGE> 65
THIS DEED is made the 9th day of May 1996
BETWEEN:
PERPETUAL TRUSTEE COMPANY LIMITED (A.C.N. 000 001 007) ("Trustee")
AND:
WESTFIELD AMERICA MANAGEMENT LIMITED (A.C.N. 072 780 619) ("Manager")
RECITALS:
A. By a trust deed dated 28 March 1996, the Westfield America Trust
("Trust") was created. The trust deed as subsequently amended is
referred to in this deed as the "Trust Deed".
B. Clause 20 of the Trust Deed provides that the Trustee and Manager may
together by supplemental deed alter the Trust Deed (inter alia) where
the Trustee and the Manager reasonably believe that the amendment will
not adversely affect the rights of Unit Holders.
C. The Manager who is the sole Unit Holder in the Trust has requested the
Trustee and the Trustee has consented to amend the Trust Deed in a
number of respects which are considered by the Manager to be desirable
in order to facilitate a proposed issue to the public of Units in the
Trust. The Trustee and the Manager believe that the amendments to be
effected by this Deed of Variation will not adversely affect the rights
of the Unit Holders.
OPERATIVE PROVISIONS:
1. AMENDMENTS
The Trust Deed is altered by making the amendments set out in Schedule
I of this Deed.
2. EFFECTIVE DATE
The alterations to the Trust Deed effected by this Deed shall take
effect upon the date of execution of this Deed of Variation.
3. CONFIRMATION
3.1 Subject to the amendments referred to in clause 2, the terms and
conditions of the Trust Deed remain in full force and effect.
<PAGE> 66
3.2 Without in any way limiting clause 3.1, the Manager and Trustee hereby
confirm that clause 2.3 of the Trust Deed continues to have paramount
effect and to operate notwithstanding any other provision of the Trust
Deed.
4. GOVERNING LAW
This Deed is governed by the laws of New South Wales.
EXECUTED as a Deed
THE COMMON SEAL of )
WESTFIELD AMERICA )
MANAGEMENT LIMITED ) [SEAL]
was hereunto affixed in accordance )
with its Articles of Association and )
in the presence of: )
/s/Timothy Walsh /s/Stephen Johns
- --------------------------------- ------------------------------------------
Signature of authorised person Signature of authorised person
Secretary Director
- --------------------------------- ------------------------------------------
Office held Office held
Timothy Walsh Stephen Johns
- --------------------------------- ------------------------------------------
Name of authorised person Name of authorised person
(block letters) (block letters)
2
<PAGE> 67
THE COMMON SEAL of )
PERPETUAL TRUSTEE )
COMPANY LIMITED ) [SEAL]
was hereunto affixed in accordance )
with its Articles of Association and )
in the presence of: )
/s/DAVID ANTHONY RICHARDS /s/GRAHAM BRADLEY
- --------------------------------- ------------------------------------------
Signature of authorised person Signature of authorised person
Secretary Director
- --------------------------------- ------------------------------------------
Office held Office held
DAVID ANTHONY RICHARDS GRAHAM BRADLEY
- --------------------------------- ------------------------------------------
Name of authorised person Name of authorised person
(block letters) (block letters)
3
<PAGE> 68
SCHEDULE 1
WESTFIELD AMERICA TRUST
1. AMENDMENTS TO CLAUSE 1.
1.1 The definition of ACCRUAL PERIOD is amended by deleting the square
brackets appearing immediately before and immediately after the word
"six".
1.2 Insert new definitions as follows:
AGREEMENT AND PLAN OF REORGANISATION: an agreement between CenterMark,
Westfield U.S. Investments Pty. Limited, Westfield Corporation Inc.,
Annatar Pty. Limited, the Trustee and the Manager relating to various
transactions connected with the restructuring of the ownership of
CenterMark.
BUY RATE: the highest of the buy rates for Australian Dollars quoted in
United States Dollars by the Panel Banks at 11.00 a.m. (Sydney time)
on the Buy Rate Determination Day.
BUY RATE DETERMINATION DAY: any date falling between and including the
Closing Date and the 28th June, 1996 as selected by the Manager.
CENTERMARK: CenterMark Properties Inc., a United States corporation
incorporated in Missouri.
CENTERMARK DIVIDEND DATE: a date when the entitlement of holders of
CenterMark Stock to receive dividends payable in respect of a Quarterly
Period is determined by CenterMark.
CENTERMARK DIVIDEND REINVESTMENT PLAN: any plan or arrangement in
operation from time to time which enables the holders of CenterMark
Stock to reinvest dividends to which they are entitled in respect of
such CenterMark Stock in the acquisition of new CenterMark Stock.
CENTERMARK OPTION DEED: any deed entered into by the Trustee, the
Manager and other parties including CenterMark which provides for the
issue of Options to the holders of CenterMark Stock on terms which
enable such holders to acquire Units for an Application Price
determined in accordance with clause 8 whether or not such Application
Price is satisfied by the exchange of CenterMark Stock.
CENTERMARK OPTION UNITS: Units that may be issued from time to time as
a consequence of the exercise of Options granted under the CenterMark
Option Deed.
CENTERMARK OPTION UNITS ISSUE DATE: a date when CenterMark Option Units
are issued.
4
<PAGE> 69
CENTERMARK STOCK: shares of common or preference stock in CenterMark
outstanding from time to time.
CENTERMARK STOCKHOLDERS AGREEMENT: any agreement entered into by the
Trustee, the Manager, CenterMark and the other holders of CenterMark
Stock which, amongst other things, regulates the composition of the
board of CenterMark.
CLOSING DATE: the date of closing of the offer made pursuant to the
Initial Prospectus.
CORDERA SUBSCRIPTION AGREEMENT: an agreement between Cordera Holdings
Pty. Limited, the Trustee and the Manager pursuant to which Cordera is
to subscribe for Units.
CURRENT APPRAISAL VALUE:
(a) the most recently determined valuation of the entity's assets
as determined by a qualified valuer who is independent of the
Trustee, the Manager and the associates of either of them and
recorded in the entity's accounting records;
(b) the valuation given to the entity's assets by the directors of
the entity, provided that the valuation is supported by a
qualified valuer who is independent of the Trustee, Manager
and the associates of either of them and recorded in the
entity's accounting records;
(c) if required by the Trustee the value of the entity's assets as
determined by a Valuer.
DISTRIBUTION REINVESTMENT PLAN: a plan operated and administered by
the Manager which enables Unit Holders to reinvest distributions of
Distributable Income in taking up new Units being a plan which is
governed by the Rules.
ENTITY INTEREST: an Asset comprising a shareholding or other equity
interest in a corporation or other entity other than such a
shareholding or equity interest which the Manager and Trustee agree
should not be regarded as an Entity Interest.
ENTITY'S LIABILITIES: all borrowings, unpaid costs, charges, expenses,
outgoings and fees and any provision which the directors of the entity
decide in consultation with the auditor of the entity should be taken
into account in determining the liabilities of the entity, each
determined in accordance with the accounting standards applicable to
the entity and generally accepted accounting principles consistently
applied.
FEE ASSETS: the amount determined by adding the following amounts:
(a) where the Assets include an Entity Interest, the Trustee's
proportionate interest in the assets of the relevant entity
based upon the Current Appraisal Value of those assets net of
the Entity's Liabilities at the time of such determination;
and
5
<PAGE> 70
(b) the value of all other Assets
and deducting therefrom the Liabilities (excluding any portion of the
Liabilities represented by the Entity Liabilities). For the purposes of
this definition the Trustee's proportionate interest in the assets of
an entity shall be that proportion of the assets of the entity
available to be distributed to the holders of equity interests in the
entity that the Trustee would be entitled to receive by virtue of its
Entity Interest in the relevant entity on a winding up or dissolution
of the entity in circumstances where the assets of the entity exceeded
the Entity's Liabilities at the time of such winding up or dissolution.
INITIAL PROSPECTUS: the first Prospectus issued by the Manager after
the date of this deed offering Units for subscription by investors.
OPTION: an option to subscribe for a Unit or Units.
PANEL BANKS: the Commonwealth Bank of Australia, Westpac Banking
Corporation, Australian and New Zealand Banking Group Limited, National
Australia Bank Limited, Bankers Trust Australia Limited, SBC Warburg
Australia Limited, Goldman Sachs (Australia) Limited and Macquarie Bank
Limited.
QUARTERLY PERIOD: a calendar quarter commencing on 1 January, 1 April,
1 July or 1 September.
RULES: the rules governing any Distribution Reinvestment Plan
administered or operated by the Manager from time to time being rules
in the form or to the effect of the form specified in the First
Schedule.
SHARE SALE AND UNIT SUBSCRIPTION AGREEMENT: an agreement entered into
between Annatar Pty. Limited, Westfield Holdings Limited, the Trustee
and the Manager which relates to the purchase by the Trustee of
CenterMark Stock from Annatar and the issue by the Manager to Annatar
of Units.
1.3 The definition of TRUST is amended by deleting the reference to "clause
10.11" and substituting "clause 10.12".
1.4 The word "means" where firstly appearing in any definition contained in
Clause 1. is deleted.
2. AMENDMENT TO CLAUSE 3.
2.1 Insert the following additional words after "corporations" where
appearing in Clause 3.4 "(whether or not related to or associated with
the Trustee but not being a Unit Holder or related to or associated
with a Unit Holder)".
6
<PAGE> 71
3. AMENDMENT TO CLAUSE 5.
3.1 Clause 5.2 is amended by inserting "or if under any provision of this
Trust Deed or the Rules a fraction is to be disregarded" immediately
following "Units" where appearing.
4. AMENDMENT TO CLAUSE 6.
4.1 Clause 6.2 is amended by inserting "except where the Trustee acquires
CenterMark Stock as a consequence of the exercise of Options granted
under the CenterMark Option Deed" at the commencement of Paragraph
6.2(b).
4.2 Paragraph 6.10(b) is amended by inserting "or Units" immediately
following "Unit" where firstly appearing; by inserting "(except where
such price is determined pursuant to Paragraph 8.2(b) of the Trust Deed
and)" immediately following "or"; and by deleting "a Unit" where
secondly appearing and substituting "Units".
4.3 Clause 6.11 is amended by deleting "one Unit" and substituting "the
number of Units to which the Option relates".
5. AMENDMENT TO CLAUSE 7.
5.1 Clause 7.11 is amended by deleting the reference to "clause 6.13" and
substituting "clause 6.12".
6. AMENDMENTS TO CLAUSE 8.
6.1 Clause 8.1 is amended by inserting "except in the case of Units offered
pursuant to or in connection with transactions referred to in the
Initial Prospectus which will have an issue price of One Australian
Dollar ($A1.00) per Unit" immediately following "6.10" where
appearing.
6.2 Clause 8.2 is deleted and the following substituted:
"Whilst Units are officially quoted, subject to clauses 8.3, 8.4, 8.5
and 8.6 a Unit must only be issued at an Application Price equal to:
(a) except where Paragraph (b) applies, the weighted average
market price of Units during the ten (10) ASX business days
immediately prior to the date upon which the Application Price
is to be calculated;
(b) where the Unit is issued as the consequence of the exercise of
Options under a CenterMark Option Deed which provides for an
issue price per Unit equal to the amount of United States
Dollars required to buy One Australian Dollar determined by
reference to the Buy Rate, such issue price.
The price of Units or Options issued to an underwriter may be reduced
by such lawful fee, brokerage or commission as the Trustee may
approve."
7
<PAGE> 72
6.3 Clause 8.6 is amended by inserting "The Manager may from time to time
issue Units pursuant to a Distribution Reinvestment Plan and" at the
commencement of the clause and by deleting "is" where firstly appearing
and substituting "shall be".
6.4 Clause 8.7 is amended by inserting "Except where an Asset comprises an
Entity Interest" at the commencement of the second sentence and by
inserting the following additional sentence immediately following the
third sentence thereof "Where an Asset comprises an Entity Interest the
value of such Entity Interest shall be the Trustee's proportionate
interest in the then Current Appraisal Value of the entity's assets net
of the Entity's Liabilities."
6.5 Clause 8.8 is amended by inserting "Subject to clause 8.7" at the
commencement of the clause.
7. AMENDMENT TO CLAUSE 9
7.1 Clause 9 is amended by adding the following new sub-clause 9.10:
"CENTERMARK ARRANGEMENTS
9.10 The Trustee has full power to enter into:
(a) the CenterMark Stockholders Agreement;
(b) a CenterMark Option Deed;
(c) the Share Sale and Unit Subscription Agreement;
(d) the Cordera Subscription Agreement;
(e) the Agreement and Plan of Reorganisation; and
(g) any other agreement to which it is a party which is
described in the Initial Prospectus,
and to perform all of its obligations and to discharge all of
its duties under those documents (including, without
limitation, the acquisition of CenterMark Stock on the terms
set out in those agreements) without the need to make any
enquiries or conduct any investigations (whether legal or
factual) with respect to CenterMark or the CenterMark Stock.
The Trustee is not liable to the Unit Holders in any manner
whatsoever for entering into those documents and performing
its obligations and discharging its duties under them."
8. AMENDMENT TO CLAUSE 11.
8.1 Clause 11.1 is amended by inserting "Except where provided otherwise in
this Deed" at the commencement of the clause.
8.2 Clause 11.3 is amended by inserting "and 11.3B" immediately following
"11.3A".
8
<PAGE> 73
9. AMENDMENT TO CLAUSE 11.3A.
9.1 Clause 11.3A is amended by adding "Subject to clause 11.3B" at the
commencement of the clause.
10. NEW CLAUSE 11.3B.
10.1 A new clause l1.3B to be entitled "Nomination of CenterMark Directors"
is to be added as follows:
"11.3B Notwithstanding clauses 11.3 and 11.3A in exercising its
right to designate or nominate four directors for election as
directors of CenterMark pursuant to the CenterMark
Stockholders Agreement and in exercising its right to vote in
respect of the election of such directors, the Trustee may act
in its absolute discretion and shall not be required to act as
directed by the Manager."
11. AMENDMENT TO CLAUSE 11.5
11.1 Clause 11.5 is amended by:
11.1.1 inserting at the commencement of the clause "Except in
circumstances where the Trustee is to acquire CenterMark Stock
as a consequence of the exercise of Options granted under the
CenterMark Option Deed (in which event the procedures
specified in the CenterMark Option Deed shall apply);
11.1.2 in paragraph 11.5(d) inserting "or acquisition" immediately
after "purchase" and by adding at the end of the paragraph
the following "provided that where such purchase or
acquisition is to be made as a consequence of the Trustee's
participation in a CenterMark Dividend Reinvestment Plan or
the consideration for such purchase or acquisition when
aggregated with the consideration for all similar purchases or
acquisitions within the previous three (3) months does not
exceed one percent (1%) of the value of the Assets at the date
of the proposal, the relevant valuation or commercial
appraisal may be in the form of a certification from the
Valuer to the effect that the Valuer is not aware (after
reasonable enquiry) of any reason which would cause the value
of the relevant stock or shares to be less than the value of
such stock or shares determined on the basis of the most
recent audited accounts of such corporation".
12. AMENDMENTS TO CLAUSE 12.
12.1 Clause 12.3 is amended by:
(a) inserting "other than CenterMark Option Units" immediately
after "Units" where firstly appearing;
(b) deleting the words "of the month" where appearing;
9
<PAGE> 74
(c) deleting "calendar months" where appearing and by substituting
therefor "days";
(e) deleting "whole of" where appearing and by substituting
therefor the words "total number of days in";
(f) inserting the following additional sentence at the end of the
clause "CenterMark Option Units issued during a Quarterly
Period shall rank for distributions of Distributable Income
from the first day of that Quarterly Period unless the
CenterMark Option Units Issue Date in respect of such
CenterMark Option Units occurs prior to the CenterMark
Dividend Date in respect of a previous Quarterly Period in
which event such CenterMark Option units shall rank for
distributions of Distributable Income from the first day of
that previous Quarterly Period".
12.2 Clause 12.11 is deleted and the following new clause 12.11 substituted:
"12.11 Where the Net Income is reduced by taxes attributable to the
ownership of Units by certain Unit Holders the entitlement to
Distributable Income of such Unit Holders may be adjusted by
the Manager so that the entitlement to Distributable Income of
all other Unit Holders is equivalent to the amount they would
receive in the absence of such taxes."
13. AMENDMENT TO CLAUSE 14.
13.1 Clause 14.3 is amended by adding the following at the commencement of
the clause:
"Certificates may be issued by or on behalf of the Trustee for Options.
Such certificates shall contain such information as may be prescribed
by the law, the Listing Rules or any Relief as applicable."
13.2 Clause 14.5 is amended by deleting the third and fourth sentences and
substituting the following:
"The Manager may refuse to register any transfer of a Unit or Option
that is not Officially Quoted but such refusal shall not be
unreasonable."
14. AMENDMENT TO CLAUSE 17.
14.1 Clause 17.1 is amended by deleting the final sentence thereof.
10
<PAGE> 75
15. NEW CLAUSE 17A.
15.1 A new Clause 17A to be entitled "No Partnership or Agency" is to be
added as follows:
"17A EXCLUSION OF PARTNERSHIP OR AGENCY
17A.1 Nothing in this Trust Deed gives rise to any relationship of
partnership or agency between the Trustee, the Manager and/or
any Unit Holder."
16. AMENDMENTS TO CLAUSE 18.
16.1 Clause 18.1 is deleted and the following substituted:
"18.1 The Manager is entitled to a quarterly management fee which
shall not exceed the amount determined by the following
formula ("Manager's Fee Formula"):
F= .0055N - M
------
4
Where:
F = the Manager's quarterly fee expressed in US Dollars which, if
a negative amount, shall be deemed to be zero;
N = the US Dollar equivalent of the Fee Assets determined as at
the last day of the quarter for which the Manager's Fee is
calculated ("Relevant Quarter");
M = the relevant proportion of all other fees received by the
Manager or its related bodies corporate in respect of the
Relevant Quarter for funds management or advisory services
(but not property management, development or other operations
or administrative services including without limitation
leasing, architectural, engineering, accounting, auditing,
legal and data processing services) provided in relation to
any corporation or other entity in which an interest held
directly or indirectly by the Trustee comprises an Asset. Such
fees shall be convened to their US Dollar equivalent as at the
date of receipt by the Manager (except where received in US
Dollars). The relevant proportion of such fees shall be the
proportion that the ownership interest held by the Trustee
bears to the total of all ownership interests in such
corporation or entity at the end of the Relevant Quarter.
The Manager's quarterly fee shall be paid in US Dollars in arrears on a
provisional basis within 3 business days of the end of each quarter and
shall be subject to final adjustment as soon as the Fee Assets as at
the last day of the Relevant Quarter can be definitively ascertained
based upon tbe next available
11
<PAGE> 76
accounts of the Trust or of entities comprising Assets which are Entity
Interests (as applicable) which are audited or which contain an audit
review opinion and which cover a period which includes the quarter in
respect of which the fee has been provisionally paid. The amount of any
overpayment shall be carried forward and deducted from the Manager's
quarterly fee to be paid in respect of the immediately succeeding
quarter. The amount of any underpayment shall be immediately paid to
the Manager. That period, being less than a quarter, occurring at the
commencement or immediately prior to the termination of the Trust shall
be deemed to be a quarter for the purposes of the Manager's Fee
Formula. If at any time the income of the Trust is not sufficient to
pay any part of the quarterly management fee then due, the Manager's
entitlement to the shortfall will be carried forward until the
following quarter and so on until the income of the Trust is sufficient
to allow it to be paid."
16.2 Paragraph 18.2(b) is amended by:
(a) inserting "annual" immediately prior to the word "fee" where
appearing in the first, second and third paragraphs of Paragraph
18.2(b);
(b) inserting "unless the Trustee agrees otherwise" immediately
following "$150,000,000" where firstly appearing in Paragraph
18.2(b);
(c) deleting the first sentence of the final paragraph of Paragraph
18.2(b) and substituting the following sentence "The Trustee's
annual fee shall be paid in arrears in two equal instalments which
shall be payable respectively on a provisional basis on 30 June and
31 December in each year and shall be subject to final adjustment as
soon as practicable thereafter when the amount of the Trustee's
annual fee instalment as at those dates can be definitively
ascertained based upon the next available accounts of the Trust
which are audited or which contain an audit review opinion and which
cover the half yearly period in respect of which the fee instalment
has been provisionally paid. The amount of any overpayment shall be
carried forward and deducted from the Trustee's half yearly fee
instalment to be paid in respect of the immediately succeeding half
yearly period. The amount of any underpayment shall be immediately
paid to the Trustee."
16.3 A new Paragraph 18.2(c) is to be added as follows:
"18.2(c) For the purposes of Paragraph 18.2(b) where the Assets include
an Entity Interest the value of the Assets shall be the sum of
the Trustee's proportionate interest in the assets of the
relevant entity (based upon the most recent Current Appraisal
Values of those assets net of the Entity's Liabilities) and the
value of all other Assets. The Trustee's proportionate interest
in the assets of the relevant entity shall be the proportion of
the assets of that entity available to be distributed to the
holders of all equity interests in the entity that the Trustee
would be
12
<PAGE> 77
entitled to receive by virtue of its Entity Interest on a
winding up or dissolution of the entity in circumstances where
the assets of the entity exceeded its liabilities."
17. AMENDMENTS TO CLAUSE 21
17.1 Clause 21.12 is amended by deleting the words "provided that nothing in
this clause 21.12 affects the operation of clause 21.14".
17.2 Clause 21.14 is amended by deleting the words contained in the preamble
to clause 21.14 and substituting the following words "In circumstances
where clauses 21.7 to 21.11 have effect they shall".
18. AMENDMENTS TO CLAUSE 22
18.1 Clause 22.17 is amended by deleting the words "provided that nothing in
this clause 22.17 affects the operation of clause 22.19".
18.2 Clause 22.19 is amended by deleting the preamble to clause 22.19 and
substituting the following "In circumstances where clauses 22.1 to
22.16 have effect, this clause 22:".
19. AMENDMENTS TO CLAUSE 24
Clause 24.1 is amended by adding at the end of the first sentence:
"and shall take or refrain from taking any action necessary to prevent
any other material adverse change to the Trust in connection with the
ownership by the Trustee of CenterMark Stock including, but not limited
to the exchange of any CenterMark Stock owned by the Trustee for excess
shares or stock in CenterMark".
20. MISCELLANEOUS
Clause 13.2 is to be entitled "Contents of Accounts", Clause 13.5 is to
be entitled "Location of Accounts", Clause 14.1 is to be entitled
"Establishment of Register", Clause 24 is to be entitled "REIT Status",
corresponding references are to be included in the Contents listing and
the Contents listing is also to include a reference to "9.10 CenterMark
Arrangements", a reference to "11.3A Voting securities in a Body
Corporate", a reference to "11.3B Nomination of CenterMark Directors"
and a reference to "17A No Partnership or Agency, 17A.1 Exclusion of
Partnership or Agency".
13
<PAGE> 78
FIRST SCHEDULE
(Clause 1.1)
WESTFIELD AMERICA TRUST
RULES FOR DISTRIBUTION REINVESTMENT PLAN
1. Definitions
(a) Words and expressions used in the Trust Deed shall have the
same meanings when used in these Rules.
(b) "BUSINESS DAY" has the same meaning as it has in the Listing
Rules.
(c) "PARTICIPANT" means each Unit Holder in the Trust who is
participating in the Plan.
(d) "TERMINATION DATE" means the day on which the participation
of a Participant in the Plan is terminated pursuant to these
Rules.
(e) "THE PLAN" means the distribution reinvestment plan
established by these Rules.
2. PARTICIPATION PLAN
(a) Each Unit Holder may apply for participation in the Plan.
(b) A Unit Holder having a registered address in a country other
than Australia and New Zealand may not be eligible to
participate in the Plan because of legal requirements applying
in that country. The issue of Units to Unit Holders who at the
time of issue are not resident in Australia will be subject to
all necessary statutory approvals. It will be the
responsibility of each Unit Holder to obtain any such
approvals.
(c) An application shall be in writing in a form acceptable to the
Manager and the Trustee and shall authorise the Trustee to
withhold the whole or such part as the Unit Holder may
nominate of all cash distributions payable on the Units of the
Participant following the date of acceptance of the
application of the Participant by the Manager. Upon acceptance
of the application the Manager shall enter in the register of
Unit Holders in accordance with the provisions of the Trust
Deed such details in relation to the Participants
participating in the Plan as the Manager or the Trustee
considers necessary.
(d) An application form for participation in the Plan may be
lodged at any time up until the books closing date for a
distribution in order to enable the Participant to participate
in that distribution.
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<PAGE> 79
3. TRUSTEE
The Trustee will act as agent and nominee for each Participant, but
only for the purpose of the Plan.
4. SUBSCRIPTION FOR UNITS
(a) Subject to Rule 4(b) the Trustee will apply all cash
distributions withheld on behalf of a Participant in
subscribing for further Units to be issued in the name of that
Participant. Subscriptions will be made on any day in February
and August in each year and Units so created shall rank for
all distributions from the first day of the month immediately
following their creation so that such Units participate in
income distributed in that Accrual Period in which they were
created in proportion to the part of that Accrual Period
(calculated in days) for which such Units ranked for
distribution of income.
(c) The Trustee shall disregard any fraction remaining after
subscribing for Units at the issue price.
(c) Following each issue a Participant will receive from the
Manager a statement listing the amount of the total cash
distribution withheld, the number of Units issued, the issue
price per Unit and the amount of any remaining fraction
disregarded.
5. ISSUE PRICE OF UNITS
The issue price for each Unit to be issued at a particular date to
Participants pursuant to the Plan is the weighted average Market Price
during the five Business Days after the date on which trading of the
Units becomes ex entitlement to distributions less such discount, if
any, not exceeding 10% as the Manager may with the approval of the
Trustee determine. If the amount to be reinvested in additional Units
results in a fraction of a Unit the money representing the fraction is
to be dealt with in accordance with clause 5.2 of the Trust Deed.
6. STOCK EXCHANGE QUOTATION
Application will be made for quotation on the ASX of Units issued
pursuant to the Plan.
7. ALTERATION TO PARTICIPATION
A Participant may at any time vary participation in the Plan by notice
in writing to the Manager:
(a) altering the proportion of the cash distribution to be
withheld by the Trustee pursuant to the Plan.
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<PAGE> 80
(b) advising any change of name on marriage or otherwise.
(c) advising any change of address.
8. TERMINATION
(a) By Notice
Each Participant may terminate participation in the Plan by
notice in writing to the Manager in a form acceptable to the
Manager.
(b) On Transfer
A Participant will cease to participate in the Plan in respect
of all or so many of the Units of the Participant as may be
transferred to a third party on registration of such transfer
in the register of Unit Holders kept by the Manager in
accordance with the Trust Deed.
(c) On Death
If the Manager receives written notice of the death of a
Participant, such notice shall terminate the participation in
the Plan of that Participant and of all the other Participants
(if any) with whom such deceased Participant was a Joint
Participant.
9. TERMINATION OF PARTICIPATION OR OF PLAN BY MANAGER
The Manager may terminate the Plan by not less than 30 days written
notice to all Participants and the Trustee and with the prior
approval of the Trustee may terminate the participation in the Plan of
any Participant by not less than 7 days' written notice to the
Participant. In either case termination shall take effect on the date
specified by the Manager in the notice.
10. LIABILITY OF TRUSTEE AND MANAGER
Subject to the requirements of the law, the Listing Rules, any
applicable Relief and the Trust Deed, neither the Trustee nor the
Manager shall be liable under the Plan for any act done in good faith
or for any omission to act including, without limitation of the
generality thereof, any claim for liability:
(a) arising out of a failure to terminate a Participant's
participation in the Plan upon the Participant's death prior
to receipt of a notice in writing of such death; or
(b) with respect to the prices at which Units are subscribed for,
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<PAGE> 81
PROVIDED THAT any such exclusion of liability in respect of the Trustee
or the Manager respectively shall not extend to negligent acts or
omissions of the Trustee or the Manager, as the case may be.
11. NOTICES
Any notice or other communication given by any Participant to the
Manager shall be in writing addressed to the Manager, C/- Westfield
America Trust Registry, Ernst & Young Registry Services Pty. Limited,
Level 2, 321 Kent Street, Sydney, NSW 2000, Australia or such other
address as notified in writing by the Manager to the Participant.
12. NOTICE TO PARTICIPANTS
Any notice or other communication given by the Manager or the Trustee
to any Participant shall be in writing and shall be deemed to have been
sufficiently given for all purposes by being sent by prepaid post to
the Participant at the address which last appears in the register of
Unit Holders kept in accordance with the Trust Deed.
13. ALTERATIONS TO THE RULES
These Rules may be altered, amended, deleted or added to as provided
for in the Trust Deed. The Trustee and the Manager shall ensure that
these Rules are in no way inconsistent with the provisions of the Trust
Deed as amended from time to time.
14. Proper Law
The terms and conditions of the Plan and its operations shall be
governed by the law of the State of New South Wales.
17
<PAGE> 82
APPLICATION FORM FOR PARTICIPATION IN
WESTFIELD AMERICA TRUST DISTRIBUTION REINVESTMENT PLAN
I/We wish to participate in the Distribution Reinvestment Plan in accordance
with the Rules of the Plan and hereby authorise Perpetual Trustee Company
Limited (the "Trustee") to withhold cash distributions payable to me/us on the
following Units held by me/us:
/ / All Units registered in my name from time to time.
/ / Units (where part participation desired please insert number
of units and tick the box).
(Tick One Box).
I/We hereby authorise the Trustee to apply the cash distribution withheld on my
behalf in subscribing for further fully paid Units on my/our behalf. This
authority is given with the knowledge and understanding that I may terminate or
vary it in accordance with the Rules of the Plan by notifying the Manager in
writing.
Name and Address of registered Unit Holder
- --------------------------------
- --------------------------------
- --------------------------------
Date Signature(s)
---------------------------- --------------------------------
--------------------------------
Note:
1. All joint holders must sign.
2. Companies must execute under seal or by attorney.
3. Return to the Manager
C/- Westfield America Trust Registry,
Ernst & Young Registry Services Pty. Limited,
Level 2,
321 Kent Street,
SYDNEY, N.S.W. 2000,
AUSTRALIA.
4. Do not forward your Unit Certificate.
18
<PAGE> 83
PERPETUAL TRUSTEE COMPANY LIMITED
WESTFIELD AMERICA MANAGEMENT LIMITED
DEED OF VARIATION NO 2
MINTER ELLISON
Lawyers
Minter Ellison Building
44 Martin Place
SYDNEY NSW 2000
DX 117 Sydney
Telephone (02) 210 4444
Facsimile (02)235 2711
<PAGE> 84
DEED OF VARIATION NO 2
DEED dated 24 June 1996
BETWEEN PERPETUAL TRUSTEE COMPANY LIMITED ACN 000 001 007 of ('Trustee')
AND WESTFIELD AMERICA MANAGEMENT LIMITED ACN 072 780 619 of ('Manager')
RECITALS
A. By a trust deed dated 28 March 1996, the Westfield America Trust
('Trust') was created. The trust deed was amended by Deed of Variation
dated 9 May 1996. The trust deed has subsequently amended in this deed
and is referred to in this Deed as the 'Trust Deed'.
B. Clause 20 of the Trust Deed provides that the Trustee and Manager may
together by supplemental deed alter the Trust Deed (inter alia) provided
that the amendment is permitted by section 1069A of the Corporations
Law.
C. For the purposes of section 1069A(7) of the Corporations Law the Trustee
reasonably believes that the amendments to be effected by this Deed will
not adversely affect the rights of Unit Holders.
D. The Manager reasonably believes that the amendments to be effected by
this Deed will not adversely affect the rights of Unit Holders.
AGREEMENT
1. AMENDMENTS
The Trust Deed is altered by making the amendments set out in Schedule
1 of this Deed.
2. EFFECTIVE TIME
This Deed will take effect on being approved under section 1067(2) of
the Corporations Law.
3. CONFIRMATION
3.1 Subject to the amendments referred to in clause 1, the terms and
conditions of the Trust Deed remain in full force and effect.
3.2 Without in any way limiting clause 3.1, the Manager and the Trustee
hereby confirm that clause 2.1 of the Trust Deed continues to have
paramount effect and to operate notwithstanding any other provision of
the Trust Deed.
<PAGE> 85
2
4. GOVERNING LAW
This Deed is governed by the laws of New South Wales.
EXECUTED as a deed
THE COMMON SEAL of WESTFIELD )
AMERICA MANAGEMENT LIMITED )
was hereunto affixed in accordance with its )
articles of association in the presence of )
/s/ Timothy Walsh /s/ Stephen Johns
- ----------------------------------- ------------------------------------
Secretary Director
Timothy Walsh Stephen Johns
- ----------------------------------- ------------------------------------
Name of secretary (print) Name of director (print)
[WESTFIELD AMERICA
MANAGEMENT LIMITED
A.C.N.
072 780 619
COMMON SEAL]
THE COMMON SEAL of PERPETUAL )
TRUSTEE COMPANY LIMITED )
is affixed in accordance with its articles )
of association in the presence of )
/s/ Greg Thomas /s/ R.J. Atkinson
- ----------------------------------- ------------------------------------
Signature of authorised person Signature of authorised person
Secretary Director
- ----------------------------------- ------------------------------------
Office held Office held
[COMMON SEAL]
<PAGE> 86
3
SCHEDULE 1
WESTFIELD AMERICA TRUST
1. Clause 1.1 of the Trust Deed is amended by deleting the definition of
'Listing Rules' and inserting the following in its place:
''LISTING RULES': the listing rules of the ASX and any other rules of the ASX
which are applicable while the Trust is admitted to the Official List of the
ASX, each as amended or replaced from time to time, except to the extent of
any express written waiver by the ASX (which has not been revoked).'
2. Clause 1.1 is further amended by deleting the definition of 'OFFICIALLY
QUOTED' and inserting the following definition after the definition of ''Unit
Holder' as follows:
'UNITS ARE OFFICIALLY QUOTED' OR 'UNITS ARE OFFICIALLY QUOTED' means the
admission of the Trust to the official list of the ASX.'
3. Clause 2.2 is deleted and a new clause 2.2 is inserted in its place as
follows:
'ASX LISTING Subject to clause 2.1, this clause 2.2 prevails over all other
RULES provisions of this deed. If the Listing Rules prohibit an act
being done, the act shall not be done. Nothing contained in this
deed prevents an act being done that the Listing Rules require to
be done. If the Listing Rules require an act to be done or not to
be done, authority is given for that act to be done or not to be
done (as the case may be). If the Listing Rules require this deed
to contain a provision and it does not contain such a provision,
this deed is deemed to contain that provision. If the Listing
Rules require this deed not to contain a provision and it contains
such a provision, this deed is deemed not to contain that
provision. If any provision of this deed is or becomes
inconsistent with the Listing Rules, this deed is deemed not to
contain that provision to the extent of the inconsistency. The
obligations imposed by this clause are additional to those imposed
by any other clause of this deed.'
4. Clause 6.13 is amended by deleting the following sentences in that clause.
'If, as a result of such an issue, offer or invitation which is not an
excluded issue, offer or invitation, a Unit Holder receives Units the
Manager may take any action which the Manager considers appropriate,
including, without limitation, selling or causing the redemption of the
Units, paying any expenses, and retaining the balance until the Manager
is satisfied that no amount will become payable under the indemnity in
this clause 6.13. The Manager may apply that balance in satisfaction of
any such amount and account to the Unit Holder for any remaining
balance. Without limitation to clause 16, the Manager is to be under no
liability for any action it takes (or refrains from taking) under this
clause 6.13'.
<PAGE> 87
4
5. Clause 14.5 is deleted and a new clause 14.5 is inserted in its place as
follows:
'TRANSFERS Unit Holders may transfer Units. Option Holders may transfer
Options (subject to their terms of issue). Transfers must be in
a form approved by the Manager and the ASX and be presented for
registration duly stamped. A transfer is not effective until
registered. Except while the Trust is included in the Official
List of the ASX, the Manager may refuse to register any
transfer of a Unit or Option but such refusal shall not be
unreasonable. In all other respects, the Manager must deal with
a transfer of a Unit or Option in accordance with the Listing
Rules.'
6. Clause 24.1 is amended by deleting the words 'Without limiting the
generality of the foregoing,' and inserting in their place the following:
'Except while the Trust is included in the Official List of the ASX,
without limiting the generality of the foregoing'.
<PAGE> 1
Exhibit C
INVESTORS AGREEMENT
INVESTORS AGREEMENT (hereinafter called the "Agreement"), dated as of
May 21, 1997, among WESTFIELD AMERICA, INC., a Missouri corporation (the
"Company"), WESTFIELD AMERICA MANAGEMENT LIMITED, an Australian corporation (the
"WAT Manager"), in its capacity as manager of the Westfield America Trust
("WAT"), a public trust constituted by the Westfield America Trust Deed, dated
March 28, 1996, as amended, PERPETUAL TRUSTEE COMPANY LIMITED, in its capacity
as trustee of WAT (the "WAT Trustee"), WESTFIELD CORPORATION, INC., a Delaware
corporation ("Westfield Corporation"), WESTFIELD AMERICAN INVESTMENTS PTY.
LIMITED, an Australian corporation ("Annatar"), and WESTFIELD HOLDINGS LIMITED,
an Australian corporation ("WHL", and collectively with WHL, Westfield
Corporation and Annatar and any other subsidiary of WHL, the "Westfield Group").
RECITALS
WHEREAS, the Company is authorized to issue 200,000,000 shares of
common stock, par value $.01 per share (the "Common Stock"), 200 shares of
non-voting senior preferred stock, par value $1.00 per share (the "Senior
Preferred Stock"), 940,000 shares of Series A cumulative redeemable preferred
stock, par value $1.00 per share (the "Series A Preferred Stock"), and 400,000
shares of Series B cumulative redeemable preferred stock, par value $1.00 per
share (the "Series B Preferred Stock", and collectively with the Common Stock,
the Senior Preferred Stock and the Series A Preferred Stock, the "Capital
Stock");
WHEREAS, the WAT Trustee is the record and beneficial owner of
39,494,125 shares and the Westfield Group is the record and beneficial owner of
10,930,762 shares of Common Stock;
WHEREAS, the Company is in the business of owning, operating, leasing,
developing, redeveloping and acquiring shopping centers and powers centers
(collectively, the Centers") in the United States;
WHEREAS, the parties hereto are parties to a Stockholders Agreement,
dated as of July 1, 1996 (the "Existing Agreement"), that contains
<PAGE> 2
provisions relating to the composition of the Board of Directors of the Company
(the "Board") and certain other matters;
WHEREAS, the Company plans to commence an initial public offering (the
"Public Offering") of shares of Common Stock and the WAT Trustee and the
Westfield Group intend to remain shareholders of the Company after the Public
Offering and wish to enter into this Agreement with the Company in order to
terminate the Existing Agreement and to establish and define their respective
rights and obligations with respect to the matters hereinafter set forth after
the Public Offering;
WHEREAS, pursuant to the Third Restated Articles of Incorporation of
the Company (the "Articles"), the Second Amended and Restated By-Laws of the
Company (the "By-Laws") and certain actions taken by the Board, following the
closing of the Public Offering, the Board will be comprised of 10 directors (the
"Directors") and will be divided into three classes, as nearly equal in number
as possible, with the term of office of the first class expiring at the Annual
Meeting of Shareholders in 1998, the second class expiring at the Annual Meeting
of Shareholders in 1999, and the third class expiring at the Annual Meeting of
Stockholders in 2000, with the successors to any expired class to be elected for
three-year terms;
WHEREAS, it is expected that following the Public Offering, a majority
of the Directors will be Independent Directors (as defined below); and
WHEREAS, the WAT Manager and the WAT Trustee have advised the Company
that under Australian law the unitholders of WAT must approve the exercise by
the WAT Trustee of its voting rights with respect to the election of the
Directors (the "Australian Voting Requirement").
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Effectiveness. The parties hereto hereby covenant and agree that
immediately upon the closing of the Public Offering the Existing Agreement shall
terminate and this Agreement shall become effective.
2. Election of Directors. (a) Meeting of WAT Unitholders. For so long
as the Australian Voting Requirement is applicable, the WAT Trustee
2
<PAGE> 3
hereby covenants and agrees to (i) call a meeting of WAT unitholders to obtain
the approval for the WAT Trustee to exercise voting rights in respect of the
election of Directors and (ii) attend, in person or by proxy, any shareholders
meeting at which the shareholders of the Company are to vote for the election of
Directors and to vote or cause to be voted all of their shares of Common Stock
at each such meeting. The timing of the election of directors will be
coordinated with the requirements for unitholders meetings as required by
Australian corporate law so that sufficient time is permitted for the WAT
Trustee to obtain unitholder approval.
(b) Independent Director. For purposes of this Agreement, "Independent
Director" shall mean a director of the Company who (i) is not, and has not for
the last 12 months been, an officer, director or employee of any of the
Westfield Group or the WAT Trustee, (ii) is not an Affiliate of any of the
Westfield Group or the WAT Trustee or an officer or employee of such an
Affiliate, (iii) is not a member of the immediate family of any natural person
described in clauses (i) and (ii) above, and (iv) is free from any relationship
that would interfere with the exercise of independent judgment as a Director.
For purposes of this definition of Independent Director only, an "Affiliate"
shall mean any person directly or indirectly Controlling, Controlled by, or
under Control with, such other person; "Control" shall mean the power to
exercise a controlling influence over the management or policies of a company,
unless such power is solely the result of an official position with any of the
Westfield Group or the WAT Trustee; and "member of the immediate family" shall
mean any parent, spouse of a parent, child, spouse of a child, spouse, brother
or sister and includes step and adoptive relationships.
3. Right of First Refusal. (a) Whenever and as often as the WAT Trustee
or its successors or assigns (each, a "Seller") shall desire to sell all or any
of the Warrants granted to the WAT Trustee pursuant to the Subscription
Agreement and Plan of Reorganization Relating to CenterMark Properties, Inc.,
dated as of May 13, 1996, and in connection with the Public Offering (together,
the "Company Warrants"), pursuant to a bona fide offer for the purchase thereof,
the Seller shall give notice (the "Notice") to WHL (the "Offeree") in writing to
such effect, enclosing a copy of such bona fide offer (it being agreed that the
Seller shall cause any such offer to be reduced to writing) and specifying the
portion of the Company Warrants which the Seller desires to sell (the "Seller's
Warrant"), the name of the person or persons to whom the Seller desires to make
such sale and the dollar value of the consideration which has been offered in
connection therewith. Upon receipt of the Notice, the Offeree initially shall
have the first
3
<PAGE> 4
right and option to purchase up to all of the Seller's Warrant, for cash at a
purchase price equal to the dollar value of such consideration, exercisable for
a period of 30 days from the date of receipt of the Notice (the "Expiration
Date"). Failure of the Offeree to respond to the Notice within the 30-day period
shall be deemed to constitute a notification to the Seller of the Offeree's
decision not to exercise the first right and option to purchase the Seller's
Warrant under this Section 3.
(b) The Offeree may exercise the right and option provided in this
Section 3 by giving written notice to the Seller not later than the close of
business on the date of expiration of such right and option (or if such date is
not a business day, then on or before the close of business on the next
succeeding business day), advising of the election to exercise the same and the
date (not later than 30 days from the date of such notice) upon which payment of
the purchase price for the Seller's Warrant shall be made. The Seller shall
cause to be delivered to the Offeree notice, on the payment date specified in
such notice, the certificate or certificates representing the Seller's Warrant
being purchased by the Offeree, properly endorsed for transfer, against payment
of the purchase price therefor.
(c) If all the Seller's Warrant is not purchased by the Offeree in
accordance with this Section, the Seller (i) shall not be required to sell any
of the Seller's Warrant to the Offeree and (ii) may, during the 90-day period
commencing on the expiration of the rights and options provided for in this
Section, sell all (but not less than all) of the Seller's Warrant to the
transferee named in the Notice for a consideration the dollar value of which is
equal to or greater than the dollar value of the consideration specified in the
Notice, subject in each case to the restrictions contained in this Section 3 of
this Agreement.
(d) WHL may designate or assign its rights to purchase the Company
Warrants pursuant to this Section 3 to any person or entity with the prior
written consent of the Seller, such consent not be unreasonably withheld or
delayed.
4. Non-Competition. WHL shall not, and shall not permit any of its
subsidiaries, for so long as it or any of its subsidiaries is the Advisor (as
defined in the Advisory Agreement, dated July 1, 1996, as amended, between the
Company and the Advisor) and the Manager (as defined in the Management
Agreements, dated July 1, 1996, as amended, between the Company, the Manager and
the Centers) of the Centers, directly or indirectly, to acquire any
4
<PAGE> 5
ownership interest in shopping center properties or power centers in the United
States (a "Competitive Business") or own an interest in, as a partner, member,
stockholder, co-venturer or otherwise, any corporation, company, partnership,
firm, association, enterprise or other entity that owns any ownership interest
in a Competitive Business, provided that nothing contained in this Section 4
shall prohibit or restrain WHL or any of its subsidiaries or Affiliates from (a)
owning the interests it currently holds in Garden State Plaza or owning any
interest in Westfield America Trust or the Company, (b) acquiring shares of
capital stock or other equity interests in any entity where such shares or
interests represent a minority interest of 5% or less of such entity's
outstanding capital stock or equity interests, provided that such entity is not
controlled by WHL or any such subsidiary and employees of the Westfield Group do
not serve as an executive officer, director, manager or advisor to such entity,
(c) acquiring indebtedness of any person, (d) acquiring by asset purchase, stock
purchase, merger, consolidation or otherwise of any corporation, partnership or
other business entity partially engaged in the Competitive Business, provided
that such activities relating to the Competitive Business do not exceed 5% of
the revenues or net equity of such entity or such entity disposes of such
Competitive Business within one year of such acquisition, or (e) acquiring any
interest in airport projects or the retail portions thereof.
5. GSP Option Agreement. The Company and Westfield Capital Corporation
Finance Pty. Limited ("WCC"), a subsidiary of WHL, are parties to that certain
GSP Option Agreement (the "GSP Option Agreement"), dated as of July 1, 1997,
granting the Company the option to buy the outstanding common stock of Westland
Realty, Inc. Pursuant to Section 5.2(b) of the GSP Option Agreement, if the
Company exercises its option, WCC may elect to receive the purchase price under
the GSP Option Agreement in stock of the Company or in cash. WHL hereby notifies
the Company that, if the option is exercised by the Company, WCC has irrevocably
elected to receive common stock of the Company for the purchase price, such
shares of common stock to be duly authorized, validly issued, fully paid and
nonassessable and free and clear of all security interests, mortgages, liens,
charges, restrictions, encumbrances and claims of any nature whatsoever. The
amount of shares of common stock shall be determined by dividing the purchase
price by an amount equal to the average of the closing sale price of the Company
on the New York Stock Exchange for the 20 trading days prior to the exercise of
the option.
6. Notices. All notices, requests, demands and other communications
made in connection with this Agreement shall, except as otherwise
5
<PAGE> 6
expressly herein provided, be in writing and shall be (a) mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or (b)
transmitted by hand delivery or telecopy, addressed as follows:
(i) if to the Company, to:
Westfield America, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025
Telecopy: (310) 444-9071
Telephone: (310) 445-2406
Attention: Co-President
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(ii) if to WAM, to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7077
Telephone: 011-612 9358-7154
Attention: Company Secretary
with a copy to:
The National Manager
6
<PAGE> 7
Property Trusts
Perpetual Trustees Australia Limited
Level 7
1 Castlereagh Street
Sydney
Australia
Telecopy: 011-612 9233-8582
Telephone: 011-612 9229-9975
Attention: Mr. Allan Cowper
(iii) if to the WAT Trustee, to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Level 7
1 Castlereagh Street
Sydney
Australia
Telecopy: 011-612 9233-7688
Telephone: 011-612 9229-9975
Attention: Mr. Allan Cowper
with a copy to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7077
Telephone: 011-612 9358-7154
Attention: Company Secretary
(iv) if to Westfield Corporation, to:
c/o Westfield Corporation, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025-3348
Telecopy: (310) 444-9071
7
<PAGE> 8
Telephone: (310) 478-4456
Attention: President
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(v) if to Annatar, to:
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7165
Telephone: 011-612 9358-7154
Attention: Company Secretary
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(iv) if to WHL, to:
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7165
Telephone: 011-612 9358-7154
Attention: Company Secretary
8
<PAGE> 9
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
7. Remedies. The parties hereto agree that in the event of any
violation by WHL or any of its subsidiaries of the provisions of Section 4 of
this Agreement, the Company will be irreparably damaged. Accordingly, the
Company shall be entitled to an injunction (either preliminary, permanent or
both) restraining any violation of the provisions of Section 4 of this Agreement
by WHL or any of its subsidiaries or to any other appropriate decree of specific
performance. Such remedy shall not be exclusive and shall be in addition to any
other remedy that the Company shall have, including, without limitation,
recovery of damages.
8. Severability. If any provision of this Agreement is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable, unless to give effect to any
such remaining provision or provisions would frustrate the purpose and intention
of the parties hereunder. The invalidity of any one or more phrases, sentences,
clauses, sections or subsections of this Agreement shall not affect the
remaining portions of this Agreement.
9. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
10. Entire Agreement. This Agreement, together with all exhibits
hereto, constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
9
<PAGE> 10
11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and both of which shall
together constitute one and the same instrument.
12. Governing Law. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the internal laws of the
State of Missouri.
13. Assignment. This Agreement shall not be assignable by any of the
parties hereto, without the prior written consent of the other parties hereto,
except that members of the Westfield Group shall be permitted to assign any of
their rights hereunder to any subsidiary of WHL.
14. No Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, executors, administrators, successors and permitted
assigns.
15. Amendment; Waivers. 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.
16. Limitation of Liability. As the WAT Trustee enters into this
Agreement only in its capacity as trustee of WAT, the WAT Trustee is liable
under this Agreement only up to the extent to which it is indemnified out of the
assets of WAT. The WAT Trustee is only personally liable to the extent that it
is fraudulent, negligent, or in breach of trust. If the WAT Trustee is not
personally liable, the parties other than the WAT Trustee must not sue the WAT
Trustee personally or seek to wind it up to recover any outstanding money, and
the WAT Trustee is entitled to plead this clause as a bar to the taking of any
such proceedings.
17. WAT Trust Deed. Each of the parties to this Agreement, other than
the WAT Trustee, acknowledges that it has received a copy of the WAT Trust Deed
(as amended) establishing WAT and that it understands the rights and obligations
of the WAT Trustee and the Manager therein.
[Intentionally Left Blank]
10
<PAGE> 11
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Richard E. Green
-----------------------
Name: Richard E. Green
Title: Co-President
PERPETUAL TRUSTEE COMPANY LIMITED,
in its capacity as trustee of
Westfield America Trust
By: /s/ Allan Cowper
-----------------------
Name: Allan Cowper
Title: Attorney
WESTFIELD AMERICA MANAGEMENT LIMITED,
in its capacity as manager of
Westfield America Trust
By: /s/ Peter S. Lowy
----------------------------
Name: Peter S. Lowy
Title: Managing Director-U.S.A.
WESTFIELD CORPORATION, INC.
By: /s/ Peter S. Lowy
-------------------------
Name: Peter S. Lowy
Title: Vice President
11
<PAGE> 12
WESTFIELD AMERICAN INVESTMENTS PTY.
LIMITED
By: /s/ Peter S. Lowy
------------------------------
Name: Peter S.Lowy
Title: Managing Director-U.S.A.
WESTFIELD HOLDINGS LIMITED
By: /s/ Peter S. Lowy
----------------------------
Name: Peter S. Lowy
Title: Managing Director-U.S.A.
12
<PAGE> 1
Exhibit D
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF ARE SUBJECT TO THE PROVISIONS OF A STOCKHOLDERS' AGREEMENT, DATED AS OF
JULY 1, 1996, AND NEITHER THIS WARRANT NOR THE COMMON STOCK OR OTHER SECURITIES
RECEIVABLE UPON EXERCISE HEREOF ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT (INCLUDING
PROVISIONS UNDER WHICH THE HOLDER HEREOF GRANTS A RIGHT OF FIRST REFUSAL ON THE
SALE OF THIS WARRANT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER, AND THE ISSUER'S ARTICLES OF INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL
BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER FROM
THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION THEREFROM.
No. B-1 New York, New York
July 1, 1996
CENTERMARK PROPERTIES, INC.
CLASS B COMMON STOCK PURCHASE WARRANT
CENTERMARK PROPERTIES, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE COMPANY
LIMITED, in its capacity as Trustee of Westfield America Trust, is entitled,
subject
<PAGE> 2
to the terms and conditions set forth below, (a) to purchase from the Company
six million two hundred forty-six thousand ninety-six (6,246,096) duly
authorized, validly issued, fully paid and nonassessable shares of (i) Class B-1
Common Stock, par value $.01 per share (the "Class B-1 Common Stock"), of the
Company, if this Warrant is exercised by the trustee (the "WAT Trustee") of
Westfield America Trust ("WAT"), a public trust constituted under the laws of
Australia pursuant to the Westfield America Trust Deed, dated March 28, 1996,
with Perpetual Trustee Company Limited, as Trustee, on behalf of WAT, or (ii)
Class B-2 Common Stock, par value $.01 per share (the "Class B-2 Common Stock"
and, together with the Class B-1 Common Stock, the "Common Stock"), of the
Company, if this Warrant is exercised by a holder other than the WAT Trustee, in
each case at a purchase price per share of $16.01 (as adjusted from time to
time, the "Exercise Price"), at any time or from time to time on or after the
date hereof and (b) to exercise the other rights set forth herein. The number
and character of such shares of Common Stock and the Exercise Price are subject
to adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at any
time and from time to time on or after the date hereof and prior to July 1, 2016
(the "Expiration Date") by the holder hereof, in whole or in part, on any
business day by:
(a) the presentation of this Warrant, together with a duly
executed copy of the Exercise Form attached hereto as Exhibit A and the
other documentation set forth therein, to the Secretary of the Company
at its principal offices, upon which presentation the Secretary of the
Company shall make appropriate notations in the stock transfer records
(and other records, as appropriate) of the Company indicating the
number of shares of Common Stock issued pursuant to such exercise and
the number of shares of Common Stock, if any, into which the Warrant
thereafter shall remain exercisable; and
2
<PAGE> 3
(b) the payment, by wire transfer of immediately available
funds or certified or official bank check payable to the order of the
Company of an amount equal to the amount obtained by multiplying (i)
the number of shares of Common Stock designated in such Exercise Form
by (ii) the Exercise Price.
This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as
practicable after the proper exercise of this Warrant in whole or in part, and
in any event within 30 days thereafter, the Company will cause to be issued in
the name of and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon such
exercise;
(b) in case such exercise is in part only, a new Warrant of
like tenor, calling on its face for the number of shares of Common
Stock equal to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the holder hereof
upon such exercise as provided in Section 1 hereof.
3. Reservation of Shares of Common Stock. The Company
covenants that it will at all times keep available such number of authorized
shares of its Common Stock issuable upon exercise of the Warrant, which will be
sufficient to permit the exercise of the Warrant for the full number of shares
of Common Stock into which the Warrant is exercisable during the exercise period
specified herein. The Company further covenants that such shares of Common
Stock, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable.
3
<PAGE> 4
4. Adjustment of Number of Shares of Common Stock. The number
and kind of securities purchasable upon exercise of the Warrant shall be subject
to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the Expiration Date subdivide its
Common Stock by stock split or otherwise, or combine its capital stock
by reverse stock split or otherwise, or issue additional securities as
a dividend with respect to any shares of its Common Stock, as the case
may be, the number of shares of Common Stock issuable on the exercise
of this Warrant shall forthwith be proportionately increased and the
Exercise Price shall be proportionately decreased in the case of a
subdivision or stock dividend, and the number of shares of Common
Stock issuable on the exercise of this Warrant shall forthwith be
proportionately decreased and the Exercise Price shall be
proportionately increased in the case of a combination. Any adjustment
under this Section 4(a) shall become effective at the close of business
on the date the sub division or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date
is fixed, upon the payment of such dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a subdivision,
combination or stock dividend covered by paragraph (a) above), merger,
consolidation or any return of capital or other capital distribution,
except for periodic distributions made pro-rata among the shareholders
of a class of stock or units which are not in redemption of any shares
of Common Stock, or any similar capital transaction that would affect
the capital structure of the Company, excluding any payment of an
ordinary cash dividend in respect of the operations of the Company,
then in such event (i) the number of shares of Common Stock issuable
4
<PAGE> 5
upon exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is fair and
equitable to the holder hereof and the holders of Common Stock.
(c) Mergers, etc. If prior to the Expiration Date, the Company
shall be merged or consolidated into a new entity or if the Company
shall transfer all or substantially all of its assets to another
entity, then upon a subsequent exercise of this Warrant, the holder
hereof shall be entitled to receive securities in the new transferee
entity equal to what the holder hereof would have received had it
exercised this Warrant and owned shares of Class B Common Stock
immediately prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
this Warrant, the Company promptly shall notify the holder of this
Warrant of such event and of the number of shares and the type of
securities or property thereafter purchasable upon exercise of this
Warrant.
(e) Disputes. If a dispute arises between the Company and the
holder hereof in relation to an adjustment to: (i) the number of
shares of Common Stock issuable upon exercise hereof, (ii) the
Exercise Price, or (iii) some or all of such factors, to be made
pursuant to this Section 4, either party is entitled to refer the
dispute (but no other dispute) to an Expert. "Expert" means an
independent, international investment banking firm agreed to by the
Company and the holder hereof, or (in default of agreement), an
independent, international investment banking firm nominated (at the
request of any party) by the President or the head for the time being
of the Australian Institute of Chartered Accountants. The Expert must:
(1) resolve the dispute
5
<PAGE> 6
in a timely manner as an expert and not as an arbitrator, and (2)
determine the party or parties responsible for paying the costs of the
Expert having regard to his findings concerning resolution of the
dispute, provided that the holder hereof will not bear any expense in
excess of its pro rata interest in the Company.
5. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the exercise price then in effect with respect
to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This
Warrant shall be subject to certain limited restrictions on transferability
(including a right of first refusal) set forth in the Stockholders' Agreement,
dated as of July 1, 1996, among the Company, the original holder of this Warrant
and certain other parties, a copy of which shall be furnished without charge to
the holder hereof upon request, and the Company's articles of incorporation.
(b) Neither this Warrant nor the Common Stock issuable upon
exercise hereof may be transferred, sold, pledged, hypothecated or otherwise
disposed of, and this Warrant may not be exercised, unless (A) such disposition
or exercise is pursuant to an effective registration statement under the
Securities Act, (B) the holder hereof shall have delivered to the Company an
opinion of counsel, which opinion and counsel shall be satisfactory to the
Company, to the effect that such disposition or exercise is exempt from the
provisions of Section 5 of the Securities Act, or (C) a no-action letter from
the Securities and Exchange Commission, satisfactory to counsel for the Company,
shall have been obtained with respect to such disposition or exercise (D) the
Warrant or Common Stock is being exercised by (or transferred to) the WAT
Trustee, the manager of WAT or any of its affiliates.
6
<PAGE> 7
(c) Each Warrant certificate shall bear the legend set forth
on the first page of this certificate.
(d) Any certificates representing Common Stock issued upon
exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (A) (i)
SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR
(iii) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION,
SATISFACTORY TO COUNSEL FOR THE ISSUER, SHALL HAVE BEEN OBTAINED WITH
RESPECT TO SUCH DISPOSITION AND (B) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON OWNER SHIP AND TRANSFER FOR THE PURPOSE OF THE
ISSUER'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NO
INDIVIDUAL MAY BENEFICIALLY OWN COMMON SHARES IN EXCESS OF THE THEN
APPLICABLE OWNERSHIP LIMIT WITH RESPECT TO COMMON SHARES, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN
SHARES IN EXCESS OF THE ABOVE LIMITATION MUST IMMEDIATELY NOTIFY THE
COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT DEFINITION HAVE THE
MEANINGS DEFINED IN THE ISSUER'S ARTICLES OF INCORPORATION, AS THE SAME
MAY BE FURTHER AMENDED
7
<PAGE> 8
FROM TIME TO TIME, 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 WILL BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED TRANSFERRED TO A SPECIAL
TRUST AS PROVIDED IN THE ARTICLES OF INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS AMENDED,
LIMITING THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S COMMON STOCK.
7. Successors and Assigns. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company and the
holders hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented, amended
or otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
8
<PAGE> 9
9. Governing Law. This Warrant shall be governed by the laws
of the State of New York as applied to agreements among New York residents made
and to be performed entirely within the State of New York.
CENTERMARK PROPERTIES, INC.
By: /s/ Peter S. Lowy
-------------------
Name: Peter S. Lowy
Title: Executive Vice President
9
<PAGE> 10
EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by the attached Warrant, to purchase __________ shares of
[Class B-1][Class B-2] Common Stock of Centermark Properties, Inc. (the
"Company"), par value $.01 per share ("Common Stock"), as provided for in the
Warrant Certificate and herewith tenders in payment for such shares of Common
Stock payment of the purchase price in full in the form of cash or a check
payable to the order of the Company in the amount of $_______, all in accordance
with the terms of the Warrant Certificate. The undersigned requests that a
certificate for such shares of Common Stock be registered in the name of
___________________________, whose address is
_______________________________________, and that such certificate shall be
delivered to _______________________________ at the following address:
________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise and
on transferability set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned is acquiring the Common Stock for its
own account and not with a view to, or for sale in connection with, any
distribution thereof that would violate or require registration under any U.S.
federal or state securities or "Blue Sky" laws. The undersigned understands that
the Common Stock has not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), may not be offered or
sold except as permitted by the Warrant Certificate and shall be required to
bear a legend as set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned agrees, on its own behalf and on
behalf of any account[s] for which the undersigned is acting as hereinafter
stated, that if the
<PAGE> 11
EXHIBIT A
undersigned should reoffer, resell, pledge or transfer any Common Stock, the
undersigned will do so only in accordance with the Warrant Certificate; and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nation ally recognized
United States counsel, which opinion and counsel shall be satisfactory to the
Company,][a no-action letter from the Securities and Exchange Commission,
satisfactory to counsel to the Company] to the effect that the offer of the
Common Stock to and the purchase of the Common Stock by the undersigned is
exempt from registration under the Securities Act.]
Dated: ______________________
_________________________________________
By:______________________________________
Name:
Title:
<PAGE> 12
THIS WARRANT IS SUBJECT TO THE PROVISIONS OF AN INVESTORS' AGREEMENT, DATED AS
OF May 21, 1997, AND THIS WARRANT IS NOT ASSIGNABLE OR OTHERWISE TRANSFERABLE
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH INVESTORS' AGREEMENT (INCLUDING
PROVISIONS UNDER WHICH THE HOLDER HEREOF GRANTS A RIGHT OF FIRST REFUSAL ON THE
SALE OF THIS WARRANT), A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER. THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE HEREOF ARE
ALSO SUBJECT TO THE OWNERSHIP LIMITATIONS SET FORTH IN THE ISSUER'S ARTICLES OF
INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON EXERCISE
HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE
DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL
BE SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER FROM
THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION THEREFROM.
No. 2 New York, New York
May 21, 1997
WESTFIELD AMERICA, INC.
COMMON STOCK PURCHASE WARRANT
WESTFIELD AMERICA, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE COMPANY
LIMITED (the "WAT Trustee"), in its capacity as Trustee of Westfield America
Trust ("WAT"), a public unit trust constituted under the laws of Australia
<PAGE> 13
pursuant to the Westfield America Trust Deed, dated March 28, 1996, as amended
on May 9, 1996, is entitled, subject to the terms and conditions set forth
below, (a) to purchase from the Company Two Million Eighty-nine Thousand Five
Hundred Fifty-two (2,089,552) duly authorized, validly issued, fully paid and
nonassessable shares of common stock, par value $.01 per share, of the Company,
(the "Common Stock") at a purchase price per share of $15.00(as adjusted from
time to time, the "Exercise Price"), at any time or from time to time on or
after the date hereof and (b) to exercise the other rights set forth herein. The
number and character of such shares of Common Stock and the Exercise Price are
subject to adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at any
time and from time to time on or after the date hereof and prior to May 21, 2017
(the "Expiration Date") by the holder hereof, in whole or in part, on any
business day by:
(a) the presentation of this Warrant, together with a duly
executed copy of the Exercise Form attached hereto as Exhibit A and the
other documentation set forth therein, to the Secretary of the Company
at its principal offices, upon which presentation the Secretary of the
Company shall make appropriate notations in the stock transfer records
(and other records, as appropriate) of the Company indicating the
number of shares of Common Stock issued pursuant to such exercise and
the number of shares of Common Stock, if any, into which the Warrant
thereafter shall remain exercisable; and
(b) the payment, by wire transfer of immediately available
funds or certified or official bank check payable to the order of the
Company of an amount equal to the amount obtained by multiplying (i)
the number of shares of Common Stock designated in such Exercise Form
by (ii) the Exercise Price.
2
<PAGE> 14
This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as practicable
after the proper exercise of this Warrant in whole or in part, and in any event
within 30 days thereafter, the Company will cause to be issued in the name of
and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon such
exercise;
(b) in case such exercise is in part only, a new Warrant of
like tenor, calling on its face for the number of shares of Common
Stock equal to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the holder hereof
upon such exercise as provided in Section 1 hereof.
3. Reservation of Shares of Common Stock. The Company covenants that it
will at all times keep available such number of authorized shares of its Common
Stock issuable upon exercise of the Warrant, which will be sufficient to permit
the exercise of the Warrant for the full number of shares of Common Stock into
which the Warrant is exercisable during the exercise period specified herein.
The Company further covenants that such shares of Common Stock, when issued
pursuant to the exercise of this Warrant, will be duly and validly issued, fully
paid and nonassessable.
4. Adjustment of Number of Shares of Common Stock. The number and kind
of securities purchasable upon exercise of the Warrant shall be subject to
adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time prior to the Expiration Date subdivide its
Common Stock by stock
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split or otherwise, or combine its capital stock by reverse stock split
or otherwise, or issue additional securities as a dividend with respect
to any shares of its Common Stock, as the case may be, the number of
shares of Common Stock issuable on the exercise of this Warrant shall
forthwith be proportionately increased and the Exercise Price shall be
proportionately decreased in the case of a subdivision or stock
dividend, and the number of shares of Common Stock issuable on the
exercise of this Warrant shall forthwith be proportionately decreased
and the Exercise Price shall be proportionately increased in the case
of a combination. Any adjustment under this Section 4(a) shall become
effective at the close of business on the date the subdivision or
combination becomes effective, or as of the record date of such
dividend, or in the event that no record date is fixed, upon the
payment of such dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a subdivision,
combination or stock dividend covered by paragraph (a) above), merger,
consolidation or any return of capital or other capital distribution,
except for periodic distributions made pro rata among the shareholders
of a class of stock or units which are not in redemption of any shares
of Common Stock, or any similar capital transaction that would affect
the capital structure of the Company, excluding any payment of an
ordinary cash dividend in respect of the operations of the Company,
then in such event (i) the number of shares of Common Stock issuable
upon exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is fair and
equitable to the holder hereof and the holders of Common Stock.
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(c) Mergers, etc. If prior to the Expiration Date, the Company
shall be merged or consolidated into a new entity or if the Company
shall transfer all or substantially all of its assets to another
entity, then upon a subsequent exercise of this Warrant, the holder
hereof shall be entitled to receive securities in the new transferee
entity equal to what the holder hereof would have received had it
exercised this Warrant and owned shares of Common Stock immediately
prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
this Warrant, the Company promptly shall notify the holder of this
Warrant of such event and of the number of shares and the type of
securities or property thereafter purchasable upon exercise of this
Warrant.
(e) Disputes. If a dispute arises between the Company and the
holder hereof in relation to an adjustment to: (i) the number of
shares of Common Stock issuable upon exercise hereof, (ii) the Exercise
Price, or (iii) some or all of such factors, to be made pursuant to
this Section 4, either party is entitled to refer the dispute (but no
other dispute) to an Expert. "Expert" means an independent,
international investment banking firm agreed to by the Company and the
holder hereof, or (in default of agreement), an independent,
international investment banking firm nominated (at the request of any
party) by the President or the head for the time being of the
Australian Institute of Chartered Accountants. The Expert must: (1)
resolve the dispute in a timely manner as an expert and not as an
arbitrator, and (2) determine the party or parties responsible for
paying the costs of the Expert having regard to his findings concerning
resolution of the dispute, provided that the holder hereof will not
bear any expense in excess of its pro rata interest in the Company.
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5. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the exercise price then in effect with respect
to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This Warrant shall
be subject to certain limited restrictions on transferability (including a right
of first refusal) set forth in the Investors' Agreement, dated as of May [ ],
1997, among the Company, the original holder of this Warrant and certain other
parties, a copy of which shall be furnished without charge to the holder hereof
upon request. In addition, the shares of Common Stock or other securities
receivable upon exercise hereof are subject to the ownership limitations set
forth in the Company's articles of incorporation.
(b) Neither this Warrant nor the Common Stock issuable upon
exercise hereof may be transferred, sold, pledged, hypothecated or
otherwise disposed of, and this Warrant may not be exercised, unless
(A) such disposition or exercise is pursuant to an effective
registration statement under the Securities Act, (B) the holder hereof
shall have delivered to the Company an opinion of counsel, which
opinion and counsel shall be satisfactory to the Company, to the effect
that such disposition or exercise is exempt from the provisions of
Section 5 of the Securities Act, (C) a no-action letter from the
Securities and Exchange Commission, satisfactory to counsel for the
Company, shall have been obtained with respect to such disposition or
exercise, or (D) the Warrant or Common Stock is being exercised by (or
transferred to) the WAT Trustee, the manager of WAT or any of its
affiliates.
(c) Each Warrant certificate shall bear the legend set forth
on the first page of this certificate.
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(d) Any certificates representing Common Stock issued upon
exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS (A) (i) SUCH DISPOSITION IS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER AN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE
ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO
COUNSEL FOR THE ISSUER, SHALL HAVE BEEN OBTAINED WITH RESPECT TO
SUCH DISPOSITION AND (B) SUCH DISPOSITION IS PURSUANT TO
REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE
PURPOSE OF THE ISSUER'S MAINTENANCE OF ITS STATUS AS A REAL
ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"). NO INDIVIDUAL MAY BENEFICIALLY OWN
COMMON SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT
WITH RESPECT TO COMMON SHARES, WHICH MAY DECREASE OR INCREASE
FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER.
ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS
OF THE ABOVE LIMITATION MUST IMMEDIATELY NOTIFY THE COMPANY. ALL
TERMS USED IN THIS LEGEND WITHOUT DEFINITION HAVE THE MEANINGS
DEFINED IN THE ISSUER'S ARTICLES OF INCORPORATION, AS THE SAME
MAY BE FURTHER AMENDED FROM TIME TO TIME, A COPY OF WHICH,
INCLUDING THE RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
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REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE
VIOLATED, THE COMMON SHARES REPRESENTED HEREBY WILL BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED
TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF
INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS
AND CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS
AMENDED, LIMITING THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S
COMMON STOCK.
7. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented, amended or
otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
9. Governing Law. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of New York.
WESTFIELD AMERICA, INC.
By: /s/ Mark A. Stefanek
------------------------------
Name: Mark A. Stefanek
Title: Chief Financial Officer
& Secretary
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EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by the attached Warrant, to purchase __________ shares of Common
Stock of Westfield America, Inc. (the "Company"), par value $.01 per share
("Common Stock"), as provided for in the Warrant Certificate and herewith
tenders in payment for such shares of Common Stock payment of the purchase price
in full in the form of cash or a check payable to the order of the Company in
the amount of $_______, all in accordance with the terms of the Warrant
Certificate. The undersigned requests that a certificate for such shares of
Common Stock be registered in the name of ___________________________, whose
address is _______________________________________, and that such certificate
shall be delivered to _______________________________ at the following address:
______________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise and on
transferability set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned is acquiring the Common Stock for its
own account and not with a view to, or for sale in connection with, any
distribution thereof that would violate or require registration under any U.S.
federal or state securities or "Blue Sky" laws. The undersigned understands that
the Common Stock has not been, and will not be, registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), may not be offered or
sold except as permitted by the Warrant Certificate and shall be required to
bear a legend as set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned agrees, on its own behalf and on
behalf of any account[s] for which the undersigned is acting as hereinafter
stated, that if the
<PAGE> 21
EXHIBIT A
undersigned should reoffer, resell, pledge or transfer any Common Stock, the
undersigned will do so only in accordance with the Warrant Certificate; and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nation ally recognized
United States counsel, which opinion and counsel shall be satisfactory to the
Company,] [a no-action letter from the Securities and Exchange Commission,
satisfactory to counsel to the Company] to the effect that the offer of the
Common Stock to and the purchase of the Common Stock by the undersigned is
exempt from registration under the Securities Act.]
Dated: ______________________
_______________________________________
By:____________________________________
Name:
Title:
