<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 11, 1998.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WESTFIELD AMERICA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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MISSOURI 43-0758627
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
IRV HEPNER, SECRETARY
11601 WILSHIRE BOULEVARD, 12TH FLOOR 11601 WILSHIRE BOULEVARD, 12TH FLOOR
LOS ANGELES, CALIFORNIA 90025 LOS ANGELES, CALIFORNIA 90025
(310) 478-4456 (310) 478-4456
(ADDRESS, INCLUDING ZIP CODE, AND (NAME, ADDRESS, INCLUDING ZIP CODE,
TELEPHONE NUMBER, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S INCLUDING AREA CODE, OF AGENT FOR
PRINCIPAL EXECUTIVE OFFICES) SERVICE)
--------------
COPIES TO:
GREGG A. NOEL, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071
(213) 687-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to distribution or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with distribution or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT AGGREGATE AGGREGATE AMOUNT OF
TITLE OF SHARES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share......... 4,000,000 $17.375 $69,500,000 $19,321.00
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</TABLE>
(1) Plus such additional shares as may be issued by reason of stock splits,
stock distributions and similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the New York Stock Exchange on December 4, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PROSPECTUS
WESTFIELD AMERICA, INC.
4,000,000 Shares of Common Stock
DISTRIBUTION REINVESTMENT PLAN
Westfield America, Inc, has adopted a Distribution Reinvestment Plan.
HOW TO ENROLL:
. If you are a Shareholder or Preferred Shareholder of Westfield America,
Inc., or an Investor Unit Right holder of Westfield America Limited
Partnership and you wish to enroll in the Company's Distribution
Reinvestment Plan, then you should fill out the enrollment form
accompanying this Prospectus.
. For more details, see pages 2 through 10 of this Prospectus.
HIGHLIGHTS OF THE PROGRAM:
. Any registered Shareholder, Preferred Shareholder or holder of Investor
Unit Rights may elect to participate in the Plan.
. Beneficial owners of Common Shares held in street name may elect to
participate in the Plan.
. 0% to 5% discount on purchases of Common Shares through the Plan.
. Certificate safekeeping in book entry form at American Stock Transfer &
Trust Co., at no charge to participant.
. Recordkeeping and reporting will be provided, at no charge to
participant.
. Full or partial distribution reinvestment options.
Please review the risk factors that have been disclosed in the Company's
filings under the Securities Exchange Act of 1934.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
, 1998
<PAGE>
SPECIAL NOTE REGARDINGFORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated by reference herein,
contains forward-looking statements, within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act, which reflect our views at
the time we made the statements with respect to future events and financial
performance. These forward-looking statements are subject to certain risks and
uncertainties, including the matters described under "Risk Factors" in our Form
8-K, dated November 25, 1998, and in the other documents incorporated by
reference herein. These risks and uncertainties could cause actual results to
differ materially from historical results or those anticipated. The words
"believes," "expects," "anticipates," "intends," "plans," "estimates" and
similar expressions identify forward-looking statements, which speak only as of
the dates on which we made them. We undertake no obligation to publicly update
or revise any forward-looking statements, whether as a result of new
information, future events, or otherwise. Readers are cautioned not to place
undue reliance on these forward-looking statements.
TABLE OF CONTENTS
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PAGE
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS......................... i
THE COMPANY............................................................... 1
RISK FACTORS.............................................................. 1
USE OF PROCEEDS........................................................... 1
DESCRIPTION OF THE PLAN................................................... 2
Purposes and Advantages................................................... 2
1. What is the Purpose of the Plan?.................................... 2
2. How may Shareholders or Unitholders of Record Purchase Common Shares
under the Plan?..................................................... 2
3. What are Some of the Advantages and Disadvantages of Participation
in the Plan?........................................................ 2
</TABLE>
<TABLE>
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PAGE
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Eligibility and Participation............................................. 3
4. Who is Eligible to Become a Participant?............................ 3
5. How does an Eligible Person Become a Participant?................... 4
6. What does the Enrollment Form Provide?.............................. 4
Reinvestment of Distributions............................................. 5
7. When will Distributions be Reinvested?.............................. 5
8. What Limitations Apply to Reinvestment of Distributions?............ 5
Purchases................................................................. 6
9. What is the Source of Common Shares Purchased under the Plan?....... 6
10. When Will Common Shares be Purchased for a Participant's Account?... 6
11. What is the Purchase Price of Common Shares Purchased by
Participants under the Plan?........................................ 6
12. How Many Common Shares will be Purchased for a Participant?......... 7
Plan Administration....................................................... 7
13. Who Administers the Plan?........................................... 7
14. What Reports are Sent to Participants in the Plan?.................. 7
15. What is Our Responsibility and that of the Agent Under the Plan?.... 8
Common Share Certificates................................................. 8
16. Are Certificates Issued to Participants for Common Shares Purchased
Under the Plan?..................................................... 8
17. What is the Effect on a Participant's Plan Account if a Participant
Requests a Certificate for Whole Common Shares Held in the
Account?............................................................ 8
18. May Common Shares Held in Certificate Form be Deposited in a
Participant's Plan Account?......................................... 8
</TABLE>
i
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<TABLE>
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PAGE
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Withdrawal From the Plan.................................................. 9
19. May a Participant Withdraw from the Plan?........................... 9
20. What Happens When a Participant Terminates an Account?.............. 9
21. When May a Former Participant Re-elect to Participate in the Plan?.. 9
Sale of Common Shares..................................................... 9
22. May a Participant Request that Common Shares Held in a Plan Account
be Sold?............................................................ 9
Other Information......................................................... 10
23. May Common Shares Held in the Plan be Pledged or Transferred?....... 10
24. What Happens if We Make a Distribution of Shares or Split our
Shares?............................................................. 10
25. What Happens if We Have a Rights Offering?.......................... 10
26. How are the Participant's Common Shares Voted at Shareholder
Meetings?........................................................... 10
27. May the Plan be Suspended or Terminated?............................ 10
28. May the Plan be Amended?............................................ 10
29. What Happens if the Plan is Terminated?............................. 11
30. Who Interprets and Regulates the Plan?.............................. 11
31. What Law Governs the Plan?.......................................... 11
FEDERAL INCOME TAX CONSIDERATIONS......................................... 11
Taxation of the Company.................................................. 11
General................................................................. 11
Opinion of Counsel...................................................... 12
Taxation of the Company................................................. 12
Requirements for Qualification.......................................... 13
Ownership of Partnership Interests...................................... 14
Income Tests............................................................ 14
Asset Tests............................................................. 16
</TABLE>
<TABLE>
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PAGE
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<S> <C>
Annual Distribution Requirements.......................................... 16
Absence of Earnings and Profits........................................... 17
Failure to Qualify........................................................ 18
Tax Aspects of the Company's Investments in Partnerships................... 18
General................................................................... 18
Entity Classification..................................................... 18
Tax Allocations with Respect to the Properties............................ 19
Sale of the Properties.................................................... 19
Taxation of Taxable Domestic Shareholders.................................. 19
Taxation of Tax-Exempt Shareholders........................................ 20
Taxation of Foreign Shareholders........................................... 20
Ordinary Distributions.................................................... 21
Return of Capital Distributions........................................... 21
Capital Gain Distributions................................................ 21
Disposition of Stock of the Company....................................... 22
Estate Tax................................................................ 22
Information Reporting and Backup Withholding............................... 22
U.S. Shareholders......................................................... 22
Foreign Shareholders...................................................... 23
Other Tax Consequences..................................................... 23
Possible Legislative or Other Actions Affecting Tax Consequences.......... 23
State and Local Taxes..................................................... 23
Tax Consequences Relating to the Plan...................................... 24
Reinvested Distributions................................................... 24
Reinvestment of Distributions by Unitholders............................... 24
Administrative Expenses.................................................... 25
Tax Consequences of Dispositions........................................... 25
DESCRIPTION OF CAPITAL STOCK................................................ 25
PLAN OF DISTRIBUTION........................................................ 25
LEGAL MATTERS............................................................... 26
EXPERTS..................................................................... 26
WHERE YOU CAN FIND MORE INFORMATION......................................... 27
</TABLE>
ii
<PAGE>
THE COMPANY
Westfield America, Inc. ("we", "us" or the "Company" as appropriate) is a
real estate investment trust (a "REIT") for U.S. Federal income tax purposes.
We are primarily in the business of owning, operating, leasing, developing,
redeveloping and acquiring shopping centers and power centers located primarily
in major metropolitan areas in the United States.
We currently own interests in a portfolio of 38 shopping centers, 12 separate
department store properties and certain other real estate investments. The
centers are located in eight states in the east coast, midwest and west coast
regions of the United States.
We have transferred substantially all of our assets to Westfield America
Limited Partnership (the "Operating Partnership"). We are the general partner
of the Operating Partnership. We conduct substantially all of our operations
through the Operating Partnership.
We have engaged a property management company, an asset management company
and a development company to provide property management, advisory and
development services, respectively, to us under agreements that expire in May
2000 and are renewable annually thereafter. Each of these companies is an
affiliate of Westfield Holdings Limited, an Australian public company ("WHL"
and together with its subsidiaries "Holdings").
In order to satisfy requirements of the Internal Revenue Code applicable to
REITs, we must distribute to our Shareholders 95% of our REIT taxable income
and meet certain other requirements. We will make, at a minimum, distributions
to our Shareholders sufficient to satisfy the distribution requirements of the
Internal Revenue Code.
Our common shares are listed on the New York Stock Exchange (the "NYSE")
under the symbol "WEA". Our principal executive offices are located at 11601
Wilshire Boulevard, 12th Floor, Los Angeles, California 90025; (310) 478-4456.
RISK FACTORS
Prospective investors should carefully consider, among other factors, the
risk factors we have disclosed in the Company's filings under the Securities
Exchange Act of 1934.
USE OF PROCEEDS
We will receive the net proceeds from any sale of our shares of common stock,
par value $.01 ("Common Shares") purchased by American Stock Transfer & Trust
Company (the "Agent") directly from us. We are required by the terms of the
limited partnership agreement of the Operating Partnership to contribute the
net proceeds from any sale of Common Shares to the Operating Partnership in
exchange for partnership common units in the Operating Partnership. The
Operating Partnership intends to use such net proceeds for general partnership
purposes, including, without limitation, working capital, capital expenditures,
investments in or loans to subsidiaries, the repayment or refinancing of debt,
possible future acquisitions or the satisfaction of other obligations. Pending
such use, the net proceeds may be temporarily invested. The precise amounts and
timing of the application of net proceeds will depend upon the funding
requirements of the Operating Partnership and its subsidiaries and the
availability of other funds.
We will not receive any proceeds from purchases of Common Shares by the Agent
in the open market or in negotiated transactions with third parties.
1
<PAGE>
DESCRIPTION OF THE PLAN
The following questions and answers describe the provisions of the Company's
Distribution Reinvestment Plan (the "Plan"). Those holders of our Common Shares
("Shareholders"), holders ("Preferred Shareholders") of the Company's Preferred
Shares, par value $1.00 ("Preferred Shares") and holders ("Unitholders") of
Investor Unit Rights of the Operating Partnership ("Units") who are not
participants in the Plan will continue to receive cash distributions, as usual,
if and when authorized and declared.
PURPOSES AND ADVANTAGES
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide owners of Common Shares, Preferred
Shares and/or Units with a simple, convenient and economical way to buy new
Common Shares with reinvested cash distributions. As of December 9, 1998, there
were 978,189 outstanding Units.
The Plan may also provide the Operating Partnership with a source of funds,
since the Common Shares acquired under the Plan may be purchased from us and
the proceeds invested in the Operating Partnership. See "Use of Proceeds." We
will not receive any proceeds from the purchase of Common Shares by the Agent,
as plan administrator, in the open market or through negotiated transactions
with third parties.
2. HOW MAY SHAREHOLDERS, PREFERRED SHAREHOLDERS AND UNITHOLDERS OF RECORD
PURCHASE COMMON SHARES UNDER THE PLAN?
Shareholders, and Preferred Shareholders and Unitholders to the extent
provided for by the Company, of record may have cash distributions on all or a
portion of their Common Shares, Preferred Shares or Units, registered in their
names automatically reinvested in Common Shares. Beneficial owners of Common
Shares registered in the name of a broker, bank or other nominee may
participate in the Plan either by having Common Shares transferred into their
own names or by making appropriate arrangements with their nominee record
holder to participate on their behalf (see Question 5). Beneficial owners who
participate in the Plan through their nominee may be subject to fees, from
their nominee, that could be deducted from the amount they invest through the
Plan.
3. WHAT ARE SOME OF THE ADVANTAGES AND DISADVANTAGES OF PARTICIPATION IN THE
PLAN?
The advantages of the Plan are:
. there are no fees or brokerage commissions on purchases of Common Shares,
by registered Shareholders, Preferred Shareholders or Unitholders of
record, directly from us;
. the price you pay for Common Shares purchased with reinvested
distributions will vary between 0% and 5% below the prevailing market
price; we currently estimate a 2% discount initially;
. the automatic reinvestment of cash distributions can help you add to your
investment over time in a systematic fashion;
. keeping track of your account and entering into new transactions is easy;
. you can purchase fractional Common Shares under the Plan. This enables you
to fully reinvest your cash distributions. Distributions will be paid on
the fractional shares, which too can be reinvested; and
. you don't have to worry about the certificates for your shares issued
under the Plan being lost or stolen, or wonder where they are located.
2
<PAGE>
The disadvantages of the Plan are:
. neither we nor the Agent will pay any interest on money held on behalf of
a plan participant pending reinvestment;
. the Agent, not the participant, determines the timing of investments;
. the purchase price for Common Shares may under certain circumstances be
greater than that which would have been obtained by a purchase through a
broker;
. the actual number of shares acquired by a participant will remain unknown
until after the Agent purchases the Common Shares;
. participants in the Plan will generally be treated as having received
distribution income on the distribution payment date (the "Distribution
Payment Date") equal to the value of the Common Shares received on that
date, as well as any cash distribution they receive, for Federal income
tax purposes; such distribution will generally give rise to a tax
liability notwithstanding the fact that participants received Common
Shares in lieu of cash. See "Federal Income Tax Consequences;"
. a participant bears the risk of loss and the benefits of gain from market
price changes for all of a participant's Common Shares. NEITHER WE NOR THE
AGENT CAN GUARANTEE THAT COMMON SHARES PURCHASED UNDER THE PLAN WILL, AT
ANY PARTICULAR TIME, BE WORTH MORE OR LESS THAN THEIR PURCHASE PRICE; and
. Common Shares purchased through the Plan from distributions on Preferred
Shares or Units will be subject to a thirty day holding period during
which they may not be sold, transferred or certificated.
. We, in our sole and absolute discretion, without prior written notice to
participants, may change our determination as to whether Common Shares
will be purchased by the Agent directly from us or through open market or
privately negotiated purchases. We expect that Common Shares purchased
under the Plan in the open market or in privately negotiated purchases
will not be available at a discount to the prevailing market price. We may
also, at any time and without prior notice to participants, lower or
eliminate the discount rate to prevailing market price on Common Shares to
be purchased directly from us.
. In addition to any other taxes, fees, or expenses, the Agent will charge a
$10.00 service fee on any sale of Common Shares through the Agent,
including a sale of a fractional share on termination of a participant's
plan account.
ELIGIBILITY AND PARTICIPATION
4. WHO IS ELIGIBLE TO BECOME A PARTICIPANT?
You are eligible to participate if you are a holder of record of Common
Shares, Preferred Shares or Units.
If your Common Shares are registered in some other person's name (for
instance, in the name of a broker, bank nominee or other record holder), then,
to enroll in the Plan, you must either:
. arrange participation through that other person, or
. have your shares transferred into your own name.
We can refuse to permit a broker, bank nominee or other record holder to
participate in the Plan if such participation would in our judgment result in
excessive cost or burden to us.
3
<PAGE>
Foreign citizens and foreign residents should make certain that their
participation will not violate or create undue burden under the laws of their
country, including laws regarding:
. taxes,
. currency and exchange controls,
. share registration, or
. foreign investments.
5. HOW DOES AN ELIGIBLE PERSON BECOME A PARTICIPANT?
An eligible person may elect to become a participant in the Plan at any time,
subject to our right to modify, suspend, terminate or refuse participation in
the Plan. To become a participant, complete the enrollment form enclosed with
this Prospectus and mail it to the Agent in care of American Stock Transfer &
Trust Company, Distribution Reinvestment, 40 Wall Street, New York, New York
10005. Additional enrollment forms may be requested by calling, toll free, 1-
800-278-4353. The submission deadline for enrollment forms is 5:00 p.m.
New York City time on the Trading Day immediately preceding the record date for
the relevant distribution payment. A "Trading Day" means a day on which the
NYSE is open for business. We may, in our sole and absolute discretion, waive
the submission deadline with respect to receipt of any particular enrollment
form.
In addition, a broker, bank or other nominee or trustee, all of whose Common
Shares are beneficially owned by others, who desires to participate in the Plan
on behalf of such beneficial owners, may participate in the Plan, subject to
our right to modify, suspend, terminate or refuse participation in the Plan.
Beneficial owners desiring to participate in the Plan should contact the
holder of record who holds Common Shares on behalf of such beneficial owners.
We may in our sole and absolute discretion establish other or additional
requirements that apply to participants who desire to participate in the Plan
on behalf of beneficial owners.
If a beneficial owner chooses to participate through a nominee record holder,
the Agent and the Company shall treat the nominee record holder as the
participant, and the beneficial owner shall have no direct rights as a
participant under the Plan. Beneficial owners who participate through a nominee
record holder must verify for themselves the extent to which their broker, bank
or other nominee will provide all of the services and features of the Plan
directly to them. Such beneficial owners must rely upon their broker, bank or
nominee for administering the beneficial owner's distributions and must
correspond exclusively with the broker, bank or nominee on all matters
regarding the Plan, including account statements, share withdrawal and
termination of participation in the Plan. The Agent will have no record of the
participation in the Plan by beneficial owners with respect to Common Shares
registered in a name other than their own.
6. WHAT DOES THE ENROLLMENT FORM PROVIDE?
The enrollment form authorizes the Agent to apply any distributions on Common
Shares, Preferred Shares and/or Units registered in the participant's name to
the purchase of full and fractional Common Shares for the participant's account
under the Plan. The enrollment form offers two reinvestment options:
(1) Full Distribution Reinvestment. To reinvest automatically all cash
distributions on all Common Shares, Preferred Shares and/or Units
registered in the participant's name to be applied to the purchase of
Common Shares.
4
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(2) Partial Distribution Reinvestment. To reinvest automatically only the
cash distributions paid on a specified number of Common Shares, Preferred
Shares and/or Units registered in the participant's name, to be applied
to the purchase of Common Shares, and to receive distributions on any
remaining Common Shares, Preferred Shares and Units in cash.
A participant may change his or her election by completing and signing a new
enrollment form and returning it to the Agent. Any election or change of
election concerning the reinvestment of distributions must be received by the
Agent by the relevant submission deadline, unless we waive the submission
deadline, in order for the election or change to become effective with that
distribution.
If a participant signs and returns an enrollment form without checking a
desired option, or checks a partial distribution reinvestment option without
specifying a number of Common Shares, Preferred Shares and/or Units, the
participant will be deemed to have selected the full distribution reinvestment
option.
REGARDLESS OF WHICH METHOD OF PARTICIPATION IS SELECTED, ALL CASH
DISTRIBUTIONS PAID ON COMMON SHARES PURCHASED PURSUANT TO THE PLAN WILL BE
REINVESTED AUTOMATICALLY.
REINVESTMENT OF DISTRIBUTIONS
7. WHEN WILL DISTRIBUTIONS BE REINVESTED?
If a properly completed enrollment form specifying "full distribution
reinvestment" or "partial distribution reinvestment" is received by the Agent
by the submission deadline established for a particular distribution payment,
(or we in our discretion waive such deadline) reinvestment of distributions
will begin with that distribution payment. If the enrollment form is received
after the submission deadline established for a particular distribution
payment, and we do not waive the deadline, that distribution will be paid in
cash and reinvestment of distributions will not begin until the next succeeding
distribution payment. In the past year, quarterly distribution record and
payment dates for the Common Shares, Preferred Shares and Units have occurred
on the following dates:
<TABLE>
<CAPTION>
RECORD DATE PAYMENT DATE
- ----------- ------------
<S> <C>
September 30, 1998............................................. October 30, 1998
June 30, 1998.................................................. July 30, 1998
March 31, 1998................................................. April 30, 1998
December 31, 1997.............................................. January 30, 1998
</TABLE>
Inquiries regarding upcoming quarterly distribution record and payment dates
for the Common Shares, Preferred Shares and Units should be directed to the
Agent at 1-800-278-4353.
8. WHAT LIMITATIONS APPLY TO REINVESTMENT OF DISTRIBUTIONS?
In order to comply with the requirements for qualification as a REIT
specified by the Internal Revenue Code, our Third Amended and Restated Articles
of Incorporation (our "Articles of Incorporation") place limits on ownership of
our capital stock, including the Common Shares. No individual (other than Frank
P. Lowy and members of the Lowy Family) may own directly or constructively more
than 5.5%, by value, of our outstanding capital stock. (The Lowy Family is
limited to an aggregate ownership of 26% of our outstanding capital stock.) The
Internal Revenue Code's rules regarding constructive ownership are broad and
complex and may cause capital stock owned directly or constructively by a group
of related entities to be constructively owned by one entity.
In the event of a transfer of our capital stock, including an attempted
purchase of Common Shares via the Plan, that would violate
5
<PAGE>
the ownership restrictions, we may (i) treat the transfer as void; and/or (ii)
transfer the Common Shares to a trust for the benefit of one or more charitable
organizations. In the latter case, the original intended transferee would have
a right to share in the proceeds of a sale by the trust of the shares involved,
but only to the extent of their purchase price for such shares. The intended
transferee would have no other rights with respect to such shares.
PURCHASES
9. WHAT IS THE SOURCE OF COMMON SHARES PURCHASED UNDER THE PLAN?
Purchases of Common Shares by the Agent for the Plan may be made, at our
option, either (i) directly from us out of our authorized but unissued Common
Shares or, if available, treasury Common Shares, or (ii) in the open market or
in negotiated transactions with third parties. Initially, we anticipate that
the Common Shares will be purchased by the Agent for the Plan directly from us,
but this may change from time to time.
10. WHEN WILL COMMON SHARES BE PURCHASED FOR A PARTICIPANT'S ACCOUNT?
Purchases of Common Shares directly from us will be made on the relevant
Distribution Payment Date. Purchases in the open market will begin on the
relevant Distribution Payment Date and will be completed no later than 30 days
after that date, except where completion at a later date is necessary or
advisable under any applicable securities laws or regulations. The exact timing
of open market purchases, including determining the number of Common Shares, if
any, to be purchased on any day or at any time on that day, the prices paid for
those Common Shares, the markets on which the purchases are made and the
persons (including brokers and dealers) from or through which the purchases are
made, will be determined by the Agent or the broker selected by it for that
purpose. Neither we, the Operating Partnership nor the Agent will be liable
when conditions, including compliance with the rules and regulations of the
SEC, prevent the purchase of Common Shares or interfere with the timing of
purchases.
Notwithstanding the above, funds will be distributed, without interest, to
participants if not used to purchase Common Shares within 30 days of the
Distribution Payment Date. In making purchases for a participant's account, the
Agent may commingle the participant's funds with those of other participants in
the Plan.
11. WHAT IS THE PURCHASE PRICE OF COMMON SHARES PURCHASED BY PARTICIPANTS
UNDER THE PLAN?
The price of Common Shares purchased by the Agent directly from us under the
Plan will be the average, calculated to four decimal places, of the closing
price of the Common Shares on the NYSE for the five Trading Days prior to the
relevant Distribution Payment Date discounted by the "Discount Rate." The
Discount Rate will range from 0% to 5% as determined by us no later than three
Trading Days prior to the relevant Distribution Payment Date. We currently
intend to set the Discount Rate at 2%. The Discount Rate is subject to change
for future distribution reinvestments, or complete discontinuance at our
discretion, without prior notice to the participants after a review of current
market conditions, the level of participation in the Plan and our projected
capital needs. Participants may obtain the applicable Discount Rate by
telephoning the Agent at (800) 278-4353 no earlier than three Trading Days
prior to the Distribution Payment Date. The Discount Rate will only be in
effect for purchases of Common Shares directly from us; if we elect to purchase
the Common Shares in the open market or in privately negotiated transactions,
the Discount Rate will not be applied to such purchases for the participant's
account.
6
<PAGE>
NOTWITHSTANDING ANYTHING ELSE IN THIS PROSPECTUS OR ANY DOCUMENT THAT THIS
PROSPECTUS INCORPORATES BY REFERENCE, UNDER NO CIRCUMSTANCES WILL THE PRICE OF
COMMON SHARES PURCHASED FROM US PURSUANT TO THE PLAN BE AT A PRICE LESS THAN
95% OF THE CLOSING PRICE OF THE COMMON SHARES ON THE NYSE ON THE DISTRIBUTION
PAYMENT DATE (THE "MINIMUM PURCHASE PRICE"). IF THE METHODS BY WHICH THE AGENT
CALCULATES THE PURCHASE PRICE FOR ANY COMMON SHARES TO BE PURCHASED PURSUANT TO
THE PLAN WOULD RESULT IN A PRICE LOWER THAN THE MINIMUM PURCHASE PRICE, THE
PURCHASE PRICE FOR THOSE SHARES SHALL BE THE MINIMUM PURCHASE PRICE.
We may change our determination that the Agent will purchase Common Shares
directly from us and instead determine that the Agent will purchase Common
Shares in the open market or in negotiated transactions, without prior notice
to participants. The price of Common Shares purchased in the open market or in
negotiated transactions with third parties with reinvested cash distributions
will be the weighted-average cost for all Common Shares so purchased under the
Plan in connection with the relevant Distribution Payment Date.
12. HOW MANY COMMON SHARES WILL BE PURCHASED FOR A PARTICIPANT?
The number of Common Shares to be purchased for a participant's account as of
any Distribution Payment Date will be equal to the dollar amounts to be
invested for the participant divided by the applicable purchase prices,
computed to the third decimal place. For a participant who has elected to
reinvest distributions on Common Shares, Preferred Shares and/or Units
registered in the participant's name, the dollar amounts to be invested as of
any Distribution Payment Date will be (1) the distribution on all or the
specified number of Common Shares, Preferred Shares and/or Units registered in
the participant's own name and (2) the distribution on all Common Shares
(including fractional shares) previously credited to the participant's plan
account.
The amount of distributions to be reinvested for each participant will be
reduced by any amount we are required to deduct or withhold in respect of the
distribution received, or considered to be received, by such participant.
PLAN ADMINISTRATION
13. WHO ADMINISTERS THE PLAN?
American Stock Transfer & Trust Company, as Agent for plan participants,
administers the Plan, keeps records, sends statements of account to
participants, provides safekeeping for the Common Shares and performs other
duties relating to the Plan. We pay all costs of administering the Plan. Common
Shares purchased from us under the Plan are issued in the name of the Agent or
its nominee, as agent for the participants in the Plan.
The following address may be used to obtain information about the Plan:
American Stock Transfer & Trust Company
Attention: Dividend Reinvestment
40 Wall Street
New York, NY 10005
Be sure to mention Westfield America, Inc., and, if you are already a plan
participant, your account number(s) in any correspondence.
14. WHAT REPORTS ARE SENT TO PARTICIPANTS IN THE PLAN?
After an investment is made for a participant's plan account, the participant
will be sent a statement which will provide a record of the costs of the Common
Shares purchased for that account, the purchase date and the number of Common
Shares in that account. These statements should be retained for income tax
purposes. In addition, each participant will be
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sent information which is provided to Shareholders, including our annual
report, notice of annual meeting and proxy statement and income tax information
for reporting distributions received.
All reports and notices from the Agent to a participant will be addressed to
the participant's last known address. Participants should notify the Agent
promptly in writing of any change of address.
15. WHAT IS OUR RESPONSIBILITY AND THAT OF THE AGENT UNDER THE PLAN?
We and the Agent, in administering the Plan, are not liable for any act done
in good faith or for any good faith omission to act, including, without
limitation, any claim of liability (1) with respect to the prices and times at
which Common Shares are purchased or sold for a participant, (2) with respect
to any fluctuation in market value before or after any purchase or sale of
Common Shares or (3) arising out of any failure to terminate a participant's
account upon that participant's death prior to receipt by the Agent of notice
in writing of the death. Neither we nor the Agent can provide any assurance of
a profit, or protect a participant from a loss, on Common Shares purchased
under the Plan. These limitations of liability do not affect any liabilities
arising under the Federal securities laws, including the Securities Act.
The Agent may resign as administrator of the Plan at any time, in which case
we will appoint a successor administrator. In addition, we may replace the
Agent with a successor administrator at any time.
COMMON SHARE CERTIFICATES
16. ARE CERTIFICATES ISSUED TO PARTICIPANTS FOR COMMON SHARES PURCHASED UNDER
THE PLAN?
A certificate for any number of whole Common Shares purchased by a
participant under the Plan or deposited with the Agent for safe-keeping will be
issued to the participant upon written request by the participant to the Agent.
These requests will be handled by the Agent, normally within two weeks, at no
charge to the participant. Any remaining whole Common Shares and any fractional
Common Shares will continue to be held in the participant's plan account.
Although fractional shares are accounted for, certificates for fractional
Common Shares will not be issued under any circumstances.
17. WHAT IS THE EFFECT ON A PARTICIPANT'S PLAN ACCOUNT IF A PARTICIPANT
REQUESTS A CERTIFICATE FOR WHOLE COMMON SHARES HELD IN THE ACCOUNT?
If a participant requests a certificate for whole Common Shares held in his
or her account, distributions on those shares will continue to be reinvested
under the Plan in the same manner as prior to the request so long as the shares
represented by the certificates remain registered in the participant's name. If
a participant disposes of all Common Shares, Preferred Shares or Units
registered in their name on the books of the Company or Operating Partnership,
as applicable, but does not give notice of termination under the Plan, the
Agent will continue to reinvest the distributions on the Common Shares until
otherwise directed.
18. MAY COMMON SHARES HELD IN CERTIFICATE FORM BE DEPOSITED IN A
PARTICIPANT'S PLAN ACCOUNT?
Yes, whether or not the participant has previously authorized reinvestment of
distributions, certificates registered in the participant's name may be
surrendered to the Agent for deposit in the participant's plan account. There
is no charge for such deposits. All distributions on any Common Shares
evidenced by certificates deposited in accordance with the Plan will
automatically be reinvested. The
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participant should contact the Agent for the proper procedure to deposit
certificates.
WITHDRAWAL FROM THE PLAN
19. MAY A PARTICIPANT WITHDRAW FROM THE PLAN?
Yes, a participant withdraws from the plan by either:
. providing written notice instructing the Agent to terminate the
participant's plan account; or
. changing residence to a state in which the Common Shares offered pursuant
to the Plan are not registered or exempt from registration under
applicable securities laws, in which case the Company will deem the
participant's plan account terminated.
20. WHAT HAPPENS WHEN A PARTICIPANT TERMINATES AN ACCOUNT?
If a participant's notice of termination is received by the Agent at least
one Trading Day prior to the record date for the next distribution payment,
reinvestment of distributions will cease as of the date the notice of
termination is received by the Agent. If the notice of termination is received
later than one Trading Day prior to the record date for a distribution payment,
the termination may not become effective until after the reinvestment of any
distributions paid on that Distribution Payment Date.
As soon as practicable after notice of termination is received, the Agent
will send to the participant (i) a certificate evidencing all whole Common
Shares held in the account and (ii) a check representing the value of any
fractional Common Share (determined by reference to the closing price of a
Common Share on the NYSE on the date termination is effective) held in the
account less any taxes, fees, expenses or service charges associated with the
sale of that fractional Common Share. After an account is terminated, all
distributions for the terminated account will be paid to the participant
subject to any re-election by the participant to participate in the Plan.
When terminating an account, the participant may request that all Common
Shares, both whole and fractional, held in the plan account be sold, or that
certain of the Common Shares be sold and a certificate be issued for the
remaining whole Common Shares. The Agent will remit to the participant the
proceeds of any sale of Common Shares, less any related trading fees, transfer
tax, other fees incurred by the Agent and a $10 service charge allocable to the
sale of those Common Shares.
21. WHEN MAY A FORMER PARTICIPANT RE-ELECT TO PARTICIPATE IN THE PLAN?
Generally, any former participant may re-elect to participate at any time.
However, the Agent reserves the right to reject any enrollment form on the
grounds of excessive joining and withdrawing. This reservation is intended to
minimize unnecessary administrative expense and to encourage use of the Plan as
a long-term investment service.
SALE OF COMMON SHARES
22. MAY A PARTICIPANT REQUEST THAT COMMON SHARES HELD IN A PLAN ACCOUNT BE
SOLD?
Yes, a participant may request that all or any number of Common Shares held
in a plan account be sold, either when an account is being terminated, as
described in Question 20 or without terminating the account. However,
fractional Common Shares will not be sold unless all Common Shares held in the
account are sold.
Within seven days after receipt of a participant's written request to sell
Common
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Shares held in a plan account, the Agent will place a sell order through a
broker or dealer designated by the Agent. The participant will receive the
proceeds of the sale, less any trading fees, withholding tax, transfer tax,
other fees incurred by the Agent and a $10 service charge allocable to the sale
of those shares. No participant will have the authority or power to direct the
date or price at which Common Shares may be sold. Proceeds of the sale will be
forwarded by the Agent to the participant within 30 days after receipt of the
participant's request to sell. If after taking into account all taxes, fees,
expenses and charges, there are no proceeds from a sale, the Agent shall so
notify the selling Participant.
The Agent may, at its discretion, aggregate and sell a participant's whole
and fractional shares with those of other participants. The proceeds to such
participant, in each case, will be the average sales price per share of all
shares so aggregated and sold multiplied by the number of whole and fractional
Common Shares sold by the participant, less the participant's pro rata share of
any brokerage commissions, withholding taxes, transfer taxes and other costs of
sale.
OTHER INFORMATION
23. MAY COMMON SHARES HELD IN THE PLAN BE PLEDGED OR TRANSFERRED?
Common Shares held in the Plan may not be pledged, sold or otherwise
transferred, except in accordance with question 22, and any such purported
pledge, sale or transfer will be void. A participant who wishes to pledge, sell
or transfer Common Shares in a manner other than as specified in question 22
must request that those shares first be withdrawn from the Plan.
24. WHAT HAPPENS IF WE MAKE A DISTRIBUTION OF SHARES OR SPLIT OUR SHARES?
If there is a distribution payable in Common Shares or a Common Share split,
the Agent will receive and credit to the participant's plan account the
applicable number of whole and/or fractional Common Shares based on the number
of Common Shares held in the participant's plan account.
25. WHAT HAPPENS IF WE HAVE A RIGHTS OFFERING?
If we have a rights offering in which separately tradable and exercisable
rights are issued to registered holders of our Common Shares, the rights
attributable to whole Common Shares held in a participant's plan account will
be transferred to the plan participant as promptly as practicable after the
rights are issued.
26. HOW ARE THE PARTICIPANT'S COMMON SHARES VOTED AT SHAREHOLDER MEETINGS?
Common Shares held for a participant in the Plan will be voted at Shareholder
meetings as that participant directs by proxy. We will send participants proxy
materials. Common Shares held in a participant's plan account may also be voted
in person at the meeting.
27. MAY THE PLAN BE SUSPENDED OR TERMINATED?
While we expect to continue the Plan indefinitely, we may suspend or
terminate the Plan at any time. We also reserve the right to suspend, terminate
or refuse participation in the Plan to any person at any time for any reason
(including without limitation excessive trading of the Common Shares). In
particular, we may suspend, terminate or refuse participation in the Plan to
any person at any time, if participation, or any increase in the number of
Common Shares held by that person, would, in our opinion, jeopardize our status
as a REIT.
28. MAY THE PLAN BE AMENDED?
We may amend or supplement the Plan at any time, including the period between
a
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distribution record date and the related Distribution Payment Date. Notice of
any amendments will be sent to Participants as soon as practicable after the
Company amends the Plan. The amendment or supplement will be deemed to be
accepted by a participant unless, prior to the effective date thereof, the
Agent receives written notice of the termination of a participant's plan
account. Any amendment may include an appointment by the Agent or by us of a
successor bank or agent, in which event we are authorized to pay that successor
bank or agent for the account of the participant all distributions payable on
Common Shares held by the participant for application by that successor bank or
agent as provided in the Plan.
29. WHAT HAPPENS IF THE PLAN IS TERMINATED?
If the Plan is terminated, each participant will receive (i) a certificate
for all whole Common Shares held in the participant's plan account and (ii) a
check representing the value of any fractional Common Share (determined by
reference to the closing price for a Common Share on the NYSE on the date of
the termination of the Plan) and any uninvested distributions held in the
participant's plan account, less the participant's share of any related
expenses. The Agent's $10 service charge will be waived if the Plan is
terminated.
30. WHO INTERPRETS AND REGULATES THE PLAN?
We are authorized to issue such interpretations, adopt such regulations and
take such action as we may deem reasonably necessary to effectuate the Plan.
Any action we or the Agent take to effectuate the Plan in the good faith
exercise of judgment will be binding on participants.
31. WHAT LAW GOVERNS THE PLAN?
The terms and conditions of the Plan and its operation will be governed by
the laws of the State of New York.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material Federal income tax considerations regarding
an investment in the Common Shares is based on current law, is for general
information only and is not tax advice. This discussion does not purport to
deal with all aspects of taxation that may be relevant to particular investors
in light of their personal investment or tax circumstances, or except to the
extent discussed under "--Taxation of Tax-Exempt Shareholders" and "--Taxation
of Foreign Shareholders," to certain types of investors (including insurance
companies, tax-exempt organizations, financial institutions or broker-dealers,
foreign corporations and persons who are not citizens or residents of the
United States) that are subject to special treatment under the Federal income
tax laws nor does it give a detailed discussion of any state, local or foreign
tax considerations. For purposes of this discussion, the term "Shareholders"
means any person who purchases Common Shares under the Plan.
EACH PROSPECTIVE PURCHASER SHOULD CONSULT WITH A TAX ADVISOR REGARDING THE
SPECIFIC TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND SALE OF THE COMMON
SHARES AND OF THE COMPANY'S ELECTION TO BE TAXED AS A REAL ESTATE INVESTMENT
TRUST INCLUDING THE FEDERAL, STATE, LOCAL, AND FOREIGN INCOME AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION, AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY
General
The REIT provisions of the Code are highly technical and complex. The
following sets forth
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the material aspects of the provisions of the Code that govern the Federal
income tax treatment of a REIT and its Shareholders. This summary is based on,
and qualified in its entirety by, current U.S. law, including the applicable
Code provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof, all of which are subject
to change which may apply retroactively.
Opinion of Counsel
The Company elected to be taxed as a REIT under the Code, commencing with its
taxable year ending December 31, 1994, and the Company intends to continue to
operate in a manner consistent with such election and all rules with which a
REIT must comply. Skadden, Arps, Slate, Meagher & Flom LLP has issued its
opinion that, commencing with the Company's taxable year ended December 31,
1994, the Company was organized in conformity with the requirements for
qualification as a REIT and its planned method of operation, and its actual
method of operation from February 12, 1994, will enable it to meet the
requirements for qualification and taxation as a REIT under the Code.
The foregoing opinion is based and conditioned upon certain assumptions and
representations made by the Company as of the date thereof regarding factual
matters. The opinion is expressed as of May 21, 1997, and Skadden, Arps, Slate,
Meagher & Flom LLP has no obligation to advise holders of the Common Shares of
any subsequent change in the matters stated, represented or assumed or any
subsequent change in the applicable law. The Company's qualification as a REIT
depends on the qualification of Westland Properties, Inc. ("WPI") during the
period that WPI was not wholly owned by the Company. Moreover, such
qualification and taxation as a REIT depends upon the Company having met and
continuing to meet through, among other things, actual annual operating
results, distribution levels and diversity of stock ownership, the various
qualification tests imposed under the Code as discussed below, the results of
which will not be reviewed by Skadden, Arps, Slate, Meagher & Flom LLP.
Accordingly, no assurance can be given that the actual results of the Company's
operations for any particular taxable year have satisfied or will satisfy such
requirements. See "--Failure to Qualify." An opinion of counsel is not binding
on the IRS, and no assurance can be given that the IRS will not challenge the
Company's eligibility for taxation as a REIT.
Taxation of the Company
If the Company continues to qualify for taxation as a REIT, it generally will
not be subject to Federal corporate income tax on its net income that is
currently distributed to Shareholders. This treatment substantially eliminates
the "double taxation" (at the corporate and Shareholder levels) that generally
results from investment in a corporation. However, the Company will be subject
to Federal income tax as follows: First, the Company will be taxed at regular
corporate rates on any undistributed REIT taxable income, including
undistributed net capital gains. Second, under certain circumstances, the
Company may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property, other
than certain foreclosure property, held primarily for sale to customers in the
ordinary course of business), such net income will be subject to a 100% tax.
Fourth, if the Company should fail to satisfy the 75% gross income test or the
95% gross income test (as discussed below), but has nonetheless maintained its
qualification as a REIT because certain other requirements have been met, it
will be subject to a 100% tax on an amount equal to (i) the gross income
attributable to the greater of
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the amount by which the Company fails the 75% or 95% test multiplied by (ii) a
fraction intended to reflect the Company's profitability. Fifth, if the Company
should fail to distribute during each calendar year at least the sum of (i) 85%
of its REIT ordinary income for such year, (ii) 95% of its REIT capital gain
net income for such year (other than certain long-term capital gain net income
which the Company elects to retain and pay tax on), and (iii) any undistributed
taxable income from prior periods, the Company would be subjected to a 4%
excise tax on the excess of such required distribution over the amounts
actually distributed. Sixth, if during the ten-year period beginning on the
first day of the first taxable year for which the Company qualified as a REIT
(the "Recognition Period"), the Company recognizes gain on the disposition of
any property (including any partnership interest) held by the Company or any
partnership in which an interest was held as of the beginning of such
Recognition Period, then, to the extent of the excess of (i) the fair market
value of such property as of the beginning of such Recognition Period over (ii)
the adjusted tax basis of the Company or the partnerships in such property as
of the beginning of such Recognition Period (the "Built-in Gain"), such gain
will be subject to tax at the highest corporate tax rate pursuant to IRS
regulations that have not yet been promulgated. Seventh, if the Company
acquires any asset from a C corporation (i.e., generally a corporation subject
to full corporate level tax) in a transaction in which the adjusted tax basis
of the asset in the hands of the Company is determined by reference to the
adjusted tax basis of the asset (or any other property) in the hands of the C
corporation, and the Company recognizes gain on the disposition of such asset
during the Recognition Period beginning on the date on which such asset was
acquired by the Company, then, to the extent of the Built-in Gain, such gains
will be subject to tax at the highest regular corporate tax rate pursuant to
IRS regulations that have not yet been promulgated.
The results described above with respect to the recognition of Built-in Gain
upon the acquisition of assets from a C corporation assume that the Company
will make an election pursuant to IRS Notice 88-19 and that the availability or
nature of such election is not modified as proposed in President Clinton's 1999
Federal Budget Proposal. In addition, the Company could also be subject to tax
in certain situations and on certain transactions not presently contemplated.
Requirements for Qualification
The Code defines a REIT as a corporation, trust or association (i) that is
managed by one or more trustees or directors; (ii) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (iii) which would be taxable as a domestic corporation,
but for the special Code provisions applicable to REITs; (iv) that is neither a
financial institution nor an insurance company subject to certain provisions of
the Code; (v) the beneficial ownership of which is held by 100 or more persons;
(vi) in which not more than 50% in value of the outstanding stock is owned,
directly or indirectly, by five or fewer individuals (as defined in the Code to
include certain entities); (vii) that makes an election to be a REIT (or has
made such election for a previous taxable year) and satisfies all relevant
filing and other administrative requirements established by the IRS that must
be met in order to elect and maintain REIT status; (viii) that uses a calendar
year for Federal income tax purposes and complies with the record keeping
requirements of the Code and Treasury Regulations promulgated thereunder; and
(ix) which meets certain other tests described below (including with respect to
the nature of its income and assets). The Code provides that conditions (i)
through (iv) must be met during the entire taxable year, that condition (v)
must be met during at least 335 days of a taxable year of 12 months, or during
a proportionate part of a taxable year of less than
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12 months, and that condition (vi) must be met during the last half of each
taxable year. The Company believes that it satisfies all of the conditions set
forth above. In order to comply with the share ownership tests described in
conditions (v) and (vi) above, the Articles provide certain restrictions on the
transfer of its capital stock to prevent concentration of stock ownership.
These restrictions may not ensure that the Company will, in all cases, be able
to satisfy the share ownership tests set forth above. If a REIT complies with
all the requirements for ascertaining the ownership of its outstanding stock in
a taxable year and does not know or have reason to know that it violated the
share ownership tests set forth above, the REIT will be deemed to have complied
with such tests for such taxable year.
To monitor the Company's compliance with the share ownership requirements,
the Company is required to maintain records regarding the actual ownership of
its shares. To do so, the Company must demand written statements each year from
the record holders of certain percentages of its stock in which the record
holders are to disclose the actual owners of the shares (i.e., the persons
required to include in gross income the REIT distributions). A list of those
persons failing or refusing to comply with this demand must be maintained as
part of the Company's records. A Shareholder who fails or refuses to comply
with the demand must submit a statement with its U.S. Federal income tax return
disclosing the actual ownership of the shares and certain other information.
The Company will not incur a penalty for failure to comply with the foregoing
requirements to the extent that such failure is due to reasonable cause and not
to willful neglect on the part of the Company.
Ownership of Partnership Interests
In the case of a REIT that is a partner in a partnership, regulations provide
that the REIT is deemed to own its proportionate share of the partnership's
assets and to earn its proportionate share of the partnership's income. In
addition, the assets and gross income of the partnership retain the same
character in the hands of the REIT for purposes of the gross income and asset
tests applicable to REITs as described below. Thus, the Company's proportionate
share of the assets, liabilities and items of income of the partnership will be
treated as assets, liabilities and items of income of the Company for purposes
of applying the REIT requirements described herein. A summary of certain rules
governing the Federal income taxation of partnerships and their partners is
provided below in "--Tax Aspects of the Company's Investments in Partnerships."
Income Tests
In order to maintain qualification as a REIT, the Company annually must
satisfy two gross income requirements. First, at least 75% of the Company's
gross income (excluding gross income from "prohibited transactions," i.e.,
certain sales of property held primarily for sale to customers in the ordinary
course of business) for each taxable year must be derived directly or
indirectly from investments relating to real property or mortgages on real
property (including "rents from real property" and interest on obligations
secured by mortgages on real property or on interest in real property, and
distributions or other distributions on a gain from the sale of stock in other
REITs) or from certain types of temporary investments. Second, at least 95% of
the Company's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived from such real property
investments, and from other distributions, interest and gain from the sale or
disposition of stock or securities (or from any combination of the foregoing).
Income earned on liability hedges against the Company's indebtedness, such as
option, futures, and forward contracts will qualify for the 95% test (but not
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the 75% test). In certain cases, Treasury Regulations treat a variable rate
and/or foreign currency debt instrument and a liability and/or currency hedge
as a synthetic debt instrument for all purposes of the Code. If a hedge entered
into by the Company is subject to these Treasury Regulations, income earned on
the hedge will operate to reduce its interest expense, and, therefore such
income will not affect the Company's compliance with either the 75% or 95%
tests.
Rents received by the Company from the tenants of real property owned
directly, through partnerships in which it has a direct or indirect ownership
interest (collectively, the "Partnerships"), or through its wholly-owned
subsidiary corporations ("qualified REIT subsidiaries," as described below)
will qualify as "rents from real property" in satisfying the gross income
requirements described above, only if several conditions are met, including the
following. If rent attributable to personal property leased in connection with
a lease of real property is greater than 15% of the total rent received under
the lease, then the portion of rent attributable to such personal property will
not qualify as "rents from real property." Moreover, for rents received to
qualify as "rents from real property," the REIT generally must not operate or
manage the property or furnish or render services to the tenants of such
property, other than through an "independent contractor" from which the REIT
derives no revenue. However, the Company (or its affiliates) are permitted to,
and do directly perform services that are "usually or customarily rendered" in
connection with the rental of space for occupancy only and are not otherwise
considered rendered to the occupant of the property. In addition, the Company
(or its affiliates) may provide non-customary services to tenants of its
properties without disqualifying all of the rent from the property if the
payment for such services does not exceed 1% of the total gross income from the
property. For purposes of this test, the income received from such non-
customary services is deemed to be at least 150% of the direct cost of
providing the services. Because certain properties are managed by third
parties, the ability to treat amounts from such property as "rents from real
property" will be dependent on the actions of others and will not be within the
control of the Company. In addition, the Company generally may not and will not
charge rent that is based in whole or in part on the income or profits of any
person (except by reason of being based on a percentage of the tenant's gross
receipts or sales). Finally, rents derived from tenants that are at least 10%
owned, directly or constructively, by the Company do not qualify as "rents from
real property" for purposes of the gross income requirements. While the Company
regularly attempts to monitor such requirements and diligently attempts to
comply with them, no assurance can be given that the Company will not realize
income that does not qualify as "rents from real property," and that such
amounts, when combined with other nonqualifying income, may exceed 5% of the
Company's taxable income and thus disqualify the Company as a REIT.
The Company has derived and continues to derive income from certain sources
that are not described above and that generally do not constitute qualifying
income for purposes of the gross income requirements. While no assurance can be
given that the IRS would not successfully assert otherwise, the Company
believes that the aggregate amount of such income in any taxable year will not
exceed the limits on nonqualifying income under the gross income tests.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions will be generally available if the Company's failure to meet such
tests was due to
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reasonable cause and not due to willful neglect, the Company attaches a
schedule of the sources of its income to its return, and any incorrect
information on the schedule was not due to fraud with intent to evade tax. It
is not possible, however, to state whether in all circumstances the Company
would be entitled to the benefit of these relief provisions. If these relief
provisions are inapplicable to a particular set of circumstances involving the
Company, the Company will not qualify as a REIT. As discussed above, even where
these relief provisions apply, a tax is imposed with respect to the excess of
the actual amount of nonqualifying income over the amount permitted under the
gross income tests.
Asset Tests
The Company, at the close of each quarter of its taxable year, must also
satisfy three tests relating to the nature of its assets. First, at least 75%
of the value of the Company's total assets must be represented by real estate
assets (including its allocable share of real estate assets held by the
Partnerships), stock in other REITs, stock or debt instruments held for not
more than one year purchased with the proceeds of a stock offering or long-term
(at least five years) debt offering of the Company, cash, cash items and U.S.
government securities. Second, not more than 25% of the Company's total assets
may be represented by securities other than those in the 75% asset class.
Third, of the investments not included in the 75% asset class, the value of any
one issuer's securities owned by the Company may not exceed 5% of the value of
the Company's total assets, and the Company may not own more than 10% of any
one issuer's outstanding voting securities.
The Company's indirect interests in certain of the Partnerships and certain
properties are held through wholly-owned corporate subsidiaries of the Company
organized and operated as "qualified REIT subsidiaries" within the meaning of
the Code. Qualified REIT subsidiaries are not treated as separate entities from
their parent REIT for Federal income tax purposes. Instead, all assets,
liabilities and items of income, deduction and credit of each qualified REIT
subsidiary are treated as assets, liabilities and items of the Company. Each
qualified REIT subsidiary therefore will not be subject to Federal corporate
income taxation, although it may be subject to state or local taxation.
In addition, the Company's ownership of stock of each qualified REIT
subsidiary and its interest in the Partnerships do not violate either the 5%
value restriction or the restriction against ownership of more than 10% of the
voting securities of any issuer. Similarly, the ownership by the Company of any
other REIT will not violate these restrictions.
If the Company should fail to satisfy the asset test at the end of a calendar
quarter, such a failure would not cause it to lose its REIT status if (i) it
satisfied the asset tests at the close of the preceding calendar quarter and
(ii) the discrepancy between the value of the Company's assets and the asset
test requirements arose from changes in the market value of its assets and was
not wholly or partly caused by the acquisition of one or more non-qualifying
assets. If the condition described in clause (ii) of the preceding sentence
ware not satisfied, the Company still could avoid disqualification by
eliminating, any discrepancy within 30 days after the close of the calendar
quarter in which it arose.
Annual Distribution Requirements
In order to-qualify as a REIT, the Company is required to make distributions
(other than capital gain distributions) to its Shareholders in an amount at
least equal to (i) the sum of (a) 95% of the Company's "REIT taxable income"
(computed without regard to the distributions paid deduction and the Company's
net capital gain to the extent designated as a capital gain
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distribution) and (b) 95% of the net income (after tax), if any, from
foreclosure property, minus (ii) the sum of certain items of noncash income.
Such distributions must be paid in the taxable year to which they relate, or in
the following taxable year if declared before the Company timely files its tax
return for such year and if paid with or before the first regular distribution
payment after such declaration. To the extent that the Company does not
distribute all of its net capital gain or distributes at least 95%, but less
than 100%, of its "REIT taxable income," as adjusted, it will be subject to tax
thereon at the capital gains or ordinary corporate tax rates, as the case may
be. Furthermore, if the Company should fail to distribute during each calendar
year at least the sum of (i) 85% of its REIT ordinary income for such year,
(ii) 95% of its REIT capital gain income for such year (other than certain
long-term capital gains income which the Company elects to retain and pay tax
on), and (iii) any undistributed taxable income from prior periods, the Company
would be subject to a 4% excise tax on the excess of such required distribution
over the amounts actually distributed. The Company believes that it has made,
and the Company intends to continue to make, timely distributions sufficient to
satisfy this annual distribution requirement.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at the Company's REIT taxable income. In the event
that such timing differences occur, in order to meet the 95% distribution
requirement, the Company may find it necessary to arrange for short-term, or
possibly long-term, borrowings (on terms that may not be favorable to the
Company) or to pay distributions in the form of taxable distributions of
property.
Under certain circumstances, the Code permits the Company to rectify a
failure to meet the distribution requirement for a year by paying "deficiency
distributions" to Shareholders in a later year, which may be included in the
Company's deduction for distributions paid for the earlier year. Thus, the
Company may avoid being taxed on amounts distributed as deficiency
distributions. The Company would, however, be required to pay interest based on
the amount of any deduction taken for deficiency distributions.
Absence of Earnings and Profits
The Code provides that, in the case of a corporation such as the Company that
was formerly a taxable C corporation and in the case of a corporation that is
acquired by the Company, the Company may qualify as a REIT for a taxable year
only if, as of the close of the such year, it has no "earnings and profits"
accumulated in any non-REIT year. The Company and its former owners retained
independent certified public accountants to determine the Company's earnings
and profits as of February 11, 1994 (and December 31, 1994) for purposes of the
distribution requirement. The determination by the independent certified public
accountants that the Company had no non-REIT earnings and profits was based
upon the Company's tax returns as filed with the IRS and other assumptions and
qualifications set forth in the reports issued by such accountants. The Company
also believes it has satisfied this requirement with respect to each
corporation that has been acquired.
Any adjustments to the Company's taxable income for taxable years ending on
or before the effective date of its REIT election, including as a result of an
examination of its returns by the IRS, could affect the calculation of its
earnings and profits as of the appropriate measurement date. Furthermore, the
determination of earnings and profits requires the resolution of certain
technical tax issues with respect to which there is no
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authority directly on point and, consequently, the proper treatment of these
issues for earnings and profits purposes is not free from doubt. There can be
no assurance that the IRS will not examine the tax returns of the Company for
prior years and propose adjustments to increase its taxable income. In this
regard, the IRS can consider all taxable years of a corporation as open for
review for purposes of determining the amount of such earnings and profits.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to Shareholders in any year in which the
Company fails to qualify will not be deductible by the Company nor will they be
required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to Shareholders will be taxable as
ordinary income, and, subject to certain limitations of the Code, corporate
distributees may be eligible for the distributions received deduction. Unless
entitled to relief under specific statutory provisions, the Company will also
be disqualified from taxation as a REIT for the four taxable years following
the year during which qualification was lost. It is not possible to state
whether in all circumstances the Company would be entitled to such statutory
relief. In addition, a recent Federal budget proposal contains language which,
if enacted in its present form, would result in the immediate taxation of all
gain inherent in a C corporation's assets upon an election by the corporation
to become a REIT and thus would effectively preclude the Company from re-
electing REIT status following a termination of its REIT qualification.
TAX ASPECTS OF THE COMPANY'S INVESTMENTS IN PARTNERSHIPS
General
Substantially all of the Company's investments are held indirectly through
partnerships (including LLCs treated as partnerships for Federal income tax
purposes). In general, partnerships are "pass-through" entities that are not
subject to Federal income tax. Rather, partners are allocated their
proportionate shares of the items of income, gain, loss, deduction and credit
of a partnership, and are potentially subject to tax thereon, without regard to
whether the partners receive a distribution from the partnership. The Company
will include in its income its proportionate share of the foregoing partnership
items for purposes of the various REIT income tests and in the computation of
its REIT taxable income.
Moreover, for purposes of the REIT asset tests, the Company will include its
proportionate share of assets held by such partnerships. See "--Taxation of the
Company--Ownership of Partnership Interests."
Entity Classification
The Company's direct and indirect investment in partnerships (including LLCs
treated as partnerships for Federal income tax purposes) involves special tax
considerations, including the possibility of a challenge by the IRS of the
status of any of the partnerships as a partnership (as opposed to an
association taxable as a corporation) for Federal income tax purposes which are
not classified under the "Check-The-Box Regulations." lf certain of these
entities were treated as an association for Federal income tax purposes, it
would be taxable as a corporation and therefore subject to an entity-level tax
on its income. In such a situation, the character of the Company's assets and
items of gross income would change, which could preclude the
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Company from satisfying the asset tests and/or the income tests (see "--
Taxation of the Company--Asset Tests" and "--Taxation of the Company--Income
Tests"), and in turn could prevent the Company from qualifying as a REIT. See
"--Taxation of the Company--Failure to Qualify" above for a discussion of the
effect of the Company's failure to meet such tests for a taxable year. In
addition, any change in the status of any of the partnerships for tax purposes
might be treated as a taxable event, in which case the Company might incur a
tax liability without any related cash distributions.
Tax Allocations with Respect to the Properties
Pursuant to the Code and the regulations thereunder, income, gain, loss and
deduction attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the partnership
must be allocated in a manner such that the contributing partner is charged
with, or benefits from, respectively, the unrealized gain or unrealized loss
associated with the property at the time of the contribution. The amount of
such unrealized gain or unrealized loss is generally equal to the difference
between the fair market value of contributed property at the time of
contribution, and the adjusted tax basis of such property at the time of
contribution (a "Book-Tax Difference"). Such allocations are solely for Federal
income tax purposes and do not affect the book capital accounts or other
economic or legal arrangements among the partners. Where a partner contributes
cash to a partnership that holds appreciated property, the Treasury regulations
provide for a similar allocation of such items to the other partners. These
rules would apply to the contribution by the Company to an existing partnership
of the cash proceeds received in any offerings of its stock.
With respect to any property purchased or to be purchased by any of the
partnerships (other than through the issuance of partnership units), such
property will initially have a tax basis equal to its fair market value and the
special allocation provisions described above will not apply.
Sale of the Properties
The Company's share of any gain realized by any partnership in which it holds
a direct or indirect interest on the sale of any property held as inventory or
primarily for sale to customers in the ordinary course of business will be
treated as income from a prohibited transaction that is subject to a 100%
penalty tax. See "--Requirements for Qualification--Income Tests." Such
prohibited transaction income may also have an adverse effect on the Company's
ability to satisfy the income tests for status as a REIT. Under existing law,
whether property is held as inventory or primarily for sale to customers in the
ordinary course of a partnership's trade or business is a question of fact that
depends on all the facts and circumstances with respect to the particular
transaction. The Company intends to hold its interests in the subject
partnerships, and such partnerships intend to hold their properties for
investment with a view to long-term appreciation, to engage in the business of
acquiring, developing, owning, and operating the properties and to make such
occasional sales of the properties, including peripheral land, as are
consistent with the Company's investment objectives. Accordingly, the Company
believes that its interests in the subject partnerships, and such partnerships'
interests in the properties will not be treated as inventory or as property
held primarily for sale to customers in the ordinary course of a trade or
business.
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable domestic Shareholders out of current or
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accumulated earnings and profits (and not designated as capital gain
distributions or retained net long-term capital gains) will be taken into
account by them as ordinary income and will not be eligible for the
distributions received deduction for corporations. Distributions that are
designated as capital gain distributions will be taxed as long-term capital
gain (to the extent that they do not exceed the Company's actual net capital
gain for the taxable year) without regard to the period for which the
Shareholder has held its stock. If the Company elects to retain their share of
capital gains rather than distribute them, a Shareholder will be deemed to
receive a capital gain distribution equal to the amount of such retained net
long-term capital gains. A Shareholder will be allowed a credit against its
Federal income tax liability for its proportionate share of tax paid by the
Company on retained capital gains. Such gains are subject to apportionment
among the three tax rate groups as set forth above. Corporate Shareholders may
be required to treat up to 20% of certain capital gain distributions as
ordinary income.
Distributions in excess of current and accumulated earnings and profits will
not be taxable to a Shareholder to the extent that they do not exceed the
adjusted tax basis of the Shareholder's shares, but rather will reduce the
adjusted tax basis of such shares. To the extent that such distributions exceed
the adjusted tax basis of a Shareholder's shares, they will be included in
income as long-term capital gain (or short-term capital gain if the shares have
been held for one year or less) provided that the shares are a capital asset in
the hands of the Shareholder. In addition, any distribution declared by the
Company in October, November or December of any year and payable to a
Shareholder of record on a specified date in any such month shall be treated as
both paid by the Company and received by the Shareholder on December 31 of such
year, provided that the distribution is actually paid by the Company during
January of the following calendar year. Shareholders may not include in their
individual income tax returns any net operating losses or capital losses of the
Company.
In general, any loss upon a sale or exchange of shares by a Shareholder who
has held such shares for six months or less (after applying certain holding
period rules) will be treated as a long-term capital loss to the extent that
distributions from the Company are required to be treated by such Shareholder
as long-term capital gain.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
Based upon a published ruling by the IRS, distributions by the Company to a
Shareholder that is a tax-exempt entity will not constitute "unrelated business
taxable income" ("UBTI"), provided that the tax-exempt entity has not financed
the acquisition of its shares with "acquisition indebtedness" within the
meaning of the Code and the shares are not otherwise used in an unrelated trade
or business of the tax-exempt entity.
Notwithstanding the preceding paragraph, however, a portion of the
distributions paid by the Company may be treated as UBTI to certain U.S.
private pension trusts if the Company is treated as a "pension-held REIT." The
Company is not, and does not expect to become, a "pension-held REIT." If the
Company were to become a pension-held REIT these rules generally would only
apply to certain U.S. pension trusts that hold more than 10% of the Company's
stock.
TAXATION OF FOREIGN SHAREHOLDERS
The following is a discussion of certain anticipated U.S. Federal income and
estate tax consequences of the ownership and disposition of the Company's stock
applicable to Non-U.S. Holders of such stock. A "Non-U.S. Holder" is
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any person other than (i) a citizen or resident of the United States, (ii) a
corporation or partnership created or organized in the United States or under
the laws of the United States or of any state thereof, (iii) an estate or trust
whose income is includible in gross income for U.S. Federal income tax purposes
regardless of its source, or (iv) a trust if a United States court is able to
exercise primary supervision over the administration of such trust and one or
more United States fiduciaries have the authority to control all substantial
decisions of such trust. The discussion is based on current law and is for
general information only. The discussion addresses only certain and not all
aspects of U.S. Federal income and estate taxation.
Ordinary Distributions
The portion of distributions received by Non-U.S. Holders payable out of the
Company's earnings and profits which are not attributable to capital gains of
the Company and which are not effectively connected with a U.S. trade or
business of the Non-U.S. Holder will be subject to U.S. withholding tax at the
rate of 30% (or lower rate, if so provided by an applicable income tax treaty).
In general, Non-U.S. Holders will not be considered engaged in a U.S. trade or
business solely as a result of their ownership of stock of the Company. In
cases where the distribution income from a Non-U.S. Holder's investment in
stock of the Company is (or is treated as) effectively connected with the Non-
U.S. Holder's conduct of a U.S. trade or business, the Non-U.S. Holder
generally will be subject to U.S. tax at graduated rates, in the same manner as
U.S. Shareholders are taxed with respect to such distributions (and may also be
subject to the 30% branch profits tax in the case of a Non-U.S. Holder that is
a foreign corporation).
Return of Capital Distributions
Distributions by the Company to a Non-U.S. Holder who holds 5% or less of the
Common Shares (after application of certain constructive ownership rules) which
are not distributions out of the earnings and profits of the Company will not
be subject to U.S. income or withholding tax. If it cannot be determined at the
time a distribution is made whether or not such distribution will be in excess
of current and accumulated earnings and profits, the distribution will be
subject to withholding at the rate applicable to ordinary distributions.
Distributions by the Company to a Non-U.S. Holder who holds more than 5% of the
Common Shares (after application of certain constructive ownership rules) will
be subject to U.S. withholding tax regardless of whether such distributions
exceed the earnings and profits of the Company. Any Non-U.S. Holder (regardless
of ownership percentage) may, however, seek a refund of amounts withheld from
any distribution if it is subsequently determined that such distribution was,
in fact, in excess of the current earnings and profits of the Company.
Capital Gain Distributions
Under the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"), a
distribution made by the Company to a Non-U.S. Holder, to the extent
attributable to gains from dispositions of United States Real Property
Interests ("USRPIs") such as the properties beneficially owned by the Company
("USRPI Capital Gains"), will be considered to be income effectively connected
with a U.S. trade or business of the Non-U.S.-Holder and subject to U.S. income
tax at the rate applicable to U.S. individuals or corporations, without regard
to whether such distribution is designated as a capital gain distribution. In
addition, the Company will be required to withhold tax equal to 35% of the
amount of distributions to the extent such distributions constitute USRPI
Capital Gains. Distributions subject to FIRPTA may also be subject to a 30%
branch profits tax in the hands of a foreign corporate Shareholder that is not
entitled to treaty exemption.
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Disposition of Stock of the Company
Unless the Company's stock constitutes a USRPI, a sale of such stock by a
Non-U.S. Holder generally will not be subject to U.S. taxation under FIRPTA.
The stock will not constitute a USRPI if the Company is a "domestically
controlled REIT." A domestically controlled REIT is a REIT in which, at all
times during a specified testing period, less than 50% in value of its shares
is held directly or indirectly by Non-U.S. Holders. The Company is not a
domestically controlled REIT. A Non-U.S. Holder's sale of stock generally
nevertheless will not be subject to tax under FIRPTA as a sale of a USRPI
provided that (i) the stock is "regularly traded" (as defined by applicable
Treasury regulations) on an established securities (e.g., the NYSE, on which
the regularly traded Common Shares will be listed) and (ii) the selling Non-
U.S. Holder (after application of certain constructive ownership rules) held 5%
or less of the Company's outstanding stock or the regularly traded class at all
times during a specified testing period.
If gain in the sale of stock of the Company were subject to taxation under
FIRPTA, the Non-U.S. Holder would be subject to the same treatment as a U.S.
Shareholder with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals) and the purchaser of the stock could be required to withhold
10% of the purchase price and remit such amount to the IRS.
Capital gains not subject to FIRPTA will nonetheless be taxable in the United
States to a Non-U.S. Holder in two cases: (i) if the Non-U.S. Holder's
investment in the stock of the Company is effectively connected with a U.S.
trade or business conducted by such Non-U.S. holder, and (ii) the Non-U.S.
Holder is a nonresident alien individual who was present in the United States
for 183 days or more during the taxable year and has a "tax home" in the United
States.
Estate Tax
Stock of the Company owned or treated as owned by an individual who is not a
citizen or resident (as specially defined for U.S. Federal estate tax purposes)
of the United States at the time of death will be includible in the
individual's gross estate for U.S. Federal estate tax purposes, unless an
applicable estate tax treaty provides otherwise. Such individual's estate may
be subject to U.S. Federal estate tax on the property includible in the estate
for U.S. Federal Estate tax purposes.
INFORMATION REPORTING AND BACKUP WITHHOLDING
U.S. Shareholders
The Company will report to the U.S. Shareholders and the IRS the amount of
distributions paid during each calendar year and the amount of tax withheld, if
any. Under the backup withholding rules, a U.S. Shareholder may be subject to
backup withholding at the rate of 31% with respect to distribution paid unless
such holder (i) is a corporation or comes within certain other exempt
categories and, when required, demonstrates this fact, or (ii) provides a
taxpayer identification number, certifies as to no loss of exemption from
backup withholding, and otherwise complies with applicable requirements of the
backup withholding rules. A U.S. Shareholder that does not provide the Company
with his correct taxpayer identification number may also be subject to
penalties imposed by the IRS. Any amount paid as backup withholding will be
creditable against the U.S. Shareholder's income tax liability. In addition,
the Company may be required to withhold a portion of capital gain distributions
to any U.S. Shareholders who fails to certify their nonforeign status to the
Company. See "Federal Income Tax Considerations--Taxation of Foreign
Shareholders."
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Foreign Shareholders
The Company must report annually to the IRS and to each Non-U.S. Holder the
amount of distributions (including any capital gain distributions) paid to, and
the tax withheld with respect to, such Non-U.S. Holder. These reporting
requirements apply regardless of whether withholding was reduced or eliminated
by an applicable tax treaty. Copies of these returns may also be made available
under the provisions of a specific treaty or agreement with the tax authorities
in the country in which the Non-U.S. Holder resides.
U.S. backup withholding (which generally is imposed at the rate of 31% on
certain payments to persons that fail to furnish the information required under
the U.S. information reporting requirements) and information reporting
generally will not apply to distributions (including any capital gain
distributions) paid on stock of the Company to a Non-U.S. Holder at an address
outside the United States.
The payment of the proceeds from the disposition of stock of the Company to
or through a U.S. office of a broker will be subject to information reporting
and backup withholding unless the owner, under penalties of perjury, certifies,
among other things, its status as a Non-U.S. Holder, or otherwise establishes
an exemption. The payment of the proceeds from the disposition of stock to or
through a non-U.S. office of a non-U.S. broker generally will not be subject to
backup withholding and information reporting.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules will be refunded or credited against the Non-U.S.
Holder's U.S. Federal income tax liability, provided that the required
information is furnished to the IRS.
The IRS has issued final Treasury Regulations regarding the backup
withholding rules as applied to Non-U.S. Holders. Those final Treasury
Regulations alter the current system of backup withholding compliance and will
be effective for payments made after December 31, 1999. Prospective purchasers
should consult their-tax advisors regarding the application of the final
Treasury Regulations and the potential effect on their ownership of Common
Shares.
OTHER TAX CONSEQUENCES
Possible Legislative or Other Actions Affecting Tax Consequences
Prospective investors should recognize that the present Federal income tax
treatment of an investment in the Company may be modified by legislative,
judicial or administrative action at any time, and that any such action may
affect investments and commitments previously made. The rules dealing with
Federal income taxation are constantly under review by persons involved in the
legislative process and by the IRS and the U.S. Treasury Department, resulting
in revisions of regulations and revised interpretations of established concepts
as well as statutory changes. Revisions in Federal tax laws and interpretations
thereof could adversely affect the tax consequences of an investment in the
Company. For example, a recent Federal budget proposal contains language which,
if enacted in its, present form, would result in the immediate taxation of all
gain inherent in a C corporation's assets upon an election by the corporation
to become a REIT, and thus would effectively preclude the Company from re-
electing REIT status following a termination of its REIT qualification.
State and Local Taxes
The Company and its Shareholders may be subject to state or local income and
other taxation in various state or local jurisdictions, including those in
which it or they transact business or reside. The state and local tax treatment
of the Company and its Shareholders may not conform
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to the Federal income tax consequences discussed above. Consequently,
prospective Shareholders should consult their own tax advisors regarding the
effect of state and local tax laws on an investment in the Company.
TAX CONSEQUENCES RELATING TO THE PLAN
The following discussion summarizes the principal federal income tax
consequences, under current law, of participation in the Plan. It does not
address all potentially relevant federal income tax matters, including
consequences peculiar to persons subject to special provisions of the federal
income tax law (such as banks, insurance companies, and foreign persons). The
discussion is based on the Internal Revenue Code, regulations promulgated
thereunder, and rulings of the Internal Revenue Service (the "IRS") all of
which are subject to change, possibly with retroactive effect. No ruling of the
IRS has been issued or will be received regarding the Plan. THE FOLLOWING
DISCUSSION IS GENERAL INFORMATION ONLY, AND PARTICIPANTS SHOULD CONSULT THEIR
TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES THAT MAY RESULT FROM
PARTICIPATION IN THE PLAN AND THE DISPOSITION OF ANY SHARES OF COMMON SHARES
PURCHASED PURSUANT TO THE PLAN.
REINVESTED DISTRIBUTIONS
Participants in the Plan should be treated for federal income tax purposes as
having received, on the Distribution Payment Date, a distribution in an amount
equal to the fair market value of the shares of Common Shares acquired with
reinvested distributions plus any cash distributed. If the Company elects to
purchase shares of Common Shares from third parties, then Participants in the
Plan shall be treated for Federal income tax purposes as having received, on
the Distribution Payment Date, a distribution in an amount equal to the sum of
(i) the fair market value of such Common Shares, and (ii) any brokerage
commissions or mark-ups incurred in connection with such purchase.
Shares of Common Shares acquired for participants in the Plan should have an
initial tax basis to the participant equal to the amount the participant is
treated as having received as a distribution. The holding period for shares of
Common Shares purchased through the Plan (including fractional shares)
generally will begin on the day after the Distribution Payment Date upon which
the shares of Common Shares were acquired.
The reinvestment of distributions does not relieve the participant of any
income tax and will constitute a distribution in an amount equal to the fair
market value of the Common Shares received through the reinvested
distributions. Participants who are qualified pension or profit sharing plans
or individual retirement accounts should be able to exclude such distribution
income from unrelated business taxable income unless such participants have
borrowed to acquire their shares of Common Shares or such Common Shares is
otherwise used in an unrelated trade or business. The Agent will report to each
participant for tax purposes the distributions to be credited to his account as
well as any discounts or costs incurred by us on behalf of the participant.
Such information will also be furnished to the IRS to the extent required by
law. In addition, the Code imposes certain reporting obligations on brokers and
other intermediaries. As a result, the Agent will be required to report to the
IRS and the participant any sale of Common Shares by it on behalf of a
participant.
REINVESTMENT OF DISTRIBUTIONS BY UNITHOLDERS
The IRS has privately ruled that investors in operating partnerships who
elect to have their operating partnership distributions reinvested under a
dividend reinvestment plan of the associated REIT will be treated as having
received an ordinary taxable distribution from the REIT in an amount equal to
the excess, if any, of the fair market value of those securities over the
amount of the reinvestment used to purchase
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those securities. Thus, the difference between the fair market value of the
Common Shares acquired by Unitholders under the Plan and the amount paid for
those Common Shares will constitute a distribution for federal income tax
purposes to the same extent that a cash distribution would be so treated.
Common Shares acquired from reinvestment of distributions of Units should have
an initial tax basis equal to the fair market value of the Common Shares
acquired. The holding period for Common Shares (including fractions thereof)
generally begins on the day after the date that the Common Shares were
acquired. Private letter rulings are not precedent and may not be relied upon
by taxpayers other than taxpayers to whom they are issued. Nevertheless, such
rulings often reflect the current thinking of the IRS.
ADMINISTRATIVE EXPENSES
While the matter is not free from doubt, we intend to take the position that
administrative expenses of the Plan paid by us are not constructive
distributions to participants.
TAX CONSEQUENCES OF DISPOSITIONS
A participant may recognize a gain or loss upon receipt of a cash payment
from the sale of shares, including any fractional share, of Common Shares in a
plan account. The amount of any such gain or loss will be the difference
between the amount realized on the sale (generally the amount of cash received)
and the tax basis of the shares. Generally, gain or loss recognized on the
disposition of shares acquired under the Plan will be treated for Federal
income tax purposes as a capital gain or loss.
DESCRIPTION OF CAPITAL STOCK
For a description of our capital stock, prospective investors should examine
our Form 8-A, as amended, filed with the SEC.
PLAN OF DISTRIBUTION
Except to the extent the Agent purchases Common Shares in the open market or
in negotiated transactions with third parties, the Common Sock acquired under
the Plan will be sold directly by the Company through the Plan. The Company may
sell Common Shares to Shareholders (including brokers or dealers) who, in
connection with any resales of such shares, may be deemed to be underwriters.
Such shares may be resold in market transactions (including coverage of short
positions) on any national securities exchange on which shares of Common Shares
trade or in privately negotiated transactions. The Common Shares are currently
listed on the New York Stock Exchange. The difference between the price such
owners pay to the Company for Common Shares acquired under the Plan, after
deduction of the applicable discount from the prevailing market price and the
price at which such shares are resold, may be deemed to constitute underwriting
commissions received by such owners in connection with such transactions.
Subject to the availability of shares of Common Shares registered for
issuance under the Plan, there is no total maximum number of shares that can be
issued pursuant to the Plan.
Subject to the discussion above, newly issued shares of Common Shares sold
under the Plan are distributed directly by us rather than through an
underwriter, broker or dealer. For registered Shareholders participating in the
Plan, there are no brokerage commissions or other fees charged to participants
in the Plan in connection with their purchases of such newly issued shares
under the Plan. To the extent shares of Common Shares are purchased in the open
market by the Agent, brokerage commissions or mark-ups, and any other fees or
expenses charged by the broker-dealer or broker-dealers involved, will be paid
out of the total amount to be invested and
25
<PAGE>
therefore will be paid by the participants in the Plan on a pro rata basis.
Upon the sale of Common Shares held under the Plan, the participant will
receive the proceeds of such sale less a nominal fee per transaction paid to
the Agent (if such resale is made by the Agent at the request of a
participant), any related brokerage commissions and any applicable withholding
taxes or transfer taxes.
Common Shares may not be available under the Plan in all states. This
Prospectus does not constitute an offer to sell, or a soliciting of an offer to
buy, any Common Shares or other securities in any state or any other
jurisdiction to any person to whom it is unlawful to make such offer in such
jurisdiction.
LEGAL MATTERS
The validity under Missouri law of the Common Shares offered hereby will be
passed upon for the Company by Husch & Eppenberger, LLC, Kansas City, Missouri,
and certain tax matters will be passed upon for the Company by Skadden, Arps,
Slate, Meagher & Flom LLP, Los Angeles, California.
EXPERTS
The consolidated financial statements and schedule are incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1997. The consolidated financial statements and
schedule for the years ended December 31, 1997 and December 31, 1996 have been
audited by Ernst & Young LLP, independent auditors, and for the year ended
December 31, 1995 by PricewaterhouseCoopers LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference. Such
consolidated financial statements and schedule have been so incorporated in
reliance upon the reports of such firms given upon their authority as experts
in accounting and auditing.
The combined statement of revenues and certain expenses of selected
TrizecHahn Acquisition Properties to be acquired less than 100% by Westfield
America, Inc. for the year ended December 31, 1997 and the statement of
revenues and certain expenses of selected TrizecHahn Acquisition Properties to
be acquired by Westfield America, Inc. for the year ended December 31, 1997
have been incorporated by reference in this registration statement on Form S-3
in reliance upon the reports of PricewaterhouseCoopers LLP, independent
accountants, included in the Company's filings on Form 8-K/A and Form 8-K as
filed October 16, 1998 and November 13, 1998, respectively, and upon the
authority of said firm as experts in accounting and auditing.
The combined statement of revenue and certain expenses of Los Cerritos Center
and Oakridge Mall and the combined statement of revenue and certain expenses of
Downtown Plaza and Santa Anita Fashion Park for the year ended December 31,
1997, have been incorporated by reference in this Prospectus in reliance upon
the reports of KPMG Peat Marwick LLP,
independent certified public accountants, included in the Company's Form 8-K/A
dated October 16, 1998, Form 8- K/A dated October 19, 1998 and Form 8-K dated
November 13, 1998, and upon the authority of said firm as experts in accounting
and auditing. Such reports contain a paragraph that states that the combined
statements of revenue and certain expenses were prepared for the purpose of
complying with the rules and regulations of the Securities and Exchange
Commission as described in Note 1. They are not intended to be a complete
presentation of the Los Cerritos Center and Oakridge Mall's combined revenue
and expenses and Downtown Plaza and Santa Anita Fashion Park's combined revenue
and expenses.
26
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any documents we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public from the SEC's Website at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information we later file with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act:
. our Annual Report on Form 10-K for the year ended December 31, 1997;
. our Quarterly Reports on Form 10-Q for the three-month periods ended:
.March 31, 1998;
.June 30, 1998; and
.September 30, 1998;
. our Current Reports on Form 8-K filed:
.May 4, 1998;
.June 29, 1998;
. August 17, 1998 (as amended on October 16, 1998);
. October 13, 1998 (as amended on October 19, 1998); and
. November 13, 1998;
. December 2, 1998
. December 11, 1998
. The description of our Capital Stock contained in our Registration
Statement on Form 8-A under the Exchange Act, including any amendment or
report filed to update the description.
You may request a copy of these filings, at no cost by writing or telephoning
us at the following address:
Westfield America
Randall Smith
Investor Relations
Wilshire Boulevard, 12th Floor
Los Angeles, CA 90025
(310) 478-4456
You should rely only on the information incorporated by reference or provided
in this prospectus or any prospectus supplement. We have not authorized anyone
else to provide you with different information. We will not make an offer of
our Common Shares in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of those documents.
27
<PAGE>
[WEA LOGO]
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, all of which will be paid by the Registrant,
are as follows:
<TABLE>
<S> <C>
SEC registration fee............................................... $ 19,321
Printing and engraving expenses....................................
Legal fees and disbursements.......................................
Accounting fees and disbursements..................................
Agents' fees and disbursements.....................................
Blue Sky fees and expenses.........................................
Miscellaneous (including listing fees).............................
--------
Total.......................................................... $400,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Company has obtained, and pays the cost of, directors' and officers'
liability insurance coverage in the amount of $25.0 million (subject to a
retention or a "deductible" of $250,000). Directors' and officers' insurance
insures (i) the directors and officers of the Company from any claim arising
out of an alleged wrongful act by the directors and officers of the Company in
their respective capacities as directors and officers of the Company, and (ii)
the Company to the extent that the Company has indemnified the directors and
officers for such loss. The Articles of Incorporation of the Company provide
for indemnification to the full extent permitted by Missouri law.
Section 351.355(1) of the Revised Statutes of Missouri provides that a
corporation in any action, suit or proceeding other than an action by or in
the right of the corporation, against expenses (including attorney's fees),
judgments, fines and settlement amounts actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action,
had no reasonable cause to believe his conduct was unlawful.
Section 351.355(2) provides that the corporation may indemnify any such
person in any action or suit by or in the right of the corporation against
expenses (including attorney's fees) and settlement amounts actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
except that he may not be indemnified in respect of any matter in which he has
been adjudged liable for negligence or misconduct in the performance of his
duty to the corporation, unless authorized by the court.
Section 351.355(3) provides that a corporation shall indemnify any such
person against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the action, suit or proceeding if he has
been successful in defense of such action, suit or proceeding, and if such
action, suit or proceeding is one for which the corporation may indemnify him
under Section 351.355(1) or (2). Section 351.355(7) provides that a
corporation shall have the power to give any further indemnity to any such
person, in addition to the indemnity otherwise authorized under Section
351.355, provided such further indemnity is either (i) authorized, directed or
provided for in the articles of incorporation of the corporation or any duly
adopted amendment thereof or (ii) is authorized, directed or provided for in
any by-law or agreement of the corporation which has been adopted by a vote of
the Shareholders of the corporation, provided that no such indemnity shall
indemnify any person from or on account of such person's conduct which was
finally adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct.
II-1
<PAGE>
The Articles of Incorporation of the Company contain provisions indemnifying
its directors and officers to the extent authorized specifically by Sections
351.3555(1), (2) (3) and (7).
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 Third Restated Articles of Incorporation of the Company (Exhibit
3.1(1)).
4.2 Certificate of Designation for the Series B Preferred Shares (Exhibit
3.2(1)).
4.3 Certificate of Designation for the Series C Preferred Shares (Exhibit
3.1(2)).
4.4 Certificate of Designation for the Series D Preferred Shares (Exhibit
3.2(2)).
4.5 Second Amended and Restated By-Laws of the Company (Exhibit 3.3(1)).
4.6 Specimen certificate representing Common Shares (Exhibit 4.1(3)).
5.1 Opinion of Husch & Eppenberger, as to legality of the Common Shares.
8.1 Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
tax matters.
10.1 Form of Dividend Reinvestment Plan.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of KPMG Peat Marwick LLP regarding Downtown Plaza and Santa
Anita Fashion Park.
23.4 Consent of KPMG Peat Marwick LLP regarding Los Cerritos Center and
Oakridge Mall
23.5 Consent of Husch & Eppenberger (included in Exhibit 5.1).
23.6 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8.1)(3).
24.1 Powers of Attorney.
</TABLE>
- --------
(1) Incorporated by reference to designated exhibit to the Company's quarterly
report on Form 10-Q for the quarter ended June 30, 1997, File No. 333-
22731.
(2) Incorporated by reference to designated exhibit to the Company's Form 10-Q
for the quarterly period ended June 30, 1998, File No. 333-22731.
(3) Incorporated by reference to designated exhibit to the Company's
Registration Statement on Form S-11 filed with the Securities and Exchange
Commission on May 15, 1997 (File No. 333-22731).
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in
II-2
<PAGE>
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 5(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise (other than
insurance), the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than insurance payments and
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrants in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Los Angeles and State of California on
December 11, 1998.
WESTFIELD AMERICA, INC.
(Registrant)
*
By: _________________________________
Peter S. Lowy,
Director and Co-President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities indicated on the 11th of December, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director and Chairman of the Board
____________________________________
Frank P. Lowy
* Director and Co-President
____________________________________ (Principal Executive Officer)
Peter S. Lowy
/s/ Richard E. Green Co-President
____________________________________ (Principal Executive Officer)
Richard E. Green
/s/ Mark A. Stefanek Chief Financial Officer and Treasurer
____________________________________ (Principal Financial and Accounting
Mark A. Stefanek Officer)
* Director
____________________________________
Roy L. Furman
* Director
____________________________________
Frederick G. Hilmer
* Director
____________________________________
David P. Lowy
* Director
____________________________________
Herman Huizinga
* Director
____________________________________
Bernard Marcus
* Director
____________________________________
Larry A. Silverstein
* Director
____________________________________
Francis T. Vincent
* Director
____________________________________
</TABLE> George Weissman
/s/ Irv Hepner
*By: __________________________
Irv Hepner
Attorney-in-fact
II-4
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF HUSCH & EPPENBERGER, LLC]
December 11, 1998
Westfield America, Inc.
11601 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90025
Re: Registration of Common Stock on Form S-3
Dear Ladies and Gentlemen:
We have acted as special Missouri counsel to Westfield America, Inc., a
Missouri corporation (the "Company"), in connection with the filing of the
Registration Statement (as hereinafter defined), registering up to four
million (4,000,000) shares (the "Shares") of the Company's Common Stock, par
value $.01 per share (the "Common Shares") for issuance pursuant to a dividend
reinvestment plan adopted by the Company (the "Dividend Reinvestment Plan").
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-3, as filed with the Securities and Exchange Commission
(the "Commission") on the date hereof under the Act relating to the
registration of the Shares under the Act (such Registration Statement,
referred to as the "Registration Statement"); (ii) a specimen certificate
representing the Shares; (iii) the Articles of Incorporation of the Company,
as presently in effect; (iv) the By-Laws of the Company, as presently in
effect; and (v) certain resolutions of the Board of Directors of the Company
relating to the issuance and sale of the Shares and related matters.
We have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein. In our examination, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed or to be executed
by parties other than the Company, we have assumed that such parties had or
will have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others.
Members of our firm are admitted to the bar in the State of Missouri, and we
do not express any opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that when (i)
the Registration Statement becomes effective and (ii) the Shares are issued in
accordance with the terms of the Dividend Reinvestment Plan, the Shares will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
firm under the caption "Legal Matters" in the Registration Statement.
<PAGE>
Westfield America, Inc.
December 11, 1998
Page 2 of 2
This opinion is furnished by us, as your special counsel, in connection with
the filing of the Registration Statement and, except as provided in the
immediately preceding paragraph, is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other person
without our prior written permission.
Very truly yours,
/s/ Husch & Eppenberger, LLC
Husch & Eppenberger, LLC
2
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP]
, 199
Westfield America, Inc.
11601 Wilshire Boulevard, 12th Floor
Los Angeles, California 90025-1748
Re: Federal Income Tax Matters
Dear Sirs:
You have requested our opinion concerning certain Federal income tax
considerations in connection with the offering (the "Offering") by Westfield
America, Inc., a Missouri corporation/1/ ("WEA," and together with the
subsidiary partnerships and corporations in which WEA owns a direct or
indirect interest, the "Company"), of shares of its Common Stock, par value
$.01 per share (the "Common Stock"), pursuant to a dividend reinvestment plan
(the "DRIP") established by the Company and described in the Registration
Statement on Form S-3 (No. ) filed with the Securities and Exchange
Commission (the "Registration Statement").
We have acted as special tax counsel to the Company in connection with the
Offering and the formation of the DRIP, and we have assisted in the
preparation of the Registration Statement and certain other documents. You
have provided to us and we have reviewed certain documents (collectively, the
"Documents") that we have deemed necessary or appropriate as a basis for our
opinion, including, without limitation (i) organizational documents of the
entities comprising the Company, (ii) copies of certain leases, management
contracts and other agreements, (iii) responses to questionnaires describing
the Company's properties and their operation, (iv) certificates executed by
duly appointed officers of WEA (the "Officer's Certificates") setting forth
certain factual representations, and (v) certain schedules, memoranda,
financial information and other records. For purposes of our opinion, we have
not made an independent investigation of the facts set forth in the Documents.
We have, consequently, relied on your representations that the information
presented in the Documents or otherwise furnished to us accurately and
completely describes all material facts relevant to our opinion.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies, and
the authenticity of the originals of such copies. Where documents have been
provided to us in draft form, we have assumed that the final executed versions
of such documents will not differ materially from such drafts.
Our opinion is based on the correctness of the following specific
assumptions: (i) WEA and each of the entities comprising the Company has been
and will continue to be operated in accordance with the laws of the
jurisdiction in which it was formed and in the manner described in the
relevant partnership agreement or other organizational documents; (ii) there
will be no changes in the applicable laws of the States of Missouri or
Delaware or any other state under the laws of which any of the entities
comprising the Company have been formed; and (iii) each of the representations
contained in the Officer's Certificates are true, correct and complete.
In rendering our opinion, we have also considered and relied upon the
Internal Revenue Code of 1986, as amended (the "Code"), the regulations
promulgated thereunder by the United States Treasury Department (the
"Regulations"), administrative rulings and the other interpretations of the
code and the Regulations by the courts and the Internal Revenue Service, all
as they exist at the date of this letter. With respect to the latter
assumption, it should be noted that statutes, regulations, judicial decisions,
and administrative interpretations are subject to change at any time and, in
some circumstances, with retroactive effect. A material change that is made
after the date hereof in any of the foregoing bases for our opinion could
affect our conclusions.
- --------
/1/Westfield America, Inc. was formerly known as CenterMark Properties, Inc.
<PAGE>
Westerfield America, Inc.
, 199
Page 2 of 2
We express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States of America to the extent specifically
referred to herein.
Based on the foregoing, we are of the opinion that:
1. Commencing with WEA's taxable year ended December 31, 1994, WEA was
organized in conformity with the requirements for qualification as a real
estate investment trust ("REIT") under the Code, and its planned method of
operation, and its actual method of operation from February 12, 1994
through the date of this letter, will enable it to meet the requirements
for qualification and taxation as a REIT under the Code.
2. Qualification and taxation as a REIT depends upon the ability of WEA
to meet, through actual annual operating results, certain requirements,
including requirements relating to distribution levels and diversity of
stock ownership, and the various qualification tests imposed under the
Code, the results of which will not be reviewed by us. Accordingly, no
assurance can be given that the actual results of WEA's operation for any
one taxable year will satisfy such requirements.
3. The discussion in the Registration Statement under the heading
"FEDERAL INCOME TAX CONSIDERATIONS" is a fair and accurate summary of the
material Federal income tax consequences of the purchase, ownership and
disposition of the Common Stock and participation in the DRIP, subject to
the qualifications set forth therein.
Other than as expressly stated above, we express no opinion on any issue
relating to the Company or any investment therein.
This opinion is intended for the exclusive use of the Company and its
shareholders and it may not be used, circulated, quoted or relied upon for any
other purpose without our prior written consent. This opinion is expressed as
of the date hereof, and we disclaim any undertaking to advise you of any
subsequent changes in the matters stated, represented, or assumed herein or
any subsequent changes in applicable law.
Very truly yours,
2
<PAGE>
EXHIBIT 10.1
WESTFIELD AMERICA, INC.
DIVIDEND REINVESTMENT PLAN
PURPOSE OF THE PLAN
The purpose of the Dividend Reinvestment Plan (the "Plan") of Westfield
America, Inc. (the "Company") is to provide existing holders (the
"Shareholders") of the Company's outstanding common stock par value $.01 (the
"Common Shares"), holders ("Preferred Shareholders") of the Company's
outstanding preferred shares par value $1.00 (the "Preferred Shares") and
holders ("Unitholders") of outstanding Investor Unit Rights ("Units") of
Westfield America Limited Partnership (the "Operating Partnership") with a
convenient and economical method to purchase new Common Shares with reinvested
cash distributions. The Plan provides the Company with a means of raising
additional capital for investment in the Operating Partnership and its
operations on an economical basis.
ADMINISTRATION
The Plan will be administered by American Stock Trust & Transfer Co. (the
"Agent"). An investor who participates in any feature of the Plan is
hereinafter referred to as a "Participant." The Agent keeps records, sends
statements of account to each Participant, provides safekeeping for the Common
Shares enrolled in the Plan and performs other duties relating to the Plan.
The Agent will establish an account under the Plan for each Participant
("Participant's Account"). The Agent will credit to the Participant's Account
cash received by the Agent on behalf of the Participant from cash
distributions paid on the Common Shares, Preferred Shares or the Units,
including those full and fractional Common Shares (computed to three decimal
places) acquired under the Plan. The Company and Operating Partnership will
pay to the Agent all cash distributions payable with respect to Common Shares,
Preferred Shares and Units, as applicable, owned by the Participants,
including whole and fractional Common Shares previously acquired under the
Plan. The Agent will apply such funds toward the purchase of additional Common
Shares for the Participant's Account either directly from the Company or in
the open market or in privately negotiated transactions, as instructed by the
Company.
As soon as practicable after the purchases of Common Shares have been
completed, the Agent will send each Participant a statement of account
("Account Statement"). The Account Statement will confirm the transaction and
itemize any previous investment activity on behalf of the Participant for the
calendar year. Each Participant, by participating in the Plan, agrees to
notify the Agent promptly in writing of any change of address. ACCOUNT
STATEMENTS SHOULD BE RETAINED BY THE PARTICIPANT FOR HIS OR HER OWN RECORDS.
The Company may, in its sole discretion, terminate the Agent's Services at
any time; however, if the Plan is in effect, the Company must immediately
engage a plan administrator to replace the Agent. In addition, the Agent may,
at any time, resign as administrator of the Plan, in which case the Company
will appoint a successor administrator.
PARTICIPATION
Participation in the Plan is open to any person or entity that is a
Shareholder, Preferred Shareholder or Unitholder to the extent provided for by
the Company (collectively, "Eligible Holders"), and who fulfills the
requirements for participation described below under "Participation
Enrollment." A Shareholder who owns Common Shares in their own name is
referred to herein as a "Shareholder of Record." A Shareholder of Record may
participate directly in the Plan. A Shareholder who beneficially owns Common
Shares that are registered in a name other than such Shareholder's name (for
example, where shares are held in the name of a broker, bank or
1
<PAGE>
other nominee) is referred to herein as a "Beneficial Owner." A Beneficial
Owner may participate in the Plan by either (i) becoming a Shareholder of
Record by having one or more shares transferred into its own name, or (ii)
coordinating their participation with their broker, bank or other nominee who
is the record holder to participate on their behalf. The Company in its sole
and absolute discretion refuse to permit a broker, bank nominee or other
record holder to participate in the Plan.
PARTICIPATION ENROLLMENT
Eligible Holders will enroll in the Plan by filling out and executing an
enrollment form (the "Enrollment Form"). Pursuant to the Enrollment Form, the
Agent shall act as agent for the Participant. The Company and Operating
Partnership shall pay to the Agent such Participant's cash distributions on
all or a specified number of Common Shares, Preferred Shares and Units owned
by the Participant ("Participating Securities"), as well as on all whole and
fractional Common Shares credited to a Participant's Account ("Plan Shares").
Also pursuant to the Enrollment Form, the Agent shall purchase on the
Distribution Reinvestment Date additional Common Shares with such
distributions on Participating Securities as described by the Participant in
the Enrollment Form. Additionally, the Agent shall reinvest automatically all
subsequent distributions on Plan Shares. Distributions will continue to be
reinvested as directed by the Participant in accordance with the Enrollment
Form until the Participant specifies otherwise by contacting the Agent
withdraws Participating Securities and or Plan Shares from the Plan, or the
Plan is suspended, terminated or amended.
The Enrollment Form shall allow Participants to purchase Common Shares
through either of the following reinvestment options:
Full Distribution Reinvestment. The Agent will apply cash distributions on
all of the Common Shares, Preferred Shares and Units then or subsequently
registered in the Plan under the Participant's name, and all cash
distributions on Plan Shares, toward the purchase of additional Common Shares.
Partial Distribution Reinvestment. The Agent will apply cash distributions
on Common Shares, Preferred Shares and Units then registered in the Plan under
the Participant's name and specified for reinvestment of distributions on the
Enrollment Form, and all cash distributions on Plan Shares, toward the
purchase of additional Common Shares, and will forward any remaining
distributions to the Participant in the form of cash.
A Participant choosing to receive cash payments of distributions on Plan
Shares rather than to reinvest such distributions must withdraw those Plan
Shares from the Plan by written notification to the Agent. Participants may
change their investment options at any time by requesting a new Enrollment
Form and returning it to the Agent.
Participation in the Plan will begin upon receipt of a properly completed
Enrollment Form. The Enrollment Form must be received by the Agent by the
"Submission Deadline" which is at least one (1) day ("Trading Day") during
which there is trading on the New York Stock Exchange ("NYSE") prior to the
record date established for a particular distribution (the "Record Date") in
order for an Eligible Holder to be eligible for reinvestment of such
distributions under the Plan for that related distribution. The Company may
waive the Submission Deadline and allow participation with respect to any
particular late Enrollment Form. If an Enrollment Form is received by the
Agent after the Submission Deadline and the Company does not waive the
Submission Deadline, reinvestment will begin on the Distribution Reinvestment
Date following the next Record Date. Any election or change of election
concerning the reinvestment of the distributions must be received by the Agent
by the relevant Submission Deadline, subject to the Company's right to waive
the Submission Deadline, in order for the election or change to become
effective with that distribution.
PURCHASE OF AND PRICE OF SHARES
The Agent will apply cash credited to the Participant's Account to the
purchase of Common Shares or fractions thereof and will credit the number of
Common Shares so purchased to the Participant's Account. The
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Agent will apply such funds toward the purchase of Common Shares for the
Participant's Account directly from the Company, or at the Company's
instruction in the open market or privately negotiated transactions.
With respect to each Participant that is subject to federal tax withholding,
the amount of any distribution forwarded from the Company to the Agent for
reinvestment or payment in cash will be reduced by the tax required to be
deducted or withheld by the Company in respect of the distribution received,
or considered to be received, by such Participant.
The price of Common Shares purchased by the Agent directly from the Company
under the Plan will be the average, calculated to four decimal places, of the
closing price of the Common Shares on the NYSE for the five Trading Days prior
to the relevant Distribution Payment Date discounted by the "Discount Rate."
The Discount Rate will range from 0% to 5% as determined by the Company no
later than three Trading Days prior to the relevant Distribution Payment Date.
The Discount Rate is subject to change, or complete discontinuance at any time
at the Company's discretion, without prior notice to Participants. The
Discount Rate will only be in effect for purchases of Common Shares directly
from the Company; if the Company elects to have the Agent purchase the Common
Stock in the open market or in privately negotiated transactions, the Discount
Rate will not be applied to such purchases for the Participant's Account.
Under no circumstances will the price of Common Shares purchased from the
Company pursuant to the Plan be at a price less than 95% of the closing price
of the Common Shares on the NYSE on the Distribution Payment Date (the
"Minimum Purchase Price"). If the methods by which the Agent calculates the
purchase price for any Common Shares to be purchased pursuant to the Plan
would result in a price lower than the Minimum Purchase Price, the purchase
price for those shares shall be the Minimum Purchase Price.
The Company may change its determination that the Agent will purchase Common
Shares directly from the Company and instead determine that the Agent will
purchase Common Shares in the open market or in negotiated transactions,
without prior notice to Participants. The price of Common Shares purchased in
the open market or in negotiated transactions with third parties with
reinvested cash distributions will be the weighted-average cost, including any
brokerage fees, for all Common Shares purchased under the Plan in connection
with the relevant Distribution Payment Date.
The Distribution Reinvestment Date will be on the Distribution Payment Date
if the Agent purchases Common Shares directly from the Company. If the Agent
purchases Common Shares in the open market or from a third party, the
Distribution Reinvestment Date will be within thirty (30) days after the
Distribution Payment Date except where reinvestment of such funds at a later
date is necessary or advisable under applicable securities laws or
regulations. If a Participant's distributions cannot be reinvested within (30)
days after the Distribution Payment Date, they will be paid to the Participant
in cash, without any interest, rather than being reinvested. In making
purchases for a Participant's Account, the Agent may commingle the
Participants' funds with those of other Participants.
LIMITATIONS ON REINVESTMENT OF DIVIDENDS THROUGH THE PLAN
Notwithstanding anything else contained herein, any purchase of Common
Shares through reinvestment pursuant to this Plan that would result in a
violation of any of the limitations on ownership of the Company's capital
stock, designed to preserve the Company's status as a Real Estate Investment
Trust ("REIT") under the Code shall be void or otherwise dealt with in
accordance with such limitations on ownership. The limitations on ownership
are specified in the Company's Third Amended and Restated Articles of
Incorporation and are hereby incorporated as though expressly stated herein.
VOTING OF SHARES HELD UNDER THE PLAN
Each Participant will be able to vote all Common Shares (including
fractional shares) credited to the Participant's Account. The Agent will not
vote Common Shares that it holds in a Participant's Account except
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<PAGE>
as directed by the Participant. All Common Shares in the Participant's Account
will be added to the Common Shares registered in the Participant's name on the
stockholder records of the Company, if any, and the Participant will receive
one proxy for all such Common Shares which proxy will be voted as the
Participant directs or the Participant may vote all Common Shares in person at
the Shareholders' meeting.
CERTIFICATES
Common Shares purchased under the Plan will be registered in the name of a
nominee and shown on each Participant's Account Statement. A Participant may
request a certificate for any of the whole Common Shares which have
accumulated in such Participant's Account by writing a letter of instruction
to the Agent. Each certificate issued will be registered in the name or names
in which the account is maintained, unless otherwise instructed in writing. If
the certificate is to be issued in a name other than the name on the
Participant's Account, the Participant or Participants must have his or her
signature(s) guaranteed by a commercial bank or a broker that is a member of
the medallion signature guarantee program. Certificates for fractional Common
Shares will not be issued in any case. Distributions will continue to be paid
on the cumulative holdings of both whole and fractional Common Shares
remaining in the Participant's Account and will automatically be reinvested
until such time as the Common Shares are sold or otherwise transferred or
until the Participant terminates participation in the Plan. A book-to-book
transfer involves transferring shares from an existing Participant's Account
in the Plan to a new Participant's Account. Book-to-book transfers will be
permitted if all proper transfer requirements are satisfied. All shares in
that new Participant's Account will be coded for reinvestment unless the Agent
is notified otherwise.
Participants may deposit currently held certificates representing Common
Shares registered in their names with the Agent for credit under the Plan.
There will be no charge for such deposits.
Common Shares credited to a Participant's Account may not be pledged or
assigned, and any attempted pledge or assignment is void. A Participant who
wishes to pledge or assign Common Shares credited to the Participant's Account
must first withdraw such Common Shares from such Participant's Account.
SALE OF COMMON SHARES IN A PLAN ACCOUNT
Within seven days after receipt of a Participant's written request to sell
all or some of the Common Shares held in a plan account, the Agent will place
a sell order through a broker or dealer designated by the Agent. Fractional
shares may only be sold upon the termination of a Participant's Plan Account.
The Participant will receive the proceeds of the sale, less any trading fees,
withholding tax, transfer tax or other fees incurred by the Agent, and a ten
dollar service charge allocable to the sale of those shares. The Agent will
have sole and absolute discretion to direct the exact date and price at which
the Common Shares are sold. Proceeds of the sale will be forwarded by the
Agent to the Participant within 30 days after receipt of the Participant's
request to sell. If after taking into account all taxes, fees, expenses and
charges, there are no proceeds from a sale, the Agent shall so notify the
selling Participant.
The Agent may, at its discretion, aggregate and sell a Participant's whole
and fractional shares with those of other Participants. The proceeds to such
Participant, in each case, will be the average sales price per share of all
shares so aggregated and sold multiplied by the number of whole and fractional
Common Shares sold by the Participant, less the Participant's pro rata share
of any brokerage commissions, withholding taxes, transfer taxes and other
costs of sale.
TERMINATION OF PARTICIPATION
A Participant may terminate participation in the Plan at any time by
notifying the Agent in writing. Unless the termination notice is received by
the Agent by the Submission Deadline for any particular distribution, it
cannot be processed until after reinvestments made from that distribution has
been completed and credited to the Participant's Account. The Company may
waive the Submission Deadline with respect to any particular late
4
<PAGE>
termination request. All distributions with a Record Date after timely receipt
of notice for termination will be sent directly to the Participant. The Agent
may also terminate the Participant's Account by notice in writing mailed to
the Participant.
Once termination has been effected, the Agent will issue to the Participant,
without charge, certificates for the whole Common Shares held in the
Participant's Account or, if so requested, sell the whole Common Shares held
under the Plan, deduct brokerage commissions, withholding taxes, transfer
taxes and a $10.00 service charge and deliver the proceeds to the Participant.
The value of the Participant's interest in any fractional Common Share
(determined by reference to the closing price for the Common Shares on the
NYSE on the date on which the termination is effected) and any uninvested
distribution held in his account at termination will be paid by check, less
the Participant's share of any related expense and the above mentioned service
charge. If the termination of participation is the result of termination of
the Plan, the Agent will waive the $10 service charge.
If a Participant disposes of all Common Shares, Preferred Shares or Units
registered in their name on the books of the Company or Operating Partnership,
as applicable, but does not give notice of termination under the Plan, the
Agent may continue to reinvest the distributions on the Common Shares under
the Plan until otherwise directed.
A Participant who changes his or her address must notify the Agent
immediately. If a Participant changes residences to a state where the Common
Shares offered pursuant to the Plan are not registered or exempt from
registration under applicable securities laws, the Company may deem the
Participant to have terminated participation in the Plan.
A former participant may re-elect to participate at any time. However, the
Agent has the right to reject any Enrollment Form on the grounds of excessive
joining and withdrawing.
SHARE DISTRIBUTIONS, SHARE SPLITS AND SHAREHOLDER RIGHTS OFFERINGS
Any share distributions or share splits distributed by the Company on Common
Shares held by the Agent for the Participant will be credited to the
Participant's Account based on the number of Common Shares held in the
Participant's Account. In the event the Company makes available to its
Shareholders rights to purchase additional Common Shares or other securities,
the Participant will receive appropriate instructions in connection with all
such rights directly from the Agent in order to permit a Participant to
determine what action they desire to take.
AGENT'S RESPONSIBILITIES
The Agent shall not be liable hereunder for any act done in good faith, or
for any good faith omission to act, including without limitation, any claims
of liability (1) arising out of failure to terminate any Participant's Account
upon such Participant's death prior to receipt of notice in writing of such
death or (2) with respect to the prices at which Common Shares are purchased
or sold for the Participant's Account and the times such purchases or sales
are made.
All notices from the Agent to a Participant will be mailed to the
Participant's last address of record, which will satisfy the Agent's
responsibility to give notice.
TERMINATION OF THE PLAN
The Company reserves the right to suspend or terminate the Plan in whole or
part at any time. The Company may also suspend, terminate or refuse
participation in the Plan to any person at any time for any reason. Notice
will be sent to Participants of any suspension or termination as soon as
practicable after such action by the Company.
5
<PAGE>
AMENDMENTS TO THE PLAN
The Plan may be amended or supplemented by the Company at any time or times,
including the period between a Record Date and the related Distribution
Payment Date. Notice of any amendments will be sent to Participants as soon as
practicable after such action by the Company. Any amendment or supplement
shall conclusively be deemed to be accepted by the Participant unless, prior
to the effective date thereof, the Agent receives written notice of
termination of the Participant's Account.
APPLICABLE LAW
The terms and conditions of the Plan and its operation shall be governed by
the internal laws of the State of New York.
INTERPRETATION AND REGULATION OF THE PLAN
THE COMPANY HAS THE RIGHT, WITHOUT NOTICE TO PARTICIPANTS, TO INTERPRET AND
REGULATE THE PLAN AND TAKE SUCH ACTION AS IT DEEMS NECESSARY OR DESIRABLE IN
CONNECTION WITH ITS OPERATION. ANY SUCH INTERPRETATION, REGULATION OR ACTION
SHALL BE CONCLUSIVE. Neither the Company, the Operating Partnership nor the
Agent, in administering, interpreting or performing their duties under the
Plan, will be liable for any act committed or omitted in good faith,
including, without limitation, any act giving rise to a claim of liability
arising from (i) the times and prices at which Common Shares are purchased or
sold for a Participant's Account or (ii) fluctuations in the market price of
the Common Shares.
INQUIRIES ABOUT THE PLAN
All terminations, withdrawals, sale of shares, change of addresses and
questions regarding the Plan, a Participant's Account, and the Discount Rate
should be directed to:
Westfield America, Inc. Dividend Reinvestment Plan
c/o American Stock Transfer & Trust Co.
Dividend Reinvestment Department
40 Wall Street
New York, New York 10005
1-800-278-4353
or
Westfield America, Inc.
Dividend Reinvestment Plan
11601 Wilshire Blvd., 12th Floor
Los Angeles, California 90025
Telephone: (310) 478-4456
Facsimile: (310)
6
<PAGE>
GLOSSARY
"Agent" means the administrator of the Plan, as of the date of this Plan.
"Beneficial Owner" means a Shareholder who beneficially owns Common Shares
that are registered in a name other than such Shareholder's name, such as in
the name of a broker, bank or other nominee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the common shares, $.01 par value, of the Company.
"Company" means Westfield America, Inc.
"Discount Rate" means a discount ranging from 0% to 5% from the per share
Market Price for Distribution Reinvestments on newly issued Common Shares
purchased by the Agent for the Plan from the Company with reinvested
distributions.
"Distribution Payment Date" means the distribution payment date announced by
the Company from time to time.
"Distribution Reinvestment Date" means the date on which the Agent begins
Purchasing Common Shares with reinvested distributions.
"Eligible Holder" means a holder of the Common Shares, and/or the Preferred
Shares or Units to the extent provided for by the Company.
"Enrollment Form" means the form used to appoint the Agent as agent for the
Participant, to direct the Company to pay to the Agent such Participant's cash
distributions on Participating Securities and Plan Shares, and to direct the
Agent to purchase on the Distribution Reinvestment Date additional Common
Shares with such distributions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Market Price for Distribution Reinvestments" means the average of the
closing price, computed to four decimal places, of the Common Shares as
reported on the NYSE on the five Trading Days prior to the Distribution
Payment Date.
"Minimum Purchase Price" means 95% of the closing price of a Common Share on
the NYSE on any applicable Distribution Payment Date.
"NYSE" means the New York Stock Exchange.
"Operating Partnership" means Westfield America Limited Partnership.
"Ownership Limit" means 5.5% of the Company's outstanding capital stock.
"Participant" means a Record Owner of the Company's Shares or the Operating
Partnership's Units who participates in the Plan or the Beneficial Owner of
the Company's Shares whose bank, broker or other nominee participates on the
Beneficial Owner's behalf.
"Participating Securities" means all or a specified number of Common Shares,
Units or both owned by a Participant.
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<PAGE>
"Plan" means the Westfield America, Inc. Distribution Reinvestment Plan, as
amended, modified or supplemented from time to time in accordance with its
terms.
"Plan Shares" means all whole and fractional Common Shares credited to a
Participant's Plan Account.
"Preferred Shares" means the Company's preferred shares par value $1.00.
"Preferred Shareholder" means a holder of any of the Company's Preferred
Shares.
"REIT" means Real Estate Investment Trust as specified in the Code.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder of Record" means a Shareholder who owns Common Shares in his or
its own name.
"Shareholders" means owners of the Common Stock of the Company.
"Submission Deadline" means with respect to any particular Distribution
Reinvestment Date 5:00 p.m. New York City time one Trading Day prior to the
Record Date for that distribution.
"Trading Day" means any day other than Saturday, Sunday or a legal holiday
on which the NYSE is closed for trading or a day on which the Agent is
authorized or obligated by law to close.
"Units" means Investor Unit Rights issued by the Operating Partnership.
"Unitholder" means record owners of the Units.
EXECUTION
To record the adoption of the Plan as of , 199 , the Company has
caused this Plan to be executed in the name and on behalf of the Company by a
duly authorized officer.
WESTFIELD AMERICA, INC.
a Missouri corporation
_____________________________________
By:
Title:
8
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Westfield America,
Inc. for the registration of 4,000,000 shares of its common stock and to the
incorporation by reference therein of our report dated January 19, 1998, with
respect to the consolidated financial statements and schedule of Westfield
America, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Los Angeles, California
December 11, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 of our report, dated February 13, 1996, except for the information
as to earnings per share, distributions per share, and average shares
outstanding, for which the date is March 3, 1997, on our audit of the
consolidated financial statements of Westfield America, Inc., formerly known
as CenterMark Properties, Inc., as of and for the year ended December 31,
1995, which report is included in the Annual Report on Form 10-K. We consent
to the incorporation by reference in this registration statement on Form S-3
of our report dated April 27, 1998, on our audit of the combined statement of
revenues and certain expenses of selected TrizecHahn Acquisition Properties to
be acquired less than 100% by Westfield America, Inc. for the year ended
December 31, 1997 and of our report dated May 29, 1998, on our audit of the
statement of revenues and certain expenses of selected TrizecHahn Acquisition
Properties to be acquired by Westfield America, Inc. for the year ended
December 31, 1997 which reports are included in the filings on Form 8-K/A
filed October 16, 1998 and October 19, 1998 and on Form 8-K filed November 13,
1998. We also consent to the reference to our Firm under the caption
"Experts".
PricewaterhouseCoopers LLP
Newport Beach, California
December 11, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors of Westfield America, Inc.,
the Managing General Partner of DPA, L.P.,
and the General Partner of Anita Associates:
We consent to the incorporation by reference in the registration statement
on Form S-3 of Westfield America, Inc. of our report dated May 27, 1998, with
respect to the combined statement of revenue and certain expenses of Downtown
Plaza and Santa Anita Fashion Park for the year ended December 31, 1997, which
report appears in the Form 8-K/A dated October 16, 1998, Form 8-K/A dated
October 19, 1998 and Form 8-K dated November 13, 1998 of Westfield America,
Inc., and to the reference to KPMG Peat Marwick LLP under the heading
"Experts" in the prospectus. Such report contains a paragraph that states that
the combined statement of revenue and certain expenses was prepared for the
purpose of complying with the rules and regulations of the Securities and
Exchange Commission as described in Note 1. It is not intended to be a
complete presentation of Downtown Plaza and Santa Anita Fashion Park's
combined revenue and expenses.
KPMG Peat Marwick LLP
San Diego, California
December 11, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors of Westfield America, Inc.,
the Managing General Partner of H and H--Cerritos,
and the Managing General Partner of Oakridge Associates:
We consent to the incorporation by reference in the registration statement
on Form S-3 of Westfield America, Inc. of our report dated May 27, 1998, with
respect to the combined statement of revenue and certain expenses of Los
Cerritos Center and Oakridge Mall for the year ended December 31, 1997, which
report appears in the Form 8-K/A dated October 16, 1998, Form 8-K/A dated
October 19, 1998 and Form 8-K dated November 13, 1998 of Westfield America,
Inc., and to the reference to KPMG Peat Marwick LLP under the heading
"Experts" in the prospectus. Such report contains a paragraph that states that
the combined statement of revenue and certain expenses was prepared for the
purpose of complying with the rules and regulations of the Securities and
Exchange Commission as described in Note 1. It is not intended to be a
complete presentation of Los Cerritos Center and Oakridge Mall's combined
revenue and expenses.
KPMG Peat Marwick LLP
San Diego, California
December 11, 1998
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, a director and Chairman of the Board of Westfield America,
Inc., a Missouri corporation (the "Company"), does hereby constitute and
appoint Peter S. Lowy, Mark A. Stefanek and Irv Hepner, and each of them, as
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead in
any and all capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this day of November, 1998.
/s/ Frank P. Lowy
_____________________________________
Frank P. Lowy
Witness:
/s/ D. C. Pocock
Signature: __________________________
D. C. Pocock
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission ("SEC"), including, without limitation,
Registration Statements filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, or any successor thereto (the "Securities Act")),
for the purpose of registering under the Securities Act, up to 4 million of
the Company's common shares, par value $.01 per share (the "Shares") or
such additional number of Shares as shall be approved by resolutions of the
Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision to
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this day of November, 1998.
/s/ Frederick G. Hilmer
_____________________________________
Frederick G. Hilmer
Witness:
/s/ Orginia Charteris
Signature: __________________________
Orginia Charteris
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this day of November, 1998.
/s/ Roy L. Furman
_____________________________________
Roy L. Furman
Witness:
/s/ Beth Swanstrom
Signature: __________________________
Beth Swanstrom
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities of Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorney-in-fact and agents, and each of them, shall do or cause to be done by
virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 24 day of November, 1998.
/s/ Herman Huizinga
_____________________________________
Herman Huizinga
Witness:
/s/ M. C. Beishuized
Signature: __________________________
M. C. Beishuized
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 25th day of November, 1998.
/s/ Larry A. Sliverstein
_____________________________________
Larry A. Sliverstein
Witness:
/s/ Ann G. Tobin
Signature: __________________________
Ann G. Tobin
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 24 day of November, 1998.
/s/ Francis T. Vincent, Jr.
_____________________________________
Francis T. Vincent, Jr.
Witness:
/s/ Laura O. Kerepen
Signature: __________________________
Laura O. Kerepen
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this day of November, 1998.
/s/ George Weissman
_____________________________________
George Weissman
Witness:
/s/ Illeana Soto
Signature: __________________________
Illeana Soto
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this day of November, 1998.
/s/ David H. Lowy
_____________________________________
David H. Lowy
Witness:
Signature: __________________________
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, an officer of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 30 day of November, 1998.
/s/ Richard E. Green
_____________________________________
Richard E. Green
Witness:
Signature: __________________________
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, an officer of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy
and Irv Hepner, and each of them, as his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead in any and all capacities, to execute and deliver in his
name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 30 day of November, 1998.
/s/ Mark A. Stefanek
_____________________________________
Mark A. Stefanek
Witness:
Signature: __________________________
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director and officer of Westfield America, Inc., a
Missouri corporation (the "Company"), does hereby constitute and appoint Mark
A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 30 day of November, 1998.
/s/ Peter S. Lowy
_____________________________________
Peter S. Lowy
Witness:
Signature: __________________________
Print Name: _________________________
<PAGE>
POWER OF ATTORNEY
The undersigned, a director of Westfield America, Inc., a Missouri
corporation (the "Company"), does hereby constitute and appoint Peter S. Lowy,
Mark A. Stefanek and Irv Hepner, and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any and all
capacities, to execute and deliver in his name and on his behalf.
(a) one or more Registration Statements of the Company on Form S-3 or any
other appropriate form proposed to be filed by the Company with the
Securities and Exchange Commission (the "SEC"), (including, without
limitation, Registration Statements filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, or any successor thereto (the
"Securities Act")), for the purpose of registering under the Securities
Act, up to 4 million of the Company's common shares, par value $.01 per
share (the "Shares") or such additional number of Shares as shall be
approved by resolutions of the Board of Directors of the Company; and
(b) any and all supplements and amendments (including, without
limitation, post-effective amendments) to such Registration Statements;
and any and all other documents and instruments in connection with the
issuance of the Shares which such attorneys-in-fact and agents, or any one of
them, deem necessary or advisable to enable the Company to comply with (a) the
Securities Act, the Securities Exchange Act of 1934, as amended, and the other
federal securities laws of the United States of America and the rules,
regulations and requirements of the SEC in respect of any thereof, (b) the
securities or Blue Sky laws of any state or other governmental subdivision of
the United States of America and (c) the securities or similar applicable laws
of Canada, Australia and any other foreign jurisdiction; and the undersigned
does hereby ratify and confirm as his own acts and deeds all that such
attorneys-in-fact and agents, and each of them, shall do or cause to be done
by virtue hereof. Each one of such attorneys-in-fact and agents shall have, an
may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of
attorney this 30 day of November, 1998.
/s/ Bernard Marcus
_____________________________________
Bernard Marcus
Witness:
/s/ Sandra O. Diggs
Signature: __________________________
Sandra O. Diggs
Print Name: _________________________
