SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULES 13D-1(A) AND AMENDMENTS THERETO
FILED PURSUANT TO 13D-2(A)
(AMENDMENT NO. 2)1
Westfield America, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
959910 10 0
---------------------------------------------
(CUSIP Number)
Irv Hepner
c/o Westfield America, Inc.
11601 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90025
(310) 445-2427
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 11, 1999
---------------------------------
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box: / /
Note: Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all exhibits.
See Rule 13d-7(b) for other parties to whom copies are to be sent.
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE>
CUSIP NO. 959910 10 0 SCHEDULE 13D PAGE 2 OF 17 PAGES
- --------------------------------- -----------------------
- -------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cordera Holdings Pty. Limited
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3 of Statement
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |_|
TO ITEMS 2(d) OR 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 600,000
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 600,000
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
600,000
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
Approximately 0.8%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
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<PAGE>
CUSIP NO. 959910 10 0 SCHEDULE 13D PAGE 3 OF 17 PAGES
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- -------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Frank P. Lowy
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3 of Statement
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |_|
TO ITEMS 2(d) OR 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 73,941,270
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
73,941,270
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,941,270
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
Approximately 82.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 959910 10 0 SCHEDULE 13D PAGE 4 OF 17 PAGES
- --------------------- ------------------------
- -------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
David H. Lowy
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3 of Statement
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |_|
TO ITEMS 2(d) OR 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 73,941,270
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
73,941,270
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,941,270
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
Approximately 82.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 959910 10 0 SCHEDULE 13D PAGE 5 OF 17 PAGES
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- -------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Peter S. Lowy
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3 of Statement
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |_|
TO ITEMS 2(d) OR 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 73,941,270
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
73,941,270
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,941,270
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
Approximately 82.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 959910 10 0 SCHEDULE 13D PAGE 6 OF 17 PAGES
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- -------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Steven M. Lowy
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|_|
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO - See Item 3 of Statement
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |_|
TO ITEMS 2(d) OR 2(e)
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY ----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 73,941,270
REPORTING ----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
73,941,270
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
73,941,270
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*|_|
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
Approximately 82.1%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------------------------------------------------------------------------------
<PAGE>
PAGE 7 OF 17 PAGES
AMENDMENT NO. 1 TO
STATEMENT ON SCHEDULE 13D
This Amendment No. 1 (the "Amendment No. 1") amends the Statement on
Schedule 13D, filed with the Securities and Exchange Commission on May 30,
1997 (the "Schedule 13D"), relating to shares of the common stock, $.01 par
value per share (the "Common Shares"), of Westfield America, Inc., a
Missouri corporation (the "Company"). Pursuant to Rule 13d-2 of Regulation
13D-G promulgated under the Securities Exchange Act of 1934, as amended,
this Amendment No. 1 is being filed on behalf of Cordera Holdings Pty.
Limited, Frank P. Lowy, David H. Lowy, Peter S. Lowy and Steven M. Lowy
(collectively, the "Reporting Persons").
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 of the Schedule 13D is hereby amended as follows:
Each of Messrs. Frank P., David H., Peter S. and Steven M. Lowy may
be deemed solely for purposes of U.S. securities laws to share beneficial
ownership of (i) the Common Shares owned by Cordera Holdings Pty. Limited
("Cordera"), (ii) the Common Shares that may be deemed to be beneficially
owned by Westfield Holdings Limited ("WHL") and (iii) the Common Shares
owned by the PM Capital Absolute Performance Fund (the "PM Capital Fund"),
which Messrs. Frank P., David H., Peter S. and Steven M. Lowy own an
interest in through their ownership interest of LFG Holdings Pty. Limited.
WHL may be deemed to beneficially own (x) the Common Shares owned by the
Perpetual Trustee Company Limited, the trustee of Westfield America Trust
(the "WAT Trustee") and (y) the Common Shares owned by Westfield American
Investments Pty. Limited ("WAI") and Westfield Corporation, Inc. ("WCI"),
each a subsidiary of WHL. WHL disclaims beneficial ownership of the shares
described in (x) above. Each of Frank P., David H., Peter S. and Steven M.
Lowy disclaims beneficial ownership of the shares described in (ii), (iii),
(x) and (y) above. References to beneficial ownership are made herein
solely with respect to U.S. securities laws and are not intended to refer
or apply in any respect to Australian legal matters.
In August 1998, the WAT Trustee purchased an aggregate of
416,667 shares of Series D Preferred Stock (the "Series D Preferred
Shares") of the Company for cash consideration of $75,000,060. In December
1998, the WAT Trustee purchased an aggregate of 138,889 shares of Series
D-1 Preferred Stock (the "Series D-1 Preferred Shares") of the Company for
cash consideration of $25,000,020. The cash consideration for the
acquisition of the Series D Preferred Shares and the Series D-1 Preferred
Shares was obtained through an equity placement in Australia which raised
A$118 million, with the remainder obtained from working capital.
In August 1998, WAI purchased an aggregate of 277,778 Series D
Preferred Shares for cash consideration of $50,000,040. The cash
consideration for the acquisition was obtained from working capital.
<PAGE>
PAGE 8 OF 17 PAGES
The Series D Preferred Shares and the Series D-1 Preferred
Shares are immediately convertible into Common Shares. Each Series D
Preferred Share or Series D-1 Preferred Share, as applicable, is
convertible at the option of the holder at any time, into such number of
Common Shares as is determined by dividing $180.00 (which number is the
aggregate Liquidation Preference of such share) plus accrued but unpaid
dividends by the Conversion Price (as defined below). The initial
Conversion Price is $18.00, subject to standard anti-dilution provisions.
From February 1998 to May 1999, 839,400 Common Shares were
acquired by WAI for cash consideration of approximately $14,251,679, which
consideration was obtained from working capital.
In September 1999, 350,000 Common Shares were acquired by the
WAT Trustee for cash consideration of approximately $4,921,956, which
consideration was obtained from working capital.
In December 1999, 88,800 Common Shares were acquired by the WAT
Trustee for cash consideration of approximately $1,154,106, which
consideration was obtained from working capital.
In February 2000, 614,000 Common Shares were acquired by the
WAT Trustee for cash consideration of approximately $8,359,934, which
consideration was obtained from working capital.
In March 2000, 356,500 Common Shares were acquired by the WAT
Trustee for cash consideration of approximately $4,965,924, which
consideration was obtained from working capital.
From January 1999 to March 1999, 74,800 Common Shares were
acquired by the PM Capital Fund for approximately $1,253,098, which
consideration was obtained from working capital.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended as follows:
The WAT Trustee acquired the Series D Preferred Shares, the
Series D-1 Preferred Shares and the Common Shares in order to increase its
equity interest in the Company. WAI acquired the Series D Preferred Shares
and the Common Shares in order to increase the equity interest of WHL in
the Company. WHL may directly or indirectly continue to purchase securities
of the Company from time to time. In addition, the WAT Trustee may continue
to purchase securities of the Company from time to time. However, none of
the Reporting Persons has any plans or proposals which relate to or would
result in:
<PAGE>
PAGE 9 OF 17 PAGES
(1) the acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
(2) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(3) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(4) any change in the present board of directors or management
of the Company, including any plans or proposals to change the number of
term of directors or to fill any existing vacancies on the board;
(5) any material change in the present capitalization or dividend
policy of the Company;
(6) any other material change in the Company's business or
corporate structure;
(7) changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person;
(8) causing a class of securities of the Company to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(9) a class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the Act; or
(10) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5(a) of the Schedule 13D is hereby amended as follows:
(a) Each of Frank P., David H., Peter S. and Steven M. Lowy
Westfield Holdings Limited ("WHL") may be deemed to beneficially own
73,941,270 Common Shares, which represents approximately 82.1% of the
outstanding Common Shares. Each of Messrs. Frank P., David H., Peter S. and
Steven M. Lowy disclaims beneficial ownership of the securities that may be
deemed to be beneficially owned by WHL, the WAT Trustee or the PM Capital
Fund as described in Item 3 above. References to beneficial ownership are
made herein solely with respect to U.S. securities laws and are not
intended to refer or apply in respect to Australian legal matters.
<PAGE>
PAGE 10 OF 17 PAGES
Item 5(b) of the Schedule 13D is hereby amended as follows:
(b) Reference is made to Item 3.
WCI has the sole power to vote and dispose of all 2,264,210
Common Shares held by it.
WAI has the sole power to vote and dispose of all 14,583,642
held by it.
The PM Capital Fund has the sole power to vote and dispose of
all 74,800 Common Shares held by it.
Other than with respect to the election of directors of the
Company, Westfield America Management Limited ("WAM") has shared power with
the WAT Trustee to vote and dispose of all 56,418,618 Common Shares owned
by the WAT Trustee. With respect to the election of directors of the
Company, the WAT Trustee may only vote the Common Shares held by it as
approved by the holders of units of WAT.
By view of their ownership and management of Cordera, Messrs.
Frank P., David H., Peter S. and Steven M. Lowy may be deemed to
beneficially own all 600,000 Common Shares owned by Cordera and thus, have
shared power to dispose of and vote such shares. References to beneficial
ownership are made herein solely with respect to U.S. securities laws and
are not intended to refer or apply in respect to Australian legal matters.
Item 5(c) of the Schedule 13D is hereby amended as follows:
(c) WAI effected the following open market purchases of Common
Shares during the period beginning 60 days prior to February 11, 1999 and
ending on the date of this Statement:
Date of Number Price
Transaction of Shares per Share
----------- --------- ---------
2/10/99 11,000 $16.750
2/11/99 47,500 $17.000
2/12/99 17,500 $16.938
2/16/99 1,000 $16.563
2/16/99 5,000 $16.500
2/17/99 300 $16.688
2/17/99 2,500 $16.563
2/17/99 1,100 $16.625
2/18/99 500 $16.563
2/18/99 700 $16.625
2/18/99 1,600 $16.688
2/19/99 9,700 $16.438
<PAGE>
PAGE 11 OF 17 PAGES
3/2/99 2,800 $16.875
3/2/99 1,000 $16.813
3/2/99 8,400 $16.750
3/3/99 7,800 $16.750
5/13/99 2,000 $16.000
5/13/99 2,000 $15.938
The WAT Trustee effected the following open market purchases of
Common Shares during the past 60 days:
Date of Number Price
Transaction of Shares per Share
----------- --------- ---------
9/21/99 113,000 $14.125
9/21/99 1,400 $14.063
9/21/99 10,600 $14.00
9/22/99 100,000 $14.063
9/22/99 50,000 $14.00
9/23/99 25,000 $14.063
9/23/99 48,900 $14.00
9/23/99 1,100 $13.938
12/20/99 27,000 $13.00
12/20/99 5,700 $12.8125
12/20/99 3,300 $12.750
12/20/99 1,000 $12.625
12/21/99 7,100 $13.3125
12/21/99 6,400 $13.250
12/21/99 100 $13.125
12/21/99 3,800 $13.0625
12/22/99 10,000 $13.00
12/22/99 12,100 $12.9375
12/23/99 200 $13.00
12/23/99 2,800 $12.9375
12/23/99 9,300 $12.875
2/08/00 600 $12.875
2/08/00 1,000 $12.8125
2/09/00 36,200 $13.375
2/09/00 900 $13.25
2/09/00 1,600 $13.1875
2/09/00 300 $13.00
2/09/00 1,500 $12.8125
2/10/00 10,500 $13.50
2/16/00 1,000 $13.6875
2/17/00 43,800 $13.75
<PAGE>
PAGE 12 OF 17 PAGES
2/17/00 2,000 $13.6875
2/17/00 600 $13.625
2/18/00 346,000 $13.625
2/22/00 6,200 $13.50
2/23/00 19,600 $13.3485
2/24/00 142,200 $13.50
3/02/00 11,900 $13.50
3/03/00 105,700 $13.9866
3/06/00 8,000 $13.625
3/08/00 8,000 $13.068
3/09/00 8,000 $13.4844
3/10/00 1,400 $13.4375
3/13/00 6,200 $13.4547
3/15/00 5,700 $13.625
3/16/00 137,900 $13.9427
3/17/00 6,200 $13.7288
3/20/00 5,000 $13.9925
3/21/00 5,000 $13.9888
3/22/00 34,500 $14.00
3/23/00 2,000 $14.00
3/24/00 5,000 $14.00
3/27/00 6,000 $13.7656
The PM Capital Fund effected the following open market
purchases of Common Shares during the period beginning 60 days prior to
February 11, 1999 and ending on the date of this Statement:
Date of Number Price
Transaction of Shares per Share
----------- --------- ---------
1/8/99 10,200 $17.74
1/11/99 7,200 $17.50
1/12/99 10,000 $17.50
1/13/99 10,000 $17.50
1/14/99 4,400 $17.50
1/15/99 3,400 $17.50
3/8/99 9,600 $16.10
3/24/99 20,000 $15.25
Item 5(d) of the Schedule 13D is hereby amended as follows:
(d) Holders of WAT units will receive economic benefits from the
Common Shares and the Preferred Shares held by the WAT Trustee. Solely for
purposes of U.S. securities laws, WHL may be deemed to own beneficially
22.2% of outstanding WAT units and each of Messrs. Frank P., David H.,
Peter S. and Steven M. Lowy may be deemed
<PAGE>
PAGE 13 OF 17 PAGES
to each own beneficially 28.8% of outstanding WAT units. Each of the
Messrs. Lowy disclaims beneficial ownership of the WAT units. References to
beneficial ownership are made herein solely with respect to U.S. securities
laws and are not intended to refer or apply in any respect to Australian
legal matters.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Item 6 of the Schedule 13D is hereby amended as follows:
Under the Subscription Agreements, dated as of June 25, 1998
and December 17, 1998, each among the Company, WAM and the WAT Trustee (the
"WAT Subscription Agreements"), so long as the WAT Trustee owns any Series
D Preferred Shares or Series D-1 Preferred Shares, as applicable, if the
Company shall fail to continue to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Internal Revenue Code,
the WAT Trustee shall have the right to require the Company, to the extent
the Company shall have funds legally available therefor, to repurchase any
or all of the Series D Preferred Shares or Series D-1 Preferred Shares, as
applicable, held by the WAT Trustee in an amount equal to 115% of the
liquidation preference thereof, plus accrued and unpaid dividends, whether
or not declared, if any, to the date of repurchase or the date payment is
made available.
Under the Subscription Agreement, dated as of June 25, 1998,
among the Company and WAI (the "WAI Subscription Agreement") so long as WHL
or any of its wholly-owned subsidiaries (a "WHL Entity") shall own any of
the Series D Preferred Shares, if the Company shall fail to continue to be
taxed as a real estate investment trust pursuant to Sections 856 through
860 of the Internal Revenue Code, each WHL Entity shall have the right to
require the Company, to the extent the Company shall have funds legally
available therefor, to repurchase any or all of the Series D Preferred
Shares held by such WHL Entity in an amount equal to 115% of the
liquidation preference thereof, plus accrued and unpaid dividends, whether
or not declared, if any, to the date of repurchase or the date payment is
made available.
In addition, pursuant to the Certificate of Designation setting
forth "Resolution Designating Series D Preferred Shares and Fixing
Preferences and Rights Thereof " (the "Series D Certificate of
Designation"), the Series D Preferred Shares are redeemable, at the option
of the Company, on or after August 12, 2008 at a redemption price equal to
the sum of $180.00 per share and all accrued and unpaid dividends through
the call date specified in the notice to holders regarding the redemption.
Pursuant to the Series D Certificate of Designation, If there
is a Change of Control (as defined therein), the holders of the Series D
Preferred Shares can require the Company, if the Company has funds legally
available therefor, to redeem their Series D Preferred Shares at a cost of
$189.00, plus accrued and unpaid dividends, if any, to the date that the
Company repurchases such shares.
<PAGE>
PAGE 14 OF 17 PAGES
Pursuant to the Series D Certificate of Designation, from and
after August 12, 2008, the holders of the Series D Preferred Shares have
the right to require the Company to redeem their Series D Preferred Shares
either for cash or for Common Shares, at the Company's option, as long as
the current market price of the Common Shares is less than $18.00, adjusted
for events that affect the Conversion Price (as defined therein).
Pursuant to the Series D Certificate of Designation, the
holders of Series D Preferred Shares do not have any voting rights, other
than as required by law, except that a majority of the holders of the
Series D Preferred Shares, voting together as a class, must approve any
amendment, alteration or repeal of the Company's Articles of Incorporation
or the Series D Certificate of Designation that materially and adversely
affects their voting powers, rights or preferences and a majority of the
holders of the Series D Preferred Shares, voting together as a
class, must approve any merger or consolidation that the Company is
involved in, if the Company does not survive such merger or consolidation
and the holders of the Series D Preferred Shares do not receive shares of
the surviving corporation with substantially similar rights, preferences
and powers in the surviving corporation as their Series D Preferred Shares.
Pursuant to the Registration Rights Agreement, dated as of May
21, 1997, among the Company, WHL and each of WHL's subsidiaries (the
"Registration Rights Agreement"), WHL and each WHL's subsidiaries are
entitled to (i) register under the Securities Act of 1933, as amended (the
"Securities Act"), (a) Common Shares held by WHL or any of WHL's
subsidiaries, (b) any other Common Shares acquired by WHL or any of its
subsidiaries in the future (including Common Shares received by WAI upon
conversion of the Series D Preferred Shares or conversion of the Series D-1
Preferred Shares) and (c) any securities or issued or issuable with respect
to (x) such Common Shares or (y) other securities of the Company or any
other person which WHL or any of its subsidiaries is entitled to receive,
or shall have received, in lieu of or in addition to Common Shares, or
which at any time shall be issuable or shall have been issued in exchange
for or in replacement of Common Shares by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise (collectively,
the "Registrable Securities") and (ii)subject to certain exceptions, to
require the Company to include the Registrable Securities in any
registration of equity securities of the Company under the Securities Act.
Pursuant to the Certificate of Designation setting forth
"Resolution of the Board of Directors of Westfield America, Inc.
Designating Series D-1 Preferred Shares and Fixing Preferences and Rights
Thereof" (the "Series D-1 Certificate of Designation" and together with the
Series D Certificate of Designation, the "Certificates of Designation"),
the Series D-1 Preferred Shares are redeemable, at the option of the
Company, on or after August 12, 2008 at a redemption price equal to the sum
of $180.00 per share and all accrued and unpaid dividends through the call
date specified in the notice to holders regarding the redemption.
Pursuant to the Series D-1 Certificate of Designation, If there
is a Change of Control (as defined therein), the holders of the Series D
Preferred Shares can require the Company, if the Company has funds legally
available therefor, to redeem their Series D-1
<PAGE>
PAGE 15 OF 17 PAGES
Preferred Shares at a cost of $189.00, plus accrued and unpaid dividends,
if any, to the date that the Company repurchases such shares.
Pursuant to the Series D-1 Certificate of Designation, from and
after August 12, 2008, the holders of the Series D-1 Preferred Shares have
the right to require the Company to redeem their Series D-1 Preferred
Shares either for cash or for Common Shares, at the Company's option, as
long as the current market price of the Common Shares is less than $18.00,
adjusted for events that affect the Conversion Price (as defined therein).
Pursuant to the Series D-1 Certificate of Designation, the
holders of Series D Preferred Shares do not have any voting rights, other
than as required by law, except that a majority of the holders of the
Series D-1 Preferred Shares, voting together as a class, must approve any
amendment, alteration or repeal of the Company's Articles of Incorporation
or the Series D-1 Certificate of Designation that materially and adversely
affects their voting powers, rights or preferences and a majority of the
holders of the Series D-1 Preferred Shares, voting together as a class,
must approve any merger or consolidation that the Company is involved in,
if the Company does not survive such merger or consolidation and the
holders of the Series D-1 Preferred Shares do not receive shares of the
surviving corporation with substantially similar rights, preferences and
powers in the surviving corporation as their Series D-1 Preferred Shares.
Under the Investors Agreement, dated as of May 21, 1997, if the
WAT Trustee should elect to sell either the warrant it acquired in July
1996 to purchase 6,246,096 Common Shares or the warrant it acquired in May
1997 to purchase 2,089,552 Common Shares (collectively, the "WAT
Warrants"), then WHL has a right of first refusal with respect thereto.
All references to, and summaries of, the WAT Subscription
Agreements, the WAI Subscription Agreement, the Certificates of Designation
and the Registration Rights Agreement in this Amendment No. 1 are qualified
in their entirety by reference to such agreements, the full text of which
are filed as exhibits hereto and incorporated herein by this reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
EXHIBIT A Powers of Attorney (1).
EXHIBIT B WAT Subscription Agreement, dated as of June 25, 1998.
EXHIBIT C WAT Subscription Agreement, dated as of December 17, 1998.
EXHIBIT D WAI Subscription Agreement, dated as of June 25, 1998.
EXHIBIT E Series D Certificate of Designation
EXHIBIT F Series D-1 Certificate of Designation
EXHIBIT G Registration Rights Agreement, dated as of May 21, 1997
EXHIBIT H Investors Agreement, dated as of May 21, 1997
EXHIBIT I WAT Warrants
<PAGE>
PAGE 16 OF 17 PAGES
- ---------------------
(1) Incorporated by reference to Statement on Schedule 13D filed May 30, 1997,
on behalf of Cordera Holdings Pty. Limited, Frank P. Lowy, David H.
Lowy, Peter S. Lowy and Steven M. Lowy.
<PAGE>
PAGE 17 OF 17 PAGES
SIGNATURE
After reasonable inquiry and to the best of their knowledge and
belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
Dated: April 4, 2000
CORDERA HOLDINGS PTY. LIMITED
By:/s/ Peter S. Lowy
------------------------
Peter S. Lowy
Director
*
-------------------------
Frank P. Lowy
*
-------------------------
David H. Lowy
/s/ Peter S. Lowy
------------------------
Peter S. Lowy
*
------------------------
Steven M. Lowy
* By:/s/ Peter S. Lowy
------------------------
Peter S. Lowy
Attorney-in-fact
WAT SUBSCRIPTION AGREEMENT
WAT SUBSCRIPTION AGREEMENT, dated as of June 25, 1998, between
Westfield America, Inc.(ARBN 082 554 541), a Missouri corporation (the
"COMPANY"), Perpetual Trustee Company Limited (ACN 000 001 007), an
Australian company (the "TRUSTEE"), and Westfield America Management
Limited (ACN 072 780 619), an Australian company (the "MANAGER").
W I T N E S S E T H:
WHEREAS, pursuant to the Trust Deed, dated March 28, 1996, as
amended (the "TRUST DEED"), between the Trustee and the Manager, Westfield
America Trust, an Australian public property trust ("WAT"), was created;
and the Trustee and the Manager have authority to act on behalf of WAT
under the Trust Deed;
WHEREAS, the Company wishes to sell and Security Capital
Preferred Growth Incorporated wishes to purchase $75,000,060 (U.S.) of
Series C Cumulative Convertible Redeemable Preferred Stock of the Company
pursuant to a Series C Stock Purchase Agreement (the "SERIES C STOCK
PURCHASE AGREEMENT");
WHEREAS, the Company wishes to sell and Westfield American
Investments Pty. Limited wishes to buy 277,778 shares of Series D
Cumulative Convertible Redeemable Preferred Stock of the Company, par
value $1.00 (the "SERIES D PREFERRED STOCK"); and
WHEREAS, the Manager has directed the Trustee on behalf of WAT
to subscribe for and purchase, and the Company desires to sell to the
Trustee on behalf of WAT, 416,667 shares of Series D Preferred Stock (the
"SHARES"), subject to the terms and conditions contained herein.
NOW, THEREFORE, to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereto hereby agree
as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to all of the terms
and conditions of this Agreement, the Company agrees to sell and the
Trustee on behalf of WAT agrees to purchase the Shares on the Closing Date
(as defined in Section 2) for consideration as provided in Section 2(b).
The Shares shall have the rights set forth in the Series D Certificate of
Designation, substantially in the form attached as Exhibit A hereto.
2. CLOSING.
(a) TIME AND PLACE. Subject to the satisfaction of the
conditions contained herein, the closing of the sale of the Shares (the
"CLOSING") shall take place simultaneously with the closing under the
Series C Preferred Stock Agreement (the "CLOSING DATE"). The Closing shall
occur at the offices of Westfield America Inc., 11601 Wilshire Boulevard,
12th Floor, Los Angeles, California 90025.
(b) DELIVERY BY THE TRUSTEE. At the Closing, the Trustee shall
deliver to the Company its rights to the Money Market Term Deposit with
Bankers Trust Company ("BT") to be acquired by the Trustee on June 30,
1998 in an amount of $75,000,060, in form and substance satisfactory to
the Company, and duly assigned to the Company (the "BT DEPOSIT").
(c) DELIVERY BY THE COMPANY. At the Closing, the Company shall
deliver to the Trustee on behalf of WAT, a stock certificate registered in
the Trustee's name and representing Shares to be delivered at the Closing,
provided that the Company shall not issue the Shares and shall retain such
certificates until such time as the Company receives from the BT cash in
payment of the BT Deposit of an amount equal to $75,000,060.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Trustee as follows:
(a) AUTHORIZATION. The Company has full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been or will be duly authorized by the Company.
(b) THE SHARES. The Shares, to be delivered by the Company at
the Closing, as of the Closing Date, will have been duly authorized for
issuance and, when delivered in accordance with this Agreement, will be
validly issued, fully paid and non-assessable.
(c) SERIES C PREFERRED STOCK PURCHASE AGREEMENT. The
representations and warranties of the Company contained in the Series C
Preferred Stock Purchase Agreement are true and correct in all material
respects.
4. REPRESENTATIONS AND WARRANTIES OF TRUSTEE AND MANAGER. The
Manager and the Trustee hereby represent and warrant to the Company as
follows:
(a) AUTHORIZATION. If UnitHolder Approval is obtained, then each
of the Trustee and the Manager will have full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof and on behalf of
WAT. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will be, if UnitHolder Approval is
obtained, duly authorized by or on behalf of each of WAT, the Trustee and
the Manager.
"UnitHolder Approval" means the passing by a meeting of
unitholders of WAT of a resolution authorizing and empowering the Manager
and the Trustee to, amongst other things, enter into the transactions
contemplated by this Agreement for the purposes of the Listing Rules of
the Australian Stock Exchange Limited.
(b) ACQUISITION FOR INVESTMENT.
(i) The WAT Trustee is acquiring the Shares in its capacity as
Trustee of WAT for investment on behalf of WAT and not with a view to
or for sale in connection with any distribution thereof, and WAT has
no present intention or plan to effect any distribution thereof
within the meaning of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
(ii) The Trustee and the Manager understand that the Shares and
the common stock to be issued upon conversion thereof (the
"CONVERSION STOCK") have not been registered under the Securities Act
or applicable state securities laws and agree not to sell, pledge or
otherwise transfer any of the Shares or Conversion Stock in the
absence of such registration or an opinion of counsel reasonably
satisfactory to the Company that such registration is not required.
The Trustee and the Manager acknowledge that the Company is not
required to register the Shares or the Conversion Stock.
5. LEGENDS
The Manager acknowledges and agrees that any certificates
evidencing the Series D Preferred Stock purchased pursuant to this
Agreement and the Conversion Stock issuable upon conversion thereof shall
be stamped or endorsed with legends in substantially the following form
and shall be subject to the provisions of such legends:
"THE SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM AND AS SET FORTH HEREIN.
"THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (2) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (i) THE RECEIPT BY THE
ISSUER OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAT
SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND (ii) THE RECEIPT BY THE ISSUER OF SUCH OTHER EVIDENCE
REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, (3) TO THE ISSUER, ITS AFFILIATES, AND (4) IN THE CASE OF
A TRANSFER UNDER (1), (2) OR (3) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
The Manager acknowledges and agrees that each certificate in
respect of the Series D Preferred Stock shall bear the following additional
legend:
"THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION'S
MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL MAY BENEFICIALLY
OWN SHARE IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. IN GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY
OWN SHARES IN EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS
SET FORTH IN THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH
SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER
ARE VIOLATED, THE PREFERRED SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL TRUST AS
PROVIDED IN THE ARTICLES OF INCORPORATION."
The Manager acknowledges and agrees that the certificates in
respect of the Conversion Stock shall bear the following additional
legend.
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION'S
MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL MAY BENEFICIALLY
OWN SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP LIMIT, WHICH MAY
DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN
EXISTING HOLDER. IN GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY
OWN SHARES IN EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS
SET FORTH IN THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH
SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER
ARE VIOLATED, THE COMMON SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL TRUST AS
PROVIDED IN THE ARTICLES OF INCORPORATION."
6. COVENANTS.
(a) COVENANTS OF THE COMPANY. The Company hereby covenants to
submit to a shareholder vote at its 1999 Annual Meeting (the "1999 ANNUAL
MEETING") or at a special shareholder meeting held prior to such time, the
question of whether the Series D Preferred Stock shall be convertible into
common stock, par value $0.01 of the Company (the "PROPOSITION").
(b) COVENANTS BY MANAGER.
WAT UNITHOLDER MEETING. The Manager hereby agrees to convene a
meeting of unitholders of WAT for the purpose of seeking UnitHolder
Approval as soon as practicable, but in no event later than August 1,
1998.
(c) COVENANTS BY THE TRUSTEE. 1999 ANNUAL MEETING. Subject to
the receipt by the Trustee of a legal opinion stating that the Trustee may
vote at such meeting, the Trustee agrees to attend, in person or by proxy,
the 1999 Annual Meeting or any special shareholder meeting held prior to
such time, and to vote upon the Proposition.
7. CONDITIONS.
(a) CONDITIONS TO THE OBLIGATIONS OF THE TRUSTEE. The obligation
of the Trustee to purchase the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) UnitHolder Approval;
(ii) The representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects at
and as of the date hereof, and true and correct in all material respects
at and as of the Closing Date as if made at and as of such time;
(iii) No Bankruptcy Event or Acceleration Event with respect to
the Company shall have occurred and be continuing, and the Trustee shall
have received a certificate of the president or a co-president, chief
financial officer or a vice president of the Company, dated as of the
Closing Date, to the effect that no such Bankruptcy Event or Acceleration
Event has occurred and is continuing (in each case, subject to clause (y)
of the definition of "Acceleration Event").
A "BANKRUPTCY EVENT" shall occur with respect to the Company if
(X) a court of appropriate jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Receiver of the Company or for all or
substantially all of its property or (C) orders the liquidation of the
Company; or (Y) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry
of an order for relief in an involuntary case, (C) consents to the
appointment of a Receiver of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its
creditors.
An "ACCELERATION EVENT" shall occur with respect to the Company
if theCompany defaults under the terms of any agreement or instrument
evidencing or under which the Company has at the date of this Agreement or
hereafter outstanding any Senior Indebtedness that is full recourse to the
Company and such Senior Indebtedness shall be accelerated so that the same
shall be or become due and payable prior to the date on which the same
would otherwise become due and payable and the aggregate principal amount
thereof so accelerated exceeds U.S.$150,000,000 and such acceleration is
not rescinded or annulled within 90 Business Days; PROVIDED, HOWEVER, that
(X) if such default under such agreement or instrument is remedied or
cured by the Company or waived by the holders of such Senior Indebtedness,
then the Acceleration Event hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived or (Y) if the
Company provides to the Trustee a certificate of the president or a
co-president, chief financial officer or a vice president of the Company
to the effect that the Company holds sufficient funds, or has sufficient
availability under its credit facilities, to discharge such Senior
Indebtedness, then for all purposes of this Agreement the Acceleration
Event shall be deemed not to have occurred.
For the purposes of this Section 6:
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a
day on which banking institutions in New York are authorized or obligated
by law or executive order to close.
"INDEBTEDNESS" means (I) the principal obligations of the
Company for borrowed money (other than (X) the deferred purchase price of
property or services and (Y) indebtedness to trade creditors and service
providers incurred in the ordinary course of business) and (II) the
principal obligations of the Company evidenced by bonds, notes, debentures
or other similar instruments.
"RECEIVER" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company that
is not subordinated in right of payment to any other Indebtedness of the
Company.
(iv) The Company shall have performed in all material respects
its obligations under this Agreement required to be performed by it at or
prior to the Closing Date pursuant to the terms hereof;
(v) The closing under the Series C Preferred Stock Purchase
Agreement shall be occurring simultaneously with the Closing of the
Shares.
(b) CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation
of the Company to sell the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) The representations and warranties of the Manager and the
Trustee contained in this Agreement shall be true and correct in all
material respects at and as of the date hereof, and true and correct
in all material respects at and as of the Closing Date as if made at
and as of such time; and
(ii) Each of the Trustee and the Manager shall have performed in
all material respects its obligations under this Agreement required
to be performed by it at or prior to the Closing Date pursuant to the
terms hereof.
8. CONDITIONS TO EFFECTIVENESS.
(a) This Agreement shall not be binding on any party hereto and
is to have no legal effect unless and until the Manager of WAT allots and
issues 82.2 million units on June 30, 1998 pursuant to the underwriting
agreement entered into concurrently with this Agreement with SBC Warburg
Dillon Read Australia Limited.
(b) The Trustee shall have no obligation to purchase the Shares
until the Trustee receives all of the following opinions in a form
reasonably acceptable to the Trustee: an Australian legal opinion and
United States legal opinion, an Australian taxation opinion and a United
States tax opinion.
9. MAINTENANCE OF REIT STATUS.
(a) So long as the Trustee on behalf of WAT owns any of the
Shares of Series D Preferred Stock, the Company will continue to be taxed
as a real estate investment trust pursuant to Sections 856 through 860 of
the Code.
(b) If the Company shall fail to continue to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of the Code
(a "REIT-TERMINATION EVENT"), the Trustee on behalf of WAT shall have the
right to require the Company, to the extent the Company shall have funds
legally available therefor, to repurchase any or all of the Series D
Preferred Shares held by the Trustee on behalf of WAT at a repurchase
price payable in cash (the "REIT-REPURCHASE PAYMENT") in an amount equal
to 115% of the Liquidation Preference (as defined in the Series D
Certificate of Designation) thereof, plus accrued and unpaid dividends
whether or not declared, if any to the date of repurchase or the date
payment is made available (the "REIT-REPURCHASE DATE").
(c) Within 15 days following the Company becoming aware that a
REIT-Termination Event has occurred, the Corporation shall mail by first
class mail or recognized overnight courier a notice to the Trustee and the
Manager stating (A) that a REIT-Termination Event has occurred and that
the Trustee on behalf of WAT has the right to require the Company to
repurchase any or all of the Series D Preferred Shares then held by the
Trustee on behalf of WAT, (B) the date of repurchase (which shall be a
Business Day (as defined in the Series D Certificate of Designation), no
earlier than 30 days and no later than 60 days from the date such notice
is mailed, or such later date as may be necessary to comply with the
requirements of the Securities Exchange Act of 1934, as amended), (C) the
repurchase price and (D) the instructions determined by the Company,
consistent with this subsection, that the Trustee must follow in order to
have the Series D Preferred Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to the extent
lawful, shall accept for payment Series D Preferred Shares or portions
thereof tendered by the holders thereof pursuant to the REIT-Repurchase
Offer and promptly, by wire transfer of immediately available funds to
such holders, as directed by such holders, send an amount equal to the
REIT-Repurchase Payment in respect of all Series D Preferred Shares, or
portions thereof so tendered.
(e) Notwithstanding anything else herein, to the extent they are
applicable to any REIT-Repurchase Offer, the Company will comply with any
federal and state securities laws, rules and regulations and all time
periods and requirements shall be adjusted accordingly.
10. TRUSTEE'S LIMITATION OF LIABILITY.
(a) The Trustee enters into this Agreement only in its capacity
as trustee of WAT and in no other capacity. Any liability arising under or
in connection with this Agreement will be limited to, and can be enforced
against the Trustee only to the extent to which such liability can be
satisfied out of, the property or assets of WAT from which the Trustee is
actually indemnified for such liability. This limitation of the Trustee's
liability under this Agreement will apply despite any other provision of
this Agreement and extends to all liabilities and obligations of the
Trustee in any way related to any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement, subject to
paragraph (c)(i) of this Section 10.
(b) Neither the Company nor the Manager may sue the Trustee in
any capacity other than as trustee of WAT, including to seek the
appointment of a receiver (except in relation to the property or assets of
WAT), a liquidator, an administrator or any similar person with respect to
the Trustee or to prove in any liquidation, administration or arrangement
of or affecting the Trustee (except in relation to the property or assets
of WAT), subject to paragraph (c)(i) of this Section 10.
(c) Notwithstanding the foregoing paragraphs (a) and (b), the
provisions of this Section 10 shall not: (i) apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Trust Deed establishing WAT or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the
property or assets of WAT as a result of the Trustee's fraud, negligence
or breach of trust; or (ii) in any way limit the right of the Company to
bring any action or proceeding for the performance by the Trustee (in its
capacity as trustee of WAT) or the Manager of any of their respective
obligations under this Agreement or the Company's right to recover damages
from the property or assets of WAT.
11. MISCELLANEOUS.
(a) NOTICES. All notices and other communications made in
connection with this Agreement shall be in writing and shall be (A) sent
by facsimile, with a copy mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or (B) transmitted by
hand delivery, addressed as follows (or at such other address as may be
specified in writing to the other party hereto):
(i) if to the Company, to:
Westfield America, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025
Telecopy: 310-478-8776
Attention: Irv Hepner, Secretary
(ii) if to the Manager, to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney NSW 2011 Australia
Telecopy: 011 612 93587077
Attention: Craig Van der Laan, Secretary
(iii) if to the Trustee, to:
Perpetual Trustee Company Limited
39 Hunter Street
Sydney NSW 2000 Australia
Telecopy: 011 612 92315606
Attention: Allan Cowper, National Manager-
Property Trusts
All such notices and communications shall be deemed to have been
received on the date of delivery.
(b) BINDING EFFECT; BENEFITS, ETC. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended or shall be construed to give any person
other than the parties to this Agreement or their respective successors or
assigns any benefit or any legal or equitable right, remedy or claim under
or in respect of any agreement or any provision contained herein.
(c) WAIVER; AMENDMENT. (i) WAIVER. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing and duly executed by the party against
whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver or instance shall constitute a waiver,
modification or discharge, as the case may be, only with respect to the
specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any
other time.
(ii) AMENDMENT. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Company, the
Trustee and the Manager.
(d) ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company, the Manager or the Trustee without the prior
written consent of the other parties.
(e) SEPARABILITY. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(f) GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
The Company, the Trustee and the Manager each irrevocably
submits to the non-exclusive jurisdiction of any New York State or United
States Federal court sitting in the City of New York over any suit, action
or proceeding arising out of or relating to this Agreement. The Company,
the Trustee and the Manager each irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in any such court and
any claim that any such proceeding brought in such court has been brought
in an inconvenient forum. The Company, the Trustee and the Manager each
agree that final judgment in any such suit, action or proceeding brought
in such a court shall be conclusive and binding on it and may be enforced
in any court to the jurisdiction of which it is subject by a suit upon
such judgment. The Company, the Trustee and the Manager each hereby
irrevocably consent to service of copies of the summonses and complaints
and any other process. Such service may be made by mailing or delivering a
copy of such process to their respective addresses set forth above or by
any other means provided for by applicable law.
(g) SECTION AND OTHER HEADINGS, ETC. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company, the Manager and the Trustee have
duly executed this WAT Subscription Agreement by their authorized
representatives as of the date first above written.
WESTFIELD AMERICA, INC.
By:/s/ Peter S. Lowy
-----------------
Name: Peter S. Lowy
Title: Co-President
WESTFIELD AMERICA MANAGEMENT LIMITED, As
Manager of Westfield America Trust
By:/s/ Craig Van Der Laan De Vries
-------------------------------
Name: Craig van der Laan de Vries
Title: Attorney Appointed under Power
of Attorney date 25 June 1998
PERPETUAL TRUSTEE COMPANY LIMITED, As
Trustee of Westfield America Trust
By:/s/ Allan Cowper
----------------
Name: Allan Cowper
Title: National Manager Property
Trusts
WAT SUBSCRIPTION AGREEMENT
WAT SUBSCRIPTION AGREEMENT, dated as of December 17, 1998,
between Westfield America, Inc.(ARBN 082 554 541), a Missouri corporation
(the "Company"), Perpetual Trustee Company Limited (ACN 000 001 007), an
Australian company (the "Trustee"), and Westfield America Management
Limited (ACN 072 780 619), an Australian company (the "Manager").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Trust Deed, dated March 28, 1996,
as amended (the "Trust Deed"), between the Trustee and the Manager,
Westfield America Trust, an Australian public property trust ("WAT"), was
created; and the Trustee and the Manager have authority to act on behalf of
WAT under the Trust Deed;
WHEREAS, the Manager has directed the Trustee on behalf of
WAT to subscribe for and purchase, and the Company desires to sell to the
Trustee on behalf of WAT, 138,889 shares (the "Shares") of Series D-1
Cumulative Convertible Redeemable Preferred Stock of the Company, par value
$1.00 (the "Series D-1 Preferred Stock"), subject to the terms and
conditions contained herein.
NOW, THEREFORE, to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereto
hereby agree as follows:
1. Purchase and Sale of the Shares. Subject to all of the
terms and conditions of this Agreement, the Company agrees to sell and the
Trustee on behalf of WAT agrees to purchase the Shares on the Closing Date
(as defined in Section 2) for consideration as provided in Section 2(b).
The Shares shall have the rights set forth in the Certificate of
Designation relating to the Series D-1 Preferred Stock, substantially in
the form attached as Exhibit A hereto (the "Series D-1 Certificate").
2. Closing.
-------
(a) Time and Place. Subject to the satisfaction of
the conditions contained herein, the closing
of the sale of the Shares (the "Closing")
shall take place on a date mutually agreed
upon by the parties hereto (the "Closing
Date"). The Closing shall occur at the offices
of Westfield America Inc., 11601 Wilshire
Boulevard, 12th Floor, Los Angeles, California
90025.
(b) Delivery by the Trustee. At the Closing, the
Trustee shall deliver $25,000,020 to the
Company by wire transfer of immediately
available funds to the following account:
Account Name: Westfield America
Limited Partnership
Account Number: 1420203965
Bank Name: Bank of America
Routing ABA Number: 121000358
(c) Delivery by the Company. At the Closing, the
Company shall deliver to the Trustee on behalf
of WAT, a stock certificate registered in the
Trustee's name and representing the Shares.
3. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Trustee as follows:
(a) Authorization. The Company has full power and
authority to execute and deliver this
Agreement and to consummate the transactions
contemplated hereby in accordance with the
terms hereof. The execution and delivery of
this Agreement and the consummation of the
transactions contemplated hereby have been or
will be duly authorized by the Company.
(b) The Shares. The Shares, to be delivered by the
Company at the Closing, as of the Closing
Date, will have been duly authorized for
issuance and, when delivered in accordance
with this Agreement, will be validly issued,
fully paid and non-assessable.
(c) Series C-1 Preferred Stock Purchase Agreement.
The representations and warranties of the
Company contained in the Series C-1 Preferred
Stock Purchase Agreement, dated as of the date
hereof, among the Company, Westfield America
Limited Partnership and Security Capital
Preferred Growth Incorporated (the "Series C-1
Purchase Agreement") are true and correct in
all material respects.
4. Representations and Warranties of Trustee and Manager.
The Manager and the Trustee hereby represent and warrant to the Company as
follows:
(a) Authorization. Each of the Trustee and the
Manager has full power and authority to
execute and deliver this Agreement and to
consummate the transactions contemplated
hereby in accordance with the terms hereof and
on behalf of WAT. The execution and delivery
of this Agreement and the consummation of the
transactions contemplated hereby have been
duly authorized by or on behalf of each of the
Trustee and the Manager.
(b) Acquisition for Investment.
(i) The Trustee is acquiring the Shares in
its capacity as Trustee of WAT for
investment on behalf of WAT and not
with a view to or for sale in
connection with any distribution
thereof, and WAT has no present
intention or plan to effect any
distribution thereof within the meaning
of the Securities Act of 1933, as
amended (the "Securities Act"). The
Trustee and the Manager have received
copies of the Company's Report on Form
10-K for the year ended December 31,
1997, the reports filed with the
Securities and Exchange Commission
since December 31, 1997, pursuant to
Section 13 of the Securities Exchange
Act of 1934, as amended, and the
Company's Registration Statement on
Form S-3 (File No. 333-52977), as filed
with the Commission on June 1, 1998
(collectively, the "Disclosure
Documents"). The Trustee and the
Manager have been furnished the
opportunity to ask questions of and
receive answers from representatives of
the Company concerning the Disclosure
Documents and the business and
financial affairs of the Company.
(ii) The Trustee and the Manager understand
that the Shares and the common stock to
be issued upon conversion thereof (the
"Conversion Stock") have not been
registered under the Securities Act or
applicable state securities laws and
agree not to sell, pledge or otherwise
transfer any of the Shares or
Conversion Stock in the absence of such
registration or an opinion of counsel
reasonably satisfactory to the Company
that such registration is not required.
The Trustee and the Manager acknowledge
that the Company is not required to
register the Shares or the Conversion
Stock.
5. Legends. The Manager acknowledges and agrees that any
certificates evidencing the Series D-1 Preferred Stock purchased pursuant
to this Agreement and the Conversion Stock issuable upon conversion thereof
shall be stamped or endorsed with legends in substantially the following
form and shall be subject to the provisions of such legends:
"THE SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT
BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM AND AS SET FORTH HEREIN.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (2) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO (i) THE RECEIPT BY THE ISSUER OF AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND (ii) THE RECEIPT BY THE ISSUER OF SUCH OTHER
EVIDENCE REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO THE ISSUER, ITS
AFFILIATES, AND (4) IN THE CASE OF A TRANSFER UNDER (1), (2) OR (3)
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE."
The Manager acknowledges and agrees that each certificate in
respect of the Series D-1 Preferred Stock shall bear the following
additional legend:
"THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO
INDIVIDUAL MAY BENEFICIALLY OWN SHARES IN EXCESS OF THE THEN
APPLICABLE OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE FROM
TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN
GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN
EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE
MEANINGS SET FORTH IN THE RESTATED ARTICLES OF INCORPORATION, A
COPY OF WHICH, INCLUDING THE RESTRICTIONS ON OWNERSHIP AND
TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE
VIOLATED, THE PREFERRED SHARES REPRESENTED HEREBY MAY BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO
A SPECIAL TRUST AS PROVIDED IN THE RESTATED ARTICLES OF
INCORPORATION."
The Manager acknowledges and agrees that the certificates in
respect of the Conversion Stock shall bear the following additional legend.
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE
OF THE CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE
INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. NO INDIVIDUAL MAY BENEFICIALLY OWN SHARES IN EXCESS OF THE
THEN APPLICABLE OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE
FROM TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN
GENERAL, ANY INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN
EXCESS OF THE OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE
CORPORATION. ALL CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE
MEANINGS SET FORTH IN THE RESTATED ARTICLES OF INCORPORATION, A
COPY OF WHICH, INCLUDING THE RESTRICTIONS ON OWNERSHIP AND
TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE
VIOLATED, THE COMMON SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY
EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL
TRUST AS PROVIDED IN THE RESTATED ARTICLES OF INCORPORATION.
6. Covenants.
(a) Covenants of the Company. The Company hereby
covenants to submit to a shareholder vote at
its 1999 Annual Meeting (the "1999 Annual
Meeting") or at a special shareholder meeting
held prior to such time, the question of
whether the Series D-1 Preferred Stock shall
be convertible into common stock, par value
$0.01 of the Company (the "Proposition").
(b) Covenants by the Trustee. The Trustee agrees
to attend, in person or by proxy, the 1999
Annual Meeting or any special shareholder
meeting held prior to such time, and to vote
upon the Proposition.
7. Conditions.
(a) Conditions to the Obligations of the Trustee.
The obligation of the Trustee to purchase the
Shares at the Closing is subject to the
satisfaction or waiver at or prior to the
Closing Date of the following conditions:
(i) The representations and warranties of
the Company contained in this Agreement
shall be true and correct in all
material respects at and as of the date
hereof, and true and correct in all
material respects at and as of the
Closing Date as if made at and as of
such time;
(ii) No Bankruptcy Event or Acceleration
Event with respect to the Company shall
have occurred and be continuing, and
the Trustee shall have received a
certificate of a Co- President, Chief
Financial Officer or the Secretary of
the Company, dated as of the Closing
Date, to the effect that no such
Bankruptcy Event or Acceleration Event
has occurred and is continuing (in each
case, subject to clause (y) of the
definition of "Acceleration Event").
A "Bankruptcy Event" shall occur with respect to the Company
if (x) a court of appropriate jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a Receiver of the
Company or for all or substantially all of its property or (C)
orders the liquidation of the Company; or (y) the Company pursuant
to or within the meaning of any Bankruptcy Law (A) commences a
voluntary case, (B) consents to the entry of an order for relief in
an involuntary case, (C) consents to the appointment of a Receiver
of it or for all or substantially all of its property, or (D) makes
a general assignment for the benefit of its creditors.
An "Acceleration Event" shall occur with respect to the
Company if the Company defaults under the terms of any agreement or
instrument evidencing or under which the Company has at the date of
this Agreement or hereafter outstanding any Senior Indebtedness
that is full recourse to the Company and such Senior Indebtedness
shall be accelerated so that the same shall be or become due and
payable prior to the date on which the same would otherwise become
due and payable and the aggregate principal amount thereof so
accelerated exceeds U.S.$150,000,000 and such acceleration is not
rescinded or annulled within 90 Business Days; provided, however,
that (x) if such default under such agreement or instrument is
remedied or cured by the Company or waived by the holders of such
Senior Indebtedness, then the Acceleration Event hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived or (y) if the Company provides to the
Trustee a certificate of the president or a co-president, chief
financial officer or a vice president of the Company to the effect
that the Company holds sufficient funds, or has sufficient
availability under its credit facilities, to discharge such Senior
Indebtedness, then for all purposes of this Agreement the
Acceleration Event shall be deemed not to have occurred.
For the purposes of this Section 7:
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in New York are authorized
or obligated by law or executive order to close.
"Indebtedness" means (i) the principal obligations of the
Company for borrowed money (other than (x) the deferred purchase
price of property or services and (y) indebtedness to trade
creditors and service providers incurred in the ordinary course of
business) and (ii) the principal obligations of the Company
evidenced by bonds, notes, debentures or other similar instruments.
"Receiver" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Senior Indebtedness" means any Indebtedness of the Company
that is not subordinated in right of payment to any other
Indebtedness of the Company.
(iii) The Company shall have performed in all
material respects its obligations under
this Agreement required to be performed
by it at or prior to the Closing Date
pursuant to the terms hereof;
(iv) The closing under the Series C-1
Purchase Agreement shall be occurring
simultaneously with the Closing of the
issuance and sale of the Shares.
(b) Conditions to the Obligations of the Company.
The obligation of the Company to sell the
Shares at the Closing is subject to the
satisfaction or waiver at or prior to the
Closing Date of the following conditions:
(i) The representations and warranties of
the Manager and the Trustee contained
in this Agreement shall be true and
correct in all material respects at and
as of the date hereof, and true and
correct in all material respects at and
as of the Closing Date as if made at
and as of such time; and
(ii) Each of the Trustee and the Manager
shall have performed in all material
respects its obligations under this
Agreement required to be performed by
it at or prior to the Closing Date
pursuant to the terms hereof.
8. Conditions to Effectiveness. The Trustee shall have no
obligation to purchase the Shares until the Trustee receives all of the
following opinions in a form reasonably acceptable to the Trustee: an
Australian legal opinion and United States legal opinion, an Australian
taxation opinion and a United States tax opinion.
9. Maintenance of REIT Status.
(a) So long as the Trustee on behalf of WAT owns
any of the Shares of Series D-1 Preferred
Stock, the Company will continue to be taxed
as a real estate investment trust pursuant to
Sections 856 through 860 of the Code.
(b) If the Company shall fail to continue to be
taxed as a real estate investment trust
pursuant to Sections 856 through 860 of the
Code (a "REIT-Termination Event"), the Trustee
on behalf of WAT shall have the right to
require the Company, to the extent the Company
shall have funds legally available therefor,
to repurchase any or all of the Series D-1
Preferred Stock held by the Trustee on behalf
of WAT at a repurchase price payable in cash
(the "REIT-Repurchase Payment") in an amount
equal to 115% of the Liquidation Preference
(as defined in the Series D-1 Certificate)
thereof, plus accrued and unpaid dividends
whether or not declared, if any to the date of
repurchase or the date payment is made
available (the "REIT-Repurchase Date").
(c) Within 15 days following the Company becoming
aware that a REIT-Termination Event has
occurred, the Corporation shall mail by first
class mail or recognized overnight courier a
notice to the Trustee and the Manager stating
(A) that a REIT-Termination Event has occurred
and that the Trustee on behalf of WAT has the
right to require the Company to repurchase any
or all of the Series D-1 Preferred Shares then
held by the Trustee on behalf of WAT, (B) the
date of repurchase (which shall be a Business
Day (as defined in the Series D-1
Certificate), no earlier than 30 days and no
later than 60 days from the date such notice
is mailed, or such later date as may be
necessary to comply with the requirements of
the Securities Exchange Act of 1934, as
amended), (C) the repurchase price and (D) the
instructions determined by the Company,
consistent with this subsection, that the
Trustee must follow in order to have the
Series D-1 Preferred Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to
the extent lawful, shall accept for payment
Series D-1 Preferred Stock or portions thereof
tendered by the holders thereof pursuant to
the REIT- Repurchase Offer and promptly, by
wire transfer of immediately available funds
to such holders, as directed by such holders,
send an amount equal to the REIT-Repurchase
Payment in respect of all Series D-1 Preferred
Stock, or portions thereof so tendered.
(e) Notwithstanding anything else herein to the
contrary, to the extent they are applicable to
any REIT-Repurchase Offer, the Company will
comply with any federal and state securities
laws, rules and regulations and all time
periods and requirements shall be adjusted
accordingly.
10. Trustee's Limitation of Liability.
(a) The Trustee enters into this Agreement only in
its capacity as trustee of WAT and in no other
capacity. Any liability arising under or in
connection with this Agreement will be limited
to, and can be enforced against the Trustee
only to the extent to which such liability can
be satisfied out of, the property or assets of
WAT from which the Trustee is actually
indemnified for such liability. This
limitation of the Trustee's liability under
this Agreement will apply despite any other
provision of this Agreement and extends to all
liabilities and obligations of the Trustee in
any way related to any representation,
warranty, conduct, omission, agreement or
transaction related to this Agreement, subject
to paragraph (c)(i) of this Section 10.
(b) Neither the Company nor the Manager may sue
the Trustee in any capacity other than as
trustee of WAT, including to seek the
appointment of a receiver (except in relation
to the property or assets of WAT), a
liquidator, an administrator or any similar
person with respect to the Trustee or to prove
in any liquidation, administration or
arrangement of or affecting the Trustee
(except in relation to the property or assets
of WAT), subject to paragraph (c)(i) of this
Section 10.
(c) Notwithstanding the foregoing paragraphs (a)
and (b), the provisions of this Section 10
shall not: (i) apply to any obligation or
liability of the Trustee to the extent that it
is not satisfied because under the Trust Deed
establishing WAT or by operation of law there
is a reduction in the extent of the Trustee's
indemnification out of the property or assets
of WAT as a result of the Trustee's fraud,
negligence or breach of trust; or (ii) in any
way limit the right of the Company to bring
any action or proceeding for the performance
by the Trustee (in its capacity as trustee of
WAT) or the Manager of any of their respective
obligations under this Agreement or the
Company's right to recover damages from the
property or assets of WAT.
11. Dividends. The Trustee and the Manager hereby
acknowledge and agree that the Company will pay the dividends due and
payable on the Series D-1 Preferred Shares for the quarter ended December
31, 1998 concurrently with the dividends due and payable for the quarter
ended March 31, 1999.
12. Miscellaneous.
(a) Notices. All notices and other communications
made in connection with this Agreement shall
be in writing and shall be (i) sent by
facsimile, with a copy mailed by first-class,
registered or certified mail, return receipt
requested, postage prepaid, or (ii)
transmitted by hand delivery, addressed as
follows (or at such other address as may be
specified in writing to the other party
hereto):
(i) if to the Company, to:
Westfield America, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025
Telecopy: 310-478-8776
Attention: Irv Hepner, Secretary
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Telecopy: 213-687-5600
Attention: Gregg A. Noel, Esq.
(ii) if to the Manager, to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney NSW 2011 Australia
Telecopy: 011 612 93587077
Attention: Craig Van der Laan, Secretary
(iii) if to the Trustee, to:
Perpetual Trustee Company Limited
39 Hunter Street
Sydney NSW 2000 Australia
Telecopy: 011 612 92315606
Attention: Allan Cowper,
National Manager-Property Trusts
All such notices and communications shall be deemed to have
been received on the date of delivery.
(b) Binding Effect; Benefits, Etc. This Agreement
shall be binding upon and inure to the benefit
of the parties to this Agreement and their
respective successors and assigns. Nothing in
this Agreement, express or implied, is
intended or shall be construed to give any
person other than the parties to this
Agreement or their respective successors or
assigns any benefit or any legal or equitable
right, remedy or claim under or in respect of
any agreement or any provision contained
herein.
(c) Waiver; Amendment.
(i) Waiver. No amendment, modification or
discharge of this Agreement, and no
waiver hereunder, shall be valid or
binding unless set forth in writing and
duly executed by the party against whom
enforcement of the amendment,
modification, discharge or waiver is
sought. Any such waiver or instance
shall constitute a waiver, modification
or discharge, as the case may be, only
with respect to the specific matter
described in such writing and shall in
no way impair the rights of the party
granting such waiver in any other
respect or at any other time.
(ii) Amendment. This Agreement may be
amended, modified or supplemented only
by a written instrument executed by the
Company, the Trustee and the Manager.
(d) Assignability. Neither this Agreement nor any
right, remedy, obligation or liability arising
hereunder or by reason hereof shall be
assignable by the Company, the Manager or the
Trustee without the prior written consent of
the other parties.
(e) Separability. In case any provision in this
Agreement shall be invalid, illegal or
unenforceable, the validity, legality and
enforceability of the remaining provisions
shall not in any way be affected or impaired
thereby.
(f) Governing Law; Consent to Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. INCLUDING WITHOUT LIMITATION,
SECTIONS 5- 1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATION LAW AND NEW YORK CIVIL
PRACTICE LAWS AND RULES 327(b).
The Company, the Trustee and the Manager each irrevocably
submits to the non- exclusive jurisdiction of any New York State or United
States federal court sitting in the City of New York over any suit, action
or proceeding arising out of or relating to this Agreement. The Company,
the Trustee and the Manager each irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in any such court and
any claim that any such proceeding brought in such court has been brought
in an inconvenient forum. The Company, the Trustee and the Manager each
agree that final judgment in any such suit, action or proceeding brought in
such a court shall be conclusive and binding on it and may be enforced in
any court to the jurisdiction of which it is subject by a suit upon such
judgment. The Company, the Trustee and the Manager each hereby irrevocably
consent to service of copies of the summonses and complaints and any other
process. Such service may be made by mailing or delivering a copy of such
process to their respective addresses set forth above or by any other means
provided for by applicable law.
(g) Section and Other Headings, etc. The section
and other headings contained in this Agreement
are for reference purposes only and shall not
affect the meaning or interpretation of this
Agreement.
(h) Counterparts. This Agreement may be executed
in any number of counterparts, each of which
shall be deemed to be an original and all of
which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Company, the Manager and the Trustee
have duly executed this WAT Subscription Agreement by their authorized
representatives as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
--------------------------------------
Name: Peter S. Lowy
Title: Co-President
WESTFIELD AMERICA MANAGEMENT
LIMITED,
As Manager of Westfield America Trust
By: /s/ Craig van der Laan de Vries
--------------------------------------
Name: Craig van der Laan de Vries
Title: Attorney Appointed under Power
of Attorney, dated 14 December
1998
PERPETUAL TRUSTEE COMPANY LIMITED,
As Trustee of Westfield America Trust
By: /s/ Allan Cowper
--------------------------------------
Name: Allan Cowper
Title: National Manager Property Trusts
WAI SUBSCRIPTION AGREEMENT
WAI SUBSCRIPTION AGREEMENT, dated as of June 25, 1998, between
Westfield America, Inc.(ARBN 082 554 541), a Missouri corporation (the
"COMPANY") and Westfield American Investments Pty Limited (ACN 003 161
475), a company organized under the laws of Australia ("WAI"), a subsidiary
of Westfield Holdings Limited (ACN 001 671 496), an Australian public
company ("WHL") and with respect to Section 5(b), WHL.
W I T N E S S E T H:
WHEREAS, the Company wishes to sell and Security Capital
Preferred Growth Incorporated ("SECURITY CAPITAL") wishes to purchase
$75,000,060 (U.S.) of Series C Cumulative Convertible Redeemable Preferred
Stock of the Company pursuant to a Series C Stock Purchase Agreement (the
"SERIES C STOCK PURCHASE AGREEMENT");
WHEREAS, Westfield America Management Limited, an Australian
company (the "MANAGER") has directed Perpetual Trustee Company Limited, an
Australian company (the "TRUSTEE") on behalf of Westfield America Trust, an
Australian public property trust,("WAT") to subscribe for and purchase, and
the Company desires to sell to the Trustee on behalf of WAT, 416,667 shares
of Series D Cumulative Convertible Redeemable Preferred Stock (the "SERIES
D PREFERRED STOCK"); and
WHEREAS, the Company wishes to sell and WAI wishes to buy 277,778
shares of Series D Stock of the Company, par value $1.00 (the
"SHARES"),subject to the terms and conditions contained herein.
NOW, THEREFORE, to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereto hereby agree
as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to all of the terms
and conditions of this Agreement, the Company agrees to sell and WAI agrees
to purchase the Shares on the Closing Date (as defined in Section 2) for a
purchase price of $50,000,040 (U.S.) The Shares shall have the rights set
forth in the Series D Certificate of Designation, in substantially the form
attached as Exhibit A hereto.
2. CLOSING.
(a) TIME AND PLACE. Subject to the satisfaction of the conditions
contained herein, the closing of the sale of the Shares (the "CLOSING")
shall take place simultaneously with the closing under the Series C
Preferred Stock Agreement (the "CLOSING DATE"). The Closing shall occur at
the offices of Westfield America, Inc., 11601 Wilshire Boulevard, 12th
Floor, Los Angeles, California 90025.
(b) DELIVERY BY THE COMPANY. At the Closing, the Company shall
deliver to WAI a stock certificate registered in the WAI's name and
representing the Shares to be delivered at the Closing.
(c) DELIVERY BY WAI. At the Closing, WAI shall pay or cause to be
paid to the Company $50,000,040 (U.S.), by wire transfer of immediately
available funds to the account of the Company to a bank in New York City
designated by the Company, by notice to the WAI at least two Business Days
prior to Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to WAI as follows:
(a) AUTHORIZATION. The Company has full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been or will be duly authorized by the Company.
(b) THE SHARES. The Shares, to be delivered by the Company at the
Closing, as of the Closing Date, will have been duly authorized for
issuance and, when delivered in accordance with this Agreement, will be
validly issued, fully paid and non-assessable.
(c) SERIES C PREFERRED STOCK PURCHASE AGREEMENT. The
representations and warranties of the Company contained in the Series C
Preferred Stock Purchase Agreement are true and correct in all material
respects;
4. REPRESENTATIONS AND WARRANTIES OF WAI. WAI hereby represents
and warrants to the Company as follows:
(a) AUTHORIZATION. If Shareholder Approval is obtained, then WAI
will have full power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby in accordance with
the terms hereof. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will be, if
Shareholder Approval is obtained, duly authorized by or on behalf of each
of WAI.
"Shareholder Approval" means the passing by a meeting of
shareholders of WHL of a resolution authorizing and empowering WAI to,
amongst other things, enter into the transactions contemplated by this
Agreement for the purposes of the Listing Rules of the Australian Stock
Exchange Limited.
(b) ACQUISITION FOR INVESTMENT: SOPHISTICATION: SOURCE OF FUNDS.
(i) WAI is acquiring the Shares for its own account for the purpose
of investment and not with a view to or for sale in connection with any
distribution thereof, and WAI has no present intention or plan to
effect any distribution of Shares. WAI understands that the Company
will offer and sell the Shares to WAI pursuant to the exemption from
registration under the Securities Act contained in Rule 506 of
Regulation D promulgated thereunder. WAI is an "accredited investor"
as defined in Regulation D and is able to bear the economic risk of
acquisition of the Shares, can afford to sustain a total loss on such
investment and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risk
of the proposed investment. WAI has received copies of all of the
periodic reports filed with the Securities and Exchange Commission
(the "COMMISSION") since December 31, 1997, pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended and the Company's
Registration Statement on Form S-3 (Reg. No. 333-52977) as filed with
the Commission on June 1, 1998 (collectively the "DISCLOSURE
DOCUMENTS") and has been furnished the opportunity to ask questions of
and receive answers from representatives of the Company concerning the
Disclosure Documents and the business and financial affairs of the
Company.
(ii) WAI understands that the Shares and the common stock to be
issued upon conversion thereof (the "CONVERSION STOCK") have not been
registered under the Securities Act or applicable state securities
laws and agrees not to sell, pledge or otherwise transfer any of the
Shares or in the absence of such registration or an opinion of counsel
reasonably satisfactory to the Company that such registration is not
required. WAI acknowledges that the Company is not required to
register the Shares or the Conversion Stock.
(c) LEGENDS
WAI acknowledges and agrees that any certificates evidencing the
Series D Preferred Stock purchased pursuant to this Agreement and the
Conversion Stock issuable upon conversion thereof shall be stamped or
endorsed with legends in substantially the following form and shall be
subject to the provisions of such legends:
"THE SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM AND AS SET FORTH HEREIN.
"THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (2) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (i) THE
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, AND (ii) THE RECEIPT BY THE
ISSUER OF SUCH OTHER EVIDENCE REASONABLY ACCEPTABLE TO THE ISSUER THAT
SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO THE ISSUER, ITS
AFFILIATES, AND (4) IN THE CASE OF A TRANSFER UNDER (1), (2) OR (3) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
WAI acknowledges and agrees that each certificate in respect of
the Series D Preferred Stock shall bear the following additional legend:
"THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO
INDIVIDUAL MAY BENEFICIALLY OWN SHARE IN EXCESS OF THE THEN APPLICABLE
OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE FROM TIME TO TIME,
UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN GENERAL, ANY
INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS OF THE
OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL
CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS SET FORTH IN
THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND
TRANSFER ARE VIOLATED, THE PREFERRED SHARES REPRESENTED HEREBY MAY BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A
SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF INCORPORATION."
WAI acknowledges and agrees that the certificates in respect of
the Conversion Stock shall bear the following additional legend.
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO
INDIVIDUAL MAY BENEFICIALLY OWN SHARES IN EXCESS OF THE THEN
APPLICABLE OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE FROM TIME
TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN GENERAL, ANY
INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS OF THE
OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL
CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS SET FORTH IN
THE ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH SHAREHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND
TRANSFER ARE VIOLATED, THE COMMON SHARES REPRESENTED HEREBY MAY BE
AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND DEEMED TRANSFERRED TO A
SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF INCORPORATION.
5. COVENANTS.
(a) COVENANTS OF THE COMPANY. The Company hereby covenants to
submit to a shareholder vote at its 1999 Annual Meeting (the "1999 ANNUAL
MEETING") or at a special shareholder meeting held prior to such time, the
question of whether the Series D Preferred Stock shall be convertible into
common stock, par value $0.01 per share, of the Company (the
"PROPOSITION").
(b) COVENANTS BY WHL AND WAI.
(i) WHL SHAREHOLDER MEETING. WHL hereby agrees to convene a
meeting of shareholders of WHL for the purpose of seeking Shareholder
Approval as soon as practicable, but in no event later than August 1, 1998.
(ii) 1999 ANNUAL MEETING. WHL agrees to attend and to cause its
subsidiaries holding common stock, par value $0.01 per share, of the
Company to attend, in person or by proxy, the 1999 Annual Meeting or at a
special shareholder meeting held prior to such time, and to vote upon the
Proposition.
(iii) Registration Rights Waiver. WHL hereby (i) waives its right
under the Registration Rights Agreement, dated as of May 21, 1997, between
the Company and WHL (the "WHL REGISTRATION RIGHTS AGREEMENT") to have
included its Registrable Securities (as defined in the WHL Registration
Rights Agreement) in the Company's Registration Statement on Form S-3 (No.
333-52977) and (ii) consents, under Sections 2.1 and 2.2 of the WHL
Registration Rights Agreement, to the rights granted under Registration
Rights Agreement, between the Company and Security Capital, dated the date
hereof, (the "SECURITY CAPITAL REGISTRATION RIGHTS AGREEMENT", to the
holders of Registrable Shares (as defined therein). The Company and WHL
hereby agree that the Sections 2.1 and 2.2 of the WHL Registration Rights
Agreement are hereby amended to the limited extent necessary to ensure that
such Agreement does not conflict with, or limit in any way, the rights
granted to the holders of Registrable Shares under the Security Capital
Registration Rights Agreement.
6. CONDITIONS.
(a) CONDITIONS TO THE OBLIGATIONS OF THE TRUSTEE. The obligation
of the Trustee to purchase the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) Shareholder Approval;
(ii) The representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects
at and as of the date hereof, and true and correct in all material
respects at and as of the Closing Date as if made at and as of such
time;
(iii) No Bankruptcy Event or Acceleration Event with respect to
the Company shall have occurred and be continuing, and WAI shall have
received a certificate of the president or a co-president, chief
financial officer or a vice president of the Company, dated as of the
Closing Date, to the effect that no such Bankruptcy Event or
Acceleration Event has occurred and is continuing (in each case,
subject to clause (y) of the definition of "Acceleration Event").
A "BANKRUPTCY EVENT" shall occur with respect to the Company if
(x) a court of appropriate jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Receiver of the Company or for all
or substantially all of its property or (C) orders the liquidation of
the Company; or (y) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case, (B) consents to the
entry of an order for relief in an involuntary case, (C) consents to
the appointment of a Receiver of it or for all or substantially all of
its property, or (D) makes a general assignment for the benefit of its
creditors.
An "ACCELERATION EVENT" shall occur with respect to the Company
if the Company defaults under the terms of any agreement or instrument
evidencing or under which the Company has at the date of this
Agreement or hereafter outstanding any Senior Indebtedness that is
full recourse to the Company and such Senior Indebtedness shall be
accelerated so that the same shall be or become due and payable prior
to the date on which the same would otherwise become due and payable
and the aggregate principal amount thereof so accelerated exceeds
U.S.$150,000,000 and such acceleration is not rescinded or annulled
within 90 Business Days; PROVIDED, HOWEVER, that (x) if such default
under such agreement or instrument is remedied or cured by the Company
or waived by the holders of such Senior Indebtedness, then the
Acceleration Event hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived or (y) if
the Company provides to WAI a certificate of the president or a
co-president, chief financial officer or a vice president of the
Company to the effect that the Company holds sufficient funds, or has
sufficient availability under its credit facilities, to discharge such
Senior Indebtedness, then for all purposes of this Agreement the
Acceleration Event shall be deemed not to have occurred.
For the purposes of this Section 6:
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a
day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
"INDEBTEDNESS" means (i) the principal obligations of the Company
for borrowed money (other than (x) the deferred purchase price of
property or services and (y) indebtedness to trade creditors and
service providers incurred in the ordinary course of business) and
(ii) the principal obligations of the Company evidenced by bonds,
notes, debentures or other similar instruments.
"RECEIVER" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company that
is not subordinated in right of payment to any other Indebtedness of
the Company.
(iv) The Company shall have performed in all material respects
its obligations under this Agreement required to be performed by it at
or prior to the Closing Date pursuant to the terms hereof;
(v) The closing under the Series C Preferred Stock Purchase
Agreement shall be occurring simultaneously with the Closing of the
Shares; and
(vi) The Company shall have delivered a legal opinion in a form
to be mutually agreed by WAI and the Company.
(b) CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation
of the Company to sell the Shares at the Closing is subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions:
(i) The representations and warranties of WAI contained in this
Agreement shall be true and correct in all material respects at and as
of the date hereof, and true and correct in all material respects at
and as of the Closing Date as if made at and as of such time; and
(ii) WAI shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Closing Date pursuant to the terms hereof.
7. MAINTENANCE OF REIT STATUS.
(a) So long as WHL or any of its wholly-owned subsidiaries (a
"WHL Entity") owns any of the Series D Equity Shares, the Company will
continue to be taxed as a real estate investment trust pursuant to Sections
856 through 860 of the Code.
(b) If the Company shall fail to continue to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of the Code (a
"REIT-TERMINATION EVENT"), each WHL Entity shall have the right to require
the Company, to the extent the Company shall have funds legally available
therefor, to repurchase any or all of the Series D Equity Shares held by
such WHL Entity at a repurchase price payable in cash (the "REIT-REPURCHASE
PAYMENT") in an amount equal to 115% of the Liquidation Preference thereof,
plus accrued and unpaid dividends whether or not declared, if any to the
date of repurchase or the date payment is made available (the
"REIT-REPURCHASE DATE").
(c) Within 15 days following the Company becoming aware that a
REIT-Termination Event has occurred, the Company shall mail by first class
mail or recognized overnight courier a notice to each WHL Entity holding
Series D Equity Shares stating (A) that a REIT-Termination Event has
occurred and that such holder has the right to require the Company to
repurchase any or all of the Series D Equity Shares, (B) the date of
repurchase (which shall be a Business Day, no earlier than 30 days and no
later than 60 days from the date such notice is mailed, or such later date
as may be necessary to comply with the requirements of the Exchange Act),
(C) the repurchase price and (D) the instructions determined by the
Company, consistent with this subsection, that such holder must follow in
order to have the Series D Equity Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to the extent
lawful, shall accept for payment Series D Equity Shares or portions thereof
tendered by the WHL Entities pursuant to the REIT-Repurchase Offer and
promptly, by wire transfer of immediately available funds to such holders,
as directed by such holders, send an amount equal to the REIT-Repurchase
Payment in respect of all Series D Equity Shares, or portions thereof so
tendered.
(e) Notwithstanding anything else herein, to the extent they are
applicable to any REIT-Repurchase Offer, the Company will comply with any
federal and state securities laws, rules and regulations and all time
periods and requirements shall be adjusted accordingly.
8. MISCELLANEOUS.
(a) NOTICES. All notices and other communications made in
connection with this Agreement shall be in writing and shall be (A) sent by
facsimile, with a copy mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, or (B) transmitted by hand
delivery, addressed as follows (or at such other address as may be
specified in writing to the other party hereto):
(i) if to the Company, to:
Westfield America, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025
Telecopy: 310-478-8776
Attention: Irv Hepner, Secretary
(ii) if to WAI, to:
Westfield Holdings Limited
Level 24 Westfield Towers
100 William Street
Sydney NSW 2011 Australia
Telecopy: 011 612 93587077
Attention: Craig van der Laan
All such notices and communications shall be deemed to have been
received on the date of delivery.
(b) BINDING EFFECT; BENEFITS, ETC. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and
their respective successors and assigns. Nothing in this Agreement, express
or implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns any
benefit or any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein.
(c) WAIVER; AMENDMENT. (i) WAIVER. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing and duly executed by the party against
whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver or instance shall constitute a waiver, modification
or discharge, as the case may be, only with respect to the specific matter
described in such writing and shall in no way impair the rights of the
party granting such waiver in any other respect or at any other time.
(ii) AMENDMENT. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Company and WAI.
(d) ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or WAI without the prior written consent of the
other party.
(e) SEPARABILITY. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
(f) GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF,
OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
The Company and WAI each irrevocably submits to the non-exclusive
jurisdiction of any New York State or United States Federal court sitting
in the City of New York over any suit, action or proceeding arising out of
or relating to this Agreement. The Company and WAI each irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
any such court and any claim that any such proceeding brought in such court
has been brought in an inconvenient forum. The Company and WAI each agree
that final judgment in any such suit, action or proceeding brought in such
a court shall be conclusive and binding on it and may be enforced in any
court to the jurisdiction of which it is subject by a suit upon such
judgment. The Company and WAI each hereby irrevocably consent to service of
copies of the summonses and complaints and any other process. Such service
may be made by mailing or delivering a copy of such process to their
respective addresses set forth above or by any other means provided for by
applicable law.
(g) SECTION AND OTHER HEADINGS, ETC. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Subscription Agreement by their authorized representatives as of the date
first above written.
WESTFIELD AMERICA, INC.
By:/s/ Peter S. Lowy
-----------------------------
Name: Peter S. Lowy
Title: Co-President
WESTFIELD AMERICAN INVESTMENTS PTY
LIMITED
By:/s/ Craig Van Der Laan De Vries
-------------------------------
Name: Craig van der Laan de Viries
Title:
Agreed with respect to Section 5 (b).
WESTFIELD HOLDINGS LIMITED
By:/s/ Craig Van Der Laan De Vries
-------------------------------
Name: Craig van der Laan de Vries
Title:
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES D PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"Corporation"), hereby certify as follows:
FIRST: that under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "Senior Preferred Shares"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "Preferred Shares"), 940,000 of which have been designated
as Series A Preferred Shares, with a liquidation value of $100 per share
(the "Series A Preferred Shares") and 400,000 of which have been designated
as Series B Preferred Shares, with a liquidation value of $100 per share
(the "Series B Preferred Shares"), (iii) 200,000,000 shall be shares of
common stock, par value $.01 per share (the "Common Shares"),
(iv) 205,000,000 will be shares of excess stock, par value $.01 ("Excess
Shares"). Any Excess Shares which are issued with respect to Common Stock
shall be "Excess Common Shares" and, together with the Common Shares, the
"Common Equity Shares" and any Excess Shares which are issued with respect
to Preferred Shares shall be "Excess Preferred Shares", and, together with
the Preferred Shares, the "Preferred Equity Shares" and under said Articles
of Incorporation (as amended, the "Articles of Incorporation"), the shares
of Preferred Stock are authorized to be issued by the Board of Directors
and the Board of Directors is expressly authorized to determine in the
Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to
the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on July 20, 1998 the following resolution creating a
series of Preferred Stock designated as "Series D Preferred Shares," which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES D PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series D Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class of
preferred stock shall be designated as Series D Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 694,445 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series D Preferred Shares." Each Series D Preferred Share
shall be identical in all respects to each other Series D Preferred Share,
and except as otherwise provided herein, shall be identical in all respects
to each Series D Preferred Share (the Series D Preferred Shares together
with the Excess Series D Preferred Shares being hereinafter referred to as
the "Series D Equity Shares").
Section 2. Definitions. For purposes of the Series D Preferred
Shares, the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person, shall
mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate
shall include, without limitation, Westfield Holdings Limited ("WHL"),
Westfield America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy
(such individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series D Equity Share
equal to 8.5% of the Liquidation Preference per Series D Equity Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series D Preferred
Shares.
"Business Day "shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code "shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated EBITDA" for any quarter shall mean the consolidated net
income of the Corporation (before extraordinary income or gains and less
equity in income of unconsolidated real estate partnerships), calculated in
a manner consistent with the Corporation's financial statements filed with
the Securities and Exchange Commission, increased by the sum of the
following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent with
this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to extraordinary.
unusual or non-recurring gains or losses except to the extent that
such gains were not included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for
such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs (only
to the extent that such amounts have not been previously included
in the amount of Consolidated EBITDA pursuant to clause (c)
above), goodwill, other intangibles and management fees, and
f. any other non-cash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP for
such quarter including, without duplication, financing fees and
amortization of deferred financing fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to preferred
stock (not including any portion of preferred stock dividends the
calculation of which is based on the dividend paid in such quarter
to the holders of common shares) whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during such
quarter (other than any balloon payments at maturity), and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section 6(e).
"Conversion Date" shall have the meaning set forth in Section 6(a).
"Conversion Price" shall mean the conversion price per Common Equity
Share for which the Series D Equity Share is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("NYSE") or, if such security is not listed
or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if
not listed or admitted for trading on any national securities exchange, on
the Nasdaq National Market ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, the
average of the bid and asked prices on such day as furnished by any NYSE
member firm regularly making a market in such security selected for such
purpose by the Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Period" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series D Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series D
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series D Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series D
Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share on the five (5) consecutive Trading Days selected
by the Corporation commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day
before the "ex date" with respect to the issuance or distribution requiring
such computation. The term "ex date," when used with respect to any
issuance or distribution, means the first day on which the Common Shares
trade regular way, without the right to receive such issuance or
distribution on the exchange or in the market, as the case may be, used to
determine that day's Current Market Price.
"Fixed Charge Coverage Violation" shall have the meaning set forth in
Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series D Preferred Shares preference or priority
in both (i) the payment of dividends and (ii) the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth Incorporated
and controlled affiliates thereof.
"Issue Date" shall mean the date on which Series D Preferred Stock is
issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series D Preferred Shares have preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section 6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section 11(b).
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Corporation
for any taxable year on which the Corporation does not compute
its income as a real estate investment trust,
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust,
(iii) a determination by the Board of Directors of the Corporation,
based on the advice of counsel, that the Corporation has
ceased to qualify as a real estate investment trust, or
(iv) a "determination" within the meaning of Section 1313(a) of the
Code that the Corporation has ceased to qualify as a real
estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series D Preferred Shares" shall have the meaning given such term in
the preamble to the Certificate of Designation.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series D Preferred Shares as to the payment of dividends
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment"
with respect to the Series D Preferred Shares shall mean placing such funds
in a separate account or delivering such funds to a disbursing, paying or
other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for Series D Preferred Shares and notified to the holders of the
Series D Preferred Stock.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. Dividends. (a) Subject to the preferential rights of the
holders of any Preferred Stock that ranks senior in the payment of
dividends to the Series D Equity Shares and subject to paragraph (b) of
this Section 3, the holders of Series D Equity Shares shall be entitled to
receive, when, as and if declared by the Board of Directors, but only out
of funds legally available for the payment of dividends, cumulative
preferential dividends payable in cash to shareholders of record on the
respective date, not exceeding 50 days preceding such dividend payment
date, fixed for the purpose by the Board of Directors in advance of payment
of each particular dividend in an amount equal to the greater of (A) the
Base Rate per share per annum and (B) an amount per share equal to the
Liquidation Preference of a Series D Equity Share (exclusive of accrued but
unpaid dividends) divided by the Conversion Price (the "Series D Common
Equivalent Factor") times the dollar amount of cash dividends declared with
respect to each Common Equity Share that does not result in an adjustment
to the Conversion Price pursuant to subparagraph (d)(iii) of Section 6
(such product, the "Series D Common Equivalent Amount") for the same annual
period; provided, however, that if as a result of the quarterly dividends
paid in accordance with the following sentence, the holders of Series D
Equity Shares shall have received for any calendar year more dividends than
such Shares shall be entitled under clauses (A) and (B) above (as adjusted
pursuant to the third and eighth sentences of this Section 3), the
dividends payable in respect of Series D Equity Shares in subsequent
calendar years shall be reduced to the extent of such overpayment. Subject
to the proviso of the preceding sentence of this Section 3(a), the dividend
paid in respect of each quarterly period in each calendar year shall be
determined as follows (in each case, excluding any additional payment made
pursuant to the following sentence): (1) for the first quarter, the
greater of 25% of the Base Rate per share and the Series D Common
Equivalent Amount for the same quarter; (2) for the second quarter, an
amount such that the aggregate amount to be received per Series D Equity
Share in respect of the first two quarters of such calendar year shall be
the greater of 50% of the Base Rate per share and the Series D Common
Equivalent Amount for the same two quarters; (3) for the third quarter, an
amount such that the aggregate amount to be received per Series D Equity
Share in respect of the first three quarters of such calendar year shall be
the greater of 75% of the Base Rate per share and the Series D Common
Equivalent Amount for the same three quarters; and (4) for the fourth
quarter, an amount such that the aggregate amount to be received per Series
D Equity Share in respect of such calendar year shall be the amount
provided in the preceding sentence of this Section 3(a). Notwithstanding
the foregoing, for any quarter in which a Fixed Charge Coverage Violation
(as defined below) has occurred, the dividend payable per Series D Equity
Share shall be 1.20 times the amount provided in the preceding sentence. A
"Fixed Charge Coverage Violation" shall occur for any quarter that the
ratio of the Corporation's Consolidated EBITDA to its Consolidated Fixed
Charges is below 1.40 to 1. The dividends shall begin to accrue as set
forth above and shall be fully cumulative from the first day of the
applicable Dividend Period, whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board of Directors, in arrears on Dividend Payment Dates.
Accumulated but unpaid dividends for any past quarterly dividend periods
may be declared and paid at any time, without reference to any regularly
scheduled quarterly dividend payment date, to holders of record on such
date, not exceeding 50 days preceding such payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend. Any dividend payment made on Series D Equity Shares shall first
be credited against the earliest accrued but unpaid dividend due with
respect to Series D Equity Shares which remains payable. Beginning with
the quarter in which a REIT Termination Event occurs, all dividends payable
per Series D Equity Share pursuant to this Section shall be multiplied by
2.5.
(b) The initial Dividend Period for the Series D Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date.
The amount of dividends payable for such initial period, or any other
period shorter than a full quarterly Dividend Period, on the Series D
Equity Shares shall be computed by dividing the number of days in such
period by 90 and multiplying the result by the Series D Equity dividend
determined in accordance with Section 3(a). Holders of Series D Equity
Shares shall not be entitled to any dividends, whether payable in cash,
property or shares, in excess of cumulative dividends, as herein provided,
on the Series D Equity Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series D Equity Shares which may be in arrears.
(c) So long as any Series D Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series D Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series D Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series D Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series D Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series D Equity Shares and
any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series D Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series D Equity Shares
shall not be entitled to participate in any such dividends, whether payable
in cash, stock or otherwise.
(e) No distributions on Series D Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
no effect shall be given to amounts that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the prior preferences and other rights
of any series of stock ranking senior to the Series D Preferred Shares upon
liquidation, distribution or winding up of the Corporation, before any
payment or distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of Junior Shares,
the holders of the Series D Equity Shares shall be entitled to receive One
Hundred Eighty Dollars ($180.00) (the "Liquidation Preference") per Series
D Equity Share plus an amount equal to all dividends (whether or not earned
or declared) accrued and unpaid thereon to the date of liquidation,
dissolution or winding up of the affairs of the Corporation (any such date,
a "Series D Liquidation Date") but such holders shall not be entitled to
any further payment; provided, that the dividend payable with respect to
the Dividend Period containing the Series D Liquidation Date shall be equal
to the dividend determined pursuant to Section 3 above for the preceding
Dividend Period times a fraction equal to the actual number of days elapsed
from the end date of the calendar quarter most recently completed to the
relevant Series D Liquidation Date over ninety days. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among the holders of
the Series D Equity Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
of any class or series of Parity Shares, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series D Equity Shares
and any such other Parity Shares ratably in accordance with the respective
amounts that would be payable on such Series D Equity Shares and any such
other Parity Shares if all amounts payable thereon were paid in full. For
the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more corporations, real estate investment trusts or
other entities, (ii) a sale, lease or conveyance of all or substantially
all of the Corporation's property or business or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with or prior to the Series D
Equity Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of the Series D Equity Shares,
as provided in this Section 4, the holders of Series D Equity Shares shall
have no other claim to the remaining assets of the Corporation and any
other series or class or classes of Junior Shares shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the
holders of the Series D Equity Shares shall not be entitled to share
therein.
Section 5. Redemption at the Option of the Corporation. (a) The
Series D Equity Shares shall not be redeemable by the Corporation prior to
August 12, 2008.(1) On and after August 12, 2008, the Corporation, at its
option, may redeem the Series D Equity Shares, in whole at any time or from
time to time in part, in minimum increments of $10.0 million of aggregate
Liquidation Preference of such shares, out of funds legally available
therefor at a redemption price payable in cash equal to 100% of the
Liquidation Preference per Series D Equity Share (plus all accumulated,
accrued and unpaid dividends as provided in paragraph (d) below).
-----------------
1. This date is the tenth anniversary of the Closing.
(b) In the event that WHL and its subsidiaries and the trustee of
Westfield America Trust on behalf of Westfield America Trust do not vote to
approve the conversion of the Series D Equity Shares into Common Equity
Shares at the Corporation's 1999 Annual Shareholder Meeting or at any other
meeting of the Corporation's shareholders at which such proposal is raised,
the Corporation shall have the right to redeem the Series D Equity Shares,
in whole or in part, out of funds legally available therefor at a
redemption price payable in cash equal to 100% of the Liquidation
Preference per Series D Equity Share (plus all accumulated, accrued and
unpaid dividends as provided in paragraph (c) below).
(c) Upon any redemption of Series D Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series D Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series D Equity Shares called for redemption.
(d) If full cumulative dividends on the Series D Equity Shares and
any other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series D
Equity Shares may not be redeemed under this Section 5 in part and the
Corporation may not purchase or acquire Series D Equity Shares, otherwise
than pursuant to a purchase or exchange offer made on the same terms to all
holders of Series D Equity Shares.
(e) Notice of the redemption of any Series D Equity Shares under this
Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series D Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (e), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice
shall state, as appropriate: (1) the Call Date; (2) the number of Series D
Equity Shares to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; (5) the then-current
Conversion Price; and (6) that dividends on the shares to be redeemed shall
cease to accrue on such Call Date except as otherwise provided herein.
Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash
necessary to effect such redemption), (i) except as otherwise provided
herein, dividends on the Series D Equity Shares so called for redemption
shall cease to accrue, (ii) such shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as holders of
Series D Equity Shares shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
dividends payable thereon). The Corporation's obligation to provide cash
in accordance with the preceding sentence shall be deemed fulfilled if, on
or before the Call Date, the Corporation shall deposit with a bank or trust
company that has an office in the Borough of Manhattan, City of New York,
and that has capital and surplus of at least $150,000,000, necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series D Equity Shares so called for
redemption. Notwithstanding the foregoing the Corporation shall, in the
first instance, send the money to any holder of Series D Equity Shares that
has notified the Corporation in writing of the location of delivery of
funds. No interest shall accrue for the benefit of the holders of Series D
Equity Shares to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws, any such cash unclaimed at the end of
two years from the Call Date shall revert to the general funds of the
Corporation, after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Corporation for the
payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series D Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series D Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series D Equity Shares evidenced by any certificate are redeemed, then new
certificates evidencing the unredeemed shares shall be issued without cost
to the holder thereof.
Section 6. Conversion. The Series D Equity Shares shall not be
convertible into Common Equity Shares prior to (i) a vote of the
shareholders of the Corporation approving the conversion of Series D Equity
Shares into Common Equity Shares or (ii) the transfer of the Series D
Equity Shares to an individual to whom the Corporation is permitted to
issue Common Equity Shares without shareholder approval, in accordance with
the rules of the NYSE. Subject to the foregoing, holders of Series D
Equity Shares shall have the right to convert all or a portion of such
shares into Common Equity Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series D Preferred Shares or Excess Series D
Preferred Shares shall have the right, at his or her option, at any time
(such time being, the "Conversion Date"), to convert all or any portion of
such shares into the number of fully paid and non-assessable Common Shares
or Excess Common Shares, respectively, obtained by dividing the aggregate
Liquidation Preference of such shares (inclusive of accrued but unpaid
dividends) by the Conversion Price (as in effect at the time and on the
date provided for in the last paragraph of paragraph (b) of this Section 6)
by surrendering such shares to be converted, such surrender to be made in
the manner provided in paragraph (b) of this Section 6; provided, however,
that the right to convert shares called for redemption pursuant to Section
5 shall terminate at the close of business on the fifth Business Day prior
to the Call Date fixed for such redemption, unless the Corporation shall
default in making payment of the cash payable upon such redemption under
Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series D Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series D Equity Shares. Unless the shares issuable
on conversion are to be issued in the same name as the name in which such
Series D Equity Shares are registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series D Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series D
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series D Equity Shares being entitled to such
dividend on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series D Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series D
Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series D Equity
Shares for conversion. Except as provided above, the Corporation shall
make no payment or allowance for unpaid dividends, whether or not in
arrears, on converted shares or for dividends on the Common Equity Shares
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series D Equity Shares as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Equity Shares
issuable upon the conversion of such shares in accordance with provisions
of this Section 6, and any fractional interest in respect of a Common
Equity Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series D Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity Shares shall be issuable upon such conversion shall be deemed
to have become the holder or holders of record of the shares represented
thereby at such time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series D Equity
Shares. Instead of any fractional interest in a Common Equity Share that
would otherwise be deliverable upon the conversion of a Series D Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series D Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares into
a greater number of shares, (C) combine its outstanding Common Equity
Shares into a smaller number of shares or (D) issue any shares of
stock by reclassification of its Common Equity Shares, the Conversion
Price in effect at the opening of business on the day following the
date fixed for the determination of shareholders entitled to receive
such dividend or distribution or at the opening of business on the
Business Day next following the day on which such subdivision,
combination or reclassification becomes effective, as the case may be,
shall be adjusted so that the holder of any Series D Equity Shares
thereafter surrendered for conversion shall be entitled to receive the
number of Common Equity Shares that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such Series D Equity Shares had been converted
immediately prior to the record date in the case of a dividend or
distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening
of business on the Business Day next following the record date (except
as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in
the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Equity Shares entitling
them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Equity Shares at
a price per share less than 95% (100% if a stand-by underwriter is
used and charges the Corporation a commission) of the Fair Market
Value per Common Share on the record date for the determination of
shareholders entitled to receive such rights, options or warrants,
then the Conversion Price in effect at the opening of business on the
Business Day next following such record date shall be adjusted to
equal the price determined by multiplying (A) the Conversion Price in
effect immediately prior to the opening of business on the Business
Day next following the date fixed for such determination by (B) a
fraction, the numerator of which shall be the sum of (x) the number of
Common Equity Shares outstanding on the close of business on the date
fixed for such determination and (y) the number of shares that the
aggregate proceeds to the Corporation from the exercise of such
rights, options or warrants for Common Equity Shares would purchase at
95% of such Fair Market Value (or 100% in the case of a stand-by
underwriting), and the denominator of which shall be the sum of (x)
the number of Common Equity Shares outstanding on the close of
business on the date fixed for such determination and (y) the number
of additional Common Equity Shares offered for subscription or
purchase pursuant to such rights, options or warrants. Such
adjustment shall become effective immediately after the opening of
business on the day next following such record date (except as
provided in paragraph (h) below). In determining whether any rights,
options or warrants entitle the holders of Common Equity Shares to
subscribe for or purchase Common Equity Shares at less than 95% of
such Fair Market Value (or 100% in the case of a stand-by
underwriting), there shall be taken into account any consideration
received by the Corporation upon issuance and upon exercise of such
rights, options or warrants, the value of such consideration, if other
than cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that Common Equity
Shares are not delivered pursuant to such rights, options or warrants,
upon the expiration or termination of such rights, options or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants be made on the basis of
delivery of only the number of Common Equity Shares actually
delivered. In the event that such rights, options or warrants are not
so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for
the determination of stockholders entitled to receive such rights,
options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of its
Common Equity Shares any securities of the Corporation (other than
Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997) which are
not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as determined
by the Board of Directors, after December 31, 1997, minus (C) the
cumulative amount of dividends accrued or paid in respect of the
Series D Equity Shares or any other class or series of preferred stock
of the Corporation after the Issue Date) or rights, options or
warrants to subscribe for or purchase any of its securities (excluding
those rights, options and warrants issued to all holders of Common
Equity Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Equity Shares, which rights and
warrants are referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph (iii)
collectively called the "Securities" and individually a "Security"),
then in each such case the Conversion Price shall be adjusted so that
it shall equal the price determined by multiplying (x) the Conversion
Price in effect immediately prior to the close of business on the date
fixed for the determination of shareholders entitled to receive such
distribution by (y) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of
the Securities or assets or evidences of indebtedness so distributed
or of such rights, options or warrants applicable to one Common Equity
Share, and the denominator of which shall be the Fair Market Value per
Common Share on the record date mentioned below. Such adjustment
shall become effective on the date of distribution retroactive to the
opening of business on the Business Day next following (except as
provided in paragraph (h) below) the record date for the determination
of shareholders entitled to receive such distribution. For the
purposes of this subparagraph (iii), the distribution of a Security,
which is distributed not only to the holders of the Common Equity
Shares on the date fixed for the determination of shareholders
entitled to such distribution of such Security, but also is
distributed with each Common Equity Share delivered to a Person
converting a share of Series D Equity Shares after such determination
date, shall not require an adjustment of the Conversion Price pursuant
to this subparagraph (iii); provided that on the date, if any, on
which a Person converting a Series D Equity Share would no longer be
entitled to receive such Security with a Common Equity Share (other
than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and
the Conversion Price shall be adjusted as provided in this
subparagraph (iii) (and such day shall be deemed to be "the date fixed
for the determination of the shareholders entitled to receive such
distribution" and "the record date" within the meaning of the two
preceding sentences). If any dividend or distribution of the type
described in this paragraph (iii) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
Rights or warrants distributed by the Corporation to all holders
of Common Equity Shares entitling the holders thereof to subscribe for
or purchase shares of the Corporation's capital stock (either
initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Equity
Shares; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Equity Shares, shall be deemed not to
have been distributed for purposes of this subparagraph (iii) (and no
adjustment to the Conversion Price under this subparagraph (iii) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right
or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof to the extent not
exercised). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto, that resulted in an adjustment to the Conversion Price under
this subparagraph (iii), (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it
were a cash distribution (but not a distribution paid exclusively in
cash), equal to the per share redemption or repurchase price received
by a holder of Common Equity Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Equity Shares as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants all of which shall have expired or been terminated without
exercise, the Conversion Price shall be readjusted as if such rights
and warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall not
include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment by
the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Equity Share having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors), at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange offer,
that exceeds the Current Market Price per Common Share on the Trading
Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph, by a fraction of which the numerator shall be the number
of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any maximum, being referred
to as the "Purchased Shares") and (B) the product of the number of
Common Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event the Corporation or
any subsidiary or controlled Affiliate is obligated to purchase shares
pursuant to any such tender offer, but the Corporation or such
subsidiary or controlled Affiliate is permanently prevented by
applicable law from effecting any such purchases, or all such
purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect if such
tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such price; provided, however, that any adjustments
that by reason of this subparagraph (v) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment until made; and provided, further, that any adjustment
shall be required and made in accordance with the provisions of this
Section 6 (other than this subparagraph (v)) not later than such time
as may be required in order to preserve the tax-free nature of a
distribution to the holders of Common Shares. Notwithstanding any
other provisions of this Section 6, the Corporation shall not be
required to make any adjustment of the Conversion Price for the
issuance of any Common Equity Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of
the Corporation and the investment of additional optional amounts in
Common Equity Shares under such plan. All calculations under this
Section 6 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-hundredth of a share (with .005 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall
be entitled, to the extent permitted by law, to make such reductions
in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable
in order that any share dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights or
warrants to purchase shares or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation
to its shareholders shall not be taxable. To the extent permitted by
applicable law, the Corporation from time to time may reduce the
Conversion Price by any amount for any period of time if the period is
at least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Corporation, which
determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Corporation shall mail
to the holder of each Series D Equity Share at his or her last address
appearing on the share register a notice of reduction prior to the
date the reduced Conversion Price takes effect and such notice shall
state the reduced Conversion Price and the period during which it will
be in effect.
(e) If the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for 40% or more of its Common Equity Shares, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Equity Shares and excluding any transaction as to which subparagraph
(d)(i) of this Section 6 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which all or
substantially all of the Common Equity Shares are converted into the right
to receive different securities or other property (including cash or any
combination thereof), each Series D Equity Share which is not redeemed or
converted into the right to receive different securities or other property
prior to such Transaction shall thereafter be convertible, in lieu of
Common Equity Shares into the kind and amount of different securities and
other property (including cash or any combination thereof) receivable upon
the consummation of such Transaction by a holder of that number of Common
Equity Shares into which one Series D Equity Share was convertible
immediately prior to such Transaction, assuming such holder of Common
Equity Shares (i) is not a Person with which the Corporation consolidated
or into which the Corporation merged or which merged into the Corporation
or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Share held immediately prior to such Transaction
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised ("Non-
Electing Share"), then for the purpose of this paragraph (e) the kind and
amount of shares, securities and other property (including cash) receivable
upon such Transaction by each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by holders of a plurality of the
Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series D Equity Shares that will contain
provisions enabling the holders of the Series D Equity Shares that remain
outstanding after such Transaction to convert into the consideration
received by holders of Common Equity Shares at the Conversion Price in
effect immediately prior to such Transaction. The provisions of this
paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the cumulative
amount of dividends accrued or paid in respect of the Series D Equity
Shares or any other class or series of preferred stock of the
Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all holders
of Common Equity Shares of rights, options or warrants to subscribe
for or purchase any shares of any class or any other rights, options
or warrants; or
(iii) there shall be any reclassification of the Common Equity
Shares (other than an event to which subparagraph (d)(i) of this
Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders of
the Corporation is required, or a statutory share exchange, or a self
tender offer by the Corporation for all or substantially all of its
outstanding Common Shares or the sale or transfer of all or
substantially all of the assets of the Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series D Equity Shares at their
addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options or warrants are to be determined
or (B) the date on which such reclassification, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Equity Shares of record shall be entitled
to exchange their Common Equity Shares for securities or other property, if
any, deliverable upon such reclassification, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution or
winding up. Failure to give or receive such notice or any defect therein
shall not affect the legality or validity of the proceedings described in
this Section 6.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series D
Equity Shares at such holder's last address as shown on the records of the
Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of
such event (A) issuing to the holder of any share of Series D Equity Shares
converted after such record date and before the occurrence of such event
the additional Common Equity Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Equity
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
issuance of any stock of the Corporation in a reorganization, acquisition
or other similar transaction except as specifically set forth in this
Section 6. If any action or transaction would require adjustment of the
Conversion Price pursuant to both paragraph (d) and paragraph (e) of this
Section 6, only one adjustment shall be made and such adjustment shall be
the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series D Equity Shares, the
Conversion Price for the Series D Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series D Equity Shares, the full number of Common Equity
Shares deliverable upon the conversion of all outstanding Series D Equity
Shares not theretofore converted. For purposes of this paragraph (k), the
number of Common Shares that shall be deliverable upon the conversion of
all outstanding Series D Preferred Shares shall be computed as if at the
time of computation all such outstanding shares were held by a single
holder.
Any Common Equity Shares issued upon conversion of the Series D Equity
Shares shall be validly issued, fully paid and non-assessable. Before
taking any action that would cause an adjustment reducing the Conversion
Price below the then-par value of the Common Equity Shares deliverable upon
conversion of the Series D Equity Shares, the Corporation will take any
action that, in the opinion of its counsel, may be necessary in order that
the Corporation may validly and legally issue fully paid and (subject to
any customary qualification based upon the nature of a real estate
investment trust) nonassessable Common Equity Shares at such adjusted
Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series D Preferred Shares,
prior to such delivery, upon each national securities exchange, if any,
upon which the outstanding Common Shares are listed at the time of such
delivery.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series D Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Equity Shares or other securities or property on conversion of the
Series D Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series D Equity Shares to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery
has paid to the Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control. (a) If a Change of Control (as
defined below) occurs (a "Change of Control Repurchase Event"), the holders
of Series D Equity Shares shall have the right to require the Corporation,
to the extent the Corporation shall have funds legally available therefor,
to redeem any or all of the Series D Equity Shares held by such holder at a
repurchase price payable in cash (the "Change of Control Repurchase
Payment") in an amount equal to 105% of the Liquidation Preference thereof,
plus accrued and unpaid dividends whether or not declared, if any, to the
date of repurchase or the date payment is made available (the "Change of
Control Date"), pursuant to the offer described in subsection (b) below
(the "Change of Control Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to the each
holder of Series D Equity Shares stating (A) that a Change of Control
Repurchase Event has occurred and that such holder has the right to require
the Corporation to repurchase any or all of the Series D Equity Shares then
held by such bolder, (B) the date of repurchase (which shall be a Business
Day, no earlier than 30 days and no later than 60 days from the date such
notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (C) the repurchase price and (D) the
instructions determined by the Corporation, consistent with this
subsection, that such investor must follow in order to have the Series D
Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to the
extent lawful, shall accept for payment Series D Equity Shares or portions
thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series D Equity
Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly,
by any individual or entity or group (as such term is used in Section
13(d)(3) of the Exchange Act) of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act, except that such individual or entity shall
be deemed to have beneficial ownership of all shares that any such
individual or entity has the right to acquire, whether such right is
exercisable immediately or only after passage of time) of more than 25% of
the Corporation's outstanding stock with voting power, under ordinary
circumstances, to elect Directors of the Corporation, (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation then still in
office who were either Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) the Corporation consolidating with
or merging into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the Corporation, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
stock of the Corporation is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i)(ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of an event described in clause (iii), if the
sole purpose of such event is that the Corporation is seeking to change its
domicile or to convert from a corporation to a trust or vice versa; (b) in
the case of an event described in clause (iii), if the holders of the
exchanged securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of Directors of
the Corporation; (c) if any of WHL or its wholly-owned subsidiaries remain
as manager of the Corporation's properties and remains as adviser of the
Corporation, in each case, in a manner substantially similar to that on
date hereof; or (d) if the Change of Control results solely from the
purchase or other acquisition of equity securities by WHL or its wholly-
owned subsidiaries, Westfield America Trust, the Lowy Family or the
Investor or the sale of equity securities by WHL or any of its wholly-owned
subsidiaries or Westfield America Trust.
Section 8. Redemption at the Option of the Holder. (a) At any time
after August 12, 2008,(2) the holders of Series D Equity Shares thereof shall
have the right at any time that the Corporation's Common Shares has a
Current Market Price at or below and the Conversion Price per share, to
require the Corporation, to the extent the Corporation shall have funds
legally available therefor, to redeem any or all of the Series D Equity
Shares held by such holder at a repurchase price payable, at the option of
the Corporation, in either (i) cash, or (ii) such number of Common Equity
Shares as shall have a Current Market Price in the aggregate on the day
prior to the day such holder gives notice pursuant to Section 8(b) of its
intention to redeem, equal to in either case, 100% of the Liquidation
Preference thereof plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
----------------
2. This date is the tenth anniversary of the Closing hereunder.
(b) Notwithstanding paragraph (a) of this Section 8, in the event
that WHL and its subsidiaries and the trustee of Westfield America Trust on
behalf of Westfield America Trust vote to approve the conversion of the
Series D Equity Shares into Common Equity Shares at a meeting of
shareholders at which such proposal is raised, but the shareholders of the
Corporation as a whole reject the foregoing proposal, then from and after
the later of such rejection date and the second anniversary of the Issue
Date, the Series D Equity Stock shall be redeemable at the option of the
holder, to the extent that the Corporation shall have funds legally
available therefor, at a redemption price payable in cash equal to the
product of (a) the Series D Common Equivalent Factor times (b) the Current
Market Price on the date of the notice provided pursuant to paragraph (c)
below, plus all accumulated, accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available.
(c) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series D Equity Shares wishes to tender shares to
be redeemed. The holders of such shares to be redeemed shall then have 30
days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series D
Equity Shares to be redeemed, duly endorsed or assigned to the Corporation
or in blank, at the office of the Transfer Agent, the Corporation shall
promptly, either (i) by wire transfer of immediately available funds to
such holder, as directed by such holder, send an amount equal to the
Redemption Payment in respect of all Series D Equity Shares or portions
thereof so tendered or (ii) issue and deliver to such holder, or on his or
her written order, a certificate or certificates for the number of full
Common Equity Shares issuable in respect of all Series D Equity Shares or
portions thereof so tendered.
Section 9. Shares To Be Retired. All Series D Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series D Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution
or winding up, if the holders of such class or series shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of Series D Preferred Shares,
which shall expressly include the Corporation's non-voting senior
preferred stock, par value $1.00 per share;
(b) on a parity with the Series D Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
shall be different from those of the Series D Preferred Shares, if the
holders of such class or series and the Series D Preferred Shares shall
be entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares"), which shall expressly include the Corporation's
Series A Cumulative Redeemable Preferred Shares, Series B Cumulative
Redeemable Preferred Shares and Series C Cumulative Convertible
Preferred Stock;
(c) junior to the Series D Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series D Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Voting. So long as any Series D Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles, the affirmative vote of the holders of
a majority of the Series D Equity Shares, voting together as a class, given
in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or this Certificate of Designation
that materially and adversely affects the voting powers, rights or
preferences of the holders of the Series D Equity Shares; or
(ii) Any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and
each holder of Series D Equity Shares does not receive shares of the
surviving corporation with substantially similar rights, preferences
and powers in the surviving corporation as the Series D Equity Shares
have with respect to the Corporation (except for changes that do not
materially and adversely affect the holders of the Series D Equity
Stock).
provided, however, that no such vote of the holders of Series D Equity
Shares shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the
issuance of any such prior shares or convertible security is to be
made, as the case may be, provision is made for the redemption of all
Series D Equity Shares at the time outstanding to the extent such
redemption is authorized by Section 5 of this Certificate of
Designation.
(iii) For purposes of the foregoing provisions of this Section
13, each share of Series D Equity Shares shall have one (1) vote per
share, except that when any other series of Equity Shares shall have
the right to vote with the Series D Equity Shares as a single class on
any matter, then the Series D Equity Shares and such other series
shall have with respect to such matters one (1) vote per $180.00 (or
less pursuant to Section 4(a)) of stated Liquidation Preference.
Except as otherwise required by applicable law or as set forth herein,
the Series D Equity Shares shall not have any relative, participating,
optional or other special voting rights and powers other than as set
forth herein, and the consent of the holders thereof shall not be
required for the taking of any corporate action.
Section 12. Record Holders. The Corporation and the Transfer Agent
may deem and treat the record holder of any Series D Preferred Shares as
the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 13. Title. This resolution shall be known and may be
referred to as "A Resolution of the Board of Directors of Westfield
America, Inc. Designating Series D Preferred Shares and Fixing Preferences
and Rights Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 10 day of August,
1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
------------------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS:
COUNTY OF LOS ANGELES )
I, Annie M. Gary, a notary public, do hereby certify that on this 6
day of August, 1998, personally appeared before me Peter Lowy, and being
first duly sworn by me, declared that he is the Co-President of Westfield
America, Inc., that he signed the foregoing document as Co-President of the
corporation, and that the statements therein contained are true.
[SEAL] /s/ Annie M. Gary
---------------------------
Notary Public
My Commission Expires: March 31, 2000
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES D-1 PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"Corporation"), hereby certify as follows:
FIRST: that under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "Senior Preferred Shares"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "Preferred Shares"), 940,000 of which have been designated
as Series A Preferred Shares, with a liquidation value of $100 per share
(the "Series A Preferred Shares") and 400,000 of which have been designated
as Series B Preferred Shares, with a liquidation value of $100 per share
(the "Series B Preferred Shares"), 416,667 of which have been designated as
Series C Preferred Shares, with a liquidation value of $180 per share (the
"Series C Preferred Shares") and 694,445 of which have been designated as
Series D Preferred Shares, with a liquidation value of $180 per share (the
"Series D Preferred Shares") (iii) 200,000,000 shall be shares of common
stock, par value $.01 per share (the "Common Shares"), (iv) 205,000,000
will be shares of excess stock, par value $.01 ("Excess Shares"). Any
Excess Shares which are issued with respect to Common Stock shall be
"Excess Common Shares" and, together with the Common Shares, the "Common
Equity Shares" and any Excess Shares which are issued with respect to
Preferred Shares shall be "Excess Preferred Shares", and, together with the
Preferred Shares, the "Preferred Equity Shares" and under said Articles of
Incorporation (as amended, the "Articles of Incorporation"), the shares of
Preferred Stock are authorized to be issued by the Board of Directors and
the Board of Directors is expressly authorized to determine in the
Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to
the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on December 14, 1998 the following resolution creating a
series of Preferred Stock designated as "Series D-1 Preferred Shares,"
which resolution has not been amended, modified, rescinded or revoked and
is in full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES D-1 PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series D-1 Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class of
preferred stock shall be designated as Series D-1 Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 138,889 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series D-1 Preferred Shares." Each Series D-1 Preferred Share
shall be identical in all respects to each other Series D Preferred Share.
Each Excess Series D-1 Preferred Share shall be identical in all respects
to each other Excess Series D-1 Preferred Share, and except as otherwise
provided herein, shall be identical in all respects to each Series D-1
Preferred Share (the Series D-1 Preferred Shares together with the Excess
Series D-1 Preferred Shares being hereinafter referred to as the "Series D-
1 Equity Shares").
Section 2. Definitions. For purposes of the Series D-1 Preferred
Shares, the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person, shall
mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate
shall include, without limitation, Westfield Holdings Limited ("WHL"),
Westfield America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy
(such individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series D-1 Equity Share
equal to 8.5% of the Liquidation Preference per Series D-1 Equity Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series D-1
Preferred Shares.
"Business Day "shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code "shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated EBITDA" for any quarter shall mean the consolidated net
income of the Corporation (before extraordinary income or gains and less
equity in income of unconsolidated real estate partnerships), calculated in
a manner consistent with the Corporation's financial statements filed with
the Securities and Exchange Commission, increased by the sum of the
following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent with
this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to extraordinary.
unusual or non-recurring gains or losses except to the extent that
such gains were not included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for
such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs (only
to the extent that such amounts have not been previously included
in the amount of Consolidated EBITDA pursuant to clause (c)
above), goodwill, other intangibles and management fees, and
f. any other non-cash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP for
such quarter including, without duplication, financing fees and
amortization of deferred financing fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to preferred
stock (not including any portion of preferred stock dividends the
calculation of which is based on the dividend paid in such quarter
to the holders of common shares) whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during such
quarter (other than any balloon payments at maturity), and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section 6(e).
"Conversion Date" shall have the meaning set forth in Section 6(a).
"Conversion Price" shall mean the conversion price per Common Equity
Share for which the Series D-1 Equity Share is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("NYSE") or, if such security is not listed
or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if
not listed or admitted for trading on any national securities exchange, on
the Nasdaq National Market ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, the
average of the bid and asked prices on such day as furnished by any NYSE
member firm regularly making a market in such security selected for such
purpose by the Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Period" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series D-1 Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series D-1
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series D-1 Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series D-1
Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share on the five (5) consecutive Trading Days selected
by the Corporation commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day
before the "ex date" with respect to the issuance or distribution requiring
such computation. The term "ex date," when used with respect to any
issuance or distribution, means the first day on which the Common Shares
trade regular way, without the right to receive such issuance or
distribution on the exchange or in the market, as the case may be, used to
determine that day's Current Market Price.
"Fixed Charge Coverage Violation" shall have the meaning set forth in
Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series D-1 Preferred Shares preference or
priority in both (i) the payment of dividends and (ii) the distribution of
assets on any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth Incorporated
and controlled affiliates thereof.
"Issue Date" shall mean the date on which Series D-1 Preferred Stock
is issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series D-1 Preferred Shares have preference or priority in
the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section 6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section 10(b).
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Corporation
for any taxable year on which the Corporation does not compute
its income as a real estate investment trust,
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust,
(iii) a determination by the Board of Directors of the Corporation,
based on the advice of counsel, that the Corporation has
ceased to qualify as a real estate investment trust, or
(iv) a "determination" within the meaning of Section 1313(a) of the
Code that the Corporation has ceased to qualify as a real
estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series D-1 Preferred Shares" shall have the meaning given such term
in Section 1of the Certificate of Designation.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series D-1 Preferred Shares as to the payment of
dividends are placed in a separate account of the Corporation or delivered
to a disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series D-1 Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for Series D-1 Preferred Shares and notified to the holders of the
Series D-1 Preferred Stock.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. Dividends. (a) Subject to the preferential rights of the
holders of any Senior Preferred Stock or Preferred Shares that rank senior
in the payment of dividends to the Series D-1 Equity Shares and subject to
paragraph (b) of this Section 3, the holders of Series D-1 Equity Shares
shall be entitled to receive, when, as and if declared by the Board of
Directors, but only out of funds legally available for the payment of
dividends, cumulative preferential dividends payable in cash to
shareholders of record on the respective date, not exceeding 50 days
preceding such dividend payment date, fixed for the purpose by the Board of
Directors in advance of payment of each particular dividend in an amount
equal to the greater of (A) the Base Rate per share per annum and (B) an
amount per share equal to the Liquidation Preference of a Series D-1 Equity
Share (exclusive of accrued but unpaid dividends) divided by the Conversion
Price (the "Series D-1 Common Equivalent Factor") times the dollar amount
of cash dividends declared with respect to each Common Equity Share that
does not result in an adjustment to the Conversion Price pursuant to
subparagraph (d)(iii) of Section 6 (such product, the "Series D Common
Equivalent Amount") for the same annual period; provided, however, that if
as a result of the quarterly dividends paid in accordance with the
following sentence, the holders of Series D-1 Equity Shares shall have
received for any calendar year more dividends than such Series D-1 Equity
Shares shall be entitled under clauses (A) and (B) above (as adjusted
pursuant to the third and eighth sentences of this Section 3), the
dividends payable in respect of Series D-1 Equity Shares in subsequent
calendar years shall be reduced to the extent of such overpayment. Subject
to the proviso of the preceding sentence of this Section 3(a), the dividend
paid in respect of each quarterly period in each calendar year shall be
determined as follows (in each case, excluding any additional payment made
pursuant to the following sentence): (1) for the first quarter, the
greater of 25% of the Base Rate per share and the Series D-1 Common
Equivalent Amount for the same quarter; (2) for the second quarter, an
amount such that the aggregate amount to be received per Series D-1 Equity
Share in respect of the first two quarters of such calendar year shall be
the greater of 50% of the Base Rate per share and the Series D-1 Common
Equivalent Amount for the same two quarters; (3) for the third quarter, an
amount such that the aggregate amount to be received per Series D-1 Equity
Share in respect of the first three quarters of such calendar year shall be
the greater of 75% of the Base Rate per share and the Series D-1 Common
Equivalent Amount for the same three quarters; and (4) for the fourth
quarter, an amount such that the aggregate amount to be received per Series
D-1 Equity Share in respect of such calendar year shall be the amount
provided in the preceding sentence of this Section 3(a). Notwithstanding
the foregoing, for any quarter in which a Fixed Charge Coverage Violation
(as defined below) has occurred, the dividend payable per Series D-1 Equity
Share shall be 1.20 times the amount provided in the preceding sentence. A
"Fixed Charge Coverage Violation" shall occur for any quarter that the
ratio of the Corporation's Consolidated EBITDA to its Consolidated Fixed
Charges is below 1.40 to 1. The dividends shall begin to accrue as set
forth above and shall be fully cumulative from the first day of the
applicable Dividend Period, whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board of Directors, in arrears on Dividend Payment Dates.
Accumulated but unpaid dividends for any past quarterly dividend periods
may be declared and paid at any time, without reference to any regularly
scheduled quarterly dividend payment date, to holders of record on such
date, not exceeding 50 days preceding such payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend. Any dividend payment made on Series D-1 Equity Shares shall
first be credited against the earliest accrued but unpaid dividend due with
respect to Series D-1 Equity Shares which remains payable. Beginning with
the quarter in which a REIT Termination Event occurs, all dividends payable
per Series D-1 Equity Share pursuant to this Section shall be multiplied by
2.5.
(b) The initial Dividend Period for the Series D-1 Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date.
The amount of dividends payable for such initial period, or any other
period shorter than a full quarterly Dividend Period, on the Series D-1
Equity Shares shall be computed by dividing the number of days in such
period by 90 and multiplying the result by the Series D-1 Equity dividend
determined in accordance with Section 3(a). Holders of Series D-1 Equity
Shares shall not be entitled to any dividends, whether payable in cash,
property or shares, in excess of cumulative dividends, as herein provided,
on the Series D-1 Equity Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series D-1 Equity Shares which may be in arrears.
(c) So long as any Series D-1 Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series D-1 Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series D-1 Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series D-1 Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series D-1 Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series D-1 Equity Shares
and any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series D-1 Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series D-1 Equity
Shares shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise.
(e) No distributions on Series D-1 Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
no effect shall be given to amounts that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the prior preferences and other rights
of any series of stock ranking senior to the Series D-1 Preferred Shares
upon liquidation, distribution or winding up of the Corporation, before any
payment or distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of Junior Shares,
the holders of the Series D-1 Equity Shares shall be entitled to receive
One Hundred Eighty Dollars ($180.00) (the "Liquidation Preference") per
Series D-1 Equity Share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of
liquidation, dissolution or winding up of the affairs of the Corporation
(any such date, a "Series D-1 Liquidation Date") but such holders shall not
be entitled to any further payment; provided, that the dividend payable
with respect to the Dividend Period containing the Series D-1 Liquidation
Date shall be equal to the dividend determined pursuant to Section 3 above
for the preceding Dividend Period times a fraction equal to the actual
number of days elapsed from the end date of the calendar quarter most
recently completed to the relevant Series D-1 Liquidation Date over ninety
days. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the Series D-1 Equity Shares shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Shares, then such assets, or the proceeds thereof, shall be distributed
among the holders of Series D-1 Equity Shares and any such other Parity
Shares ratably in accordance with the respective amounts that would be
payable on such Series D-1 Equity Shares and any such other Parity Shares
if all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or
more corporations, real estate investment trusts or other entities, (ii) a
sale, lease or conveyance of all or substantially all of the Corporation's
property or business or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series D-1 Equity Shares upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
holders of the Series D-1 Equity Shares, as provided in this Section 4, the
holders of Series D-1 Equity Shares shall have no other claim to the
remaining assets of the Corporation and any other series or class or
classes of Junior Shares shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series
D-1 Equity Shares shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation. (a) The
Series D-1 Equity Shares shall not be redeemable by the Corporation prior
to August 12, 2008. On and after August 12, 2008, the Corporation, at its
option, may redeem the Series D-1 Equity Shares, in whole at any time or
from time to time in part, in minimum increments of $10.0 million of
aggregate Liquidation Preference of such shares, out of funds legally
available therefor at a redemption price payable in cash equal to 100% of
the Liquidation Preference per Series D-1 Equity Share (plus all
accumulated, accrued and unpaid dividends as provided in paragraph (d)
below).
(b) In the event that WHL and its subsidiaries and the trustee of
Westfield America Trust on behalf of Westfield America Trust do not vote to
approve the conversion of the Series D-1 Equity Shares into Common Equity
Shares at the Corporation's 1999 Annual Shareholder Meeting or at any other
meeting of the Corporation's shareholders at which such proposal is raised,
the Corporation shall have the right to redeem the Series D-1 Equity
Shares, in whole or in part, out of funds legally available therefor at a
redemption price payable in cash equal to 100% of the Liquidation
Preference per Series D-1 Equity Share (plus all accumulated, accrued and
unpaid dividends as provided in paragraph (c) below).
(c) Upon any redemption of Series D-1 Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series D-1 Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series D-1 Equity Shares called for redemption.
(d) If full cumulative dividends on the Series D-1 Equity Shares and
any other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series D-1
Equity Shares may not be redeemed under this Section 5 in part and may not
be redeemed unless the Series D Equity Shares are also redeemed in whole
and the Corporation may not purchase or acquire Series D Equity Shares or
Series D-1 Equity Shares, otherwise than pursuant to a purchase or exchange
offer made on the same terms to all holders of Series D Equity Shares and
Series D-1 Equity Shares.
(e) Notice of the redemption of any Series D-1 Equity Shares under
this Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series D-1 Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (e), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice
shall state, as appropriate: (1) the Call Date; (2) the number of Series D-
1 Equity Shares to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) the redemption price; (4) the place or places at
which certificates for such shares are to be surrendered; (5) the then-
current Conversion Price; and (6) that dividends on the shares to be
redeemed shall cease to accrue on such Call Date except as otherwise
provided herein. Notice having been mailed as aforesaid, from and after
the Call Date (unless the Corporation shall fail to make available an
amount of cash necessary to effect such redemption), (i) except as
otherwise provided herein, dividends on the Series D-1 Equity Shares so
called for redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of Series D-1 Equity Shares shall cease (except the
rights to receive the cash payable upon such redemption, without interest
thereon, upon surrender and endorsement of their certificates if so
required and to receive any dividends payable thereon). The Corporation's
obligation to provide cash in accordance with the preceding sentence shall
be deemed fulfilled if, on or before the Call Date, the Corporation shall
deposit with a bank or trust company that has an office in the Borough of
Manhattan, City of New York, and that has capital and surplus of at least
$150,000,000, necessary for such redemption, in trust, with irrevocable
instructions that such cash be applied to the redemption of the Series D-1
Equity Shares so called for redemption. Notwithstanding the foregoing the
Corporation shall, in the first instance, send the money to any holder of
Series D-1 Equity Shares that has notified the Corporation in writing of
the location of delivery of funds. No interest shall accrue for the
benefit of the holders of Series D-1 Equity Shares to be redeemed on any
cash so set aside by the Corporation. Subject to applicable escheat laws,
any such cash unclaimed at the end of two years from the Call Date shall
revert to the general funds of the Corporation, after which reversion the
holders of such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series D-1 Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series D-1 Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series D-1 Equity Shares evidenced by any certificate are redeemed, then
new certificates evidencing the unredeemed shares shall be issued without
cost to the holder thereof.
Section 6. Conversion. The Series D-1 Equity Shares shall not be
convertible into Common Equity Shares prior to (i) a vote of the
shareholders of the Corporation approving the conversion of Series D-1
Equity Shares into Common Equity Shares or (ii) the transfer of the Series
D-1 Equity Shares to an individual to whom the Corporation is permitted to
issue Common Equity Shares without shareholder approval, in accordance with
the rules of the NYSE. Subject to the foregoing, holders of Series D-1
Equity Shares shall have the right to convert all or a portion of such
shares into Common Equity Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series D-1 Preferred Shares or Excess Series D-1
Preferred Shares shall have the right, at his or her option, at any time
(such time being, the "Conversion Date"), to convert all or any portion of
such shares into the number of fully paid and non-assessable Common Shares
or Excess Common Shares, respectively, obtained by dividing the aggregate
Liquidation Preference of such shares (inclusive of accrued but unpaid
dividends) by the Conversion Price (as in effect at the time and on the
date provided for in the last paragraph of paragraph (b) of this Section 6)
by surrendering such shares to be converted, such surrender to be made in
the manner provided in paragraph (b) of this Section 6; provided, however,
that the right to convert shares called for redemption pursuant to Section
5 shall terminate at the close of business on the fifth Business Day prior
to the Call Date fixed for such redemption, unless the Corporation shall
default in making payment of the cash payable upon such redemption under
Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series D-1 Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series D-1 Equity Shares. Unless the shares
issuable on conversion are to be issued in the same name as the name in
which such Series D-1 Equity Shares are registered, each share surrendered
for conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series D-1 Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series D-1
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series D-1 Equity Shares being entitled to
such dividend on the Dividend Payment Date) must be accompanied by payment
of an amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series D-1 Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series D-
1 Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series D-1 Equity
Shares for conversion. Except as provided above, the Corporation shall
make no payment or allowance for unpaid dividends, whether or not in
arrears, on converted shares or for dividends on the Common Equity Shares
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series D-1 Equity Shares as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full Common Equity
Shares issuable upon the conversion of such shares in accordance with
provisions of this Section 6, and any fractional interest in respect of a
Common Equity Share arising upon such conversion shall be settled as
provided in paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series D-1 Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity Shares shall be issuable upon such conversion shall be deemed
to have become the holder or holders of record of the shares represented
thereby at such time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series D-1 Equity
Shares. Instead of any fractional interest in a Common Equity Share that
would otherwise be deliverable upon the conversion of a Series D-1 Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series D-1 Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares into
a greater number of shares, (C) combine its outstanding Common Equity
Shares into a smaller number of shares or (D) issue any shares of
stock by reclassification of its Common Equity Shares, the Conversion
Price in effect at the opening of business on the day following the
date fixed for the determination of shareholders entitled to receive
such dividend or distribution or at the opening of business on the
Business Day next following the day on which such subdivision,
combination or reclassification becomes effective, as the case may be,
shall be adjusted so that the holder of any Series D-1 Equity Shares
thereafter surrendered for conversion shall be entitled to receive the
number of Common Equity Shares that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such Series D-1 Equity Shares had been converted
immediately prior to the record date in the case of a dividend or
distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening
of business on the Business Day next following the record date (except
as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in
the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Equity Shares entitling
them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Equity Shares at
a price per share less than 95% (100% if a stand-by underwriter is
used and charges the Corporation a commission) of the Fair Market
Value per Common Share on the record date for the determination of
shareholders entitled to receive such rights, options or warrants,
then the Conversion Price in effect at the opening of business on the
Business Day next following such record date shall be adjusted to
equal the price determined by multiplying (A) the Conversion Price in
effect immediately prior to the opening of business on the Business
Day next following the date fixed for such determination by (B) a
fraction, the numerator of which shall be the sum of (x) the number of
Common Equity Shares outstanding on the close of business on the date
fixed for such determination and (y) the number of shares that the
aggregate proceeds to the Corporation from the exercise of such
rights, options or warrants for Common Equity Shares would purchase at
95% of such Fair Market Value (or 100% in the case of a stand-by
underwriting), and the denominator of which shall be the sum of (x)
the number of Common Equity Shares outstanding on the close of
business on the date fixed for such determination and (y) the number
of additional Common Equity Shares offered for subscription or
purchase pursuant to such rights, options or warrants. Such
adjustment shall become effective immediately after the opening of
business on the day next following such record date (except as
provided in paragraph (h) below). In determining whether any rights,
options or warrants entitle the holders of Common Equity Shares to
subscribe for or purchase Common Equity Shares at less than 95% of
such Fair Market Value (or 100% in the case of a stand-by
underwriting), there shall be taken into account any consideration
received by the Corporation upon issuance and upon exercise of such
rights, options or warrants, the value of such consideration, if other
than cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that Common Equity
Shares are not delivered pursuant to such rights, options or warrants,
upon the expiration or termination of such rights, options or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants be made on the basis of
delivery of only the number of Common Equity Shares actually
delivered. In the event that such rights, options or warrants are not
so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for
the determination of stockholders entitled to receive such rights,
options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of its
Common Equity Shares any securities of the Corporation (other than
Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997) which are
not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as determined
by the Board of Directors, after December 31, 1997, minus (C) the
cumulative amount of dividends accrued or paid in respect of the
Series D-1 Equity Shares or any other class or series of preferred
stock of the Corporation after the Issue Date) or rights, options or
warrants to subscribe for or purchase any of its securities (excluding
those rights, options and warrants issued to all holders of Common
Equity Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Equity Shares, which rights and
warrants are referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph (iii)
collectively called the "Securities" and individually a "Security"),
then in each such case the Conversion Price shall be adjusted so that
it shall equal the price determined by multiplying (x) the Conversion
Price in effect immediately prior to the close of business on the date
fixed for the determination of shareholders entitled to receive such
distribution by (y) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of
the Securities or assets or evidences of indebtedness so distributed
or of such rights, options or warrants applicable to one Common Equity
Share, and the denominator of which shall be the Fair Market Value per
Common Share on the record date mentioned below. Such adjustment
shall become effective on the date of distribution retroactive to the
opening of business on the Business Day next following (except as
provided in paragraph (h) below) the record date for the determination
of shareholders entitled to receive such distribution. For the
purposes of this subparagraph (iii), the distribution of a Security,
which is distributed not only to the holders of the Common Equity
Shares on the date fixed for the determination of shareholders
entitled to such distribution of such Security, but also is
distributed with each Common Equity Share delivered to a Person
converting a share of Series D-1 Equity Shares after such
determination date, shall not require an adjustment of the Conversion
Price pursuant to this subparagraph (iii); provided that on the date,
if any, on which a Person converting a Series D-1 Equity Share would
no longer be entitled to receive such Security with a Common Equity
Share (other than as a result of the termination of all such
Securities), a distribution of such Securities shall be deemed to have
occurred and the Conversion Price shall be adjusted as provided in
this subparagraph (iii) (and such day shall be deemed to be "the date
fixed for the determination of the shareholders entitled to receive
such distribution" and "the record date" within the meaning of the two
preceding sentences). If any dividend or distribution of the type
described in this paragraph (iii) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
Rights or warrants distributed by the Corporation to all holders
of Common Equity Shares entitling the holders thereof to subscribe for
or purchase shares of the Corporation's capital stock (either
initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Equity
Shares; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Equity Shares, shall be deemed not to
have been distributed for purposes of this subparagraph (iii) (and no
adjustment to the Conversion Price under this subparagraph (iii) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right
or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof to the extent not
exercised). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto, that resulted in an adjustment to the Conversion Price under
this subparagraph (iii), (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it
were a cash distribution (but not a distribution paid exclusively in
cash), equal to the per share redemption or repurchase price received
by a holder of Common Equity Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Equity Shares as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants all of which shall have expired or been terminated without
exercise, the Conversion Price shall be readjusted as if such rights
and warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall not
include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment by
the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Equity Share having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors), at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange offer,
that exceeds the Current Market Price per Common Share on the Trading
Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph, by a fraction of which the numerator shall be the number
of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any maximum, being referred
to as the "Purchased Shares") and (B) the product of the number of
Common Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event the Corporation or
any subsidiary or controlled Affiliate is obligated to purchase shares
pursuant to any such tender offer, but the Corporation or such
subsidiary or controlled Affiliate is permanently prevented by
applicable law from effecting any such purchases, or all such
purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect if such
tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such price; provided, however, that any adjustments
that by reason of this subparagraph (v) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment until made; and provided, further, that any adjustment
shall be required and made in accordance with the provisions of this
Section 6 (other than this subparagraph (v)) not later than such time
as may be required in order to preserve the tax-free nature of a
distribution to the holders of Common Shares. Notwithstanding any
other provisions of this Section 6, the Corporation shall not be
required to make any adjustment of the Conversion Price for the
issuance of any Common Equity Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of
the Corporation and the investment of additional optional amounts in
Common Equity Shares under such plan. All calculations under this
Section 6 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-hundredth of a share (with .005 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall
be entitled, to the extent permitted by law, to make such reductions
in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable
in order that any share dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights or
warrants to purchase shares or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation
to its shareholders shall not be taxable. To the extent permitted by
applicable law, the Corporation from time to time may reduce the
Conversion Price by any amount for any period of time if the period is
at least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Corporation, which
determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Corporation shall mail
to the holder of each Series D-1 Equity Share at his or her last
address appearing on the share register a notice of reduction prior to
the date the reduced Conversion Price takes effect and such notice
shall state the reduced Conversion Price and the period during which
it will be in effect.
(e) If the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for 40% or more of its Common Equity Shares, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Equity Shares and excluding any transaction as to which subparagraph
(d)(i) of this Section 6 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which all or
substantially all of the Common Equity Shares are converted into the right
to receive different securities or other property (including cash or any
combination thereof), each Series D-1 Equity Share which is not redeemed or
converted into the right to receive different securities or other property
prior to such Transaction shall thereafter be convertible, in lieu of
Common Equity Shares into the kind and amount of different securities and
other property (including cash or any combination thereof) receivable upon
the consummation of such Transaction by a holder of that number of Common
Equity Shares into which one Series D-1 Equity Share was convertible
immediately prior to such Transaction, assuming such holder of Common
Equity Shares (i) is not a Person with which the Corporation consolidated
or into which the Corporation merged or which merged into the Corporation
or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Share held immediately prior to such Transaction
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised ("Non-
Electing Share"), then for the purpose of this paragraph (e) the kind and
amount of shares, securities and other property (including cash) receivable
upon such Transaction by each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by holders of a plurality of the
Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series D-1 Equity Shares that will
contain provisions enabling the holders of the Series D-1 Equity Shares
that remain outstanding after such Transaction to convert into the
consideration received by holders of Common Equity Shares at the Conversion
Price in effect immediately prior to such Transaction. The provisions of
this paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the cumulative
amount of dividends accrued or paid in respect of the Series D-1
Equity Shares or any other class or series of preferred stock of the
Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all holders
of Common Equity Shares of rights, options or warrants to subscribe
for or purchase any shares of any class or any other rights, options
or warrants; or
(iii) there shall be any reclassification of the Common Equity
Shares (other than an event to which subparagraph (d)(i) of this
Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders of
the Corporation is required, or a statutory share exchange, or a self
tender offer by the Corporation for all or substantially all of its
outstanding Common Shares or the sale or transfer of all or
substantially all of the assets of the Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series D-1 Equity Shares at
their addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options or warrants are to be determined
or (B) the date on which such reclassification, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Equity Shares of record shall be entitled
to exchange their Common Equity Shares for securities or other property, if
any, deliverable upon such reclassification, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution or
winding up. Failure to give or receive such notice or any defect therein
shall not affect the legality or validity of the proceedings described in
this Section 6.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series D-
1 Equity Shares at such holder's last address as shown on the records of
the Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of
such event (A) issuing to the holder of any share of Series D-1 Equity
Shares converted after such record date and before the occurrence of such
event the additional Common Equity Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Equity Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
issuance of any stock of the Corporation in a reorganization, acquisition
or other similar transaction except as specifically set forth in this
Section 6. If any action or transaction would require adjustment of the
Conversion Price pursuant to both paragraph (d) and paragraph (e) of this
Section 6, only one adjustment shall be made and such adjustment shall be
the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series D-1 Equity Shares, the
Conversion Price for the Series D-1 Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series D-1 Equity Shares, the full number of Common
Equity Shares deliverable upon the conversion of all outstanding Series D-1
Equity Shares not theretofore converted. For purposes of this paragraph
(k), the number of Common Shares that shall be deliverable upon the
conversion of all outstanding Series D-1 Preferred Shares shall be computed
as if at the time of computation all such outstanding shares were held by a
single holder.
Any Common Equity Shares issued upon conversion of the Series D-1
Equity Shares shall be validly issued, fully paid and non-assessable.
Before taking any action that would cause an adjustment reducing the
Conversion Price below the then-par value of the Common Equity Shares
deliverable upon conversion of the Series D-1 Equity Shares, the
Corporation will take any action that, in the opinion of its counsel, may
be necessary in order that the Corporation may validly and legally issue
fully paid and (subject to any customary qualification based upon the
nature of a real estate investment trust) nonassessable Common Equity
Shares at such adjusted Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series D-1 Preferred
Shares, prior to such delivery, upon each national securities exchange, if
any, upon which the outstanding Common Shares are listed at the time of
such delivery.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series D-1 Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Equity Shares or other securities or property on conversion of the
Series D-1 Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series D-1 Equity Shares to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery
has paid to the Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control. (a) If a Change of Control (as
defined below) occurs (a "Change of Control Repurchase Event"), the holders
of Series D-1 Equity Shares shall have the right to require the
Corporation, to the extent the Corporation shall have funds legally
available therefor, to redeem any or all of the Series D-1 Equity Shares
held by such holder at a repurchase price payable in cash (the "Change of
Control Repurchase Payment") in an amount equal to 105% of the Liquidation
Preference thereof, plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (the "Change of Control Date"), pursuant to the offer described
in subsection (b) below (the "Change of Control Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to the each
holder of Series D-1 Equity Shares stating (A) that a Change of Control
Repurchase Event has occurred and that such holder has the right to require
the Corporation to repurchase any or all of the Series D-1 Equity Shares
then held by such bolder, (B) the date of repurchase (which shall be a
Business Day, no earlier than 30 days and no later than 60 days from the
date such notice is mailed, or such later date as may be necessary to
comply with the requirements of the Exchange Act), (C) the repurchase price
and (D) the instructions determined by the Corporation, consistent with
this subsection, that such investor must follow in order to have the Series
D-1 Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to the
extent lawful, shall accept for payment Series D-1 Equity Shares or
portions thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series D-1
Equity Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly,
by any individual or entity or group (as such term is used in Section
13(d)(3) of the Exchange Act) of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act, except that such individual or entity shall
be deemed to have beneficial ownership of all shares that any such
individual or entity has the right to acquire, whether such right is
exercisable immediately or only after passage of time) of more than 25% of
the Corporation's outstanding stock with voting power, under ordinary
circumstances, to elect Directors of the Corporation, (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation then still in
office who were either Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) the Corporation consolidating with
or merging into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the Corporation, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
stock of the Corporation is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i)(ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of an event described in clause (iii), if the
sole purpose of such event is that the Corporation is seeking to change its
domicile or to convert from a corporation to a trust or vice versa; (b) in
the case of an event described in clause (iii), if the holders of the
exchanged securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of Directors of
the Corporation; (c) if any of WHL or its wholly-owned subsidiaries remain
as manager of the Corporation's properties and remains as adviser of the
Corporation, in each case, in a manner substantially similar to that on
date hereof; or (d) if the Change of Control results solely from the
purchase or other acquisition of equity securities by WHL or its wholly-
owned subsidiaries, Westfield America Trust, the Lowy Family or the
Investor or the sale of equity securities by WHL or any of its wholly-owned
subsidiaries or Westfield America Trust.
Section 8. Redemption at the Option of the Holder. (a) At any time
after August 12, 2008, the holders of Series D-1 Equity Shares thereof
shall have the right at any time that the Corporation's Common Shares has a
Current Market Price at or below and the Conversion Price per share, to
require the Corporation, to the extent the Corporation shall have funds
legally available therefor, to redeem any or all of the Series D-1 Equity
Shares held by such holder at a repurchase price payable, at the option of
the Corporation, in either (i) cash, or (ii) such number of Common Equity
Shares as shall have a Current Market Price in the aggregate on the day
prior to the day such holder gives notice pursuant to Section 8(b) of its
intention to redeem, equal to in either case, 100% of the Liquidation
Preference thereof plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
(b) Notwithstanding paragraph (a) of this Section 8, in the event
that WHL and its subsidiaries and the trustee of Westfield America Trust on
behalf of Westfield America Trust vote to approve the conversion of the
Series D-1 Equity Shares into Common Equity Shares at a meeting of
shareholders at which such proposal is raised, but the shareholders of the
Corporation as a whole reject the foregoing proposal, then from and after
the later of such rejection date and the second anniversary of the Issue
Date, the Series D-1 Equity Stock shall be redeemable at the option of the
holder, to the extent that the Corporation shall have funds legally
available therefor, at a redemption price payable in cash equal to the
product of (a) the Series D-1 Common Equivalent Factor times (b) the
Current Market Price on the date of the notice provided pursuant to
paragraph (c) below, plus all accumulated, accrued and unpaid dividends
whether or not declared, if any, to the date of repurchase or the date
payment is made available.
(c) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series D-1 Equity Shares wishes to tender shares
to be redeemed. The holders of such shares to be redeemed shall then have
30 days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series D-1
Equity Shares to be redeemed, duly endorsed or assigned to the Corporation
or in blank, at the office of the Transfer Agent, the Corporation shall
promptly, either (i) by wire transfer of immediately available funds to
such holder, as directed by such holder, send an amount equal to the
Redemption Payment in respect of all Series D-1 Equity Shares or portions
thereof so tendered or (ii) issue and deliver to such holder, or on his or
her written order, a certificate or certificates for the number of full
Common Equity Shares issuable in respect of all Series D-1 Equity Shares or
portions thereof so tendered.
Section 9. Shares To Be Retired. All Series D-1 Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series D-1 Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution
or winding up, if the holders of such class or series shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of Series D-1 Preferred Shares,
which shall expressly include the Corporation's non-voting senior
preferred stock, par value $1.00 per share;
(b) on a parity with the Series D-1 Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
shall be different from those of the Series D-1 Preferred Shares, if the
holders of such class or series and the Series D-1 Preferred Shares
shall be entitled to the receipt of dividends and of amounts
distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares"), which shall expressly include the Corporation's
Series A Cumulative Redeemable Preferred Shares, Series B Cumulative
Redeemable Preferred Shares, Series C Cumulative Convertible Preferred
Stock, Series C-1 Cumulative Convertible Preferred Stock, Series C-2
Cumulative Convertible Preferred Stock, if any shall have been
authorized and issued, and Series D Cumulative Convertible Preferred
Stock;
(c) junior to the Series D-1 Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series D-1 Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Series D Preferred Shares. The Company shall be entitled
to treat the Series D Preferred Shares and the Series D-1 Preferred Shares
as one class for accounting purposes.
Section 12. Voting. So long as any Series D-1 Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles, the affirmative vote of the holders of
a majority of the Series D Equity Shares and the Series D-1 Equity Shares,
voting together as a class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall
be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or this Certificate of Designation
that materially and adversely affects the voting powers, rights or
preferences of the holders of the Series D Equity Shares or the Series
D-1 Equity Shares; or
(ii) Any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and
each holder of Series D Equity Shares and Series D-1 Equity Shares
does not receive shares of the surviving corporation with
substantially similar rights, preferences and powers in the surviving
corporation as the Series D Equity Shares and Series D-1 Equity Shares
have with respect to the Corporation (except for changes that do not
materially and adversely affect the holders of the Series D Equity
Shares or Series D-1 Equity Shares).
provided, however, that no such vote of the holders of the Series D
Equity Shares and Series D-1 Equity Shares shall be required if, at or
prior to the time when such amendment, alteration or repeal is to take
effect, or when the issuance of any such prior shares or convertible
security is to be made, as the case may be, provision is made for the
redemption of all Series D Equity Shares and Series D-1 Equity Shares
at the time outstanding to the extent such redemption is authorized by
Section 5 of this Certificate of Designation.
(iii) For purposes of the foregoing provisions of this Section
13, each share of Series D-1 Equity Shares shall have one (1) vote per
share, except that when any other series of Equity Shares shall have
the right to vote with the Series D-1 Equity Shares as a single class
on any matter, then the Series D-1 Equity Shares and such other series
shall have with respect to such matters one (1) vote per $180.00 (or
less pursuant to Section 4(a)) of stated Liquidation Preference.
Except as otherwise required by applicable law or as set forth herein,
the Series D-1 Equity Shares shall not have any relative,
participating, optional or other special voting rights and powers
other than as set forth herein, and the consent of the holders thereof
shall not be required for the taking of any corporate action.
Section 13. Record Holders. The Corporation and the Transfer Agent
may deem and treat the record holder of any Series D-1 Preferred Shares as
the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 14. Title. This resolution shall be known and may be
referred to as "A Resolution of the Board of Directors of Westfield
America, Inc. Designating Series D-1 Preferred Shares and Fixing
Preferences and Rights Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 15th day of
December, 1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
--------------------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS:
COUNTY OF LOS ANGELES )
I, Leesa A. Ashley, a notary public, do hereby certify that on this
15th day of December, 1998, personally appeared before me Peter S. Lowy,
and being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as Co-
President of the corporation, and that the statements therein contained
are true.
[SEAL]
/s/ Leesa A. Ashley
-----------------------------
Notary Public
My Commission Expires: April 30, 2001
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 21, 1997 (this
"Agreement"), among Westfield America, Inc., a Missouri corporation (the
"Company"), Westfield Holdings Limited, an Australian public corporation
("WHL"), for the benefit of WHL and each of its subsidiaries (collectively,
"Westfield Holdings"). Capitalized terms used but not otherwise defined
herein have their respective meanings set forth in Section 1 of this
Agreement.
W I T N E S S E T H:
WHEREAS, the Company plans to commence an underwritten initial
public offering (the "Public Offering") of shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company;
WHEREAS, in connection with the Public Offering, the Company
desires to enter into various agreements with WHL and certain of its
subsidiaries or amend existing contractual arrangements with such
entities;
WHEREAS, the parties hereto desire to enter into this Agreement
for the purpose of providing for certain registration rights for the
benefit of the holders of Registrable Securities; and
WHEREAS, the execution and delivery of this Agreement is a
condition precedent to the various agreements and amendments with
Westfield Holdings in connection with the Public Offering.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to and on the terms and conditions set forth,
the parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following respective meanings:
AFFILIATE: As applied to any Person, any Person directly or
indirectly controlling or controlled by or under common control with such
Person.
BOARD: The Board of Directors of the Company.
BUSINESS DAY: Each day other than a Saturday, a Sunday or any
other day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to be closed.
COMMISSION: The Securities and Exchange Commission and any
successor federal agency having similar powers.
COMMON STOCK: As defined in the first recital of this Agreement.
COMPANY: As defined in the introductory paragraph of this
Agreement.
EFFECTIVENESS DATE: The three-year anniversary of the closing of
the Public Offering.
EFFECTIVENESS PERIOD: As defined in Section 2.1(a).
INITIAL SHELF REGISTRATION: As defined in section 2.1(a).
INITIATING HOLDER: WHL and each subsidiary of WHL that holds or
will hold Registrable Securities or any transferee or transferees to whom
Registrable Securities shall have been transferred holding in the
aggregate at least 50% of the total number of Registrable Securities
outstanding at the time of any request pursuant to section 2.2.
OTHER SECURITIES: Any stock (other than Common Stock) and any
other securities of the Company or any other Person (corporate or
otherwise) which the holders of the Registrable Securities at any time
shall be entitled to receive, or shall have received, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock.
PERSON: Any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, government (or an agency or political
subdivision thereof) or other entity of any kind, including any successor
(by merger or otherwise) of such entity.
PUBLIC OFFERING: As defined in the first recital of this
Agreement.
REGISTRABLE SECURITIES: (i) The shares of Common Stock (or Other
Securities) held by Westfield Holdings upon completion of the Public
Offering, (ii) any other shares of Common Stock (or Other Securities)
thereafter acquired by Westfield Holdings and (iii) any securities issued
or issuable with respect to such shares of Common Stock (or Other
Securities) by way of stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii)
such securities shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) such
securities shall have been otherwise transferred, new certificates for
them not bearing a legend restricting further transfer shall have been
delivered by the Company and in the opinion of counsel to the Company
reasonably acceptable to the holder of such Registrable Security, each in
their reasonable judgment, the subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or
any similar state law then enforced, (iv) such securities shall have
ceased to be outstanding, or (v) such securities may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in
force) under the Securities Act.
REGISTRATION EXPENSES: All expenses incident to the Company's
performance of or compliance with sections 2 and 3, including, without
limitation, all registration, filing and National Association of
Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws and the preparation of a blue sky memorandum,
all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of any
special audits or "comfort" letters required by or incident to such
performance and compliance, the reasonable fees and disbursements of one
special counsel retained by the holders of the Registrable Securities
being registered, fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding underwriting discounts
and commissions, and fees and expenses of any Person, including special
experts, retained by the Company and the Initiating Holders, PROVIDED
that, in any case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, or other expenses
for the preparation of financial statements or other data normally
prepared by the Company in the ordinary course of its business or which
the Company would have incurred in any event.
REQUIRED HOLDERS. Westfield Holdings or the holders of at least
25% of the Registrable Securities.
SECURITIES ACT: The Securities Act of 1933, as amended, or any
similar federal statute, as at the time in effect, and any reference to a
particular section of such Act shall include a reference to the comparable
section, if any, of any such similar federal statute.
SHELF REGISTRATION: A "shelf" registration for an offering to be
made on a continuous basis pursuant to Rule 415 of Regulation C (17 C.F.R.
Section 240.415) promulgated under the Securities Act, or similar rule
that may be adopted by the Commission.
SUBSEQUENT SHELF REGISTRATION: As defined in section 2.1(b).
2. REGISTRATION UNDER SECURITIES ACT, ETC. 2.1 SHELF
REGISTRATIONS. (a) INITIAL SHELF REGISTRATION. The Company agrees that,
upon the request of any Initiating Holder made at any time after the
Effectiveness Date, the Company shall use all reasonable efforts to
prepare and cause to be filed with the Commission a registration statement
for a Shelf Registration covering up to the aggregate number of
Registrable Securities and permitting sales in ordinary course brokerage
or dealer transactions (the "Initial Shelf Registration") on or as soon as
practicable after the Effectiveness Date. The Company agrees to use all
reasonable efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act within three months after it is filed
with the Commission (the "Initial Shelf Registration Statement"). The
Initial Shelf Registration Statement shall be on a Form S-3 or other
appropriate form permitting registration of such Registrable Securities
for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Company shall use all reasonable efforts to keep the Initial Shelf
Registration Statement continuously effective under the Securities Act for
the period ending when (x) all Registrable Securities covered by the
Initial Shelf Registration Statement have been sold pursuant thereto, (y)
no Registrable Securities remain outstanding, or (z) a Subsequent Shelf
Registration covering all of the Registrable Securities has been declared
effective under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than
pursuant to clauses (x) or (y) of section 2.1(a)), the Company shall use
every reasonable effort to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event within 120 days of
such cessation of effectiveness, amend such Shelf Registration in a manner
reasonably expected to obtain the withdrawal of such order or file an
additional Shelf Registration covering all of the Registrable Securities
(a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Company shall use all reasonable efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such registration statement
effective for a period equal to the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or
any Subsequent Shelf Registration was previously effective.
(c) REGISTRATION RIGHTS EXCLUSIVE. The Company will not register
securities for sale for the account of any Person other than holders of
Registrable Securities, and will not register any securities other than
Registrable Securities in any registration of Registrable Securities
pursuant to this section 2.1. The Company will not grant to any Person the
right to request a registration of securities not permitted by this
subdivision (c).
(d) SUPPLEMENTS AND AMENDMENTS. The Company shall supplement and
amend the Initial Shelf Registration or any Subsequent Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if
required by the Securities Act or if reasonably requested by any
underwriter of such Registrable Securities. Notwithstanding the foregoing,
but subject to the rights of holders of Registrable Securities under
section 2.3, if the Company shall furnish to the Initiating Holders a
certificate signed by a President or an Executive Vice President of the
Company stating that in the good faith judgment of the Board it would be
significantly disadvantageous to the Company and its shareholders for any
such Shelf Registration Statement to be amended or supplemented, the
Company may defer such amending or supplementing of such Shelf
Registration Statement for not more than 60 days and in any such event the
holders shall be required to discontinue disposition of any Registrable
Securities covered by such Shelf Registration Statement during such
period.
2.2 REGISTRATION ON REQUEST. (a) REQUEST. At any time after the
Effectiveness Date, upon the written request of one or more Initiating
Holders, requesting that the Company effect the registration under the
Securities Act (which shall be a Shelf Registration if requested by the
Initiating Holders), of all or part of such Initiating Holders'
Registrable Securities and specifying the intended method or methods of
disposition thereof, the Company will promptly, but in any event within 20
days, give written notice of such requested registration to all holders of
Registrable Securities and thereupon will use all reasonable efforts to
effect the registration under the Securities Act of all Registrable
Securities of the Initiating Holders requested to be registered within 15
days after receipt of the Company's notice, all to the extent required to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of Registrable Securities so to be registered, PROVIDED that
the Company shall not be required to effect a registration pursuant to
this section 2.2 until a period of six months shall have elapsed from the
effective date of the most recent registration previously effected
pursuant to this section 2.2, and PROVIDED further that, the Company shall
not be required to effect more than three such registrations in the
aggregate at the request of Initiating Holders pursuant to this section
2.2. Notwithstanding the foregoing, but subject to the rights of holders
of Registrable Securities under section 2.3, if the Company shall furnish
to the Initiating Holders a certificate signed by a President or an
Executive vice President of the Company stating that in the good faith
judgment of the Board it would be significantly disadvantageous to the
Company and its shareholders for such registration statement to be filed
on or before the filing which would otherwise be required pursuant to this
section 2.2, the Company may defer the filing (but not the preparation) of
the registration statement which is required to effect any registration
pursuant to this section 2.2 for an additional period of not more than 60
days following the anticipated filing of such registration statement,
PROVIDED that at all times the Company is in good faith using all
reasonable efforts to cause such registration statement to become
effective.
(b) REGISTRATION STATEMENT FORM. Each registration requested
pursuant to this section 2.2 shall be effected by the filing of a
registration statement on any form which the Company is eligible to use,
such form (which form shall be suitable for a Shelf Registration, if
applicable) to be selected by the Company after consultation with counsel
and notice of such selection of such form to be delivered to the holders
of all Registrable Securities eligible to participate in such
registration. Such selection shall be final unless the use of such form
has been objected to in writing by the Required Holders.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this section 2.2 shall not be deemed to be effected unless it
has been declared effective by the Commission or otherwise becomes
effective, PROVIDED that a registration which does not become effective
after the Company has filed a registration statement with respect thereto
solely by reason of the refusal to proceed of all of the Initiating
Holders (other than any refusal to proceed based upon (i) the advice of
their counsel that the registration statement, or the prospectus contained
therein, contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing or (ii) the discovery of a material adverse change in the
condition, business or prospects of the Company from that known to the
Initiating Holders at the time of their request that makes the proposed
offering unreasonable in the good faith judgment of such Holders) shall be
deemed to have been effected by the Company at the request of such
holders. Notwithstanding the foregoing, a registration requested pursuant
to this section 2.2 shall not be deemed to have been effected for purposes
of this section 2.2 if
(i) the registration does not remain effective for a period of
at least 120 days (or one year, in the case of a Shelf Registration) or,
if earlier, until all the Registrable Securities requested to be
registered in connection therewith were sold, or
(ii) after it has become effective, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for
any reason prior to the sale of at least 85% of the securities to be sold
pursuant to such registration statement, or
(iii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied, other than by reason of some act or
omission by the holders of the Registrable Securities that were to have
been registered.
(d) REGISTRATION RIGHTS EXCLUSIVE. The Company will not register
securities for sale for the account of any Person other than holders of
Registrable Securities, and will not register any securities other than
Registrable Securities in any registration of Registrable Securities
requested by one or more holders pursuant to this section 2.2, unless
permitted to do so by the written consent of the Required Holders. The
Company will not grant to any Person the right to request a registration
of securities not permitted by this subdivision (d).
(e) OTHER REQUESTS. Upon the written request of one or more
holders of Registrable Securities (other than Initiating Holders),
requesting that the Company effect the registration under the Securities
Act of all or part of such holders' Registrable Securities and specifying
the intended method or methods of disposition thereof, the Company will
promptly, but in any event within 20 days, give written notice of such
requested registration, including the names and addresses of such
requesting holders, to all holders of Registrable Securities but shall not
have any obligation to effect any registration pursuant to such request
until it has received a request of Initiating Holders pursuant to section
2.2(a).
2.3 INCIDENTAL REGISTRATION. (a) At any time after the
Effectiveness Date, If the Company at any time proposes to register any of
its equity securities under the Securities Act (other than pursuant to
section 2.2 or on Form S-8, Form S-4 or any successor forms thereto),
whether or not for sale for its own account, it will each such time give
prompt written notice to all holders of Registrable Securities of its
intention to do so, which notice shall be given to all such holders at
least 30 days prior to the date such registration is proposed to be
consummated, and, upon the written request of any such holder made within
15 days after the receipt of any such notice (which request shall specify
the Registrable Securities intended to be disposed of by such holder and
the intended method of disposition thereof), the Company will use all
reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to
register by the holders thereof, on the same terms and conditions as the
equity securities of the Company or, if such offering is for the account
of other shareholders, the equity securities included therein, to the
extent required to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, PROVIDED that if, at any time after giving written notice of
its intention to register any securities and prior to the effective date
of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon,
shall be relieved of its obligation to register any Registrable Securities
in connection with such registration, without prejudice, however, to the
rights of any holder or holders of Registrable Securities to request that
such registration be effected as a registration upon request under section
2.2. Notwithstanding the foregoing, if the Initial Shelf Registration or
any Subsequent Shelf Registration is then in effect, the Company shall
have no obligation to effect the registration of Registrable Securities
under this section 2.3 unless the securities proposed to be registered by
the Company are to be disposed of in an underwritten public offering.
(b) If the securities proposed to be registered by the Company
are to be disposed of in an underwritten public offering, such notice of
the Company's intention to register such securities shall designate the
proposed underwriters of such offering (which shall be one or more
underwriting firms of recognized national standing) and shall contain the
Company's agreement to use all reasonable efforts, if requested to do so,
to arrange for such underwriters to include in such underwriting the
Registrable Securities which the Company has been so requested to register
pursuant to this section 2.3, it being understood that the holders of such
Registrable Securities shall have no right to select different
underwriters for the disposition of their Registrable Securities.
(c) No registration effected under this section 2.3 shall
relieve the Company from its obligation to effect registrations upon
request under section 2.2 or to effect the Initial Shelf Registration or
any Subsequent Shelf Registration pursuant to section 2.1.
(d) If a requested registration pursuant to this section 2.3
involves an underwritten offering, and the managing underwriter shall
advise the Company in writing (with a copy to each holder of Registrable
Securities requesting registration) that, in its opinion, the number of
securities requested to be included in such registration exceeds the
number which can be sold in such offering within a commercially reasonable
price range (such writing to state the basis of such opinion and the
approximate number of shares of securities which may be included in such
offering without such effect), the Company will include in such
registration, to the extent of the number of securities which the Company
is so advised can be sold in such offering, (i) first, securities that the
Company proposes to issue and sell for its own account, (ii) second,
Registrable Securities requested to be registered by the holders thereof
pursuant to this section 2.3, pro rata among such holders on the basis of
the number of shares of Common Stock proposed to be registered by such
holders, and (iii) third, all other securities proposed to be registered.
2.4 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in section 2,
the Company will promptly:
(a) prepare and file with the Commission as promptly as
practicable, but in any event not later than 90 days (or such longer
period as may be required in order for the Company to comply with the
applicable provisions under the Securities Act) after receipt of a request
to file a registration statement with respect to Registrable Securities, a
registration statement with respect to such Registrable Securities and use
all reasonable efforts to cause such registration statement to become
effective; PROVIDED, HOWEVER, that if the Company shall furnish to the
Initiating Holders making such a request a certificate signed by a
President or Executive Vice President of the Company stating that in the
good faith judgment of the Board it would be significantly disadvantageous
to the Company and its shareholders for such registration statement to be
filed on or before the date such filing would be required, the Company
shall have an additional period of not more than 60 days within which to
file such registration statement; and PROVIDED, FURTHER, that before
filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall provide each holder of Registrable
Securities being registered in such registration and any attorney retained
by such holder with an adequate and appropriate opportunity to participate
in the preparation of such registration statement and each prospectus
included therein (and each amendment or supplement thereto) to be filed
with the Commission;
(b) prepare and file with the Commission such amendments, post-
effective amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep
such registration statement effective (or, in the case of a Shelf
Registration, continuously effective) and to comply with the rules,
regulations or instructions of the registration form utilized by the
Company, the Securities Act and the rules and regulations thereunder with
respect to the disposition of all Registrable Securities and other
securities covered by such registration statement until the earlier of
such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement or the expiration
of six months (nine months, in the case of a Shelf Registration) after
such registration statement becomes effective or, in the case of the
Initial Shelf Registration or any Subsequent Shelf Registration, for the
remainder of the Effectiveness Period (but not before the expiration of
the 90-day period referred to in Section 4(3) of the Securities Act and
Rule 174 thereunder, if applicable); and will furnish to each such seller
prior to the filing thereof a copy of any amendment, post-effective
amendment or supplement to such registration statement or prospectus and
shall not file any such amendment, post-effective amendment or supplement
to which any such seller or holder shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(c) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment, post-effective amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents, if any, incorporated by reference in such
registration statement or prospectus, and such other documents, as such
seller may reasonably request;
(d) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the
prospectus (after initial filing of the registration statement), provide
copies of such document to counsel to each seller of Registrable
Securities, make the Company's representatives available for discussion of
such document and make such changes in such document prior to the filing
thereof as counsel for such selling holders may reasonably request;
(e) use all reasonable efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as each seller of such Registrable Securities shall
reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and do any
and all other acts and things which may be necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of
its Registrable Securities covered by such registration statement, except
that the Company shall not for any such purpose be required to (i) qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (e) be
obligated to be so qualified, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(f) cooperate with the sellers of such Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and enable such Registrable
Securities to be registered in such names as such sellers may request at
least two Business Days prior to any sale of Registrable Securities;
(g) use all reasonable efforts to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable each seller thereof
to consummate the disposition of such Registrable Securities;
(h) furnish to each seller of such Registrable Securities a
signed counterpart, addressed to such seller, of (i) an opinion of counsel
for the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement) and (ii) a
"comfort" letter, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially
the same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such
other financial matters, as such seller may reasonably request;
(i) immediately notify each seller of such Registrable
Securities and (if requested by any such seller) confirm such advice in
writing, (i) when or if the prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to the
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration statement or
the initiation of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and
(v) of the existence of any fact which makes any statement made in the
registration statement, the prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in
the registration statement, the prospectus or any document incorporated
therein by reference in order to make the statements therein not
misleading;
(j) if any fact contemplated by clause (i)(v) above shall exist,
prepare a supplement or post-effective amendment to the registration
statement or the related prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities the prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading;
(k) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement at
the earliest possible moment;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
securities holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first month of the first fiscal
quarter after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of section 11(a) of the
Securities Act;
(m) provide and cause to be maintained transfer agents and
registrars for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(n) cause all Registrable Securities issuable upon exercise
thereof, covered by the registration statement to be listed on each
securities exchange on which similar securities issued by the Company are
then listed if requested by the Required Holders;
(o) enter into and perform any other customary agreements and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities;
(p) make available for inspection by each holder of Registrable
Securities included in such registration statement, any managing
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any
such holder or any managing underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such person
in connection with such registration statement;
(q) cooperate and cause the executive officers of the Company to
cooperate in connection with such registration, to the extent reasonably
requested by each seller of Registrable Securities or by the underwriters,
if any, including, in the case of any underwritten registration upon
request under Section 2.1 or 2.2, by making executive officers of the
Company available for road show presentations and other investor meetings
to the extent customary in similar underwritten offerings; and
(r) use all reasonable efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated
hereby and cooperate with the holders thereof to facilitate the
disposition of such Registrable Securities pursuant thereto.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities
as the Company may from time to time reasonably request in writing and as
shall be required by law or by the Commission in connection therewith.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in clause
(i)(v) of this section 2.4, such holder will forthwith discontinue
disposition of Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by paragraph
(j) of this section 2.4, or until it is advised in writing (the "Advice")
by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the
Company, such holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such
holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods regarding the
effectiveness of registration statements set forth in paragraph (b) of
this section 2.4 shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
clause (i)(v) of this section 2.4 to and including the date when each
seller of Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended prospectus
contemplated by paragraph (j) of this section 2.4 or the Advice.
2.5 UNDERWRITTEN OFFERINGS. (a) UNDERWRITTEN OFFERINGS
EXCLUSIVE. Whenever a registration requested by one or more holders
pursuant to section 2.1 or 2.2 is for an underwritten offering, only
Registrable Securities which are to be distributed by the underwriters
designated by such holders may be included in such registration, unless
such holders shall have permitted other securities to be included in such
registration and such underwritten offering as provided in subdivision
2.2(e). If such holders shall determine that the number of Registrable
Securities to be sold in any such underwritten offering should be limited
due to market conditions or otherwise, the Company will include in such
registration to the extent of the number which the Company is so advised
can be sold in such offering (i) first, Registrable Securities requested
to be included in such registration, PRO RATA among the holders thereof on
the basis of the number of shares of Common Stock proposed to be
registered by such holders, (ii) second, securities that the Company
proposes to issue and sell for its own account and (iii) third, all other
securities proposed to be registered.
(b) UNDERWRITING AGREEMENT. If requested by the underwriters for
any underwritten offering of Registrable Securities on behalf of a holder
or holders of Registrable Securities pursuant to a registration effected
pursuant to section 2.1 or requested under section 2.2, the Company will
enter into an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by
the Company and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities to the effect
and to the extent provided in section 2.7. The holders of Registrable
Securities on whose behalf Registrable Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement and
the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters, shall
also be made to and for the benefit of such holders of Registrable
Securities. Such holders of Registrable Securities shall not be required
by the Company to make any representations or warranties to or agreements
with the Company or the underwriters other than reasonable
representations, warranties or agreements regarding such holder, such
holder's Registrable Securities and such holder's intended method or
methods of disposition and any other representation required by law.
(c) SELECTION OF UNDERWRITERS. Whenever a registration requested
pursuant to section 2.2 is for an underwritten offering, the holders of a
majority of the Registrable Securities included in such registration shall
have the right to select the managing underwriter(s) to administer the
offering, subject to the approval of the Company, such approval not to be
unreasonably withheld. Whenever a holder of Registrable Securities desires
to distribute its securities under a registration effected pursuant to
section 2.1 in an underwritten offering, such holder shall have the right
to select the managing underwriter(s) to administer the offering, subject
to the approval of the Company, such approval not to be unreasonably
withheld.
2.6 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give the
holders of Registrable Securities on whose behalf such Registrable
Securities are to be so registered and their underwriters, if any, and
their respective counsel and accountants, the opportunity to participate
in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof
or supplement thereto, and will give each of them such access to its books
and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion
of such holders and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Securities
Act.
2.7 INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. The
Company will, and hereby does, indemnify and hold harmless, to the full
extent permitted by law, in the case of any registration statement filed
pursuant to Section 2.1, 2.2 or 2.3, each holder of any Registrable
Securities covered by such registration statement, and each other Person
who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of Section 15 of the Securities Act,
and their respective directors, officers, partners, investment advisors,
agents and affiliates, against any losses, claims, damages or liabilities,
joint or several, to which such holder or underwriter or any such
director, officer, partner, investment advisor, agent, affiliate or
controlling person may become subject under the Securities Act or common
law or otherwise, including, without limitation, reasonable costs of
investigation and subject to Section 3 hereof, reasonable fees and
expenses of legal counsel, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement filed by the Company
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such holder or underwriter and each such director, officer,
partner, investment advisor, employee, agent, affiliate and controlling
Person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
liability, action or proceeding; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such holder,
underwriter, director, officer, partner, investment advisor, employee,
agent, affiliate or controlling Person, as the case may be, expressly for
use in the preparation thereof; PROVIDED further, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement of any material fact contained in
any such registration statement, preliminary prospectus, final prospectus
or summary prospectus contained therein or any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made
not misleading in a prospectus or prospectus supplement, if (i) such
untrue statement or omission is completely corrected in an amendment or
supplement to such prospectus or prospectus supplement, the seller of the
Registrable Securities has an obligation under the Securities Act to
deliver a prospectus or prospectus supplement in connection with such sale
of Registrable Securities and the seller of Registrable Securities
thereafter fails to deliver such prospectus or prospectus supplement as so
amended or supplemented prior to or concurrently with the sale of
Registrable Securities to the person asserting such loss, claim, damage or
liability after the Company has furnished such seller with a sufficient
number of copies of the same or (ii) if the seller received written notice
from the Company of the existence of such an untrue statement or such an
omission and the seller continued to dispose of Registrable Securities
prior to the time of the receipt of either (a) an amended or supplemented
prospectus or prospectus supplement that completely corrected the untrue
statement or the omission or (b) a notice from the Company that the use of
the existing prospectus or prospectus supplement may be resumed. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, partner, investment advisor, employee, agent, affiliate or
controlling person and shall survive the transfer of such securities by
such seller.
(b) INDEMNIFICATION BY THE SELLERS. As a condition to including
any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 2.7(a)) the
Company, and each director of the Company, each officer of the Company and
each other Person, if any, who participates as an underwriter in the
offering or sale of such securities and each other Person who controls the
Company or any such underwriter within the meaning of the Securities Act,
with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
seller expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; PROVIDED, HOWEVER, that (A) the indemnifying
party shall not be liable in any such case to the extent that any such
statement or omission is completely corrected (x) in the final prospectus,
in the case of a preliminary prospectus, or (y) in an amendment or
supplement to a prospectus or prospectus supplement (PROVIDED, HOWEVER,
that nothing in this clause (y) shall limit the indemnifying party's
liability with respect to sales made prior to the receipt by the Company
from the indemnifying party of written notice of such an untrue statement
or such an omission) and (B) the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of proceeds
received by such indemnifying party in the offering giving rise to such
liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any
such director, officer or controlling person and shall survive the
transfer of such securities by such holder.
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in Section 2.7(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.7, except to the extent that the indemnifying party is
materially prejudiced by such failure to give notice. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party; PROVIDED, HOWEVER, that (i) if the indemnified
party reasonably believes that it is advisable for it to be represented by
separate counsel because there exists or may exist a conflict of interest
between its interests and those of the indemnifying party with respect to
such claim, or there exist defenses available to such indemnified party
that may not be available to the indemnifying party, or (ii) if the
indemnifying party shall fail to assume responsibility for such defense,
the indemnified party may retain counsel satisfactory to it and, in the
case of clause (i), reasonably satisfactory to the indemnifying party, and
the indemnifying party shall pay all fees and expenses of such counsel;
PROVIDED FURTHER, that the indemnifying partyshall not be deemed to have
failed to assume responsibility for such defense if the indemnifying party
has not received notice of such claim pursuant to this Section 2.7(c). In
the event an indemnifying party elects not to assume, or shall not be
entitled to assume because of a conflict of interest between its interests
and those of the indemnified party, the defense of a claim, such
indemnifying party shall not be obligated to pay the fees and expenses of
more than one counsel or firm of counsel in any jurisdiction in any one
legal action or group of related legal actions for all parties indemnified
by such indemnifying party in respect of such claim, unless in the
reasonable judgment of any such indemnified party a conflict of interest
may exist between such indemnified party and any other of such indemnified
parties in respect of such claim. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its
written consent, which consent shall not be unreasonably withheld or
delayed. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation or that requires
action other than the payment of money by the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to
an indemnified party under Section 2.7(a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under Section 2.7(a) or (b), the
indemnified party and the indemnifying party under Section 2.7(a) or (b)
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the Company and the prospective sellers of
Registrable Securities covered by the registration statement that resulted
in such loss, claim, damage or liability, or action or proceeding in
respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action or proceeding
in respect thereof, as well as any other relevant equitable considerations
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and such prospective sellers
from the offering of the securities covered by such registration
statement; PROVIDED, HOWEVER, that for purposes of this clause (ii), the
relative benefits received by the prospective sellers shall be deemed not
to exceed the amount of proceeds received by such prospective sellers. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
Such prospective sellers' obligations to contribute as provided in this
Section 2.7(d) are several in proportion to the relative value of their
respective Registrable Securities covered by such registration statement
and not joint. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) OTHER INDEMNIFICATION. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section
2.7 (with appropriate modifications) shall be given by the Company and
each holder of Registrable Securities with respect to any required
registration or other qualification of securities under any federal or
state law or regulation of any governmental authority other than the
Securities Act.
(f) INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by this Section 2.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
3. EXPENSES. The Company will pay all Registration Expenses in
connection with the Initial Shelf Registration, any Subsequent Shelf
Registration and any registration effected pursuant to Section 2.3. The
Company will pay all Registration Expenses in connection with three
registrations of Registrable Securities requested pursuant to section 2.2
by the Initiating Holders, PROVIDED that the Company will pay all
Registration Expenses in connection with registrations requested pursuant
to section 2.2 which are not deemed to be effected within the meaning of
subdivision (c) of section 2.2. All Registration Expenses in connection
with each subsequent registration of Registrable Securities requested by
one or more holders pursuant to section 2.2 shall be apportioned among the
holders of all Registrable Securities and other securities requesting or
joining in such registration, on the basis of the respective amounts of
securities then being registered by such holders or on their behalf.
4. RULES 144 AND 144A. The Company will file the reports
required to be filed by it under the Securities Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is
not required to file such reports, will, upon the request of any holder of
Registrable Securities, make publicly available other information), and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (A)
Rule 144 under the Securities Act, as such Rule may be amended from time
to time, (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time or (c) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as
to whether it has complied with such requirements.
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144, Rule
144A and Regulation S) of any equity securities of the Company or of any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period beginning on the later of (i) the effective
date of any registration statement relating to a registration pursuant to
section 2.2 or 2.3 of this Agreement involving an underwritten offering or
involving an underwritten offering by the Company of equity securities and
(ii) the date on which such holder shall have received notice of such
effective date of any such registration statement and ending on the date
90 following the effective date of such registration statement (except as
part of such underwritten offering), unless the underwriters managing such
underwritten offering otherwise agree.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees (A) not to effect any public sale or distribution (including sales
pursuant toRule 144A and Regulation S) of any of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
equity securities (except pursuant to registrations on Form S-4 or Form
S-8 or any successor forms), during the 90 day period beginning on the
effective date of any registration statement relating to a registration
pursuant to section 2.2 or 2.3 of this Agreement involving an underwritten
offering in which Registrable Securities are included (except as part of
such underwritten offering), unless the underwriters managing such
offering otherwise agree, and (ii) to cause each holder of its Common
Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of
this Agreement (other than in a registered public offering) to agree not
to effect any public sale or distribution (including sales pursuant to
Rule 144, Rule 144A and Regulation S) of any such securities during such
period (except as part of such underwritten offering, if otherwise
permitted), unless the underwriters managing such offering otherwise
agree.
6. Amendment and Modification. This Agreement may be amended,
modified or supplemented by the Company with the written consent of the
Initiating Holders and a majority (by number of shares, including
Registrable Securities issuable upon conversion or exchange of other
securities) of any other holder of Registrable Securities whose interests
would be adversely affected by such amendment. Each holder of any
Registrable Securities at the time shall be bound by any consent
authorized by this section 6, whether or not such Registrable Securities
shall have been marked to indicate such consent.
7. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its election, be treated as
the holder of such Registrable Securities for purposes of any request or
other action by any holder or holders of Registrable Securities pursuant
to this Agreement or any determination of any number or percentage of
Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
8. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if
delivered personally, mailed, certified or registered mail with postage
prepaid, sent by next-day or overnight mail or delivery or sent by
telecopy or telegram, as follows:
(a) If to the Company, to it at:
11601 Wilshire Boulevard
12th Floor
Los Angeles, California 90025
Telephone: (310) 478-4456
Facsimile: (310) 478-1267
Attention: Robert P. Bermingham,
General Counsel and Secretary
With a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Barry Mills, Esq.
(b) If to Westfield Holdings, to it at:
Level 24 Westfield Towers
100 William Street
Sydney NSW
Telephone: (612) 9358-7000
Facsimile: (612) 9358-7077
Attention: Timothy Walsh, Esq.
General Counsel
With a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Barry Mills, Esq.
(c) if to any other holder of Registrable Securities, at its
address as it appears on the transfer books of the Company.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial overnight courier
service; and when receipt is acknowledged, if telecopied.
9. REMEDIES. The holders of Registrable Securities, in addition
to being entitled to exercise all rights granted by law, including
recovery of damages, shall be entitled to specific performance of their
rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to
waive the defense in any action for specific performance that a remedy at
law would be adequate.
10. NO INCONSISTENT AGREEMENTS. The Company will not, on or
after the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
11. MISCELLANEOUS.
(a) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. In addition, the provisions of
this Agreement which are for the benefit of a holder of Registrable
Securities shall be for the benefit of and enforceable by any subsequent
holder of any Registrable Securities, PROVIDED that such subsequent holder
shall agree to be bound by the provisions of this Agreement.
Notwithstanding any transfer of such rights, all of the obligations of the
Company hereunder shall survive any such transfer and shall continue to
inure to the benefit of all transferees.
(b) GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder and the persons subject hereto shall be governed
by, and construed and interpreted in accordance with, the law of the State
of New York, without giving effect to the choice of law principles of such
State.
(c) INVALIDITY OF PROVISION; SEVERABILITY. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction. If any one
or more of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
hereof shall not be in any way impaired, it being intended that all of the
rights and privileges of the holders of Registrable Securities shall be
enforceable to the fullest extent permitted by law.
(d) HEADINGS; EXECUTION IN COUNTERPART. The headings and
captions contained herein are for convenience and shall not control or
affect the meaning or construction of any provision hereof. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original and which together shall constitute one and the
same agreement.
(e) ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto as a final expression of their agreement and intended to be a
complete and exclusive statement of their agreement and understanding in
respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect
to such subject matter.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Mark Stefanek
--------------------------------
Name: Mark Stefanek
Title: Chief Financial Officer &
Treasurer
WESTFIELD HOLDINGS LIMITED
By: /s/ Peter S. Lowy
---------------------------------
Name: Peter S. Lowy
Title: Director
INVESTORS AGREEMENT
INVESTORS AGREEMENT (hereinafter called the "Agreement"), dated
as of May 21, 1997, among WESTFIELD AMERICA, INC., a Missouri corporation
(the "Company"), WESTFIELD AMERICA MANAGEMENT LIMITED, an Australian
corporation (the "WAT Manager"), in its capacity as manager of the
Westfield America Trust ("WAT"), a public trust constituted by the
Westfield America Trust Deed, dated March 28, 1996, as amended, PERPETUAL
TRUSTEE COMPANY LIMITED, in its capacity as trustee of WAT (the "WAT
Trustee"), WESTFIELD CORPORATION, INC., a Delaware corporation ("Westfield
Corporation"), WESTFIELD AMERICAN INVESTMENTS PTY. LIMITED, an Australian
corporation ("Annatar"), and WESTFIELD HOLDINGS LIMITED, an Australian
corporation ("WHL", and collectively with WHL, Westfield Corporation and
Annatar and any other subsidiary of WHL, the "Westfield Group").
RECITALS
WHEREAS, the Company is authorized to issue 200,000,000 shares of
common stock, par value $.01 per share (the "Common Stock"), 200 shares of
non-voting senior preferred stock, par value $1.00 per share (the "Senior
Preferred Stock"), 940,000 shares of Series A cumulative redeemable
preferred stock, par value $1.00 per share (the "Series A Preferred
Stock"), and 400,000 shares of Series B cumulative redeemable preferred
stock, par value $1.00 per share (the "Series B Preferred Stock", and
collectively with the Common Stock, the Senior Preferred Stock and the
Series A Preferred Stock, the "Capital Stock");
WHEREAS, the WAT Trustee is the record and beneficial owner of
39,494,125 shares and the Westfield Group is the record and beneficial
owner of 10,930,762 shares of Common Stock;
WHEREAS, the Company is in the business of owning, operating,
leasing, developing, redeveloping and acquiring shopping centers and
powers centers (collectively, the Centers") in the United States;
WHEREAS, the parties hereto are parties to a Stockholders
Agreement, dated as of July 1, 1996 (the "Existing Agreement"), that
contains provisions relating to the composition of the Board of Directors
of the Company (the "Board") and certain other matters;
WHEREAS, the Company plans to commence an initial public offering
(the "Public Offering") of shares of Common Stock and the WAT Trustee and
the Westfield Group intend to remain shareholders of the Company after the
Public Offering and wish to enter into this Agreement with the Company in
order to terminate the Existing Agreement and to establish and define
their respective rights and obligations with respect to the matters
hereinafter set forth after the Public Offering;
WHEREAS, pursuant to the Third Restated Articles of Incorporation
of the Company (the "Articles"), the Second Amended and Restated By-Laws
of the Company (the "By-Laws") and certain actions taken by the Board,
following the closing of the Public Offering, the Board will be comprised
of 9 directors (the "Directors") and will be divided into three classes,
as nearly equal in number as possible, with the term of office of the
first class expiring at the Annual Meeting of Shareholders in 1998, the
second class expiring at the Annual Meeting of Shareholders in 1999, and
the third class expiring at the Annual Meeting of Stockholders in 2000,
with the successors to any expired class to be elected for three-year
terms;
WHEREAS, it is expected that following the Public Offering, a
majority of the Directors will be Independent Directors (as defined
below); and
WHEREAS, the WAT Manager and the WAT Trustee have advised the
Company that under Australian law the unitholders of WAT must approve the
exercise by the WAT Trustee of its voting rights with respect to the
election of the Directors (the "Australian Voting Requirement").
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
the parties hereto hereby agree as follows:
1. EFFECTIVENESS. The parties hereto hereby covenant and agree
that immediately upon the closing of the Public Offering the Existing
Agreement shall terminate and this Agreement shall become effective.
2. ELECTION OF DIRECTORS. (a) MEETING OF WAT UNITHOLDERS. For so
long as the Australian Voting Requirement is applicable, the WAT Trustee
hereby covenants and agrees to (i) call a meeting of WAT unitholders to
obtain the approval for the WAT Trustee to exercise voting rights in
respect of the election of Directors and (ii) attend, in person or by
proxy, any shareholders meeting at which the shareholders of the Company
are to vote for the election of Directors and to vote or cause to be voted
all of their shares of Common Stock at each such meeting. The timing of
the election of directors will be coordinated with the requirements for
unitholders meetings as required by Australian corporate law so that
sufficient time is permitted for the WAT Trustee to obtain unitholder
approval.
(b) INDEPENDENT DIRECTOR. For purposes of this Agreement,
"Independent Director" shall mean a director of the Company who (i) is
not, and has not for the last 12 months been, an officer, director or
employee of any of the Westfield Group or the WAT Trustee, (ii) is not an
Affiliate of any of the Westfield Group or the WAT Trustee or an officer
or employee of such an Affiliate, (iii) is not a member of the immediate
family of any natural person described in clauses (i) and (ii) above, and
(iv) is free from any relationship that would interfere with the exercise
of independent judgment as a Director. For purposes of this definition of
Independent Director only, an "Affiliate" shall mean any person directly
or indirectly Controlling, Controlled by, or under Control with, such
other person; "Control" shall mean the power to exercise a controlling
influence over the management or policies of a company, unless such power
is solely the result of an official position with any of the Westfield
Group or the WAT Trustee; and "member of the immediate family" shall mean
any parent, spouse of a parent, child, spouse of a child, spouse, brother
or sister and includes step and adoptive relationships.
3. RIGHT OF FIRST REFUSAL. (a) Whenever and as often as the WAT
Trustee or its successors or assigns (each, a "Seller") shall desire to
sell all or any of the Warrants granted to the WAT Trustee pursuant to the
Subscription Agreement and Plan of Reorganization Relating to CenterMark
Properties, Inc., dated as of May 13, 1996, and in connection with the
Public Offering (together, the "Company Warrants"), pursuant to a bona
fide offer for the purchase thereof, the Seller shall give notice (the
"Notice") to WHL (the "Offeree") in writing to such effect, enclosing a
copy of such bona fide offer (it being agreed that the Seller shall cause
any such offer to be reduced to writing) and specifying the portion of the
Company Warrants which the Seller desires to sell (the "Seller's
Warrant"), the name of the person or persons to whom the Seller desires to
make such sale and the dollar value of the consideration which has been
offered in connection therewith. Upon receipt of the Notice, the Offeree
initially shall have the first right and option to purchase up to all of
the Seller's Warrant, for cash at a purchase price equal to the dollar
value of such consideration, exercisable for a period of 30 days from the
date of receipt of the Notice (the "Expiration Date"). Failure of the
Offeree to respond to the Notice within the 30-day period shall be deemed
to constitute a notification to the Seller of the Offeree's decision not
to exercise the first right and option to purchase the Seller's Warrant
under this Section 3.
(b) The Offeree may exercise the right and option provided in
this Section 3 by giving written notice to the Seller not later than the
close of business on the date of expiration of such right and option (or
if such date is not a business day, then on or before the close of
business on the next succeeding business day), advising of the election to
exercise the same and the date (not later than 30 days from the date of
such notice) upon which payment of the purchase price for the Seller's
Warrant shall be made. The Seller shall cause to be delivered to the
Offeree notice, on the payment date specified in such notice, the
certificate or certificates representing the Seller's Warrant being
purchased by the Offeree, properly endorsed for transfer, against payment
of the purchase price therefor.
(c) If all the Seller's Warrant is not purchased by the Offeree
in accordance with this Section, the Seller (i) shall not be required to
sell any of the Seller's Warrant to the Offeree and (ii) may, during the
90-day period commencing on the expiration of the rights and options
provided for in this Section, sell all (but not less than all) of the
Seller's Warrant to the transferee named in the Notice for a consideration
the dollar value of which is equal to or greater than the dollar value of
the consideration specified in the Notice, subject in each case to the
restrictions contained in this Section 3 of this Agreement.
(d) WHL may designate or assign its rights to purchase the
Company Warrants pursuant to this Section 3 to any person or entity with
the prior written consent of the Seller, such consent not be unreasonably
withheld or delayed.
4. NON-COMPETITION. WHL shall not, and shall not permit any of
its subsidiaries, for so long as it or any of its subsidiaries is the
Advisor (as defined in the Advisory Agreement, dated July 1, 1996, as
amended, between the Company and the Advisor) and the Manager (as defined
in the Management Agreements, dated July 1, 1996, as amended, between the
Company, the Manager and the Centers) of the Centers, directly or
indirectly, to acquire any ownership interest in shopping center
properties or power centers in the United States (a "Competitive
Business") or own an interest in, as a partner, member, stockholder,
co-venturer or otherwise, any corporation, company, partnership, firm,
association, enterprise or other entity that owns any ownership interest
in a Competitive Business, PROVIDED that nothing contained in this Section
4 shall prohibit or restrain WHL or any of its subsidiaries or Affiliates
from (a) owning the interests it currently holds in Garden State Plaza,
(b) acquiring shares of capital stock or other equity interests in any
entity where such shares or interests represent a minority interest of 5%
or less of such entity's outstanding capital stock or equity interests,
PROVIDED that such entity is not controlled by WHL or any such subsidiary
and employees of the Westfield Group do not serve as an executive officer,
director, manager or advisor to such entity, (c) acquiring indebtedness of
any person, (d) acquiring by asset purchase, stock purchase, merger,
consolidation or otherwise of any corporation, partnership or other
business entity partially engaged in the Competitive Business, PROVIDED
that such activities relating to the Competitive Business do not exceed 5%
of the revenues or net equity of such entity or such entity disposes of
such Competitive Business within one year of such acquisition, or (e)
acquiring any interest in airport projects or the retail portions thereof.
6. NOTICES. All notices, requests, demands and other
communications made in connection with this Agreement shall, except as
otherwise expressly herein provided, be in writing and shall be (a) mailed
by first-class, registered or certified mail, return receipt requested,
postage prepaid, or (b) transmitted by hand delivery or telecopy,
addressed as follows:
(i) if to the Company, to:
Westfield America, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025
Telecopy: (310) 444-9071
Telephone: (310) 445-2406
Attention: Co- President
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(ii) if to WAM, to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7077
Telephone: 011-612 9358-7154
Attention: Company Secretary
with a copy to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Level 7
1 Castlereagh Street
Sydney
Australia
Telecopy: 011-612 9233-8582
Telephone: 011-612 9229-9975
Attention: Mr. Allan Cowper
(iii) if to the WAT Trustee, to:
The National Manager
Property Trusts
Perpetual Trustees Australia Limited
Level 7
1 Castlereagh Street
Sydney
Australia
Telecopy: 011-612 9233-7688
Telephone: 011-612 9229-9975
Attention: Mr. Allan Cowper
with a copy to:
Westfield America Management Limited
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7077
Telephone: 011-612 9358-7154
Attention: Company Secretary
(iv) if to Westfield Corporation, to:
c/o Westfield Corporation, Inc.
11601 Wilshire Boulevard
Los Angeles, California 90025-3348
Telecopy: (310) 444-9071
Telephone: (310) 478-4456
Attention: President
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(v) if to Annatar, to:
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7165
Telephone: 011-612 9358-7154
Attention: Company Secretary
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
(iv) if to WHL, to:
Level 24 Westfield Towers
100 William Street
Sydney, NSW 2011
Australia
Telecopy: 011-612 9358-7165
Telephone: 011-612 9358-7154
Attention: Company Secretary
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
Attention: Barry Mills, Esq.
or, in each case, at such other address as may be specified in writing to
the other parties hereto.
7. REMEDIES. The parties hereto agree that in the event of any
violation by WHL or any of its subsidiaries of the provisions of Section 4
of this Agreement, the Company will be irreparably damaged. Accordingly,
the Company shall be entitled to an injunction (either preliminary,
permanent or both) restraining any violation of the provisions of Section
4 of this Agreement by WHL or any of its subsidiaries or to any other
appropriate decree of specific performance.
8. SEVERABILITY. If any provision of this Agreement is
inoperative or unenforceable for any reason, such circumstances shall not
have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable, unless to give effect to any such remaining provision or
provisions would frustrate the purpose and intention of the parties
hereunder. The invalidity of any one or more phrases, sentences, clauses,
sections or subsections of this Agreement shall not affect the remaining
portions of this Agreement.
9. HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
10. ENTIRE AGREEMENT. This Agreement, together with all exhibits
hereto, constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and both of which
shall together constitute one and the same instrument.
12. GOVERNING LAW. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the
internal laws of the State of Missouri.
13. ASSIGNMENT. This Agreement shall not be assignable by any of
the parties hereto,without the prior written consent of the other parties
hereto, except that members of the Westfield Group shall be permitted to
assign any of their rights hereunder to any subsidiary of WHL.
14. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto
and their respective heirs, executors, administrators, successors and
permitted assigns.
15. AMENDMENT; WAIVERS. No amendment, modification or discharge
of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought.
16. LIMITATION OF LIABILITY. As the WAT Trustee enters into this
Agreement only in its capacity as trustee of WAT, the WAT Trustee is
liable under this Agreement only up to the extent to which it is
indemnified out of the assets of WAT. The WAT Trustee is only personally
liable to the extent that it is fraudulent, negligent, or in breach of
trust. If the WAT Trustee is not personally liable, the parties other than
the WAT Trustee must not sue the WAT Trustee personally or seek to wind it
up to recover any outstanding money, and the WAT Trustee is entitled to
plead this clause as a bar to the taking of any such proceedings.
17. WAT TRUST DEED. Each of the parties to this Agreement, other
than the WAT Trustee, acknowledges that it has received a copy of the WAT
Trust Deed (as amended) establishing WAT and that it understands the
rights and obligations of the WAT Trustee and the Manager therein.
[Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Richard Green
---------------------------
Name: Richard Green
Title: Co-President
PERPETUAL TRUSTEE COMPANY LIMITED,
in its capacity as trustee of
Westfield America Trust
By: /s/ Allan Cowper
-----------------------------
Name: Allan Cowper
Title: Attorney
WESTFIELD AMERICA MANAGEMENT LIMITED,
in its capacity as manager of
Westfield America Trust
By: /s/ Peter S. Lowy
-------------------------------
Name: Peter S. Lowy
Title: Director
WESTFIELD CORPORATION, INC.
By: /s/ Peter S. Lowy
------------------------------
Name: Peter S. Lowy
Title: Vice President
WESTFIELD AMERICAN INVESTMENTS PTY. LIMITED
By: /s/ Peter S. Lowy
-----------------------------------
Name: Peter S. Lowy
Title: Director
WESTFIELD HOLDINGS LIMITED
By: /s/ Peter S. Lowy
-----------------------------------
Name: Peter S. Lowy
Title: Director
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON
EXERCISE HEREOF ARE SUBJECT TO THE PROVISIONS OF A STOCKHOLDERS' AGREEMENT,
DATED AS OF JULY 1, 1996, AND NEITHER THIS WARRANT NOR THE COMMON STOCK OR
OTHER SECURITIES RECEIVABLE UPON EXERCISE HEREOF ARE ASSIGNABLE OR
OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT (INCLUDING PROVISIONS UNDER WHICH THE HOLDER HEREOF
GRANTS A RIGHT OF FIRST REFUSAL ON THE SALE OF THIS WARRANT), A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE ISSUER, AND THE ISSUER'S
ARTICLES OF INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON
EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER AN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE ISSUER, TO THE
EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF
THAT ACT, OR (iii) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER, SHALL HAVE BEEN
OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH DISPOSITION IS
PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
No. B-1 New York, New York
July 1, 1996
CENTERMARK PROPERTIES, INC.
CLASS B COMMON STOCK PURCHASE WARRANT
CENTERMARK PROPERTIES, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE
COMPANY LIMITED, in its capacity as Trustee of Westfield America Trust, is
entitled, subject to the terms and conditions set forth below, (a) to
purchase from the Company six million two hundred forty-six thousand
ninety-six (6,246,096) duly authorized, validly issued, fully paid and
nonassessable shares of (i) Class B-1 Common Stock, par value $.01 per
share (the "Class B-1 Common Stock"), of the Company, if this Warrant is
exercised by the trustee (the "WAT Trustee") of Westfield America Trust
("WAT"), a public trust constituted under the laws of Australia pursuant to
the Westfield America Trust Deed, dated March 28, 1996, with Perpetual
Trustee Company Limited, as Trustee, on behalf of WAT, or (ii) Class B-2
Common Stock, par value $.01 per share (the "Class B-2 Common Stock" and,
together with the Class B-1 Common Stock, the "Common Stock"), of the
Company, if this Warrant is exercised by a holder other than the WAT
Trustee, in each case at a purchase price per share of $16.01 (as adjusted
from time to time, the "Exercise Price"), at any time or from time to time
on or after the date hereof and (b) to exercise the other rights set forth
herein. The number and character of such shares of Common Stock and the
Exercise Price are subject to adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at
any time and from time to time on or after the date hereof and prior to
July 1, 2016 (the "Expiration Date") by the holder hereof, in whole or in
part, on any business day by:
(a) the presentation of this Warrant, together with a
duly executed copy of the Exercise Form attached hereto as Exhibit
A and the other documentation set forth therein, to the Secretary
of the Company at its principal offices, upon which presentation
the Secretary of the Company shall make appropriate notations in
the stock transfer records (and other records, as appropriate) of
the Company indicating the number of shares of Common Stock issued
pursuant to such exercise and the number of shares of Common
Stock, if any, into which the Warrant thereafter shall remain
exercisable; and
(b) the payment, by wire transfer of immediately
available funds or certified or official bank check payable to the
order of the Company of an amount equal to the amount obtained by
multiplying (i) the number of shares of Common Stock designated in
such Exercise Form by (ii) the Exercise Price.
This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as
practicable after the proper exercise of this Warrant in whole or in part,
and in any event within 30 days thereafter, the Company will cause to be
issued in the name of and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon
such exercise;
(b) in case such exercise is in part only, a new Warrant
of like tenor, calling on its face for the number of shares of
Common Stock equal to the number of such shares called for on the
face of this Warrant minus the number of such shares designated by
the holder hereof upon such exercise as provided in Section 1
hereof.
3. Reservation of Shares of Common Stock. The Company
covenants that it will at all times keep available such number of
authorized shares of its Common Stock issuable upon exercise of the
Warrant, which will be sufficient to permit the exercise of the Warrant for
the full number of shares of Common Stock into which the Warrant is
exercisable during the exercise period specified herein. The Company
further covenants that such shares of Common Stock, when issued pursuant to
the exercise of this Warrant, will be duly and validly issued, fully paid
and nonassessable.
4. Adjustment of Number of Shares of Common Stock. The
number and kind of securities purchasable upon exercise of the Warrant
shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If
the Company shall at any time prior to the Expiration Date
subdivide its Common Stock by stock split or otherwise, or combine
its capital stock by reverse stock split or otherwise, or issue
additional securities as a dividend with respect to any shares of
its Common Stock, as the case may be, the number of shares of
Common Stock issuable on the exercise of this Warrant shall
forthwith be proportionately increased and the Exercise Price
shall be proportionately decreased in the case of a subdivision or
stock dividend, and the number of shares of Common Stock issuable
on the exercise of this Warrant shall forthwith be proportionately
decreased and the Exercise Price shall be proportionately
increased in the case of a combination. Any adjustment
under this Section 4(a) shall become effective at the close of
business on the date the sub division or combination becomes
effective, or as of the record date of such dividend, or in the
event that no record date is fixed, upon the payment of such
dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a
subdivision, combination or stock dividend covered by paragraph
(a) above), merger, consolidation or any return of capital or
other capital distribution, except for periodic distributions made
pro-rata among the shareholders of a class of stock or units which
are not in redemption of any shares of Common Stock, or any
similar capital transaction that would affect the capital
structure of the Company, excluding any payment of an ordinary
cash dividend in respect of the operations of the Company, then in
such event (i) the number of shares of Common Stock issuable upon
exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is
fair and equitable to the holder hereof and the holders of Common
Stock.
(c) Mergers, etc. If prior to the Expiration Date, the
Company shall be merged or consolidated into a new entity or if
the Company shall transfer all or substantially all of its assets
to another entity, then upon a subsequent exercise of this
Warrant, the holder hereof shall be entitled to receive securities
in the new transferee entity equal to what the holder hereof would
have received had it exercised this Warrant and owned shares of
Class B Common Stock immediately prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required
to be made in the number or kind of shares purchasable upon
exercise of this Warrant, the Company promptly shall notify the
holder of this Warrant of such event and of the number of shares
and the type of securities or property thereafter purchasable upon
exercise of this Warrant.
(e) Disputes. If a dispute arises between the Company and
the holder hereof in relation to an adjustment to: (i) the number
of shares of Common Stock issuable upon exercise hereof, (ii) the
Exercise Price, or (iii) some or all of such factors, to be made
pursuant to this Section 4, either party is entitled to refer the
dispute (but no other dispute) to an Expert. "Expert" means an
independent, international investment banking firm agreed to by
the Company and the holder hereof, or (in default of agreement),
an independent, international investment banking firm nominated
(at the request of any party) by the President or the head for the
time being of the Australian Institute of Chartered Accountants.
The Expert must: (1) resolve the dispute in a timely manner as an
expert and not as an arbitrator, and (2) determine the party or
parties responsible for paying the costs of the Expert having
regard to his findings concerning resolution of the dispute,
provided that the holder hereof will not bear any expense in
excess of its pro rata interest in the Company.
5. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make
a cash payment therefor on the basis of the exercise price then in effect
with respect to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This
Warrant shall be subject to certain limited restrictions on transferability
(including a right of first refusal) set forth in the Stockholders'
Agreement, dated as of July 1, 1996, among the Company, the original holder
of this Warrant and certain other parties, a copy of which shall be
furnished without charge to the holder hereof upon request, and the
Company's articles of incorporation.
(b) Neither this Warrant nor the Common Stock issuable
upon exercise hereof may be transferred, sold, pledged, hypothecated or
otherwise disposed of, and this Warrant may not be exercised, unless (A)
such disposition or exercise is pursuant to an effective registration
statement under the Securities Act, (B) the holder hereof shall have
delivered to the Company an opinion of counsel, which opinion and counsel
shall be satisfactory to the Company, to the effect that such disposition
or exercise is exempt from the provisions of Section 5 of the Securities
Act, or (C) a no-action letter from the Securities and Exchange Commission,
satisfactory to counsel for the Company, shall have been obtained with
respect to such disposition or exercise (D) the Warrant or Common Stock is
being exercised by (or transferred to) the WAT Trustee, the manager of WAT
or any of its affiliates.
(c) Each Warrant certificate shall bear the legend set
forth on the first page of this certificate.
(d) Any certificates representing Common Stock issued
upon exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHER WISE DISPOSED OF UNLESS (A) (i) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECU RITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE DELIV ERED TO
THE ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE
SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVI SIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, SATISFAC TORY TO COUNSEL FOR
THE ISSUER, SHALL HAVE BEEN OB TAINED WITH RESPECT TO SUCH DISPOSITION AND
(B) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLI CABLE
STATE SECURITIES LAWS OR AN EXEMPTION THERE FROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFI CATE ARE SUBJECT TO
RESTRICTIONS ON OWNER SHIP AND TRANSFER FOR THE PURPOSE OF THE ISSUER'S
MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NO INDIVIDUAL MAY
BENEFICIALLY OWN COMMON SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP
LIMIT WITH RESPECT TO COMMON SHARES, WHICH MAY DECREASE OR IN CREASE FROM
TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. ANY INDIVIDUAL
WHO ATTEMPTS TO BENEFI CIALLY OWN SHARES IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT
DEFINITION HAVE THE MEANINGS DE FINED IN THE ISSUER'S ARTICLES OF
INCORPORATION, AS THE SAME MAY BE FURTHER AMENDED FROM TIME TO TIME, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH SHARE HOLDER WHO SO REQUESTS. IF THE
RESTRICTIONS ON OWNER SHIP AND TRANSFER ARE VIOLATED, THE COMMON SHARES
REPRESENTED HEREBY WILL BE AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND
WILL BE DEEMED TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE ARTICLES
OF INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPO RATION, AS AMENDED, LIMITING
THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S COMMON STOCK.
7. Successors and Assigns. The terms and provisions of
this Warrant shall inure to the benefit of, and be binding upon, the
Company and the holders hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented,
amended or otherwise modified without the prior written consent of the
Company and the holder hereof. Any such amendment shall be binding upon
each subsequent holder of this Warrant.
9. Governing Law. This Warrant shall be governed by the
laws of the State of New York as applied to agreements among New York
residents made and to be performed entirely within the State of New York.
CENTERMARK PROPERTIES, INC.
By: /s/ Peter S. Lowy
-------------------
Name: Peter S. Lowy
Title: Executive Vice President
EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by the attached Warrant, to purchase __________ shares
of [Class B-1][Class B-2] Common Stock of Centermark Properties, Inc. (the
"Company"), par value $.01 per share ("Common Stock"), as provided for in
the Warrant Certificate and herewith tenders in payment for such shares of
Common Stock payment of the purchase price in full in the form of cash or a
check payable to the order of the Company in the amount of $_______, all in
accordance with the terms of the Warrant Certificate. The undersigned
requests that a certificate for such shares of Common Stock be registered
in the name of ___________________________, whose address is
_______________________________________, and that such certificate shall be
delivered to _______________________________ at the following address:
____________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise
and on transferability set forth in the Warrant Certificate and in the
Company's articles of incorporation. The undersigned is acquiring the
Common Stock for its own account and not with a view to, or for sale in
connection with, any distribution thereof that would violate or require
registration under any U.S. federal or state securities or "Blue Sky" laws.
The undersigned understands that the Common Stock has not been, and will
not be, registered under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), may not be offered or sold except as permitted by the
Warrant Certificate and shall be required to bear a legend as set forth in
the Warrant Certificate and in the Company's articles of incorporation. The
undersigned agrees, on its own behalf and on behalf of any account[s] for
which the undersigned is acting as hereinafter stated, that if the
undersigned should reoffer, resell, pledge or transfer any Common Stock,
the undersigned will do so only in accordance with the Warrant Certificate;
and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nationally recognized
United States counsel, which opinion and counsel shall be satisfactory to
the Company,][a no-action letter from the Securities and Exchange
Commission, satisfactory to counsel to the Company] to the effect that the
offer of the Common Stock to and the purchase of the Common Stock by the
undersigned is exempt from registration under the Securities Act.]
Dated: ______________________
________________________________________
By:_____________________________________
Name:
Title:
THIS WARRANT IS SUBJECT TO THE PROVISIONS OF AN INVESTORS' AGREEMENT, DATED
AS OF May 21, 1997, AND THIS WARRANT IS NOT ASSIGNABLE OR OTHERWISE
TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH INVESTORS'
AGREEMENT (INCLUDING PROVISIONS UNDER WHICH THE HOLDER HEREOF GRANTS A
RIGHT OF FIRST REFUSAL ON THE SALE OF THIS WARRANT), A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF THE ISSUER. THE COMMON STOCK OR OTHER SECURITIES
RECEIVABLE UPON EXERCISE HEREOF ARE ALSO SUBJECT TO THE OWNERSHIP
LIMITATIONS SET FORTH IN THE ISSUER'S ARTICLES OF INCORPORATION.
THIS WARRANT AND THE COMMON STOCK OR OTHER SECURITIES RECEIVABLE UPON
EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (A)(i) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) THE
HOLDER HEREOF SHALL HAVE DELIVERED TO THE ISSUER AN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE ISSUER, TO THE
EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF
THAT ACT, OR (iii) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER, SHALL HAVE BEEN
OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH DISPOSITION IS
PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
No. 2 New York, New York
May 21, 1997
WESTFIELD AMERICA, INC.
COMMON STOCK PURCHASE WARRANT
WESTFIELD AMERICA, INC., a Missouri corporation (the
"Company"), hereby certifies that, for value received, PERPETUAL TRUSTEE
COMPANY LIMITED (the "WAT Trustee"), in its capacity as Trustee of
Westfield America Trust ("WAT"), a public unit trust constituted under the
laws of Australia pursuant to the Westfield America Trust Deed, dated March
28, 1996, as amended on May 9, 1996, is entitled, subject to the terms and
conditions set forth below, (a) to purchase from the Company Two Million
Eighty-nine Thousand Five Hundred Fifty-two (2,089,552) duly authorized,
validly issued, fully paid and nonassessable shares of common stock, par
value $.01 per share, of the Company, (the "Common Stock") at a purchase
price per share of $15.00(as adjusted from time to time, the "Exercise
Price"), at any time or from time to time on or after the date hereof and
(b) to exercise the other rights set forth herein. The number and character
of such shares of Common Stock and the Exercise Price are subject to
adjustment as provided herein.
1. Exercise of Warrant. This Warrant may be exercised at
any time and from time to time on or after the date hereof and prior to May
21, 2017 (the "Expiration Date") by the holder hereof, in whole or in part,
on any business day by:
(a) the presentation of this Warrant, together with a duly
executed copy of the Exercise Form attached hereto as Exhibit A
and the other documentation set forth therein, to the Secretary of
the Company at its principal offices, upon which presentation the
Secretary of the Company shall make appropriate notations in the
stock transfer records (and other records, as appropriate) of the
Company indicating the number of shares of Common Stock issued
pursuant to such exercise and the number of shares of Common
Stock, if any, into which the Warrant thereafter shall remain
exercisable; and
(b) the payment, by wire transfer of immediately
available funds or certified or official bank check payable to the
order of the Company of an amount equal to the amount obtained by
multiplying (i) the number of shares of Common Stock designated in
such Exercise Form by (ii) the Exercise Price.
This Warrant shall expire on the Expiration Date.
2. Certificates for Shares of Common Stock. As soon as practicable
after the proper exercise of this Warrant in whole or in part, and in any
event within 30 days thereafter, the Company will cause to be issued in the
name of and delivered to the holder hereof:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the holder hereof shall be entitled upon
such exercise;
(b) in case such exercise is in part only, a new Warrant
of like tenor, calling on its face for the number of shares of
Common Stock equal to the number of such shares called for on the
face of this Warrant minus the number of such shares designated by
the holder hereof upon such exercise as provided in Section 1
hereof.
3. Reservation of Shares of Common Stock. The Company covenants
that it will at all times keep available such number of authorized shares
of its Common Stock issuable upon exercise of the Warrant, which will be
sufficient to permit the exercise of the Warrant for the full number of
shares of Common Stock into which the Warrant is exercisable during the
exercise period specified herein. The Company further covenants that such
shares of Common Stock, when issued pursuant to the exercise of this
Warrant, will be duly and validly issued, fully paid and nonassessable.
4. Adjustment of Number of Shares of Common Stock. The number and kind
of securities purchasable upon exercise of the Warrant shall be subject to
adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If
the Company shall at any time prior to the Expiration Date
subdivide its Common Stock by stock split or otherwise, or combine
its capital stock by reverse stock split or otherwise, or issue
additional securities as a dividend with respect to any shares of
its Common Stock, as the case may be, the number of shares of
Common Stock issuable on the exercise of this Warrant shall
forthwith be proportionately increased and the Exercise Price
shall be proportionately decreased in the case of a subdivision or
stock dividend, and the number of shares of Common Stock issuable
on the exercise of this Warrant shall forthwith be proportionately
decreased and the Exercise Price shall be proportionately
increased in the case of a combination. Any adjustment under this
Section 4(a) shall become effective at the close of business on
the date the subdivision or combination becomes effective, or as
of the record date of such dividend, or in the event that no
record date is fixed, upon the payment of such dividend.
(b) Reconstruction. If prior to the Expiration Date, the
Company effects a capital reconstruction (other than a
subdivision, combination or stock dividend covered by paragraph
(a) above), merger, consolidation or any return of capital or
other capital distribution, except for periodic distributions made
pro rata among the shareholders of a class of stock or units which
are not in redemption of any shares of Common Stock, or any
similar capital transaction that would affect the capital
structure of the Company, excluding any payment of an ordinary
cash dividend in respect of the operations of the Company, then in
such event (i) the number of shares of Common Stock issuable upon
exercise hereof, (ii) the Exercise Price, or (iii) some or all of
such factors, will be adjusted, as appropriate, in a manner (x)
approved by the Company and the holder hereof and (y) which is
fair and equitable to the holder hereof and the holders of Common
Stock.
(c) Mergers, etc. If prior to the Expiration Date, the
Company shall be merged or consolidated into a new entity or if
the Company shall transfer all or substantially all of its assets
to another entity, then upon a subsequent exercise of this
Warrant, the holder hereof shall be entitled to receive securities
in the new transferee entity equal to what the holder hereof would
have received had it exercised this Warrant and owned shares of
Common Stock immediately prior to such transaction.
(d) Notice of Adjustment. When any adjustment is required
to be made in the number or kind of shares purchasable upon
exercise of this Warrant, the Company promptly shall notify the
holder of this Warrant of such event and of the number of shares
and the type of securities or property thereafter purchasable upon
exercise of this Warrant.
(e) Disputes. If a dispute arises between the Company and
the holder hereof in relation to an adjustment to: (i) the number
of shares of Common Stock issuable upon exercise hereof, (ii) the
Exercise Price, or (iii) some or all of such factors, to be made
pursuant to this Section 4, either party is entitled to refer the
dispute (but no other dispute) to an Expert. "Expert" means an
independent, international investment banking firm agreed to by
the Company and the holder hereof, or (in default of agreement),
an independent, international investment banking firm nominated
(at the request of any party) by the President or the head for the
time being of the Australian Institute of Chartered Accountants.
The Expert must: (1) resolve the dispute in a timely manner as an
expert and not as an arbitrator, and (2) determine the party or
parties responsible for paying the costs of the Expert having
regard to his findings concerning resolution of the dispute,
provided that the holder hereof will not bear any expense in
excess of its pro rata interest in the Company.
5. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the exercise price then in effect
with respect to this Warrant.
6. Restrictions on Transfer and Exercisability. (a) This Warrant
shall be subject to certain limited restrictions on transferability
(including a right of first refusal) set forth in the Investors' Agreement,
dated as of May [ ], 1997, among the Company, the original holder of this
Warrant and certain other parties, a copy of which shall be furnished
without charge to the holder hereof upon request. In addition, the shares
of Common Stock or other securities receivable upon exercise hereof are
subject to the ownership limitations set forth in the Company's articles of
incorporation.
(b) Neither this Warrant nor the Common Stock issuable
upon exercise hereof may be transferred, sold, pledged,
hypothecated or otherwise disposed of, and this Warrant may not be
exercised, unless (A) such disposition or exercise is pursuant to
an effective registration statement under the Securities Act, (B)
the holder hereof shall have delivered to the Company an opinion
of counsel, which opinion and counsel shall be satisfactory to the
Company, to the effect that such disposition or exercise is exempt
from the provisions of Section 5 of the Securities Act, (C) a
no-action letter from the Securities and Exchange Commission,
satisfactory to counsel for the Company, shall have been obtained
with respect to such disposition or exercise, or (D) the Warrant
or Common Stock is being exercised by (or transferred to) the WAT
Trustee, the manager of WAT or any of its affiliates.
(c) Each Warrant certificate shall bear the legend set
forth on the first page of this certificate.
(d) Any certificates representing Common Stock issued
upon exercise hereof shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (A) (i) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, (ii) THE HOLDER HEREOF SHALL HAVE DELIVERED TO THE
ISSUER AN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE SATISFAC
TORY TO THE ISSUER, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THAT ACT, OR (iii) A NO-ACTION LETTER FROM THE
SECURITIES AND EXCHANGE COMMISSION, SATISFACTORY TO COUNSEL FOR THE ISSUER,
SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (B) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE SECURI
TIES LAWS OR AN EXEMPTION THEREFROM.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE ISSUER'S
MAINTE NANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NO INDIVIDUAL MAY
BENEFICIALLY OWN COMMON SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP
LIMIT WITH RESPECT TO COMMON SHARES, WHICH MAY DECREASE OR INCREASE FROM
TIME TO TIME, UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. ANY INDIVIDUAL
WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDI ATELY NOTIFY THE COMPANY. ALL TERMS USED IN THIS LEGEND WITHOUT
DEFINITION HAVE THE MEANINGS DEFINED IN THE ISSUER'S ARTICLES OF
INCORPORATION, AS THE SAME MAY BE FURTHER AMENDED FROM TIME TO TIME, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON OWNER SHIP AND TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS. IF THE RESTRIC
TIONS ON OWNERSHIP AND TRANSFER ARE VIOLATED, THE COMMON SHARES REPRESENTED
HEREBY WILL BE AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND WILL BE DEEMED
TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE ARTICLES OF
INCORPORATION.
THIS SECURITY IS ISSUED PURSUANT TO AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE ISSUER'S ARTICLES OF INCORPORATION, AS AMENDED, LIMITING
THE NUMBER OF HOLDERS OF RECORD OF THE ISSUER'S COMMON STOCK.
7. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and assigns.
8. Amendments. This Warrant may not be supplemented, amended or
otherwise modified without the prior written consent of the Company and the
holder hereof. Any such amendment shall be binding upon each subsequent holder
of this Warrant.
9. Governing Law. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of New York.
WESTFIELD AMERICA, INC.
By: /s/ Mark A. Stefanek
------------------------------
Name: Mark A. Stefanek
Title: Chief Financial Officer
& Secretary
EXERCISE FORM
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by the attached Warrant, to purchase __________ shares of
Common Stock of Westfield America, Inc. (the "Company"), par value $.01 per
share ("Common Stock"), as provided for in the Warrant Certificate and
herewith tenders in payment for such shares of Common Stock payment of the
purchase price in full in the form of cash or a check payable to the order
of the Company in the amount of $_______, all in accordance with the terms
of the Warrant Certificate. The undersigned requests that a certificate for
such shares of Common Stock be registered in the name of
___________________________, whose address is
_______________________________________, and that such certificate shall be
delivered to _______________________________ at the following address:
_______________________________________________________.
The undersigned hereby acknowledges and agrees:
(a) the undersigned has read the restrictions on exercise and on
transferability set forth in the Warrant Certificate and in the Company's
articles of incorporation. The undersigned is acquiring the Common Stock
for its own account and not with a view to, or for sale in connection with,
any distribution thereof that would violate or require registration under
any U.S. federal or state securities or "Blue Sky" laws. The undersigned
understands that the Common Stock has not been, and will not be, registered
under the U.S. Securities Act of 1933, as amended (the "Securities Act"),
may not be offered or sold except as permitted by the Warrant Certificate
and shall be required to bear a legend as set forth in the Warrant
Certificate and in the Company's articles of incorporation. The undersigned
agrees, on its own behalf and on behalf of any account[s] for which the
undersigned is acting as hereinafter stated, that if the undersigned should
reoffer, resell, pledge or transfer any Common Stock, the undersigned will
do so only in accordance with the Warrant Certificate; and
(b) APPLICABLE PARAGRAPH TO BE INSERTED
NOTE 1: the following paragraph to be included in a notice of exercise by the
trustee of Westfield America Trust ("WAT Exercise"):
[The undersigned is the trustee of Westfield America Trust, an Australian
trust].
NOTE 2: the following paragraph to be included in a notice of exercise other
than a WAT Exercise:
[We are delivering herewith [a written opinion of a nation ally recognized
United States counsel, which opinion and counsel shall be satisfactory to
the Company,] [a no-action letter from the Securities and Exchange
Commission, satisfactory to counsel to the Company] to the effect that the
offer of the Common Stock to and the purchase of the Common Stock by the
undersigned is exempt from registration under the Securities Act.]
Dated: ______________________
_______________________________________
By:____________________________________
Name:
Title:
