EXHIBIT 1.2
WESTFIELD AMERICA, INC.
(a Missouri corporation)
2,700,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: May __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
PRUDENTIAL-BACHE SECURITIES (U.K.) INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANKERS TRUST INTERNATIONAL PLC
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Westfield America, Inc., a Missouri corporation, formerly known as
CenterMark Properties, Inc. (the "Company"), confirms its agreement with ▇▇▇▇▇▇▇
▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other international
underwriters named in Schedule A hereto (collectively, the "International
Managers", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International,
Prudential-Bache Securities (U.K.) Inc. ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Bankers Trust
International PLC. are acting as representatives (in such capacity, the "Lead
Managers"), with respect to the issue and sale by the Company and the purchase
by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 405,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 2,700,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the
405,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 15,300,000 shares of Common Stock
(the "Initial U.S. Securities") through arrangements with certain underwriters
in the United States and Canada (the "U.S. Underwriters") for which ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities Incorporated,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and BT Securities Incorporated are acting as representatives
(the "U.S. Representatives") and the grant by the Company to the U.S.
Underwriters, acting severally and not jointly, of an option to purchase all or
any part of the U.S. Underwriters' pro rata portion of up to 2,295,000
additional shares of Common Stock solely to cover over-allotments, if any (the
"U.S. Option Securities" and, together with the International Option Securities,
the "Option Securities"). The Initial U.S. Securities and the U.S. Option
Securities are hereinafter called the "U.S. Securities." It is understood that
the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities, and the U.S. Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company and the Underwriters agree that up to 900,000 shares of the
Securities to be purchased by the U.S Underwriters (the "Reserved Securities")
shall be reserved for sale by the U.S Underwriters to certain employees,
officers and family members of such officers of U.S. affiliates of Westfield
Holdings Limited, as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and
regulations. To the extent that such Reserved Securities are not orally
confirmed for purchase by such employees, officers and family members of such
officers of U.S. affiliates of Westfield Holdings Limited by the end of the
first business day after the date of this Agreement, such Reserved Securities
may be offered to the public as part of the public offering contemplated
hereby.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-22731) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b).
Two forms of prospectus are to be used in connection with the offering and sale
of the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the
Form of U.S. Prospectus, except for the front cover and back cover pages, the
page immediately following the cover page and the information under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form
of International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the
final Form of U.S. Prospectus in the forms first furnished to the Underwriters
for use in connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated _____, 1997 and preliminary U.S. Prospectus dated
____, 1997, respectively, each together with the applicable Term Sheet and all
references in this Agreement to the date of such Prospectuses shall mean the
date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
International Prospectus, the U.S. Prospectus or any Term Sheet or any amendment
or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
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All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and, to the extent any
agreements are set forth below, as of each Date of Delivery (if any) referred to
in Section 2(b) hereof, and agrees with each International Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with or
satisfied.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time any such Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if
any International Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If Rule 434 is used, the Company will comply
with the requirements of Rule 434 and the Prospectuses shall not
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be "materially different", as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement, any
post-effective amendment to the Registration Statement, the International
Prospectus or any amendment or supplement to the International Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager through the Lead Managers
expressly for use in the Registration Statement or the International
Prospectus or any amendment or supplement thereto.
Each preliminary prospectus and the Prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; and said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with GAAP the information required
to be stated therein. The summary financial data and the selected
financial data included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement. The
pro forma financial statements and the related notes thereto included in
the Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and, in
the opinion of the Company, all necessary adjustments to reflect the
transactions and circumstances referred to therein have been made.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition,
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financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except as described in
the Prospectuses, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Missouri and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(vi) Good Standing of Subsidiaries. Each subsidiary of the Company
has been duly formed and is validly existing and in good standing under the
laws of the jurisdiction of its origin, has the power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectuses and is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock or other ownership interests of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and,
except for certain non-voting preferred stock of Westland Properties, Inc.
which is owned by approximately 120 individuals, and for the Joint Ventures
which are owned as described in the Prospectus, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; except for the stock
of CMF, Inc., which is pledged by the Company as security for certain
indebtedness relating to department stores which are net leased to the May
Department Stores Company (the "May Properties"); none of the outstanding
shares of capital stock or other ownership interests of any subsidiary of
the Company was issued in violation of the preemptive or similar rights of
any securityholder of such subsidiary.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Historical" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, the International
Purchase Agreement and the ABP Subscription Agreement or pursuant to the
exercise of convertible securities referred to in the Prospectuses). The
shares of issued and outstanding capital stock of the Company have been
duly authorized
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and validly issued and are fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(ix) Authorization and Description of Securities. The Securities to
be purchased by the International Managers and the U.S. Underwriters from
the Company have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration set forth
herein and the U.S. Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable;as of the Closing Time and each Date
of Delivery, the capital stock of the Company (including the Common Stock)
will conform to all statements relating thereto contained in the
Prospectuses (including under the heading "Description of Capital Stock"
therein) and such description will conform to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company or any of
its subsidiaries is in violation of its charter, by-laws or other
organizational documents or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not reasonably be expected to result in
a Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations under this Agreement and the
U.S. Purchase Agreement have been duly authorized by all necessary
corporate and other action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not reasonably be expected to result in a Material Adverse Effect),
nor will such action result
7
in any violation of the provisions of the charter, by-laws or other
organizational documents of the Company or any of its subsidiaries, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries
or any of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any
of its subsidiaries. The Company and its subsidiaries have obtained all
required consents from such holders of any note, debenture or other
evidence of indebtedness, some of which consents are conditioned upon the
closing of the issuance and sale of the Securities.
(xi) Employees. The Company and its subsidiaries have no employees.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets
thereof, taken as a whole, or the consummation of the transactions
contemplated in this Agreement and the U.S. Purchase Agreement or the
performance by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of its
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) REIT Status. The Company elected to be taxed as a a real
estate investment trust (a "REIT") REIT under the Internal Revenue Code of
1986, as amended (the "Code"), commencing with its taxable year ended
December 31, 1994, and the Company intends to continue to operate in a
manner consistent with such election and all rules with which a REIT must
comply. Commencing with the Company's taxable year ended December 31,
1994, the Company was organized in conformity with the requirements for
qualification as a REIT, and its planned method of operation, and its
actual method of operation from February 12, 1994 through the date of the
Prospectuses, will enable it to meet the requirements for qualification and
taxation as a REIT under the Code. Westland Properties, Inc. ("WPI"), a
Delaware corporation in which the Company owns all of the issued and
outstanding
8
stock, except for certain preferred stock of WPI which is owned by
approximately 120 individuals, will elect to be taxed as a REIT under the
Code commencing with its taxable year ended December 31, 1996, and WPI
intends to continue to operate in a manner consistent with such election
and all rules with which a REIT must comply. Commencing with WPI's taxable
year ending December 31, 1996, WPI was organized in conformity with the
requirements for qualification as a REIT, and its planned method of
operation, and its actual method of operation from January 1, 1996 through
the date of the Prospectuses, will enable WPI to meet the requirements for
qualification and taxation as a REIT under the Code.
(xv) NYSE Listing. The shares of Common Stock, including the
Securities, have been approved for listing on the New York Stock Exchange
("NYSE"), subject to official notice of issue.
(xvi) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property,
including a non-transferable, non-exclusive, royalty-free right and license
granted by Westfield Corporation, Inc. to the Company to use the names of
"Westfield" in the name "Westfield America, Inc." and "Westfield
Shoppingtown" as evidenced by the Trade Name License Agreement and the
amendments thereto (collectively, "Intellectual Property") necessary to
carry on the business now operated by it, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
foreign or domestic, is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities under this Agreement and the U.S.
Purchase Agreement or the consummation of the transactions contemplated by
this Agreement and the U.S. Purchase Agreement, except such as have been
already obtained or will be obtained as of the Closing Time or as may be
required under the 1933 Act or the 1933 Act Regulations or foreign or state
securities or blue sky laws.
(xviii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by
9
them, except for such Governmental Licenses the failure of which to obtain
would not reasonably be expected to have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse
Effect.
(xix) Title to Property. (A) Except as described in the
Prospectuses, the Company and its subsidiaries, or any partnership or joint
venture in which the Company or its subsidiaries is a managing partner or
managing joint venturer, has good and marketable title in fee simple to, or
a valid leasehold interest in, all real property and interests in real
property owned or leased by each of them which is material to the business
of the Company and its subsidiaries considered as one enterprise,
including, but not limited to, the properties referred to under the heading
"Business and Properties" in the Prospectuses (collectively, for purposes
of this Section 1(a)(xx), the "Properties"); in each case, such title is
free and clear of all liens, encumbrances, claims, security interests and
defects of any kind (including, without limitation, options to purchase and
rights of first refusal), other than those referred to in the Prospectuses,
those contained in the partnership or joint venture agreements or those
which do not, singly or in the aggregate, materially affect the value of
such Properties and do not materially interfere with the use made and
proposed to be made of the Properties by the Company or any of its
subsidiaries; (B) all liens, charges, encumbrances, claims, or restrictions
on or affecting the Properties which are required to be disclosed in the
Prospectus are disclosed therein; (C) neither the Company nor any of its
subsidiaries or, to the best knowledge of any of them, any lessee under a
lease relating to any of the Properties, is in default under any of the
leases relating thereto, and neither the Company nor any of its
subsidiaries knows of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such
leases, except such defaults that would not reasonably be expected to
result in a Material Adverse Effect; (D) each of the Properties is in
compliance with all applicable codes, ordinances, zoning laws and
regulations, and neither the Company nor any of its subsidiaries has
received a notice of violation of any of the foregoing, except for such
failures to comply or violations which would not reasonably be expected to
result in a Material Adverse Effect; (E) neither the Company nor any of its
subsidiaries has any knowledge of any pending or threatened condemnation or
zoning change with respect to all or any portion of any of the Properties,
or of any other proceeding or action that will affect the size of, use
of, improvements on, construction on, or access to all or any portion of
any of the Properties, except such proceedings or actions that would not
reasonably be expected to result in a Material Adverse Effect; (F) the
maintenance, service, advertising and other like contracts
10
and agreements with respect to the ownership and operation of Properties
other than the Management Agreements and the Advisory Agreement (the
"Service Contracts") are in full force and effect and are on commercially
reasonable terms and are incidental and reasonably related to the
ownership and/or operation of its Properties and neither the Company nor
its subsidiaries is in default under any of the Service Contracts except
for such defaults that would not reasonably be expected to result in a
Material Adverse Effect; (G) all of the leases and subleases material to
the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries holds
Properties are in full force and effect, except where the failure to be
in full force and effect would not reasonably be expected to result in a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries has any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease, except for any claim that could not reasonably be expected to
result in a Material Adverse Effect; and (H) except as set forth in the
Prospectuses, there exist no liens, encumbrances, claims, security
interests and defects of any kind on the Company's or any subsidiary's
ability to collect rents from its Properties, except for such liens,
encumbrances, claims, security interests and defects that would not
reasonably be expected to result in a Material Adverse Effect, and the
Company's collection of such rents is in accordance with all applicable
laws, rules and regulations and neither the Company nor any of its
subsidiaries has received a notice of violation of any of the foregoing,
except for such violations that would not reasonably be expected to have
a Material Adverse Effect.
(xx) Title Insurance. Each of the Company and its subsidiaries has
title insurance on all of its shopping centers, subject only to liens,
encumbrances, claims, security interests and defects that do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; such title insurance is in full force
and effect; and no notice of cancellation has been received with respect
thereto and, to the knowledge of the Company, none is threatened.
(xxi) Mortgages. The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectuses (a) are not convertible
into an equity ownership interest in the Company or any of its
subsidiaries, and (b) except as disclosed in the Prospectuses, neither the
Company nor any of its subsidiaries holds a participating interest therein,
and (c) except as disclosed in the Prospectuses, such mortgages and deeds
of trust are not cross-defaulted or cross-collateralized to any property
not owned or leased by the Company or any of its subsidiaries.
(xxii) Stabilization. The Company has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock.
11
(xxiii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxiv) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect or otherwise require disclosure in the Registration
Statement, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the knowledge of the Company, there are no events
or circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
The Company has conducted environmental investigations of, and has
reviewed information regarding, its business, properties and operations as
described in the Registration Statement; on the basis of such
reviews, investigations and inquiries, the Company has reasonably
concluded that, except as disclosed in the Registration
Statement, any costs and liabilities associated with such matters
would not have a Material Adverse Effect on the Company or
otherwise require disclosure in the Registration Statement.
(xxv) Taxes. (i) The Company has prepared and filed when due all
material Federal, state, local and foreign returns for "Taxes" (as
hereinafter defined) that are required to be filed by it for all taxable
periods through the date of this Purchase Agreement, all such returns are
true, correct and complete in all material respects; the Company has
paid all Taxes reported as due on such returns, except to the extent that
any Taxes are being contested in good faith or for which a reserve has been
established;
12
and has paid any other material Taxes for which it is liable; (ii) except
as previously disclosed in writing, there are no material liens or claims
for Taxes outstanding upon or against or threatened upon or against the
Company or any of its assets (other than liens for Taxes which are not
yet due and payable); and (iii) no audit, inquiry, investigation or
similar proceeding with respect to Taxes is currently pending or, to the
knowledge of the Company, threatened against the Company or any of its
assets with respect to which it may be liable for the payment of Taxes,
an adverse outcome of which would reasonably be expected to result in a
Material Adverse Effect.
As used in the above paragraph, the term "Tax" or "Taxes" shall
mean all United States Federal, state, local and foreign taxes, assessments
or other governmental charges (whether imposed directly or through
withholding by any governmental entity), including any interest, penalties
and additions to taxes applicable thereto.
(xxvi) Registration Rights. Except as set forth in the Prospectuses,
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxvii) Enforceability of Garden State Plaza Loan. Based on
opinions of counsel received by the Company, each of the $145 million
Promissory Note and the Mortgage, Pledge and Security Agreement will
be at the time of the Closing Date, duly authorized and executed and
delivered by Westland Management, Inc. and Westfield Partners, Inc.,
and is a valid and binding agreement of Westland Management, Inc. and
Westfield Partners, Inc., enforceable against Westland Management,
Inc. and Westfield Partners, Inc. in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
(xxviii) Enforceability of Garden State Plaza Option. Based on
opinions of counsel received by the Company, the GSP Option Agreement and
any amendments thereto have been, or will be at the time of the Closing
Date, duly authorized and executed and delivered by Westfield Capital
Corporation Finance Pty. Limited, and is a valid and binding agreement of
Westfield Capital Corporation Finance Pty. Limited, enforceable against
Westfield Capital Corporation Finance Pty. Limited in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
(xxix) Enforceability of Westfield Holding Warrants. Based on
opinion of counsel received by the Company, the WHL Option Deed
13
and any amendments thereto have been, or will be at the time of the
Closing Date, duly authorized and executed and delivered by Westfield
Holdings Limited, and is a valid and binding agreement of Westfield
Holdings Limited, enforceable against Westfield Holdings Limited in
accordance with its terms, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
(xxx) Enforceability of the Management and Advisory Agreements. Based
on opinions of counsel received by the Company, each of the Management
Agreements and Advisory Agreement and any admendments thereto, has been,
or will be at the time of the Closing Date, duly authorized and executed
and delivered by CenterMark Management Company and Westfield U.S.
Advisor, L.P, respectively, and is a valid and binding agreement of
CenterMark Management Company and Westfield U.S. Advisor, L.P.,
respectively, enforceable against CenterMark Management Company and
Westfield U.S. Advisor, L.P., respectively, in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law).
(xxxi) Assets Owned by CMF, Inc. The May Properties as described
in the Prospectuses represent the sole assets of CMF, Inc.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each International Manager, severally and
not jointly, and each International Manager, severally and not jointly, agrees
to purchase from the Company, at the price per share set forth in Schedule B,
the number of Initial International Securities set forth in Schedule A opposite
the name of such International Manager, plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties
14
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the International Managers, severally
and not jointly, to purchase up to an additional 405,000 shares of Common
Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial International
Securities upon notice by the Global Coordinator to the Company setting forth
the number of International Option Securities as to which the several
International Managers are then exercising the option and the time and date
of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option
is exercised as to all or any portion of the International Option Securities,
each of the International Managers, acting severally and not jointly, will
purchase that proportion of the total number of International Option
Securities then being purchased which the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager bears to the total number of Initial International Securities,
subject in each case to such adjustments as the Global Coordinator in its
discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Global Coordinator
and the Company, at 9:00 A.M. (New York City time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (New York City time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if
15
any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International
Securities or the International Option Securities, if any, to be purchased by
any International Manager whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (New York City time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇
immediately, and confirm the notice in writing, (i) of the effectiveness of
the Registration Statement and when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such Prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. At any time when the Prospectuses are
required to be delivered under the 1933 Act in connection with the sales of
the Securities, the Company will give the Global Coordinator notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the Prospectuses included
16
in the Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator or counsel for the International Managers shall object.
(c) Delivery of Registration Statement. The Company has furnished or
will deliver to the Lead Managers and counsel for the International
Managers, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Lead
Managers, without charge, one conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for
each of the International Managers. The copies of the Registration
Statement and each amendment thereto furnished to the International
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the Securities Exchange Act
of 1934 (the "1934 Act"), such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the U.S. Purchase Agreement and in the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
the Prospectuses will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act
17
Regulations, the Company will promptly prepare and file with the
Commission, in form and substance satisfactory to counsel to the
International Managers, such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the
Company will furnish to the International Managers such number of copies
of such amendment or supplement as the International Managers may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the International Managers, to qualify the Securities
for offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Global Coordinator
may designate and to maintain such qualifications in effect for a period
of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Common Stock (including the Securities) on the NYSE.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described in
clause (i) or (ii) above is to be
18
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities
to be sold hereunder or under the International Purchase Agreement, (B)
the Series B Preferred Shares and the 1997 WAT Warrant and (C) any shares
of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof or
to be issued at the Closing of the offerings as described in the
Prospectuses and referred to in the Prospectuses.
(k) REIT Requirements. The Company will use its best efforts to (i)
continue to meet the requirements to qualify as a REIT under the Code and
(ii) cause WPI to continue to meet the requirements to qualify as a REIT
under the Code, unless the Company's Board of Directors, with the consent
of a majority of each of the Series A Preferred Shares and Series B
Preferred Shares, voting as a single class, and the Common Stock
determines to revoke the Company's REIT election because of circumstances
or changes in the Code (or in the Treasury regulations).
(l) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the rules and regulations of the Commission thereunder.
(m) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by
the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The U.S. Underwriters will notify the Company as to which
persons will need to be so restricted. At the request of the U.S.
Underwriters, the Company will direct the transfer agent to place a stop
transfer restriction upon such securities for such period of time.
Should the Company release, or seek to release, from such restrictions
any of the Reserved Securities, the Company agrees to reimburse the U.S.
Underwriters for any reasonable expenses (including, without limitation,
legal expenses) they incur in connection with such release.
(n) Compliance with Rule 463. The Company will file with the
Commission such reports on Form SR as may be required pursuant to Rule 463
of the 1933 Act Regulations.
(m) Notwithstanding anything to the contrary contained in the Garden
State Option Agreement, the Company agrees that it shall obtain the
approval of a majority of the holders of its Common Stock, other than
Westfield Holdings Limited and its affiliates (including, without
limitation, Westfield America Trust) and interests associated with the
▇▇▇▇ family, voting at a meeting on such issue, prior to exercising the
Garden State Plaza Option if the purchase price payable on such exercise
exceeds $55 million (net of the outstanding principal balance under the
Garden State Plaza Loan).
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer
of the Securities
19
between the U.S. Underwriters and the International Managers, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters
in connection with, the review by the NASD of the terms of the sale of the
Securities, (x) the fees and expenses incurred in connection with the listing
of the Securities on the NYSE and (xi) all costs and expenses of the
Underwriters, including the fees and disbursements of counsel for the
Underwriters, in connection with matters related to the Reserved Securities
which are designated by the Company for sale to certain employees, officers
and family members of such officers of U.S. affiliates of Westfield Holdings
Limited.
(b) Termination of Agreement. If this Agreement is terminated by the
Lead Managers in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the International Managers for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to
the accuracy of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction
of counsel to the International Managers. A prospectus containing the
Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing
Time, of Debevoise &
20
▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to
counsel for the International Managers,to the effect set forth in clauses
___ of Exhibit A hereto and to such further effect as counsel to the
International Managers, together with signed or reproduced copies of such
letter for each of the other International Managers with respect to such
matters as they may reasonably request.
In addition, the opinion of Debevoise & ▇▇▇▇▇▇▇▇ shall state that
they have participated in conferences with officers and representatives
of the Company, counsel for the Company, counsel for the Underwriters,
representatives of the independent accountants of the Company and you at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although they are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectuses and have made no independent check or verification thereof,
on the basis of the foregoing, no facts have come to such counsel's
attention that have led them to believe that the Registration Statement
(except for (i) financial statements and supported schedules and other
financial information and data included therein or omitted therefrom and
(ii) tax matters as to which such counsel will not be required to express
any beliefs), at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that each of the Prospectuses except as aforesaid, as
of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) Opinion of General Counsel of the Company. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, General Counsel of the Company, in form
and substance satisfactory to counsel for the International Managers, to
the effect set forth in clauses ___ of Exhibit A hereto and to such
further effect as counsel to the International Managers, together with
signed or reproduced copies of such letter for each of the other
International Managers with respect to such matters as they may
reasonably request.
(d) Opinion of Tax Counsel for the Company. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel
for the Company,substantially in the form of Exhibit __ attached hereto,
together with signed or reproduced copies of such letter for each of the
other International Managers.
In addition, the opinion of Tax Counsel for the Company shall state
that they have participated in conferences at which the contents of the
Registration Statement and the Prospectuses relating to Federal income
tax matters were discussed with officers and other representatives of the
Company, the International Managers, counsel for the International
Managers and the Company's independent accounts. On the basis of the
foregoing, although they are not passing upon and do not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectuses, and
they have not made any independent check or verification thereof, no
facts have come to their attention that have led them to believe (i) that
at the time that the Registration Statement became effective, the
discussion in the Registration Statement, insofar as it relates to tax
matters contained any untrue statement of a material fact or omitted to
state 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, or (ii) that the discussion in the Prospectuses as
it relates to tax matters, as of the date of the Prospectuses and as of
the date hereof, included any untrue statement of a material fact or
omitted to state 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. They shall state that they
express no opinion or belief with respect to any other section of the
Registration Statement or the Prospectuses, including, without
limitation, the financial statements, schedules and other financial data
included in the Prospectuses or excluded therefrom and included in the
exhibits to the Registration Statement.
(e) Opinion of Missouri Counsel for the Company. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇ ▇▇▇▇ LLP, Missouri counsel for the Company, in
form and substance satisfactory to counsel for the International
Managers, to the effect set forth in clauses ___ of Exhibit A hereto and
to such further effect as counsel to the International Managers, together
with
21
signed or reproduced copies of such letter for each of the other
International Managers with respect to such matters as they may
reasonably request.
(f) Opinion of Australian Counsel for Westfield Holdings. At
Closing Time, the Lead Managers shall have recieved the favorable
opinion, dated as of Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Australian Counsel
for Westfield Holdings, in form and substance satisfactory to counsel for
the International Managers, to the effect set forth in clauses __ of
Exhibit A hereto and to such further effect as counsel to the
International Managers, together with signed or reproduced copies of such
letter for each of the other International Managers with respect to such
matters as they may reasonably request.
(g) Opinion of Counsel for International Managers. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated
as of Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the International Managers, together with signed or reproduced copies
of such letter for each of the other International Managers with respect
the matters set forth in clauses (ix), (x) and (xi)(b) of Exhibit A. In
giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York and
the federal law of the United States upon the opinions of counsel
satisfactory to the Lead Managers. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company
and its subsidiaries and certificates of public officials.
In addition, the opinion of Counsel for the International Managers
shall state that they have participated in conferences with officers and
representatives of the Company, counsel for the Company, counsel for the
International Managers, representatives of the independent accountants of
the Company and you at which the contents of the Registration Statement
or the Prospectuses and related matters were discussed and although they
are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectuses and have made no independent
check or verification thereof, on the basis of the foregoing, no facts
have come to such counsel's attention that have led them to believe that
the Registration Statement (except for financial statements and supported
schedules and other financial information and data included therein or
omitted therefrom), at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that each of the Prospectuses except as aforesaid, as
of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Lead Managers shall have received a
certificate of the Co-President and of the Chief Financial Officer of the
Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(i) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Lead Managers shall have received from each of Ernst
& Young LLP, Coopers & ▇▇▇▇▇▇▇ LLP and BDO ▇▇▇▇▇▇▇ LLP a letter dated
such date, in form and substance satisfactory to the Lead Managers,
together with signed or reproduced copies of such letter for each of the
other International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(j) Bring-down Comfort Letter. At Closing Time, the Lead Managers
shall have received from each of Ernst & Young LLP, Coopers & ▇▇▇▇▇▇▇ LLP
and BDO ▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to the effect
that each of Ernst & Young
22
LLP, Coopers & ▇▇▇▇▇▇▇ LLP and BDO ▇▇▇▇▇▇▇ LLP reaffirms the statements
made in the letter furnished pursuant to subsection (H) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(k) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the NYSE, subject only to official
notice of issuance.
(l) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements relating to the offering of the
Securities pursuant to this Agreement.
(m) Lock-Up Agreements. At the date of this Agreement, the Lead
Managers shall have received agreements substantially in the forms of
Exhibit B and Exhibit C hereto signed by the persons listed on Schedule C
hereto.
(n) Purchase of Initial U.S. Securities. Contemporaneously with
the purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have
purchased the Initial U.S. Securities under the U.S. Purchase Agreement.
(o) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of
the Company contained herein and the statements in any certificates
furnished by the Company or any of its subsidiaries hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Co-President and of the Chief Financial Officer of
the Company confirming that the certificate delivered at the Closing
Time pursuant to Section 5(g) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for the Company. The favorable opinion
of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, in form and
substance satisfactory to counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of General Counsel of the Company. The
favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, General Counsel for the
Company, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased
23
on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iv) Opinion of Tax Counsel for the Company. The favorable
opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for
the Company, substantially in the form of Exhibit __ attached hereto.
(v) Opinion of Missouri Counsel for the Company. The
favorable opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, Missouri counsel for the
Company, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(vi) Opinion of Australian Counsel for Westfield Holdings.
The favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Australian Counsel for
Westfield Holdings, in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(f)
hereof.
(vii) Opinion of Counsel for International Managers. The
favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the International Managers, dated such Date of Delivery,
to the same effect as the opinion required by Section 5(f) hereof.
(viii) Bring-down Comfort Letter. A letter from each of Ernst &
Young LLP, Coopers & ▇▇▇▇▇▇▇ LLP and BDO ▇▇▇▇▇▇▇ LLP, in form and
substance satisfactory to the Lead Managers and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Lead Managers pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(p) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the International Managers shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Lead
Managers and counsel for the International Managers.
(q) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which
is after the Closing Time, the obligations of the several International
Managers to purchase the relevant International Option Securities may be
terminated by the Lead Managers by notice to the Company at any time at
or prior to Closing Time or such Date of Delivery, as the case may be,
and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1,
6, 7 and 8 shall survive any such termination and remain
24
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if
any, who controls any International Manager within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above; provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any
International Manager through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto, including the Rule 430A
Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto); and provided further that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit
of any International Manager (or to the benefit of any person controlling
such International Manager) from whom the person asserting any such loss,
liability, claim or damage purchased International Securities if such
untrue
25
statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the
International Prospectus (as amended or supplemented by the Company if
the Company shall have furnished any amendments or supplements thereto)
and a copy of the International Prospectus (as so amended or
supplemented), which at such time had been provided to the International
Managers for their use, shall not have been furnished to such person at
or prior to the written confirmation of sale of such Securities to such
person.
(b) Indemnification of Company, Directors and Officers. Each
International Manager severally agrees to indemnify and hold harmless the
Company, its directors, the Company's officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary International prospectus or the International
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
International Manager through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
26
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if such indemnifying party (x) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (y) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon
a request in writing, to indemnify and hold harmless the Underwriters from
and against any and all losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of certain employees, officers
and family members of such officers of U.S. affiliates of Westfield Holdings
Limited to pay for and accept delivery of Reserved Securities which, by the
end of the first business day following the date of this Agreement, were
subject to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the International Managers on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and of the International Managers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
International Managers, on the other hand, in connection with the offering of
the International Securities
27
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the International
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the International
Managers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the International Managers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the International Managers agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the International Managers were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such International Managers has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Managers within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The International Managers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
International Securities set forth opposite their respective names in
28
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Compan or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
International Manager or controlling person, or by or on behalf of the
Company and shall survive delivery of the Securities to the International
Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Lead Managers, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading
in any securities of the Company has been suspended or materially limited by
the Commission or the NYSE, or if trading generally on the American Stock
Exchange or the NYSE or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Lead Managers
shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting International Managers, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, the Lead Managers shall not have completed such
arrangements within such 24-hour period, then:
29
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the non-defaulting International Managers shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of International Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the International Managers to purchase and of the
Company to sell the International Option Securities to be purchased and
sold on such Date of Delivery shall terminate without liability on the
part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers
or the Company shall have the right to postpone Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the
term "International Manager" includes any person substituted for an
International Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; and notices to the Company shall be
directed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers and the Company and its
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
International Managers and the Company and its successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the International
Managers and the Company and its successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any International Manager shall be deemed to be a successor by
30
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the International Managers and the Company in accordance with its terms.
Very truly yours,
WESTFIELD AMERICA, INC.
By__________________________________
Name:
Title:
32
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
PRUDENTIAL-BACHE SECURITIES (U.K.) INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANKERS TRUST INTERNATIONAL PLC
ABN AMRO ROTHSCHILD
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By
----------------------------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
33
SCHEDULE A
Number of
Initial International
Name of International Manager Securities
------------------------------ ---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International............
▇▇▇▇▇▇ ▇▇▇▇ LLC .......................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International............
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International.....
Prudential-Bache Securities (U.K) Inc..
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. .....................
Bankers Trust International PLC........
ABN AMRO Rothschild....................
_________
Total.................................. 2,700,000
▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
2,700,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the International Securities to
be paid by the several International Managers shall be $ , being an amount
equal to the initial public offering price set forth above less $ per
share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and payable on the
Initial International Securities but not payable on the International Option
Securities.
Sch B - 1
SCHEDULE C
List of persons and entities
subject to lock-up
Westfield Holdings Limited and its subsidiaries
Cordera Holdings Pty Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇
Sch C - 1
Exhibit A
FORM OF COUNSEL OPINION
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a corporation incorporated, is validly existing in
good standing under the laws of the State of Missouri. [Missouri Counsel]
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
Purchase Agreements. [Missouri Counsel]
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect. [General Counsel]
(iv) (a) The authorized capital stock of the Company is as set forth
in the Prospectuses in the column entitled "Historical" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
the Purchase Agreements or pursuant to reservations or agreements
referred to in the Prospectuses or pursuant to the exercise of
convertible securities or options referred to in the Prospectuses) and
(b) the issued and outstanding capital stock of the Company is as set
forth in the Prospectuses in the column entitled "Historical" under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements or pursuant to reservations or
agreements referred to in the Prospectuses or pursuant to the exercise of
convertible securities or options referred to in the Prospectuses); (c)
the shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company under Missouri law.
[Missouri Counsel]
(v) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability solely by reason of
being such a holder. [Missouri Counsel]
(vi) (a) To our knowledge, the issuance of the Securities is not
subject to preemptive or other similar rights of any securityholder of the
Company, and (b) under Missouri law, the issuance of the Securities is not
subject to preemptive or other similar rights of any securityholder of the
Company. [(a) General Counsel/(b) Missouri Counsel]
A-1
(vii) Each subsidiary of the Company has been duly formed and is
validly existing and in good standing under the laws of the jurisdiction of
its origin, has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except as disclosed in the Registration
Statement, all of the issued and outstanding capital stock or other
ownership interests of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to his knowledge,
except as otherwise disclosed in the Prospectuses and the Purchase
Agreements, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and, to his knowledge, none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. [General Counsel]
(viii) The Purchase Agreements have been duly authorized and executed
by the Company, and (b) have been delivered by the Company. [Missouri
Counsel]
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to
our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission. [Debevoise]
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectuses and each amendment or
supplement to the Registration Statement and Prospectuses as of their
respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which
we need express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
[Debevoise]
(xi) The form of certificate used to evidence the Common Stock
complies in all material respects with (a) all applicable requirements of
Missouri law, with any applicable requirements of the charter and by-laws
of the Company and (b) the requirements of the New York Stock Exchange.
[(a) Missouri Counsel/(b) Debevoise]
(xii) To his knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or
any of its subsidiaries is a party, or to which the property of any of them
is subject, before or brought by any court or governmental
A-2
agency or body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company of
its obligations thereunder. [General Counsel]
(xiii) The information in the Prospectuses under "Description
of Capital Stock -- Capital Stock" (except for matters as to amounts of
outstanding capital stock, as to which such counsel expresses no
opinion), "--Senior Preferred Shares," "-- Preferred Shares," "-- Series
A Preferred Shares," "--Common Shares" (except for the second, third,
fifth and sixth sentence under "-- Distribution Rights") and
"--Restrictions on Ownership and Transfer," (except for the first and
last paragraphs) "Certain Provisions of the Company's Articles of
Incorporation and Bylaws and of Missouri Law," and in the Registration
Statement under Item 34 conforms as to legal matters in all material
respects with the charter and by-laws of the Company and the described
provisions of the General Business and Corporation Law of Missouri.
[Missouri Counsel]
(xiv) To our knowledge, (a) there are no U.S., Federal or New York
statutes or regulations that are required to be described in the
Prospectuses that are not described as required (other than statutes and
regulations relating to taxes as to which such counsel expresses no
opinion) [and (b) there are no Missouri statutes or Missouri regulations
that are required to be described in the Prospectuses that are not
described as required.]
[(a) Debevoise and General Counsel/(b) Missouri Counsel]
(xv) All descriptions of contracts in the Registration Statement
under "Advisory, Management and Development Services of the Company,"
"Certain Transactions," "The Company-Company Structure and History" and
"The Company-Westfield Holdings" to which the Company or its
subsidiaries is a party are accurate in all material respects; and to our
knowledge, there are no contracts or documents that are required to be
described in the Registration Statement or the Prospectuses or to be
filed as exhibits thereto which have not been not been so described and
filed as required. [Debevoise]
(xvi) To his knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter, by-laws or other
organizational documents and no default by the Company or any of its
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement
or the Prospectuses or filed as an exhibit to the Registration Statement,
except for such defaults that would not reasonably be expected to result in
a Material Adverse Effect.
[General Counsel]
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree known by us of, any
court or governmental authority or agency, domestic or foreign (other than
under the 1933 Act and the 1933 Act Regulations, which have been obtained,
or as may be required under the securities or blue sky laws of the various
states, as to which we need express no opinion) is necessary or
A-3
required in connection with the due authorization, execution and delivery
of the Purchase Agreements or for the offering, issuance or sale of the
Securities.
[Debevoise]
(xviii) The execution, delivery and performance of the Purchase
Agreements and the consummation of the issuance and sale of the
Securities and the compliance by the Company with its obligations under
the Purchase Agreements do not and will not, nor will such action result
in any violation of, the provisions of the charter and by-laws of the
Company, or any Missouri law, statue, rule or regulation [which, in our
experience, are normally applicable to transactions of the type
contemplated by the Purchase Agreements] (provided that we make no comment
with respect to antifraud laws or any law, rule or regulation that may
have become applicable to the Company as a result of the International
Managers' involvement with the transactions contemplated by the Purchase
Agreements or because of any facts specifically pertaining to the
International Managers). [Missouri Counsel]
(xix) The execution, delivery and performance of the Purchase
Agreements and the consummation of the transactions contemplated in the
Purchase Agreements and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the caption
"Use Of Proceeds") and compliance by the Company with its obligations under
the Purchase Agreements do not and will not, nor will such action result
in any violation of the provisions of any applicable New York or U.S.
Federal law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries, or any of their respective properties, assets or operations.
[Debevoise]
(xx) The execution, delivery and performance of the Purchase
Agreements and the consummation of the transactiocontemplated in the
Purchase Agreements and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreements have been duly authorized
by all necessary corporate and other action and do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xi) of the Purchase Agreements) under or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Company or any of its subsidiaries is a
party or by which any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not reasonably be expected to result in a
Material Adverse Effect). [General Counsel]
(xxi) To our knowledge, there are no persons with registration rights
or other similar rights to have any securities registered pursuant to the
Registration Statement or, except as described in the Prospectuses,
otherwise registered by the Company under the 1933 Act.
[Debevoise]
(xxii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
1940 Act.
A-4
[Debevoise]
(xxiii) Each of the $145 million Promissory Note and the Pledge and
Security Agreement will be at the time of the Closing Date, duly
authorized and executed and delivered by Westland Management, Inc. and
Westfield Partners, Inc., and is a valid and binding agreement of Westland
Management, Inc. and Westfield Partners, Inc., enforceable against Westland
Management, Inc. and Westfield Partners, Inc. in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law),[ except that such
counsel need express no opinion as to the priority of the security
interests granted by the Mortgage, Pledge and Security Agreement. In
connection with the foregoing opinion, such counsel may note that (a)
provisions of the $145 million Promissory Note and the Pledge and
Security Agreement which permit the Company to take action or make
determinations may be subject to a requirement that such action be taken or
such determinations be made on a reasonable basis and in good faith and (b)
a holder of the $145 million Promissory Note may, under certain
circumstances, be called upon to prove the outstanding amount of the loans
evidenced thereby.] [Debevoise/ Security Interest Opinion to come]
(xxiv) The GSP Option Agreement and any amendments thereto has
been, or will be at the time of the Closing Date, duly authorized and
executed and delivered by Westfield Capital Corporation Finance Pty.
Limited, and is a valid and binding agreement of Westfield Capital
Corporation Finance Pty. Limited, enforceable against Westfield Capital
Corporation Finance Pty. Limited in accordance with its terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law). [Australian
Counsel/Debevoise]
(xxv) The WHL Option Deed and any amendments thereto has been, or
will be at the time of the Closing Date, duly authorized and executed and
delivered by Westfield Holdings Limited, and is a valid and binding
agreement of Westfield Holdings Limited, enforceable against Westfield
Holdings Limited in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law). [Australian Counsel]
(xxvi) Each of the Management Agreements and Advisory Agreement and any
A-5
amendments thereto, has been, or will be at the time of the Closing Date,
duly authorized and executed and delivered by CenterMark Management
Company and Westfield U.S. Advisor, L.P. , respectively, and is a valid
and binding agreement of CenterMark Management Company and Westfield U.S.
Advisor, L.P., respectively, enforceable against CenterMark Management
Company and Westfield U.S. Advisor, L.P., respectively, in accordance with
its terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
[Debevoise]
In giving such opinions, such counsel may state that their opinion is
limited to matters governed by the federal laws of the United States of America
and the laws of the State of New York (or, in the case of Missouri counsel, on
the laws of the State of Missouri). In addition, such counsel may rely upon the
representations and warranties as to the matters of fact contained in the
Purchase Agreements and the originals or copies certified to such counsel's
satisfaction of such corporate records, documents, certificates and other
instruments as in the judgment of such counsel necessary or appropriate to
enable such counsel to render such opinions.
A-6
Exhibit B
May __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
PRUDENTIAL-BACHE SECURITIES (U.K.) INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANKERS TRUST INTERNATIONAL PLC
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Proposed Public Offering by Westfield America, Inc.
Dear Sirs:
The undersigned, Westfield Holdings Limited on its own behalf and on behalf
of its subsidiaries, understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇
International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International, Prudential-Bache Securities (U.K.) Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Bankers Trust International PLC propose to enter into a
Purchase Agreement (the "International Purchase Agreement") with the Company
providing for the public offering of shares (the "Securities") of the Company's
common stock, par value $.01 per share (the "Common Stock"). In recognition of
the benefit that such an offering will confer upon the undersigned as a
shareholder of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreements that the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) sell, grant any option, right or warrant for the
sale of, or to purchase or otherwise dispose of or transfer any shares of the
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
B-1
the Common Stock, whether any such swap transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise
(x) during a period of 36 months from the date of the Prospectuses
(as defined in the Purchase Agreement) in the case of securities now
outstanding as of the date of the Prospectuses and (y) during a period of
90 days from the date of the Prospectuses in the case of securities issued
after the date of the Prospectuses.
Very truly yours,
__________________________
Westfield Holdings Limited, on its behalf
and on behalf of each of its subsidiaries
B-2
Exhibit C
May__,1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
PRUDENTIAL-BACHE SECURITIES (U.K.) INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANKERS TRUST INTERNATIONAL PLC
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Proposed Public Offering by Westfield America, Inc.
---------------------------------------------------
Dear Sirs:
The undersigned, Cordera Holdings Pty Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
understand that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇
▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International, Prudential-Bache Securities (U.K.) Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
Bankers Trust International PLC propose enter into a Purchase Agreement (the
"International Purchase Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock, par value
$.01 per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a shareholder of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Purchase Agreement that the undersigned will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) sell, grant
any option, right or warrant for the sale of, or purchase or otherwise dispose
of or transfer any shares of the Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap
transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise during a period of 90 days from the date of the
Prospectuses in the case of securities issued after the date of the Prospectus.
C-1
Very truly yours,
CORDERA HOLDINGS PTY LIMITED
Signature: _______________________
Print Name: ______________________
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Signature: _______________________
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C-2