EXHIBIT 99.1
FIFTH AMENDMENT TO THE
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
WESTFIELD AMERICA LIMITED PARTNERSHIP
This FIFTH AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WESTFIELD AMERICA LIMITED PARTNERSHIP, dated as of
August 16, 1999 (this "Amendment"), is being executed by Westfield America,
Inc., a Missouri corporation (the "Managing General Partner"), as the
managing general partner of Westfield America Limited Partnership, a
Delaware limited partnership (the "Partnership"), and on behalf of the
Limited Partners pursuant to the authority conferred on the Managing
General Partner by Sections 2.4 and 12.3 of the First Amended and Restated
Agreement of Limited Partnership of Westfield America Limited Partnership,
dated as of August 3, 1998, as amended by that certain First Amendment to
the First Amended and Restated Agreement of Limited Partnership of
Westfield America Limited Partnership, dated as of August 12, 1998, as
further amended by that certain Second Amendment to the First Amended and
Restated Agreement of Limited Partnership of Westfield America Limited
Partnership, dated as of December 8, 1998, as further amended by that
certain Third Amendment to the First Amended and Restated Agreement of
Limited Partnership of Westfield America Limited Partnership, dated as of
December 24, 1998, and as further amended by that certain Fourth Amendment
to the First Amended and Restated Agreement of Limited Partnership of
Westfield America Limited Partnership, dated as of December 29, 1998 (as so
amended, the "Agreement"). Capitalized terms used herein, but not
otherwise defined herein, shall have the respective meanings ascribed
thereto in the Agreement.
WHEREAS, pursuant to Sections 7.1 and 12.3 of the Agreement, the
Managing General Partner is authorized to determine the designations,
preferences and relative, participating, optional or other special rights,
powers and duties of additional Partnership Units and to amend the
Agreement, and the Managing General Partner is hereby creating the
Partnership Preferred Units with the designations, preferences and other
rights, terms and provisions as set forth on Exhibit O attached hereto.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "Exhibit O" in the form attached hereto, which shall be attached
to and made a part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and
continue in full force and effect and, except as amended hereby, all of the
terms, covenants, provisions and conditions of the Agreement are hereby
ratified and confirmed in all respects.
3. This Amendment shall be construed and enforced in accordance
with, and governed by, the laws of the State of Delaware, without regard to
principles of conflicts of law.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
WESTFIELD AMERICA, INC.,
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
ALL LIMITED PARTNERS
By: Westfield America, Inc., as attorney-in-fact
pursuant to the power of attorney granted
under Section 2.4 of the Agreement.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
EXHIBIT O
PARTNERSHIP UNIT DESIGNATION OF SERIES E
PARTNERSHIP PREFERRED UNITS OF
WESTFIELD AMERICA LIMITED PARTNERSHIP
1. CREATION, NUMBER AND DESIGNATION.
A class of Partnership Preferred Units is hereby created and
designated as "Series E Partnership Preferred Units." The number of
Partnership Preferred Units constituting the Series E Partnership
Preferred Units shall be 477,778. The number of Series E Partnership
Preferred Units may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance).
Each Series E Partnership Preferred Unit shall be identical in all respects
to each other Series E Partnership Preferred Unit.
2. DEFINITIONS.
For purposes of this Partnership Unit Designation, the following terms
shall have the respective meanings indicated in this Section 2, and
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Agreement:
"Affiliate" of, or Person "Affiliated" with, a specified Person, shall
mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate
shall include, without limitation, Westfield Holdings Limited ("WHL"),
Westfield America Trust, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇
(such individuals being the "▇▇▇▇ Family").
"Agreement" shall mean the First Amended and Restated Agreement of
Limited Partnership of Westfield America Limited Partnership, dated as of
August 3, 1998, as amended, modified, supplemented or restated, from time
to time.
"Base Distribution" shall mean an annual distribution per Series E
Partnership Preferred Unit equal to 8.5% of the Liquidation Preference per
Series E Partnership Preferred Unit.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the capital stock of
the Corporation.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York, are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5 (d) as the Call Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $0.01 per share, of
the Corporation.
"Common Equity Shares" shall mean the Common Shares and the Excess
Common Shares which are issued with respect to the Common Stock.
"Common Shares" shall mean the shares of Common Stock.
"Consolidated EBITDA" for any quarter shall mean the consolidated net
income of the Corporation (before extraordinary income or gains and less
equity in income of unconsolidated real estate partnerships), calculated in
a manner consistent with the Corporation's financial statements filed with
the Securities and Exchange Commission, increased by the sum of the
following (without duplication):
a. the Corporation's pro rata share of EBITDA from
unconsolidated real estate partnerships calculated in a manner consistent
with this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to extraordinary, unusual or
nonrecurring gains or losses except to the extent that such gains were not
included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP
for such quarter (including financing fees and amortization of deferred
financing fees or amortization of original issue discount, but excluding
capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs (only to the
extent that such amounts have not been previously included in the amount of
Consolidated EBITDA pursuant to paragraph (c) above), goodwill, other
intangibles and management fees, and
f. any other noncash charges, to the extent deducted from
consolidated net income (including, but not limited to, income allocated to
minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner consistent
with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP
for such quarter (including, without duplication, financing fees and
amortization of deferred financing fees or amortization of original issue
discount),
c. distribution requirements with respect to preferred stock
and any other preferred securities for such quarter (not including any
portion of preferred stock distributions the calculation of which is based
on the distribution paid in such quarter to the holders of shares of the
Corporation's Common Stock), whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during
such quarter (other than any balloon payments at maturity) and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section 6(e)
hereof.
"Conversion Date" shall have the meaning set forth in Section 6(a)
hereof.
"Conversion Price" shall mean the conversion price per Partnership
Common Unit for which the Series E Partnership Preferred Unit is
convertible, as such Conversion Price may be adjusted pursuant to
Section 6. The initial conversion price shall be $18.00.
"Corporation" shall mean Westfield America, Inc., a Missouri
corporation.
"Corporation Change of Control Repurchase Date" shall have the meaning
set forth in Section 7(a) hereof.
"Corporation Change of Control Repurchase Offer" shall have the
meaning set forth in Section 7(a) hereof.
"Corporation Change of Control Repurchase Payment" shall have the
meaning set forth in Section 7(a) hereof.
"Current Market Price" of publicly traded Common Stock or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("NYSE") or, if such security is not listed
or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if
not listed or admitted for trading on any national securities exchange, on
the Nasdaq National Market ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, the
average of the bid and asked prices on such day as furnished by any NYSE
member firm regularly making a market in such security selected for such
purpose by the Board of Directors.
"Distribution Payment Date" shall mean (i) for any Distribution Period
with respect to which the Partnership pays a distribution on the
Partnership Common Unit, the date on which such distribution is paid, or
(ii) for any Distribution Period with respect to which the Partnership does
not pay a distribution on the Partnership Common Unit, a date to be set by
the Managing General Partner, which date shall not be later than the
thirtieth calendar day after the end of the applicable Distribution Period.
"Distribution Periods" shall mean quarterly distribution periods
commencing on January 1, April 1, July 1 and October 1 of each year and
ending on and including the day preceding the first day of the next
succeeding Distribution Period with respect to any Series E Partnership
Preferred Units (other than the initial Distribution Period, which shall
commence on the Grant Date for such Series E Partnership Preferred Units
and end on and include the last day of the calendar quarter immediately
following such Grant Date, and other than the Distribution Period during
which any Series E Partnership Preferred Units shall be redeemed pursuant
to Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series E
Partnership Preferred Units being redeemed or converted, as applicable).
"Excess Common Shares" shall mean shares of excess stock of the
Corporation, par value $0.01 per share, which are issued with respect to
Common Stock.
"Expiration Time" shall have the meaning set forth in Section 6(d)(iv)
hereof.
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a share of the Corporation's Common Stock on the five (5)
consecutive Trading Days selected by the Corporation commencing not more
than 20 Trading Days before, and ending not later than, the earlier of the
day in question and the day before the "ex date" with respect to the
issuance or distribution requiring such computation. The term "ex date,"
when used with respect to any issuance or distribution, means the first day
on which the Common Stock trade regular way, without the right to receive
such issuance or distribution, on the exchange or in the market, as the
case may be, used to determine that day's Current Market Price.
"Fixed Charge Coverage Violation" shall have the meaning set forth in
Section 3(a) hereof.
"Fully Junior Units" shall have the meaning set forth in Section 10(d)
hereof.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Grant Date" shall mean the date on which the Series E Partnership
Preferred Units are originally issued.
"Junior Units" shall have the meaning set forth in Section 10(c)
hereof.
"Liquidation Preference" shall have the meaning set forth in Section
4(a) hereof.
"Non-Electing Share" shall have the meaning set forth in Section 6(e)
hereof.
"Partnership" shall mean Westfield America Limited Partnership, a
Delaware limited partnership.
"Parity Units" shall have the meaning set forth in Section 10(b)
hereof.
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in
Section 6(d)(iv) hereof.
"REIT Termination Event" shall mean the earliest to occur of:
a. the filing of a federal income tax return by the Corporation
for any taxable year on which the Corporation does not compute its income
as a real estate investment trust;
b. the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real estate
investment trust;
c. a determination by the Board of Directors of the
Corporation, based on the advice of counsel, that the Corporation has
ceased to qualify as a real estate investment trust; or
d. a "determination" within the meaning of Section 1313(a) of
the Code that the Corporation has ceased to qualify as a real estate
investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii) hereof.
"Series E Certificate of Designation" shall mean the Certificate of
Designation Setting Forth "Resolution Designating Series E Preferred Shares
and Fixing Preferences and Rights Thereof" Adopted by the Board of
Directors of the Corporation.
"Series E Equity Shares" shall mean the Series E Equity Shares as
governed by the Series E Certificate of Designation.
"Series E Partnership Preferred Unit" means a Partnership Unit created
under this Partnership Unit Designation, with the designations, preferences
and relative, participating, optional or other special rights, powers and
duties set forth in this Exhibit O.
"Senior Units" shall have the meaning set forth in Section 10(a)
hereof.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Partnership in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of distributions by the Managing General Partner,
the allocation of funds to be so paid on any series or class of partnership
units of the Partnership; provided, however, that if any funds for any
class or series of Junior Units or Fully Junior Units or any class or
series of Parity Units are placed in a separate account of the Partnership
or delivered to a disbursing, paying or other similar agent, then "set
apart for payment" with respect to the Series E Partnership Preferred Units
shall mean placing such funds in a separate account or delivering such
funds to a disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e) hereof.
"Transfer Agent" shall mean the Managing General Partner, or such
other agent or agents of the Partnership as may be designated by the
Managing General Partner as the transfer agent, registrar and distribution
disbursing agent for the Series E Partnership Preferred Units and notified
to the holders of the Series E Partnership Preferred Units.
3. DISTRIBUTIONS.
a. Holders of Series E Partnership Preferred Units shall not be
entitled to any distributions on the Series E Partnership Preferred Units,
whether payable in cash, property or stock, except as provided in this
Exhibit O.
b. Subject to the preferential rights of the holders of any
Partnership Preferred Units that rank senior in the payment of
distributions to the Series E Partnership Preferred Units and subject to
paragraph (c) of this Section 3, the holders of Series E Partnership
Preferred Units shall be entitled to receive, when, as and if declared by
the Managing General Partner, but only out of funds legally available for
the payment of distributions, cumulative preferential distributions payable
in cash to holders of record on the respective date, not exceeding 50 days
preceding such distribution payment date, fixed for the purpose by the
Managing General Partner in advance of payment of each particular
distribution in an amount equal to the greater of (A) the Base Distribution
per unit per annum and (B) an amount per unit equal to the Liquidation
Preference of a Series E Partnership Preferred Unit (exclusive of accrued
but unpaid distributions) divided by the Conversion Price (the "Series E
Common Equivalent Factor") times the dollar amount of cash distributions
declared with respect to each Partnership Common Unit that does not result
in an adjustment to the Conversion Price pursuant to subparagraph (d)(iii)
of Section 6 (such product, the "Series E Common Equivalent Amount") for
the same annual period; provided, however, that if as a result of the
quarterly distributions paid in accordance with the following sentence, the
holders of Series E Partnership Preferred Units shall have received for any
calendar year more distributions than such units shall be entitled under
subparagraphs (A) and (B) above (as adjusted pursuant to the third and
eighth sentences of this Section 3), the distributions payable in respect
of Series E Partnership Preferred Units in subsequent calendar years shall
be reduced to the extent of such overpayment.
Subject to the proviso of the preceding sentence of this
Section 3(b), the distribution paid in respect of each quarterly period in
each calendar year shall be determined as follows (in each case, excluding
any additional payment made pursuant to the following sentence): (1) for
the first quarter, the greater of 25% of the Base Distribution per unit and
the Series E Common Equivalent Amount for the same quarter; (2) for the
second quarter, an amount such that the aggregate amount to be received per
Series E Partnership Preferred Unit in respect of the first two quarters of
such calendar year shall be the greater of 50% of the Base Distribution per
unit and the Series E Common Equivalent Amount for the same two quarters;
(3) for the third quarter, in amount such that the aggregate amount to be
received per Series E Partnership Preferred Unit in respect of the first
three quarters of such calendar year shall be the greater of 75% of the
Base Distribution per unit and the Series E Common Equivalent Amount for
the same three quarters; and (4) for the fourth quarter, an amount such
that the aggregate amount to be received per Series E Partnership Preferred
Unit in respect of such calendar year shall be the amount provided in the
preceding sentence of this Section 3(b). Notwithstanding the foregoing,
for any quarter in which a Fixed Charge Coverage Violation (as defined
below) has occurred, the distribution payable per Series E Partnership
Preferred Unit shall be 1.20 times the amount provided in the preceding
sentence. A "Fixed Charge Coverage Violation" shall occur for any quarter
that the ratio of the Corporation's Consolidated EBITDA to its Consolidated
Fixed Charges is below 1.40 to 1.
The distributions shall begin to accrue as set forth above and
shall be fully cumulative from the first day of the applicable Distribution
Period, whether or not in any Distribution Period or Periods there shall be
funds of the Partnership legally available for the payment of such
distributions, and shall be payable quarterly, when, as and if declared by
the Managing General Partner, in arrears on the Distribution Payment Dates.
Accumulated but unpaid distributions for any past quarterly Distribution
Periods may be declared and paid at any time, without reference to any
regularly scheduled quarterly Distribution Payment Date, to holders of
record on such date, not exceeding 50 days preceding such Distribution
Payment Date, fixed for the purpose by the Managing General Partner in
advance of payment of each particular distribution. Any distribution
payment made on Series E Partnership Preferred Units shall first be
credited against the earliest accrued but unpaid distribution due with
respect to Series E Partnership Preferred Units which remains payable.
Beginning with the quarter in which a REIT Termination Event Occurs, all
distributions payable per Series E Partnership Preferred Unit pursuant to
this Section 3 shall be multiplied by 2.5.
c. The initial Distribution Period for the Series E Partnership
Preferred Units will include a partial distribution for the period from the
Grant Date until the last day of the calendar quarter immediately following
such Grant Date. The amount of distributions payable for such initial
period, or any other period shorter than a full quarterly Distribution
Period, on the Series E Partnership Preferred Units shall be computed by
dividing the number of days in such period by 90 and multiplying the result
by the Series E Equity distribution determined in accordance with
Section 3(b). Holders of Series E Partnership Preferred Units shall not be
entitled to any distributions, whether payable in cash, property or
partnership units, in excess of cumulative distributions, as herein
provided, on the Series E Partnership Preferred Units. No interest, or sum
of money in lieu of interest, shall be payable in respect of any
distribution payment or payments on the Series E Partnership Preferred
Units which may be in arrears.
d. So long as any of the Series E Partnership Preferred Units
are outstanding, except as described in the immediately following sentence,
no distributions shall be declared, paid or set apart for payment by the
Partnership, and no other distribution of cash or other property shall be
made, directly or indirectly, by the Partnership with respect to any class
or series of Parity Units for any period unless distributions equal to the
full amount of accumulated and unpaid distributions have been, or
contemporaneously are, paid with respect to the Series E Partnership
Preferred Units for all Distribution Periods terminating on or prior to the
Distribution Payment Date with respect to such class or series of Parity
Units. When the distributions provided for in Section 3(b) hereof are not
paid in full, all distributions paid with respect to the Series E
Partnership Preferred Units and all distributions paid with respect to any
other class or series of Parity Units shall be paid ratably in proportion
to the respective amounts of distributions accumulated and unpaid on the
Series E Partnership Preferred Units and accumulated and unpaid on such
Parity Units.
e. So long as any Series E Partnership Preferred Units are
outstanding, no distributions (other than distributions paid solely in
Fully Junior Units or options, warrants or rights to subscribe for or
purchase Fully Junior Units) shall be paid by the Partnership, and no other
distribution of cash or other property shall be made, directly or
indirectly, by the Partnership with respect to any Junior Units, nor shall
any Junior Units be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such Junior Units), directly or indirectly,
by the Partnership (except by conversion into or exchange for Fully Junior
Units), nor shall any other cash or other property otherwise be paid or
distributed to or for the benefit of any holder of Junior Units in respect
thereof, directly or indirectly, by the Partnership unless in each case the
full cumulative distributions (including all accumulated and unpaid
distributions) on all outstanding Series E Partnership Preferred Units and
any other Parity Units of the Partnership shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all past Distribution Periods with respect to the Series E
Partnership Preferred Units and all Distribution Periods terminating on or
prior to the date of payment of the Series E Partnership Preferred Units
and all Distribution Periods terminating on or prior to the date of payment
on all Parity Units of the Partnership with respect to such Parity Units.
Subject to the foregoing, and not otherwise, such distributions may be
declared by the Managing General Partner and paid on any Partnership Common
Units from time to time out of funds legally available therefor, and the
Series E Partnership Preferred Units shall not be entitled to participate
in any such distributions, whether payable in cash, partnership units or
otherwise.
f. No distributions on the Series E Partnership Preferred Units
shall be declared by the Managing General Partner or paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if
such declaration or payment shall be restricted or prohibited by law.
g. In determining whether a distribution by cash payment,
redemption or other acquisition of Units or otherwise is permitted under
Delaware law, no effect shall be given to amounts that would be needed, if
the Partnership were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of holders whose
preferential rights on dissolution are superior to those receiving the
distribution.
h. Notwithstanding the foregoing, it is acknowledged that the
Managing General Partner may, pursuant to the Agreement, elect to make
distributions on the Partnership Common Units on a more or less frequent
basis than quarterly and provide for an appropriate record date; in the
event that the Managing General Partner elects to effect such a non-
quarterly distribution, the Managing General Partner may, in its sole and
absolute discretion, cause a Distribution Period (and related Distribution
Payment Date) to be established to reflect the period established for such
Partnership Common Unit distributions and to make such revisions to the
distributions provided in Section 3(b) hereof as may be required to reflect
that more or less than four Distribution Payment Dates will occur during
the relevant calendar year.
4. LIQUIDATION PREFERENCE.
a. In the event of any liquidation, dissolution or winding up
of the Partnership, whether voluntary or involuntary, subject to the prior
preferences and other rights of any Senior Units, before any payment or
distribution of the assets of the Partnership (whether capital or surplus)
shall be made to or set apart for the holders of Junior Units, the holders
of the Series E Partnership Preferred Units shall be entitled to receive
One Hundred Eighty Dollars ($180.00) (the "Liquidation Preference") per
Series E Partnership Preferred Unit plus an amount equal to all
distributions (whether or not earned or declared) accrued and unpaid
thereon to the date of liquidation, dissolution or winding up of the
affairs of the Partnership (any such date, a "Series E Liquidation Date"),
but such holders shall not be entitled to any further payment; provided
that the distribution payable with respect to the Distribution Period
containing the Series E Liquidation Date shall be equal to the distribution
determined pursuant to Section 3 above for the preceding Distribution
Period times a fraction equal to the actual number of days elapsed from the
end date of the calendar quarter most recently completed to the relevant
Series E Liquidation Date over 90 days. If, upon any liquidation,
dissolution or winding up of the Partnership, the assets of the
Partnership, or proceeds thereof, distributable among the holders of the
Series E Partnership Preferred Units shall be insufficient to pay in full
the preferential amount aforesaid and liquidating payments on any other
units of any class or series of Parity Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of Series E
Partnership Preferred Units and any such other Parity Units ratably in
accordance with the respective amounts that would be payable on such
Series E Partnership Preferred Units and any such other Parity Units if all
amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Partnership with one or
more corporations, partnerships or other entities or (ii) a sale, lease or
conveyance of all or substantially all of the Partnership's property or
business shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Partnership.
b. Subject to the rights of the holders of Parity Units or
Senior Units, upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the holders of
the Series E Partnership Preferred Units, as provided in this Section 4,
the holders of Series E Partnership Preferred Units shall have no other
claim to the remaining assets of the Partnership, and any other series or
class or classes of Junior Units shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series E
Partnership Preferred Units shall not be entitled to share therein.
5. REDEMPTION AT THE OPTION OF THE PARTNERSHIP.
a. The Series E Partnership Preferred Units shall not be
redeemable by the Partnership prior to the tenth anniversary of the Grant
Date. On and after the tenth anniversary of the Grant Date, the
Partnership, at its option, may redeem the Series E Partnership Preferred
Units, in whole at any time or from time to time in part, in minimum
increments of $10.0 million of aggregate Liquidation Preference of such
units, out of funds legally available therefor at a redemption price
payable in cash equal to 100% of the Liquidation Preference per Series E
Partnership Preferred Unit (plus all accumulated, accrued and unpaid
distributions as provided in paragraph (c) below).
b. In the event that WHL and its subsidiaries and the trustee
of Westfield America Trust on behalf of Westfield America Trust do not vote
to approve the conversion of the Corporation's Series E Equity Shares into
Common Equity Shares at the Corporation's 2000 Annual Shareholder Meeting
or at any other meeting of the Corporation's shareholders at which such
proposal is raised, the Partnership shall have the right to redeem the
Series E Partnership Preferred Units, in whole or in part, out of funds
legally available therefor at a redemption price payable in cash equal to
100% of the Liquidation Preference per Series E Partnership Preferred Unit
(plus all accumulated, accrued and unpaid distributions as provided in
paragraph (c) below).
c. Upon any redemption of Series E Partnership Preferred Units
pursuant to this Section 5, the Partnership shall pay all accrued and
unpaid distributions, if any, thereon to the Call Date, without interest.
If the Call Date falls after a distribution payment record date and prior
to the corresponding Distribution Payment Date, then each holder of
Series E Partnership Preferred Units at the close of business on such
distribution payment record date shall be entitled to the distribution
payable on such units on the corresponding Distribution Payment Date
notwithstanding any redemption of such units before such Distribution
Payment Date. Except as provided above, the Partnership shall make no
payment or allowance for unpaid distributions, whether or not in arrears,
on Series E Partnership Preferred Units called for redemption.
d. If full cumulative distributions on the Series E Partnership
Preferred Units and any other class or series of Parity Units of the
Partnership have not been declared and paid or declared and set apart for
payment, the Series E Partnership Preferred Units may not be redeemed under
this Section 5 in part, and the Partnership may not purchase or acquire
Series E Partnership Preferred Units, otherwise than pursuant to a purchase
or exchange offer made on the same terms to all holders of Series E
Partnership Preferred Units.
e. Notice of the redemption of any Series E Partnership
Preferred Units under this Section 5 shall be mailed by first-class mail or
recognized overnight courier to each holder of record of Series E
Partnership Preferred Units to be redeemed at the address of each such
holder as shown on the Partnership's records, not less than 30 nor more
than 90 days prior to the Call Date. Neither the failure to mail any
notice required by this paragraph (e), nor any defect therein or in the
mailing thereof, to any particular holder, shall affect the sufficiency of
the notice or the validity of the proceedings for redemption with respect
to the other holders. Each such mailed notice shall state, as appropriate:
(1) the Call Date; (2) the number of Series E Partnership Preferred Units
to be redeemed and, if fewer than all the units held by such holder are to
be redeemed, the number of such units to be redeemed from such holder; (3)
the redemption price; (4) the place or places at which certificates for
such units are to be surrendered; (5) the then-current Conversion Price;
and (6) that distributions on the units to be redeemed shall cease to
accrue on such Call Date except as otherwise provided herein. Notice
having been mailed as aforesaid, from and after the Call Date (unless the
Partnership shall fail to make available an amount of cash necessary to
effect such redemption), (i) except as otherwise provided herein,
distributions on the Series E Partnership Preferred Units so called for
redemption shall cease to accrue, (ii) such units shall no longer be deemed
to be outstanding, and (iii) all rights of the holders thereof as holders
of Series E Partnership Preferred Units shall cease (except the rights to
receive the cash payable upon such redemption, without interest thereon,
upon surrender and endorsement of their certificates if so required and to
receive any distributions payable thereon). The Partnership's obligation
to provide cash in accordance with the preceding sentence shall be deemed
fulfilled if, on or before the Call Date, the Partnership shall deposit
with a bank or trust company that has an office in the Borough of
Manhattan, City of New York, and that has capital and surplus of at least
$150,000,000, necessary for such redemption, in trust, with irrevocable
instructions that such cash be applied to the redemption of the Series E
Partnership Preferred Units so called for redemption. Notwithstanding the
foregoing, the Partnership shall, in the first instance, send the money to
any holder of Series E Partnership Preferred Units that has notified the
Partnership in writing of the location of delivery of funds. No interest
shall accrue for the benefit of the holders of Series E Partnership
Preferred Units to be redeemed on any cash so set aside by the Partnership.
Subject to applicable escheat laws, any such cash unclaimed at the end of
two years from the Call Date shall revert to the general funds of the
Partnership, after which reversion the holders of such units so called for
redemption shall look only to the general funds of the Partnership for the
payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such units so redeemed (properly
endorsed or assigned for transfer, if the Partnership shall so require and
if the notice shall so state), such units shall be exchanged for any cash
(without interest thereon) for which such units have been redeemed. If
fewer than all the outstanding Series E Partnership Preferred Units are to
be redeemed, units to be redeemed shall be selected by the Partnership from
outstanding Series E Partnership Preferred Units not previously called for
redemption pro rata (as nearly as may be), by lot or by any other method
determined by the Partnership in its sole discretion to be equitable. If
fewer than all the Series E Partnership Preferred Units evidenced by any
certificate are redeemed, then new certificates evidencing the unredeemed
Series E Partnership Preferred Units shall be issued without cost to the
holder thereof.
6. CONVERSION.
The Series E Partnership Preferred Units shall not be convertible
into Partnership Common Units prior to (i) a vote of the shareholders of
the Corporation approving the conversion of the Corporation's Series E
Equity Shares into Common Equity Shares or (ii) the transfer of the
Series E Equity Shares to an individual to whom the Corporation is
permitted to issue Common Equity Shares without shareholder approval, in
accordance with the rules of the NYSE. Subject to the foregoing, holders
of Series E Partnership Preferred Units shall have the right to convert all
or a portion of such units into Partnership Common Units, as follows:
a. Subject to and upon compliance with the provisions of this
Section 6, a holder of Series E Partnership Preferred Units shall have the
right, at his or her option, at any time (such time being the "Conversion
Date"), to convert all or any portion of such units into the number of
Partnership Common Units obtained by dividing the aggregate Liquidation
Preference of such units (inclusive of accrued but unpaid distributions) by
the Conversion Price (as in effect at the time and on the date provided for
in the last paragraph of paragraph (b) of this Section 6) by surrendering
such units to be converted, such surrender to be made in the manner
provided in paragraph (b) of this Section 6; provided, however, that the
right to convert Series E Partnership Units called for redemption pursuant
to Section 5 shall terminate at the close of business on the fifth Business
Day prior to the Call Date fixed for such redemption, unless the
Partnership shall default in making payment of the cash payable upon such
redemption under Section 5.
b. In order to exercise the conversion right, the holder of
each unit of Series E Partnership Preferred Units to be converted shall
surrender the certificate representing such unit, duly endorsed or assigned
to the Partnership or in blank, at the office of the Transfer Agent,
accompanied by written notice to the Partnership that the holder thereof
irrevocably elects to convert such Series E Partnership Preferred Units.
Unless the partnership units issuable on conversion are to be issued in the
same name as the name in which such Series E Partnership Preferred Units
are registered, each partnership unit surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the
Partnership, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Partnership demonstrating that such
taxes have been paid).
Holders of Series E Partnership Preferred Units at the close of
business on a distribution payment record date shall be entitled to receive
the distribution payable on such units on the corresponding Distribution
Payment Date notwithstanding the conversion thereof following such
distribution payment record date and prior to such Distribution Payment
Date. However, Series E Partnership Preferred Units surrendered for
conversion during the period between the close of business on any
distribution payment record date and the opening of business on the
corresponding Distribution Payment Date (except units converted after the
issuance of notice of redemption with respect to a Call Date during such
period, such Series E Partnership Preferred Units being entitled to such
distribution on the Distribution Payment Date) must be accompanied by
payment of an amount equal to the distribution payable on such units on
such Distribution Payment Date. A holder of Series E Partnership Preferred
Units on a distribution payment record date who (or whose transferee)
tenders any such units for conversion into Partnership Common Units on the
corresponding Distribution Payment Date will receive the distribution
payable by the Partnership on such Series E Partnership Preferred Units on
such date, and the converting holder need not include payment of the amount
of such distribution upon surrender of Series E Partnership Preferred Units
for conversion. Except as provided above, the Partnership shall make no
payment or allowance for unpaid distributions, whether or not in arrears,
on converted units or for distributions on the Partnership Common Units
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series E Partnership Preferred Units as aforesaid, the Partnership shall
issue and shall deliver at such office to such holder, or on his or her
written order, a certificate or certificates for the number of full
Partnership Common Units issuable upon the conversion of such units in
accordance with provisions of this Section 6, and any fractional interest
in respect of a Partnership Common Unit arising upon such conversion shall
be settled as provided in paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series E Partnership Preferred Units shall have been surrendered and such
notice shall have been received by the Partnership as aforesaid (and if
applicable, payment of an amount equal to the distribution payable on such
units shall have been received by the Corporation as described above), and
the Person or Persons in whose name or names any certificate or
certificates for Partnership Common Units shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record
of the units represented thereby at such time on such date and such
conversion shall be at the Conversion Price in effect at such time on such
date unless the transfer books of the Partnership shall be closed on that
date, in which event such Person or Persons shall be deemed to have become
such holder or holders of record at the close of business on the next
succeeding day on which such transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date on which such units
shall have been surrendered and such notice received by the Partnership.
c. No fractional units or scrip representing fractions of
Partnership Common Units shall be issued upon conversion of the Series E
Partnership Preferred Units. Instead of any fractional interest in a
Partnership Common Unit that would otherwise be deliverable upon the
conversion of a Series E Partnership Preferred Unit, the Partnership shall
pay to the holder of such unit an amount in cash based upon the Current
Market Price of the Corporation's Common Stock on the Trading Day
immediately preceding the date of conversion. If more than one Series E
Partnership Unit shall be surrendered for conversion at one time by the
same holder, the number of full Partnership Common Units issuable upon
conversion thereof shall be computed on the basis of the aggregate number
of Series E Partnership Preferred Units so surrendered.
d. The Conversion Price shall be adjusted from time to time as
follows:
i. If the Corporation shall after the Grant Date (A) pay a
dividend or make a distribution on its Common Equity Shares
in Common Equity Shares, (B) subdivide its outstanding
Common Equity Shares into a greater number of units, (C)
combine its outstanding Common Equity Shares into a smaller
number of units or (D) issue any shares of stock by
reclassification of its Common Equity Shares, the Conversion
Price in effect at the opening of business on the day
following the date fixed for the determination of holders
entitled to receive such dividend or distribution or at the
opening of business on the Business Day next following the
day on which such subdivision, combination or
reclassification becomes effective, as the case may be,
shall be adjusted so that the holder of any Series E Equity
Shares thereafter surrendered for conversion shall be
entitled to receive the number of Common Equity Shares that
such holder would have owned or have been entitled to
receive after the happening of any of the events described
above as if such Series E Equity Shares had been converted
immediately prior to the record date in the case of a
dividend or distribution or the effective date in the case
of a subdivision, combination or reclassification. An
adjustment made pursuant to this subparagraph (i) shall
become effective immediately after the opening of business
on the Business Day next following the record date (except
as provided in paragraph (h) below) in the case of a
dividend or distribution and shall become effective
immediately after the opening of business on the Business
Day next following the effective date in the case of a
subdivision, combination or reclassification.
ii. If the Corporation shall issue after the Grant Date rights,
options or warrants to all holders of Common Equity Shares
entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or
purchase Common Equity Shares at a price per share less than
95% (100% if a standby underwriter is used and charges the
Corporation a commission) of the Fair Market Value per share
of the Corporation's Common Stock on the record date for the
determination of holders entitled to receive such rights,
options or warrants, then the Conversion Price in effect at
the opening of business on the Business Day next following
such record date shall be adjusted to equal the price
determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the Business
Day next following the date fixed for such determination by
(B) a fraction, the numerator of which shall be the sum of
(x) the number of Common Equity Shares outstanding on the
close of business on the date fixed for such determination
and (y) the number of shares that the aggregate proceeds to
the Corporation from the exercise of such rights, options or
warrants for Common Equity Shares would purchase at 95% of
such Fair Market Value (or 100% in the case of a standby
underwriting), and the denominator of which shall be the sum
of (x) the number of Common Equity Shares outstanding on the
close of business on the date fixed for such determination
and (y) the number of additional Common Equity Shares
offered for subscription or purchase pursuant to such
rights, options or warrants. Such adjustment shall become
effective immediately after the opening of business on the
day next following such record date (except as provided in
paragraph (h) below). In determining whether any rights,
options or warrants entitle the holders of Common Equity
Shares to subscribe for or purchase Common Equity Shares at
less than 95% of such Fair Market Value (or 100% in the case
of a standby underwriting), there shall be taken into
account any consideration received by the Corporation upon
issuance and upon exercise of such rights, options or
warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that
Common Equity Shares are not delivered pursuant to such
rights, options or warrants, upon the expiration or
termination of such rights, options or warrants, the
Conversion Price shall be readjusted to the Conversion Price
which would then be in effect had the adjustments made upon
the issuance of such rights, options or warrants been made
on the basis of delivery of only the number of Common Equity
Shares actually delivered. In the event that such rights,
options or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which
would then be in effect if such date fixed for the
determination of shareholders entitled to receive such
rights, options or warrants had not been fixed.
iii. If the Corporation shall distribute to all holders of its
Common Equity Shares any securities of the Corporation
(other than Common Equity Shares) or evidence of its
indebtedness or assets (excluding cumulative cash dividends
or distributions paid with respect to the Common Equity
Shares after December 31, 1997) which are not in excess of
the following: the sum of (A) the Corporation's cumulative
undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as
determined by the Board of Directors, after December 31,
1997, minus (C) the cumulative amount of distributions
accrued or paid in respect of the Corporation's Series E
Equity Shares (or any other class or series of preferred
stock of the Corporation after the Grant Date) or rights,
options or warrants to subscribe for or purchase any of its
securities (excluding those rights, options and warrants
issued to all holders of Common Equity Shares entitling them
for a period expiring within 45 days after the record date
referred to in subparagraph (ii) above to subscribe for or
purchase Common Equity Shares, which rights and warrants are
referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph
(iii) collectively called the "Securities" and individually
a "Security"), then in each such case the Conversion Price
shall be adjusted so that it shall equal the price
determined by multiplying (x) the Conversion Price in effect
immediately prior to the close of business on the date fixed
for the determination of shareholders entitled to receive
such distribution by (y) a fraction, the numerator of which
shall be the Fair Market Value per share of the
Corporation's Common Stock on the record date mentioned
below less the then Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive)
of the portion of the Securities or assets or evidences of
indebtedness so distributed or of such rights, options or
warrants applicable to one Common Equity Share, and the
denominator of which shall be the Fair Market Value per
share of the Corporation's Common Stock on the record date
mentioned below. Such adjustment shall become effective on
the date of distribution retroactive to the opening of
business on the Business Day next following (except as
provided in paragraph (h) below) the record date for the
determination of shareholders entitled to receive such
distribution. For the purposes of this subparagraph (iii),
the distribution of a Security, which is distributed not
only to the holders of the Common Equity Share on the date
fixed for the determination of shareholders entitled to such
distribution of such Security, but also is distributed with
each Partnership Common Unit delivered to a Person
converting a share of Series E Partnership Preferred Units
after such determination date, shall not require an
adjustment of the Conversion Price pursuant to this
subparagraph (iii); provided that on the date, if any, on
which a Person converting a unit of Series E Partnership
Preferred Units would no longer be entitled to receive such
Security with a Partnership Common Unit (other than as a
result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have
occurred and the Conversion Price shall be adjusted as
provided in this subparagraph (iii) (and such day shall be
deemed to be "the date fixed for the determination of the
shareholders entitled to receive such distribution" and "the
record date" within the meaning of the two preceding
sentences). If any dividend or distribution of the type
described in this paragraph (iii) is declared but not so
paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
Rights or warrants distributed by the Corporation to all holders
of Common Equity Shares entitling the holders thereof to subscribe for
or purchase shares of the Corporation's capital stock (either
initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Equity
Shares; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Equity Shares, shall be deemed not to
have been distributed for purposes of this subparagraph (iii) (and no
adjustment to the Conversion Price under this subparagraph (iii) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right
or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof to the extent not
exercised). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto, that resulted in an adjustment to the Conversion Price under
this subparagraph (iii), (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it
were a cash distribution (but not a distribution paid exclusively in
cash), equal to the per share redemption or repurchase price received
by a holder of Common Equity Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Equity Shares as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants all of which shall have expired or been terminated without
exercise, the Conversion Price shall be readjusted as if such rights
and warrants had never been issued.
iv. In case a tender or exchange offer (which term shall not
include open market repurchases by the Corporation) made by
the Corporation or any subsidiary or controlled Affiliate of
the Corporation for all or any portion of the Common Equity
Shares shall expire and such tender or exchange offer shall
require the payment by the Corporation or such subsidiary or
controlled Affiliate of consideration per Common Equity
Share having a fair market value (as determined in good
faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of
Directors), at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange
offer, that exceeds the Current Market Price per share of
the Corporation's Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Price shall
be reduced so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph, by a fraction of which
the numerator shall be the number of Common Equity Shares
outstanding (including any tendered or exchanged shares) at
the Expiration Time, multiplied by the Current Market Price
per share of the Corporation's Common Stock on the Trading
Day next succeeding the Expiration Time, and the denominator
shall be the sum of (A) the fair market value (determined as
aforesaid) of the aggregate consideration payable to
shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up
to any maximum, being referred to as the "Purchased Shares")
and (B) the product of the number of Common Equity Shares
outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price per share of the
Corporation's Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on
the day following the Expiration Time. In the event the
Corporation or any subsidiary or controlled Affiliate is
obligated to purchase shares pursuant to any such tender
offer, but the Corporation or such subsidiary or controlled
Affiliate is permanently prevented by applicable law from
effecting any such purchases, or all such purchases are
rescinded, the Conversion Price shall again be adjusted to
be the Conversion Price which would then be in effect if
such tender offer had not been made.
v. No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase
or decrease of at least 1% in such price; provided, however,
that any adjustments that by reason of this subparagraph (v)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment until made;
and provided, further, that any adjustment shall be required
and made in accordance with the provisions of this Section 6
(other than this subparagraph (v)) not later than such time
as may be required in order to preserve the tax-free nature
of a distribution to the holders of Partnership Common
Units. Notwithstanding any other provisions of this
Section 6, the Partnership shall not be required to make any
adjustment of the Conversion Price for the issuance of any
Common Equity Shares pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities
of the Corporation and the investment of additional optional
amounts in Common Equity Shares under such plan. All
calculations under this Section 6 shall be made to the
nearest cent (with $.005 being rounded upward) or to the
nearest one-hundredth of a partnership unit (with .005 of a
share being rounded upward), as the case may be. Anything
in this paragraph (d) to the contrary notwithstanding, the
Partnership shall be entitled, to the extent permitted by
law, to make such reductions in the Conversion Price, in
addition to those required by this paragraph (d), as it in
its discretion shall determine to be advisable in order that
any partnership unit distributions, subdivision of
partnership units, reclassification or combination of
partnership units, distribution of rights or warrants to
purchase partnership units, or distribution of other assets
(other than cash distributions) hereafter made by the
Partnership to its Partners shall not be taxable. To the
extent permitted by applicable law, the Partnership from
time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least 20 days,
the reduction is irrevocable during the period and the
Managing General Partner shall have made a determination
that such reduction would be in the best interests of the
Partnership, which determination shall be conclusive.
Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Partnership shall mail to the holder
of each Series E Partnership Preferred Unit at his or her
last address shown on the Partnership's records a notice of
reduction prior to the date the reduced Conversion Price
takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in
effect.
e. If the Corporation shall be a party to any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange, self tender offer for 40% or more of its Common Equity Shares,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Equity Shares and excluding any transaction
as to which subparagraph (d)(i) of this Section 6 applies) (each of the
foregoing being referred to herein as a "Transaction"), in each case as a
result of which all or substantially all of the Partnership Common Units
are converted into the right to receive different securities or other
property (including cash or any combination thereof), each Series E
Partnership Preferred Unit which is not redeemed or converted into the
right to receive different securities or other property prior to such
Transaction shall thereafter be convertible, in lieu of Partnership Common
Units into the kind and amount of different securities and other property
(including cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that number of Partnership
Common Units into which one Series E Partnership Preferred Unit was
convertible immediately prior to such Transaction, assuming such holder of
Partnership Common Units (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Equity Share held immediately prior to such
Transaction by other than a Constituent Person or an Affiliate thereof and
in respect of which such rights of election shall not have been exercised
("Non-Electing Share"), then for the purpose of this paragraph (e) the kind
and amount of shares, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed
to be the kind and amount so receivable per share by holders of a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series E Partnership Preferred Units that
will contain provisions enabling the holders of the Series E Partnership
Preferred Units that remain outstanding after such Transaction to convert
into the consideration received by holders of Partnership Common Units at
the Conversion Price in effect immediately prior to such Transaction. The
provisions of this paragraph (e) shall similarly apply to successive
Transactions.
f. If:
i. the Corporation shall declare a distribution (or any other
distribution) on its Common Equity Shares (other than cash
distributions or distributions paid with respect to the
Common Equity Shares after December 31, 1997 not in excess
of the sum of the Corporation's cumulative undistributed
Funds from Operations at December 31, 1997, plus the
cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the
cumulative amount of distributions accrued or paid in
respect of the Corporation's Series E Equity Shares or any
other class or series of preferred stock of the Corporation
after the Grant Date); or
ii. the Corporation shall authorize the granting to all holders
of Common Equity Shares of rights, options or warrants to
subscribe for or purchase any shares of any class or any
other rights, options or warrants; or
iii. there shall be any reclassification of the Common Equity
Shares (other than an event to which subparagraph (d)(i) of
this Section 6 applies) or any consolidation or merger to
which the Corporation is a party (other than a merger in
which the Corporation is the surviving entity) and for which
approval of any shareholders of the Corporation is required,
or a statutory share exchange, or a self tender offer by the
Corporation for all or substantially all of its outstanding
shares of Common Stock or the sale or transfer of all or
substantially all of the assets of the Corporation as an
entirety; or
iv. there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Partnership shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series E Partnership Preferred
Units at their addresses as shown on the records of the Partnership, as
promptly as possible, but at least 10 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which a record is
to be taken for the purpose of such distribution, distribution or granting
of rights, options or warrants, or, if a record is not to be taken, the
date as of which the holders of Common Equity Shares of record to be
entitled to such distribution, distribution or rights, options or warrants
are to be determined or (B) the date on which such reclassification,
consolidation, merger, statutory share exchange, sale, transfer,
liquidation, dissolution or winding up is expected to become effective, and
the date as of which it is expected that holders of Partnership Common
Units of record shall be entitled to exchange their Partnership Common
Units for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up. Failure to give or
receive such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 6.
g. Whenever the Conversion Price is adjusted as herein
provided, the Partnership shall promptly file with the Transfer Agent a
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Partnership shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each Series E
Partnership Preferred Unit at such holder's last address as shown on the
records of the Partnership.
h. In any case in which paragraph (d) of this Section 6
provides that an adjustment shall become effective on the day next
following the record date for an event, the Partnership may defer until the
occurrence of such event (A) issuing to the holder of any Series E
Partnership Preferred Unit converted after such record date and before the
occurrence of such event the additional Partnership Common Units issuable
upon such conversion by reason of the adjustment required by such event
over and above the Partnership Common Units issuable upon such conversion
before giving effect to such adjustment and (B) paying to such holder any
amount of cash in lieu of any fraction pursuant to paragraph (c) of this
Section 6.
i. There shall be no adjustment of the Conversion Price in case
of the issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth
in this Section 6. If any action or transaction would require adjustment
of the Conversion Price pursuant to both paragraph (d) and paragraph (e) of
this Section 6, only one adjustment shall be made, and such adjustment
shall be the amount of adjustment that has the highest absolute value.
j. If the Corporation shall take any action affecting the
Common Equity Shares, other than action described in this Section 6, that
in the opinion of the Managing General Partner would materially and
adversely affect the conversion rights of the holders of the Series E
Partnership Preferred Units, the Conversion Price for the Series E
Partnership Preferred Units may be adjusted, to the extent permitted by
law, in such manner, if any, and at such time, as the Managing General
Partner may determine to be equitable in the circumstances.
k. The Partnership covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Partnership Common Units, for the purpose of
effecting conversion of the Series E Partnership Preferred Units, the full
number of Partnership Common Units deliverable upon the conversion of all
outstanding Series E Partnership Preferred Units not theretofore converted.
For purposes of this paragraph (k), the number of Partnership Common Units
that shall be deliverable upon the conversion of all outstanding Series E
Partnership Preferred Units shall be computed as if at the time of
computation all such outstanding units were held by a single holder.
Any Partnership Common Units issued upon conversion of the Series E
Partnership Preferred Units shall be validly issued, fully paid and
nonassessable.
The Partnership shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Partnership shall be obligated to
deliver upon conversion of the Series E Partnership Preferred Units. The
certificates evidencing such securities shall bear such legends restricting
transfer thereof in the absence of registration under applicable securities
laws or an exemption therefrom as the Partnership may in good ▇▇▇▇▇ ▇▇▇▇
appropriate.
l. The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Partnership Common Units or other securities or property on conversion
of the Series E Partnership Preferred Units pursuant hereto; provided,
however, that the Partnership shall not be required to pay any tax that may
be payable in respect of any transfer involved in the issue or delivery of
Partnership Common Units or other securities or property in a name other
than that of the holder of the Series E Partnership Preferred Units to be
converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue or delivery has paid to the Partnership the
amount of any such tax or established, to the reasonable satisfaction of
the Partnership, that such tax has been paid.
7. CHANGE OF CONTROL OF THE CORPORATION.
a. If a Change of Control Repurchase Event (as defined in
Section 7 of the Series E Certificate of Designation) occurs, the holders
of Series E Partnership Preferred Units shall have the right to require the
Partnership, to the extent the Partnership shall have funds legally
available therefor, to redeem any or all of the Series E Partnership
Preferred Units held by such holder at a repurchase price payable in cash
(the "Corporation Change of Control Repurchase Payment") in an amount equal
to 105% of the Liquidation Preference thereof, plus accrued and unpaid
distributions whether or not declared, if any, to the date of repurchase or
the date payment is made available (the "Corporation Change of Control
Repurchase Date"), pursuant to the offer described in subsection (b) below
(the "Corporation Change of Control Repurchase Offer").
b. Within 15 days following the Partnership becoming aware that
a Corporation Change of Control Repurchase Event has occurred, the
Partnership shall mail by first class mail or recognized overnight courier
a notice to each holder of Series E Partnership Preferred Units stating (A)
that a Corporation Change of Control Repurchase Event has occurred and that
such holder has the right to require the Partnership to repurchase any or
all of the Series E Preferred Partnership Units then held by such holder,
(B) the date of repurchase (which shall be a Business Day, no earlier than
30 days and no later than 60 days from the date such notice is mailed, or
such later date as may be necessary to comply with the requirements of the
Exchange Act), (C) the repurchase price and (D) the instructions determined
by the Partnership, consistent with this subsection, that such investor
must follow in order to have the Series E Preferred Partnership Units
repurchased.
c. On the Corporation Change of Control Repurchase Date, the
Partnership, to the extent lawful, shall accept for payment Series E
Preferred Partnership Units or portions thereof tendered by such holder
pursuant to the Corporation Change of Control Repurchase Offer and promptly
by wire transfer of immediately available funds to such holder, as directed
by such holder, send an amount equal to the Corporation Change of Control
Repurchase Payment in respect of all Series E Preferred Partnership Units
or portions thereof so tendered.
d. Notwithstanding anything else herein, to the extent they are
applicable to any Corporation Change of Control Repurchase Offer, the
Partnership will comply with any federal and state securities laws, rules
and regulations and all time periods and requirements shall be adjusted
accordingly.
8. REDEMPTION AT THE OPTION OF THE HOLDER.
a. At any time after the tenth anniversary of the Grant Date,
the holders of Series E Partnership Preferred Units shall have the right at
any time that the Corporation's Common Stock has a Current Market Price at
or below the Conversion Price per unit, to require the Partnership, to the
extent the Partnership shall have funds legally available therefor, to
redeem any or all of the Series E Partnership Preferred Units held by such
holder at a repurchase price payable, at the option of the Partnership, in
either (i) cash or (ii) such number of Partnership Common Units that shall
be convertible into shares of the Corporation's Common Stock as shall have
a Current Market Price in the aggregate on the day prior to the day such
holder gives notice pursuant to Section 8(b) of its intention to redeem,
equal to in either case, 100% of the Liquidation Preference thereof plus
accrued and unpaid distributions whether or not declared, if any, to the
date of repurchase or the date payment is made available (in the aggregate,
the "Redemption Payment").
b. Notwithstanding paragraph (a) of this Section 8, in the
event that WHL and its subsidiaries and the trustee of Westfield America
Trust on behalf of Westfield America Trust vote to approve the conversion
of the Corporation's Series E Equity Shares into Common Equity Shares at a
meeting of shareholders at which such proposal is raised, but the
shareholders of the Corporation as a whole reject the foregoing proposal,
then from and after the later of such rejection date and the second
anniversary of the Grant Date, the Series E Partnership Preferred Units
shall be redeemable at the option of the holder, to the extent that the
Partnership shall have funds legally available therefor, at a redemption
price payable in cash equal to the product of (a) the Series E Common
Equivalent Factor times (b) the Current Market Price on the date of the
notice provided pursuant to paragraph (c) below, plus all accumulated,
accrued and unpaid dividends whether or not declared, if any, to the date
of repurchase or the date payment is made available.
c. For purposes of this Section 8, redemption at the option of
the holder shall be deemed to occur upon receipt by the Partnership of
written notice that the holder of Series E Partnership Preferred Units
wishes to tender units to be redeemed. The holders of such units to be
redeemed shall then have 30 days from the date of such notice to deliver
such units to the Transfer Agent. Upon the surrender of the certificate or
certificates of Series E Partnership Preferred Units to be redeemed, duly
endorsed or assigned to the Partnership or in blank, at the office of the
Transfer Agent, the Partnership shall promptly, either (i) by wire transfer
of immediately available funds to such holder, as directed by such holder,
send an amount equal to the Redemption Payment in respect of all Series E
Partnership Preferred Units or portions thereof so tendered or (ii) issue
and deliver to such holder, or on his or her written order, a certificate
or certificates for the number of full Partnership Common Units issuable in
respect of all Series E Partnership Preferred Units or portions thereof so
tendered.
9. STATUS OF REACQUIRED SERIES E PARTNERSHIP PREFERRED UNITS.
All Series E Partnership Preferred Units which shall have been
granted and reacquired in any manner by the Partnership shall be deemed
cancelled.
10. RANKING.
The Series E Partnership Preferred Units shall with respect to
distribution rights and rights on liquidation, dissolution and winding up
of the affairs of the Partnership, rank pari passu to the Series A
Partnership Preferred Units, the Series B Partnership Preferred Units, the
Series C Partnership Preferred Units, the Series C-1 Partnership Preferred
Units, the Series C-2 Partnership Preferred Units, the Series D Partnership
Preferred Units, and the Series D-1 Partnership Preferred Units of the
Partnership, if any, shall have been authorized and issued.
Each Series E Partnership Preferred Unit shall be identical in
all respects to each other Series E Partnership Preferred Unit.
Any class or series of Partnership Units or Investor Unit Rights
shall be deemed to rank:
a. prior or senior to the Series E Partnership Preferred Units,
as to the payment of distributions and as to distributions of assets upon
the liquidation, dissolution and winding up of the Partnership, if the
holders of such class or series of Partnership Units or Investor Unit
Rights, as the case may be, shall be entitled to the receipt of
distributions or of amounts distributable upon the liquidation, dissolution
and winding up of the Partnership in preference or priority to the holders
of Series E Partnership Preferred Units ("Senior Units");
b. on a parity with the Series E Partnership Preferred Units,
as to the payment of distributions and as to distribution of assets upon
the liquidation, dissolution and winding up of the Partnership, whether or
not the distribution rates, distribution payment dates or redemption or
liquidation prices per unit or other denomination thereof shall be
different from those of the Series E Partnership Preferred Units, if the
holders of such class or series of Partnership Units or Investor Unit
Rights, as the case may be, and the Series E Partnership Preferred Units
shall be entitled to the receipt of distributions and of amounts
distributable upon the liquidation, dissolution and winding up of the
Partnership in proportion to their respective amounts of accumulated and
unpaid distributions per unit or other denomination or liquidation
preferences, without preference or priority one over the other ("Parity
Units");
c. junior to the Series E Partnership Preferred Units, as to
the payment of distributions or as to the distribution of assets upon the
liquidation, dissolution and winding up of the Partnership, if the holders
of Series E Partnership Preferred Units shall be entitled to receipt of
distributions or of amounts distributable upon the liquidation, dissolution
and winding up of the Partnership, in preference or priority to the holders
of such class or series of Partnership Units or Investor Unit Rights
("Junior Units"); and
d. junior to the Series E Partnership Preferred Units, as to
the payment of distributions and as to the distribution of assets upon the
liquidation, dissolution and winding up of the Partnership, if such class
or series of Partnership Units is Partnership Common Units or Class A
Investor Unit Rights, as the case may be, or if the holders of Series E
Partnership Preferred Units shall be entitled to receipt of distributions
and of amounts distributable upon the liquidation, dissolution and winding
up of the Partnership, in preference or priority to the holders of such
class or series of Partnership Units or Investor Unit Rights ("Fully Junior
Units").
11. ALLOCATIONS.
a. For each partnership year, each Holder of a Share of
Series E Preferred Units shall be allocated Net Income of the Partnership
in an amount equal to the amount of distributions made with respect to such
Holder's Series E Preferred Units pursuant to Section 3 hereof during such
Partnership Year. In no event shall items of Net Loss of the Partnership
be allocated to any Holder of Series E Preferred Units unless such
allocation is required by Section 704(b) of the Code or Section 10(b) of
this Exhibit O.
b. If any Series E Partnership Preferred Units are redeemed
pursuant to the terms of this Exhibit O, for the Partnership Year that
includes such redemption (and, if necessary, for subsequent Partnership
Years) (a) gross income and gain (in such relative proportions as the
Managing General Partner in its discretion shall determine) shall be
allocated to the Managing General Partner and such Special Limited
Partner(s) to the extent that the redemption amounts paid or payable with
respect to the Series E Partnership Preferred Units so redeemed (or treated
as redeemed) exceeds the aggregate Capital Account Balances (net of
liabilities assumed or taken subject to by the Partnership) per Series E
Partnership Preferred Unit allocable to the Series E Partnership Preferred
Units so redeemed (or treated as redeemed) and (b) deductions and losses
(in such relative proportions as the Managing General Partner in its
discretion shall determine) shall be allocated to the Managing General
Partner and such Special Limited Partner(s) to the extent that the
aggregate Capital Account Balances (net of liabilities assumed or taken
subject to by the Partnership) per Series E Partnership Preferred Unit
allocable to the Series E Partnership Preferred Units so redeemed (or
treated as redeemed) exceeds the redemption amount paid or payable with
respect to the Series E Partnership Preferred Units so redeemed (or treated
as redeemed).
12. VOTING AND CONSENT RIGHTS.
a. Holders of Series E Partnership Preferred Units shall have
only those voting and consent rights specified in Section 7.3.B of the
Agreement and Section 12(b) hereof.
b. So long as any Series E Partnership Preferred Units are
outstanding, in addition to any other vote or consent of holders of
Series E Partnership Preferred Units required by law or by the Agreement,
the affirmative vote or consent of holders of at least 50% of the
outstanding Series E Partnership Preferred Units, voting or consenting as a
separate class, given in Person or by proxy, either in writing without a
meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating any amendment or alteration of any of
the provisions of this Partnership Unit Designation or the Agreement that
materially and adversely affects the material powers, rights or preferences
of the holders of the Series E Partnership Preferred Units; provided,
however, that the amendment of the Agreement so as to authorize, create,
issue or grant any class or series of Partnership Units, including, without
limitation, any such Partnership Units that may have rights senior or
superior to the Series E Partnership Preferred Units, shall be deemed not
to materially and adversely affect the material powers, rights or
preferences of the holders of Series E Partnership Preferred Units.
c. Except as otherwise required by applicable law or as set
forth herein or in the Agreement, the holders of the Series E Partnership
Preferred Units shall not have any relative, participating, optional or
other special voting rights or powers with respect to any matter, and the
consent or approval of the holders thereof shall not be required for the
taking of any action by the Partnership.
INFORMATION RIGHTS.
Holders of Series E Partnership Preferred Units shall have only
the information rights specified in Section 8.5.A and Section 9.3 of the
Agreement.
13. RESTRICTIONS ON TRANSFER.
The Series E Partnership Preferred Units are subject to the
restrictions on transfer set forth in Article 11 of the Agreement.
14. AMBIGUITY.
In the case of an ambiguity in the application of any of the
provisions of this Partnership Unit Designation, the Managing General
Partner shall have the power to determine the application of the provisions
of this Partnership Unit Designation with respect to any situation based on
its reasonable belief, understanding or knowledge of the circumstances.
15. PARTNERSHIP RECORDS.
The Managing General Partner shall amend Exhibit A to the
Agreement from time to time to the extent necessary to reflect accurately
the grant and any subsequent redemption of, or other event having an effect
on the ownership of, Series E Partnership Preferred Units.
16. GOVERNING LAW.
This Exhibit O shall be construed and enforced in accordance
with, and governed by, the laws of the State of Delaware, without regard to
principles of conflicts of law.