EXHIBIT 1.1
WESTFIELD AMERICA, INC.
(a Missouri corporation)
15,300,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
May __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BT SECURITIES CORPORATION
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Westfield America, Inc., a Missouri corporation, formerly known as
CenterMark Properties, Inc. (the "Company"), confirms its agreement with
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters named in Schedule
A hereto (collectively, the "U.S. Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities Incorporated, ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and BT Securities Corporation are acting as representatives (in
such capacity, the "U.S. Representatives"), with respect to the issue and
sale by the Company and the purchase by the U.S. Underwriters, 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 U.S. Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 2,295,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 15,300,000 shares of Common Stock (the "Initial U.S. Securities")
to be purchased by the U.S. Underwriters and all or any part of the 2,295,000
shares of Common Stock subject to the option described in Section 2(b) hereof
(the "U.S. Option Securities") are hereinafter called, collectively, the
"U.S. Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 2,700,000 shares of
Common Stock (the "Initial International Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Managers") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential-Bache Securities
(U.K.) Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Bankers Trust International PLC are acting as
lead managers (the "Lead Managers") and the grant by the Company to the
International Managers, acting severally and not jointly, of an option to
purchase all or any part of the International Managers' pro rata portion of up
to 405,000 additional shares of Common Stock solely to cover over-allotments, if
any (the "International Option Securities" and, together with the U.S. Option
Securities, the "Option Securities"). The Initial International Securities and
the International Option Securities are hereinafter called the "International
Securities." It is understood that the Company is not obligated to sell and the
U.S. Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities, and the International 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 U.S. Underwriters propose to make a public
offering of the U.S. Securities as soon as the U.S. Representatives 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
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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.
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 U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International 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 U.S. Prospectus and Form of International 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 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 U.S. Prospectus and the final Form of
International Prospectus in the forms first furnished to the Underwriters for
use in connection with the offering of the Securities are herein called the
"U.S. Prospectus" and the "International Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms "U.S.
Prospectus" and "International Prospectus" shall refer to the preliminary U.S.
Prospectus dated _____, 1997 and preliminary International 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 U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement
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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 ("▇▇▇▇▇").
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 U.S. Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and, to the extent any agreements
are set forth below, agrees with each U.S. Underwriter, 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 U.S. 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 U.S. 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
4
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 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 U.S. Prospectus or any amendment or supplement
to the U.S. Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any U.S. Underwriter
through the U.S. Representatives expressly for use in the Registration
Statement or the U.S. 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.
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(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, 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 Prospectuses
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
6
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 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
International 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 U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and the International 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 nor 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
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 as would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the International
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 hereunder and under the International 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
7
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 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 its
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 International 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
its 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 real
estate investment trust (a "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
8
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 stock of WPI, except
for certain preferred stock 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 name of
"Westfield" in the names "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 hereunder and under the International
Purchase Agreement or the consummation of the transactions contemplated by
this Agreement and the International 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.
9
(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 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
10
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 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, except where the failure to be in full force and effect would not
reasonably be expected to result in a Material Adverse 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, 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.
11
(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.
(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
12
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 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
13
(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)
13
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
opinions of counsel received by the Company, the WHL Option
Deed 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, ADVISORY AND DEVELOPMENT
AGREEMENTS. Based on opinions of counsel received by the Company, each of
the Management Agreements and Advisory Agreement and any 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).
(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 and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each U.S. Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; 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 U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S.
14
Underwriter, plus any additional number of Initial U.S. Securities which such
Underwriter 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 herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional 2,295,000 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 U.S. Securities but not payable on the U.S. 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 U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. 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 U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter bears to the total number of Initial U.S. 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 U.S. Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such U.S. 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 U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities
15
to be purchased by them. It is understood that each U.S. Underwriter has
authorized the U.S. Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the U.S.
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial U.S. Securities or the U.S. Option Securities,
if any, to be purchased by any U.S. Underwriter 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 U.S. Underwriter from its
obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives 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
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives 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
U.S. Underwriter 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
16
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the Prospectuses
included 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 U.S. Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENT. The Company has furnished or will
deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
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 U.S. Representatives,
without charge, one conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters 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 U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter 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 U.S. Underwriter, without charge, during the period when the
U.S. 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 U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably
request. The U.S. Prospectus and any amendments or supplements thereto
furnished to the U.S. Underwriters 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
International 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 U.S. Underwriters 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 Regulations, the Company will promptly prepare and
file with the Commission, in form and substance satisfactory to counsel for the
U.S. Underwriters, such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement
17
or the Prospectuses comply with such requirements, and the Company will
furnish to the U.S. Underwriters such number of copies of such amendment or
supplement as the U.S. Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, 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 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
18
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.
(o) 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 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
19
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 U.S.
Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the U.S. Underwriters.
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The
obligations of the several U.S. Underwriters 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 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 U.S. Underwriters. 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 THE COMPANY. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, to the effect set forth in
clauses __ of Exhibit A hereto and to such further effect as counsel to the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters 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
20
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 THE COMPANY. At Closing Time, the U.S. Representatives
shall have received the favorable opinion, dated as of Closing Time, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, General Counsel for the Company, in form and substance satisfactory
to counsel for the U.S. Underwriters, to the effect set forth in clauses __ of
Exhibit A hereto and to such further effect as counsel to the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the other
U.S. Underwriters with respect to such matters as they may reasonably request.
(d) OPINION OF TAX COUNSEL FOR THE COMPANY. At Closing Time, the U.S.
Representatives 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 U.S. Underwriters.
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 Underwriters, counsel for the Underwriters and the Company's
independent accountants. 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
U.S. Representatives 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 U.S. Underwriters, to the effect set
forth in clauses __ of Exhibit A hereto and to such further effect as counsel to
the U.S. Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters with respect to such matters as they may
reasonably request.
(f) OPINION OF AUSTRALIAN COUNSEL FOR WESTFIELD HOLDINGS. At Closing
Time, the U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Australian Counsel for Westfield
Holdings, in form and substance satisfactory to counsel for the U.S.
Underwriters, to the effect set forth in clauses of Exhibit A hereto and
to such further effect as counsel to the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters with respect to such matters as they may reasonably request.
(g) OPINION OF COUNSEL FOR THE U.S. UNDERWRITERS. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters with respect to 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 U.S. Representatives. Such
21
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 U.S. Underwriters 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 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 ommitted 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 U.S.
Representatives shall have received a certificate of the Co-President and 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 U.S. Representatives 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 U.S. Representatives, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters 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 U.S. Representatives
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 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 U.S.
Representatives shall have received agreements substantially in the forms of
Exhibit B and Exhibit C hereto signed by the persons listed on Schedule C
hereto.
22
(n) PURCHASE OF INITIAL INTERNATIONAL SECURITIES. Contemporaneously with
the purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(o) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. 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 U.S. Representatives shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the Co-President and 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 U.S. Underwriters, 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(b) hereof.
(iii) OPINION OF THE COMPANY. The favorable opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, General Counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, 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(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 U.S. Underwriters, 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(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 U.S.
Underwriters, 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 U.S. UNDERWRITERS. The favorable opinion
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the U.S.
Underwriters, dated such Date of Delivery, to the same effect as the
opinion required by Section 5(g) hereof.
23
(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 U.S. Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(i) 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 U.S. Underwriters 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 U.S.
Representatives and counsel for the U.S. Underwriters.
(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 U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant U.S.
Option Securities, may be terminated by the U.S. Representatives 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 in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF U.S. UNDERWRITERS. The Company agrees to indemnify
and hold harmless each U.S. Underwriter and each person, if any, who controls
any U.S. Underwriter 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;
24
(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
U.S. Underwriter 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 U.S. Underwriter (or to the benefit of any
person controlling such U.S. Underwriter) from whom the person asserting any
such loss, liability, claim or damage purchased U.S. Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the U.S. Prospectus (as
amended or supplemented by the Company if the Company shall have furnished any
amendments or supplements thereto) and a copy of the U.S. Prospectus (as so
amended or supplemented), which at such time had been provided to the U.S.
Underwriters 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 U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of the Company's officers who signed the Registration Statement,
and each person, if any, who controls any of 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 U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto).
25
(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 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.
26
(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 U.S. Underwriters, 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 U.S. Underwriters, 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
U.S. Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
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 Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the U.S. Underwriters 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 U.S. Underwriters 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
27
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 U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter 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 a U.S.
Underwriter 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 U.S.
Underwriter, 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 U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in 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 Company 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 U.S.
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The U.S. Representatives 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 U.S. 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 U.S.
Representatives, impracticable to market the Securities
28
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 UNDERWRITERS. If one or more of
the U.S. Underwriters 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 U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, 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 U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters 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 U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. 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
U.S. Underwriters to purchase and of the Company to sell the U.S. Option
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter 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 U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives 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,
29
the term "U.S. Underwriter" includes any person substituted for a U.S.
Underwriter 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 U.S.
Underwriters shall be directed to the Representatives 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 inure to the benefit of and be
binding upon the U.S. Underwriters 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 U.S. Underwriters 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 U.S. Underwriters 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 U.S. Underwriter shall be
deemed to be a successor by 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.
30
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 U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
WESTFIELD AMERICA, INC.
By__________________________________
Name:
Title:
31
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇
BT SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By ____________________________
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
32
SCHEDULE A
Number of
Initial
NAME OF UNDERWRITER Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated......................................
▇▇▇▇▇▇ ▇▇▇▇ LLC...........................................
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.......................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ........................
Prudential Securities Incorporated........................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..........................................
BT Securities Corporation.................................
Total ......................................................... 15,300,000
Sch ▇-▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
18,000,000 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 Securities to be paid by the
several Underwriters 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 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 Securities but not payable on the 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) (a) 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 agency or body,
domestic or foreign, which might reasonably be
A-2
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) and "Certain Provisions
of the Company's Articles of Incorporation and Bylaws and of Missouri Law,"
and in the Registration Statement under Item 34, conform 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
Agreement 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, statute, 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 Underwriters' involvement
with the transactions contemplated by the Purchase Agreements or because
of any facts specifically pertaining to the Underwriters). [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 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 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 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 Mortgage, 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]
A-5
(xxvi) Each of the Management Agreements and Advisory Agreement and
any 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BT SECURITIES CORPORATION
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Westfield America, Inc.
Ladies and Gentlemen:
The undersigned, Westfield Holdings Limited on its own behalf and on behalf
of its subsidiaries, understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities
Incorporated, ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and BT Securities Corporation propose to enter
into a Purchase Agreement (the "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 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
B-1
foregoing or (ii) enter into any swap or any otheragreement 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 (x) during a period of 36 months from the date of the Prospectuses
(as defined in the Purchase Agreement) in the case of now outstanding
securities 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,
Signature: __________________________
Print Name: ________________________
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇ , ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
FURZMAN ▇▇▇▇ LLC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &. CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BT SECURITIES CORPORATION
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY WESTFIELD AMERICA, INC.
---------------------------------------------------
Ladies and Gentlemen:
The undersigned, Cordera Holdings Pty Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
understand that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Furzman ▇▇▇▇ LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities Incorporated, ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and BT Securities Corporation propose to enter into a Purchase
Agreement (the "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 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 Prospectuses.
Very truly yours,
CORDERA HOLDINGS PTY LIMITED
Signature:
-------------------------
Print:
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Signature:
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇