EXHIBIT 10.21
GSP OPTION AGREEMENT
GSP OPTION AGREEMENT, dated as of July 1, 1996, by and between
Westfield Capital Corporation Finance Pty. Limited, a corporation organized
under the laws of New South Wales, Australia (the "Grantor"), and CenterMark
Properties, Inc., a Missouri corporation (the "Grantee").
W I T N E S S E T H:
WHEREAS, the Grantor is a wholly-owned subsidiary of Westfield
Holdings Limited, a corporation organized under the laws of New South Wales,
Australia ("Westfield Holdings);
WHEREAS, Westland Realty, Inc., a Maryland corporation and a
wholly-owned subsidiary of the Grantor ("Westland Realty"), is the legal and
beneficial owner of all of the outstanding capital stock of (i) Westland
Management, Inc., a Delaware corporation ("Westland Management"), and (ii)
Westfield Partners, Inc., a Delaware corporation ("Westfield Partners") (each of
Westland Realty, Westland Management and Westfield Partners is herein referred
to as a "Subsidiary");
WHEREAS, Westland Management holds a 1% general partnership interest
in Westland Garden State Plaza Limited Partnership, a Delaware limited
partnership (the "Partnership"), and Westfield Partners owns a 49% limited
partnership interest in the Partnership; and
WHEREAS, the Partnership owns the Garden State Plaza Shopping Center
in Paramus, New Jersey (the "Property");
NOW THEREFORE, in consideration of the sum of $1.00 and of the
premises and for other good and valuable consideration given to each party
hereto, the receipt of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, the Grantor hereby grants to the Grantee an irrevocable option (the
"Option") to purchase all of the outstanding common stock as of the Closing Date
(the "Common Stock") of Westland Realty owned of record and beneficially by the
Grantor (the "Optioned Shares") for the purchase price set forth in Section 5.1
(the "Purchase Price").
2. OPTION TERM. The Grantee's right to exercise the Option shall
commence on the first business day after the date of delivery of the "Valuation
Notice" (as such term is defined in Section 5.2(b), and shall continue until
5:00 p.m., New York City time, on the 120th consecutive day thereafter (the
"Option Period"). The valuation procedure resulting in the Valuation Notice
shall commence upon the earlier to occur of the following events (the "Valuation
Procedure Commencement Events"): (i) the completion and stabilization of the
current expansion of the Property (as more generally described on Exhibit A
hereto) which shall be deemed to have occurred upon the Grantor's written
notice, delivered as provided to Section 16.5, to the Grantee, stating that 95%
of the gross leasable area of the expansion (excluding premises leased to anchor
tenants) has been leased to bona fide third-party tenants,(ii) the date 18
months after the Grantee receives written notice, delivered as provided in
Section 16.5, from the Grantor, stating that the construction of the expansion
has been substantially completed or (iii) the date otherwise mutually agreed
upon by the Grantor and the Grantee.
3. EXERCISE; CLOSING. 3.1. EXERCISE. Subject to Section 16.1, once
the Option has become exercisable pursuant to Section 2, the Option may be
exercised, in whole but not in part, at any time on or prior to the expiration
of the Option Period, in accordance with the terms of this Agreement, by written
notice, delivered to the Grantor as provided in Section 16.5 (the "Option
Notice"), from the Grantee to the Grantor.
3.2. CLOSING OF THE OPTION. The closing of the exercise of the
Option (the "Closing") shall take place at the date and time set forth in the
Option Notice at the offices of the Grantee, but in no event shall the Closing
be (i) later than 30 days after the exercise of the Option by the Grantee or
(ii) earlier than 15 days from the date the Option Notice is given (the "Closing
Date").
3.3. PREFERRED STOCK REDEMPTION. At the Closing, or immediately
prior thereto, if requested by the Grantee by delivery of written notice to the
Grantor at any time 15 days prior to the Closing, the Grantor shall cause
Westland Realty to redeem from the current holders all of the outstanding
preferred stock of Westland Realty at the redemption price for such stock in
accordance with the Certificate of Incorporation of Westland Realty (the
"Redemption"). All
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expenses, costs and fees incurred in connection with the Redemption shall be
paid for by the Grantor.
4. CONDITIONS PRECEDENT.
4.1. OBLIGATIONS OF THE GRANTEE. Subject to Section 16.1, if the
Grantee exercises the Option on or prior to the expiration of the Option Period,
the obligations of the Grantee to consummate the transactions contemplated
hereby shall be subject to the fulfillment on or prior to the Closing Date of
the following conditions, which the Grantor agrees to use commercially
reasonable efforts to cause to be fulfilled:
(a) DELIVERY OF THE OPTIONED SHARES. The Grantor shall deliver to the
Grantee a certificate or certificates, duly endorsed in blank or with stock
powers attached duly executed in blank, in proper form for transfer
representing all of the duly authorized, validly issued, fully paid and
nonassessable common stock of Westland Realty being purchased at the
Closing Date, free and clear of all security interests, mortgages, liens,
charges, restrictions, encumbrances and claims of any nature whatsoever.
All stock transfer stamps, if any, required in connection with the transfer
shall be attached to the certificate or certificates and shall be paid for
by the Grantor.
(b) REPRESENTATIONS; PERFORMANCE. The Grantor's representations and
warranties in Section 11 shall be true and correct in all material respects
as of the date hereof and as of the Closing Date. The Grantor shall have
duly performed and complied in all material respects with all agreements
and obligations required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(c) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Any applicable waiting periods under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act") shall have expired or been terminated.
(d) OFFICER'S CERTIFICATE. The Grantor shall have delivered to the
Grantee a certificate of the Grantor or its assignee, dated the Closing
Date, as to the fulfillment of the conditions set forth in Section 4.1(b).
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(e) NO MATERIAL ADVERSE CHANGE. Neither the Partnership nor any
Subsidiary shall have sustained since the date of the exercise of the
Option by the Grantee any loss or interference with its business, from
fire, explosion, earthquake, flood or other calamity, taking into account
all applicable insurance coverage, or from any court or governmental
action, order or decree, the effect of which in any case, in the reasonable
judgment of the Grantee, has a material and adverse effect on the existing
business of Westland Realty or the Partnership, in each case taken as a
whole.
(f) SUBSIDIARY DEBT. The Grantor shall have made satisfactory
provision for the payment of all loans and indebtedness of the Subsidiaries
as of the Closing Date, such that such indebtedness is paid in full, other
than with respect to the amounts listed on SCHEDULE I hereto and other than
the Subsidiaries' share of indebtedness of the Partnership.
(g) DIRECTOR, OFFICER RESIGNATION. The officers and directors of
Westland Realty shall have submitted their resignations.
(h) PRUDENTIAL CONSENT. The consent, if required, of The Prudential
Insurance Company of America, as mortgage lender to the Partnership
("Prudential"), shall have been obtained if required, pursuant to the
documents evidencing the Partnership's indebtedness to Prudential and the
related security documents (the "Prudential Loan Documents").
(i) PURCHASE AND SALE AGREEMENT. The Grantor and Grantee shall have
entered into a mutually satisfactory contract for the purchase and sale of
common stock of Westland Realty, which agreement (i) shall be on the terms
and conditions set forth herein, (ii) shall provide for representations,
warranties and indemnities as to Westland Realty and the Property
substantially in the form attached hereto as SCHEDULE II and (iii) shall
contain such other matters as shall reasonably be agreed to by the Grantor
and the Grantee acting reasonably.
(j) AUSTRALIAN APPROVALS. The Grantor, Westfield Holdings, the
Grantee and Westfield America Trust shall have received all approvals or
consents required under Australian law or regulations for the consummation
of
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the transactions contemplated hereby, including, without limitation, any
consents or approvals required pursuant to the Australian Corporations Law
and the Australian Stock Exchange Listing Rules (including, without
limitation, Rule 3(J)(3) thereof).
(k) CONSENTS. All other required consents of third parties to the
consummation of the closing shall have been obtained.
4.2. OBLIGATIONS OF THE GRANTOR. Subject to Section 16.1, if the
Grantee exercises the Option on or prior to the expiration of the Option Period,
the obligations of the Grantor to consummate the transactions contemplated
hereby shall be subject to the fulfillment on or prior to the Closing Date of
the following conditions, which the Grantee shall use commercially reasonable
efforts to cause to be fulfilled:
(a) DELIVERY OF THE PURCHASE PRICE. The Grantee shall have delivered
the Purchase Price (as adjusted pursuant to Section 6.1) to the Grantor
either (i)if the Purchase Price is to be paid in cash, by wire transfer of
immediately available funds to the account of the Grantor designated at
least 5 business days prior to the Closing Date, or (ii) if the Purchase
Price is to be paid in common stock of the Grantee, by delivering to the
Grantor a certificate or certificates representing the agreed upon number
of duly authorized, validly issued, fully paid and nonassessable common
stock of the Grantee, such shares to be free and clear of all security
interests, mortgages, liens, charges, restrictions, encumbrances and claims
of any nature whatsoever.
(b) REPRESENTATIONS, PERFORMANCE. The Grantee's representations and
warranties in Section 12 shall be true and correct in all material respects
as of the date hereof and as of the Closing Date. The Grantee shall have
duly performed and complied in all material respects with all agreements
and obligations required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(c) OFFICER'S CERTIFICATE. The Grantee shall have delivered to the
Grantor a certificate of the Grantee, dated the Closing Date, as to the
fulfillment of the condition set forth in Section 4.2(b).
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(d) PRUDENTIAL CONSENT. The condition set forth in Section 4.1(h)
shall have been satisfied.
(e) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. The condition set forth in Section 4.1(c)
shall have been satisfied.
(f) PURCHASE AND SALE AGREEMENT. The condition set forth in Section
4.1(i) shall have been satisfied.
(g) AUSTRALIAN APPROVALS. The condition set forth in Section 4.1(j)
shall have been satisfied.
(h) CONSENTS. The condition set forth in Section 4.1(k) shall have
been satisfied.
5. PURCHASE PRICE; APPRAISAL. 5.1 PURCHASE PRICE. (a) The Purchase
Price shall be equal to 50% of the amount by which the Fair Market Value of the
Property (as such term is defined in Section 5.2) exceeds the principal amount
of indebtedness of the Partnership secured by the Property and the principal
amount of any long term unsecured indebtedness of the Partnership for borrowed
money, determined in accordance with the terms of this Agreement, PROVIDED that
(i) if the Grantor sells any of the Common Stock pursuant to Section 16, then
the Purchase Price shall be reduced to reflect the percentage of ownership of
the Common Stock held by the Grantor and its Affiliates and (ii) if any
Subsidiary has any outstanding debt (other than its allocable share of
Partnership debt) that will not be satisfied pursuant to Section 4.1(f) or has
any preferred or other senior securities that will remain outstanding, the
Purchase Price shall be reduced by the amount of such indebtedness or value of
preferred or other senior securities.
(b) At the election of the Grantor, the Purchase Price may be paid by
the issue to the Grantor of shares of Class B-2 common stock of the Grantee,
such shares to be duly authorized, validly issued, fully paid and nonassessable
and free and clear of all security interests, mortgages, liens, charges,
restrictions, encumbrances and claims of any nature whatsoever.
5.2. APPRAISAL. (a) The Grantor shall deliver to the Grantee
written notice of the occurrence of either of the Valuation Procedure
Commencement Events promptly after the occurrence thereof. In such notice, the
Grantor shall state the amount of its net investment in the Property indirectly
through Westland Management and Westland Partners, whether made by debt or
equity investment. ▇▇▇▇▇▇▇▇ Real
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Estate Counselors ("▇▇▇▇▇▇▇▇") shall be appointed as the appraiser to determine
the fair market value of the Property (the "Fair Market Value of the Property")
unless the Grantor and the Grantee shall in good faith select jointly another
appraiser to determine the Fair Market Value of the Property, such selection to
be made within 15 business days of the date of such notice. ▇▇▇▇▇▇▇▇ or such
other mutually agreed upon appraiser shall be defined herein as the "Appraiser".
If the Grantor and the Grantee shall desire to appoint another appraiser but
cannot agree for any reason or no reason, the Appraiser shall be ▇▇▇▇▇▇▇▇. The
determination of the Fair Market Value of the Property determined by the
Appraiser shall be binding upon the Grantor and the Grantee, and shall be
delivered by the Appraiser in writing to the Grantor and the Grantee within 30
days of the appointment of the Appraiser.
(b) The written notice of the Fair Market Value of the Property
delivered to the Grantor and the Grantee by the Appraiser shall be deemed the
"Valuation Notice." If ▇▇▇▇▇▇▇▇ is not the Appraiser, the other appraiser
appointed pursuant to this Section 5.2 shall be a MAI real estate appraiser with
at least 15 years experience in valuing real estate and superegional shopping
centers in the United States. The determination of the Fair Market Value of the
Property shall be based on the fair market value of the Property based on its
then use as a shopping center as of the date of the first Valuation Procedure
Commencement Date to occur. The cost of the appraiser shall be borne jointly by
the Grantor and the Grantee.
6. ADJUSTMENT OF THE PURCHASE PRICE; ALLOCATION OF INCOME AND
EXPENSES. (a) The Purchase Price shall be increased by the amount by which the
consolidated current assets of Westland Realty exceed its consolidated current
liabilities, or decreased by the amount by which its consolidated current
liabilities exceed its consolidated current assets, in either case determined as
of the Closing Date in accordance with generally accepted accounting principles
("GAAP") applied consistently, including (i) the share of current assets and
current liabilities of the Partnership attributable indirectly to Westland
Realty and (ii) such amounts, by means of equity or debt, contributed by
Westland Realty to the Partnership through Westland Management and/or Westfield
Partners, from and after the date of the first Valuation Procedure Commencement
Date, PROVIDED that following any exercise of the Option by Grantee such
contributions shall be limited to the extent required by the then applicable
budget for the Property, as
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approved by the joint venture partner of the Partnership, or the Partnership
Agreement for the Partnership or as may be reasonably approved by Grantee.
(b) Upon the occurrence of the first to occur of the Valuation
Procedure Commencement Events, the Grantor shall deliver to the Grantee the most
recent audited consolidated financial statements of Westland Realty and its
Subsidiaries, the most recent audited financial statement of the Partnership,
and the unaudited consolidated financial statements of the Partnership and
Westland Realty (and its Subsidiaries) for the period since the date of the
applicable audited financial statements.
7. NO DILUTION OR IMPAIRMENT. The Grantor will cause Westland Realty
not to, by amendment of its articles of incorporation or through any
consolidation, merger, reorganization, transfer of assets, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Agreement, PROVIDED that
nothing in this Agreement shall restrict or prevent Westland Realty from issuing
any Common Stock for any corporate purpose as determined by the Board of
Directors of Westland Realty so long as such actions do not interfere with the
right of the Grantee to exercise the Option granted in this Agreement.
8. OWNERSHIP OF COMMON STOCK, ETC. Except as set forth in this
Agreement, until the expiration of the Option Period, or, if the Option is
exercised by the Grantee, until the Closing Date, the Grantor will at all times
be the registered and beneficial owner of the Common Stock.
9. FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all commercially reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement. Upon the exercise by the
Grantee of the Option, the Grantor and the Grantee will promptly make, and will
promptly cause Westfield Realty to make, any required filings under the HSR Act
and comply with all requests for information in connection therewith, all at the
sole expense of the Grantee.
10. DUE DILIGENCE. The Grantor agrees to cooperate with the Grantee
so as to permit the Grantee to perform reasonable due diligence on Westland
Realty, the Partnership
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and the Property during the Option Period. All fees, costs and expenses
relating hereto shall be borne exclusively by the Grantee. In no event may any
due diligence of the Partnership or the Property performed by the Grantee
interfere with the operation of the the Partnership or the Property or any of
the tenants at the Property. The Grantee shall indemnify the Grantor and the
Partnership from all loss, liability, claims or damages that may arise out of
the due diligence investigations performed by the Grantee.
11. REPRESENTATIONS AND WARRANTIES OF THE GRANTOR. The Grantor
hereby represents and warrants to the Grantee as follows:
11.1. TITLE TO THE OPTIONED SHARES, ETC. The Grantor owns,
beneficially and of record, the Optioned Shares, free and clear of any security
interest, mortgage, lien, charge, restriction, encumbrance or claim. The
Optioned Shares constitute the only securities of Westland Realty owned
beneficially or of record by the Grantor. At the Closing, the Grantor will
deliver to the Grantee good and valid title to the Optioned Shares to be
transferred at the Closing free and clear of all security interests, mortgages,
liens, charges, restrictions, encumbrances and claims other than those created
by the Grantee.
11.2. AUTHORIZATION, ETC. The Grantor is a corporation duly
organized, validly existing and in good standing under the laws of Australia and
has full corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement has been,
and, upon exercise of the Options, the performance of the Grantor's obligations
hereunder and the consummation of the transactions contemplated hereby will have
been, duly authorized by all requisite corporate action of the Grantor. This
Agreement constitutes the legal, valid and binding obligation of the Grantor
enforceable against the Grantor in accordance with its terms subject only to
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and to general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at law.
11.3. NO CONFLICTS, CONSENTS ETC. The execution, delivery and
performance of this Agreement by the Grantor and the consummation of the
transactions contemplated hereby will not conflict with or result in any
violation of or
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default under any provisions of the Grantor's Memorandum of Association or
articles of association, any contract, agreement, arrangement or commitment of
the Grantor, any law, rule or regulation applicable to the Grantor (subject to
obtaining any required consents set forth below) or any judgment, decree or
order of any court, governmental agency or authority applicable to or binding
upon the Grantor. No filing, consent, approval, order or authorization of any
court, administrative agency or other governmental entity or any other person or
entity is required to be obtained or made by the Grantor in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby by the Grantor other than those required for compliance with
the HSR Act, and other than those which may be required at the time of the
exercise of the Option and/or at the Closing of the Option pursuant to the
Prudential Loan Documents or the Australian Corporations Law or Australian Stock
Exchange Listing Rules.
12. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE. The Grantee
hereby represents and warrants to the Grantor as follows:
12.1. AUTHORIZATION, ETC. The Grantee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Missouri and has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
has been, and, upon exercise of the Option, the performance of the Grantee's
obligations hereunder and the consummation of the transactions contemplated
hereby will have been, duly authorized by all requisite corporate action of the
Grantee. This Agreement constitutes the legal, valid and binding obligation of
the Grantee enforceable against the Grantee in accordance with its terms subject
only to applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally and to general principles of
equity, regardless of whether enforcement is sought in a proceeding in equity or
at law.
12.2. NO CONFLICTS, CONSENTS ETC. The execution, delivery and
performance of this Agreement by the Grantee and the consummation of the
transactions contemplated hereby will not conflict with or result in any
violation of or default under any provisions of the Grantee's articles of
incorporation or by-laws, any contract, agreement, arrangement or commitment of
the Grantee, any law, rule or regula-
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tion applicable to the Grantee (subject to obtaining the consents set forth
below), or any judgment, decree or order of any court, governmental agency or
authority applicable to or binding upon the Grantee. No filing, consent,
approval, order or authorization of any court, administrative agency or other
governmental entity or any other person or entity is required to be obtained or
made by the Grantee in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby by the
Grantee other than those required for compliance with the HSR Act or the
Australian Corporations Law or Australian Stock Exchange Listing Rules and those
which have been made.
12.3. INVESTMENT REPRESENTATION. The Grantee is acquiring the
Optioned Shares for its own account and not with a view to, or for sale in
connection with, any distribution thereof within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), nor with any intention of
reselling or granting any participation in all or any part of the Optioned
Shares being acquired by it to any person or entity in a transaction that would
violate the Securities Act or this Agreement.
13. OPERATION OF WESTLAND REALTY, THE PARTNERSHIP AND THE PROPERTY.
Notwithstanding anything in this Agreement to the contrary, the Grantor shall
(i) from the date hereof until the Grantee's exercise of the Option as provided
herein, be permitted to operate Westland Realty and cause Westland Realty,
Westland Management, Westfield Partners and the Partnership to maintain and use
the Property in any manner in which the Grantor, in its sole discretion, deems
appropriate or necessary to carry on the business of each of Westland Realty,
Westfield Management, Westfield Partners, the Partnership and the Property and
(ii) from the date of the Grantee's exercise of the Option until the Closing
Date, cause Westland Realty and the Partnership to operate each of their
businesses and the business of the Property only in the ordinary course of
business and in a manner which is not adverse to the Grantee, PROVIDED that,
should any consent or approval be required from the Grantee relating to the
operation of the Property, Westland Realty, Westland Management or Westfield
Partners, such consent shall not be unreasonably withheld or delayed.
14. TAXES. The Grantee shall be entitled to withhold amounts paid as
Purchase Price by the Grantee to the Grantor to the extent necessary and
applicable under United States Federal, State and local Tax laws.
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15. RESTRICTIVE LEGENDS. The Grantor shall cause each certificate
representing the Optioned Shares to be imprinted with a legend (the "Agreement
Legend") in substantially the following form until such securities are no longer
subject to the provisions of this Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN LIMITATIONS ON TRANSFER SPECIFIED IN AN OPTION AGREEMENT,
DATED AS OF JULY 1, 1996, BETWEEN WESTFIELD CAPITAL CORPORATION
FINANCE PTY. LIMITED AND CENTERMARK PROPERTIES, INC., AND
WESTLAND REALTY, INC. ("WESTLAND REALTY") RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF SUCH SECURITIES UNLESS SUCH TRANSFER IS IN
ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT. A COPY OF SUCH
OPTION AGREEMENT WILL BE FURNISHED BY WESTLAND REALTY TO THE
HOLDER HEREOF UPON REQUEST AND WITHOUT CHARGE."
Upon request of the Grantee, the Grantor shall cause Westland Realty
to remove the Agreement Legend from the certificate or issue to the Grantee a
new certificate therefor free of the Agreement Legend upon receipt of an opinion
by counsel satisfactory in form and substance to Westland Realty that the
Agreement Legend is no longer required. Westland Realty shall have the right to
notify Westland Realty's transfer agent not to transfer the Optioned Shares
except upon compliance with the Agreement Legend, while such Legend remains in
effect.
16. MISCELLANEOUS.
16.1. TERMINATION. The Option, whether or not exercisable by the
Grantee, shall terminate at any time during the Option Period and shall be
canceled immediately upon any of the following events: (i) the sale by the
Partnership of the Property prior to the exercise of the Option by the Grantee;
(ii) the failure by the Grantee to exercise the Option within the Option Period;
(iii) any material default by the Grantee of its obligations under this
Agreement which default shall continue for a period in excess of 30 days after
the Grantee has received written notice from the Grantor that such default has
occurred; (iv) Westfield Holdings or any of its Affiliates shall cease to be the
manager of Westfield America Trust, an Australian public trust constituted by
the Westfield American Properties Trust Deed, dated March 28, 1996, as amended,
or
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shall cease to be the property manager, asset manager or developer of all or
substantially all of the properties owned by the Grantee on terms and conditions
acceptable to Westfield Holdings or its Affiliates; or (v) any termination of
the Option with respect to the sale of Common Stock by the Grantor in accordance
with Section 16.4. For purposes of this Agreement, "Affiliates" shall mean,
with respect to any individual, partnership, joint venture, corporation,
corporation, trust, unincorporated entity or association (the "Subject Person"),
any other individual, partnership, joint venture, corporation, trust,
unincorporated association or other entity or association (the "Person")
controlling, controlled by or under common control with the Subject Person.
16.2. REMEDIES. Each party hereto stipulates that the remedies at
law of the other parties in the event of the default or threatened default by
such party in the performance of or compliance with any of the terms of this
Agreement are not and will not be adequate and that, in addition to all such
remedies, to the fullest extent permitted by law, such terms may be specifically
enforced by a decree for the specific performance of any agreement contained
herein or by an injunction against a violation of any of the terms hereof or
otherwise.
16.3. SUCCESSORS AND ASSIGNS. This Agreement and the Option granted
hereunder shall not be assignable by the Grantee, except that the Grantee, with
written notice to the Grantor, may assign this Agreement and the Option granted
hereunder to a wholly-owned direct or indirect subsidiary or partnership of the
Grantee, PROVIDED that such right to assign to a wholly-owned direct or indirect
subsidiary or partnership of the Grantee may be utilized one time only and no
further assignments by such subsidiary or partnership, directly or indirectly,
or by operation of law, shall be permitted.
16.4 RIGHT OF FIRST OFFER. (a) The Grantor may assign all or a
portion of the Common Stock of Westland Realty to one or more persons or
entities without the consent of the Grantee, PROVIDED that, except in the case
of an Affiliate Transfer (as hereinafter defined), in the event that the Grantor
wishes to sell all or a portion of the Common Stock of Westland Realty prior to
the expiration of the Option Period, it shall first make a written offer (the
"Offer") to sell such Common Stock to be offered for sale to the Grantee in
accordance with the terms set forth in Sections (b) and (c) below. For purposes
of this Agreement,
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an "Affiliate Transfer" shall mean a transfer by the Grantor to an Affiliate of
the Grantor or a subsequent transfer or transfers to another Affiliate of the
Grantor.
(b) The Offer shall contain the price and general terms upon which
the Common Stock or a portion thereof is being offered for sale. The Grantee
shall have the right to accept or reject such Offer by way of written notice
delivered within 30 days after receipt of the Offer and a definitive agreement
regarding the subject matter of such Offer entered into within such 30-day
period (the "Acceptance Process"). If the Grantee elects to reject such offer
or fails to make a timely acceptance or timely enter into a definitive agreement
regarding the subject matter of such Offer, the Grantor shall be free for a
period of 180 days thereafter to sell such Common Stock which is the subject of
the Offer to any third party at a price which is no less than 90% of the offer
made to the Grantee. Upon such sale to the third party, the Option to the
Grantee shall immediately terminate with respect to the Common Stock subject to
the Offer.
(c) If the Grantor is unable to consummate such a sale, but receives a
bona fide third-party offer that is at a price that is less than 90% of the
original Offer price, and the Grantor is willing to sell at such price, the
Grantor shall provide the Grantee with a copy of such offer (the
"Counteroffer"). The Grantee shall have 15 days from the receipt of such
Counteroffer to reject the Counteroffer. If the Grantee rejects the
Counteroffer or fails to make a timely acceptance, including the signing of a
definitive agreement in accordance with the Acceptance Process, the Grantor
shall be free for a period of 180 days thereafter to sell such Common Stock to a
third-party offeror in accordance with the price set forth in the Counteroffer.
16.5. NOTICES. Any notice or other communication required or
permitted to be given hereunder or for the purposes hereof to any party shall be
in writing and shall be sufficiently given if (i) delivered personally,
(ii) mailed by certified or registered mail, postage prepaid, (iii) transmitted
by facsimile (and confirmed by mail) or (iv) sent by next-day or overnight mail
or delivery to:
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If to the Grantor, to:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇) ▇▇▇-▇▇▇▇
Attention: Company Secretary and General Counsel
If to the Grantee, to:
c/o Westfield Corporation, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Executive Director and General Counsel
or such other address or to such other person's attention as the party to whom
such notice is to be given shall have last notified to the party giving the same
in the manner provided in this Section. Any notice so delivered to the party to
whom it is addressed shall be deemed to have been given and received (i) if by
personal delivery, on the day of such delivery, (ii) if by certified or
registered mail, on the seventh day after mailing thereof, (iii) if by
facsimile, the day on which such facsimile was sent or (iv) if by next-day or
overnight mail delivery, on the day delivered, PROVIDED that if any such day is
not a business day then the notice shall be deemed to have been given and
received on the business day next following such day.
16.6. EXPENSES. Except as otherwise provided in this Agreement,
whether the transactions contemplated herein are or are not consummated, the
Grantee agrees to pay all expenses, costs and fees incurred in connection with
this Agreement or any transaction contemplated by this Agreement, including,
without limitation, (i) all reasonable transaction costs in connection with the
exercise of the Option and the Closing, (ii) all expenses, costs and fees
relating to any due diligence performed by the Grantee in accordance with
Section 10, and (iii) all expenses, costs and fees relating to the obtaining of
any necessary consents or approvals (including those required under the HSR
Act), PROVIDED that the Grantor shall be responsible for the expenses, costs and
fees of its attorneys, counsel and other experts and any transfer or other fees
payable to Prudential.
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16.8. AMENDMENTS; WAIVERS. No amendment, modification or discharge
of this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver or
instance shall constitute a waiver, modification or discharge, as the case may
be, only with respect to the specific matter described in such writing and shall
in no way impair the rights of the party granting such waiver in any other
respect or at any other time.
16.7. NO WARRANTY OF TITLE. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT OR IN THE STOCK PURCHASE AGREEMENT, THE GRANTOR MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO WESTLAND REALTY, WESTLAND
MANAGEMENT, WESTFIELD PARTNERS OR THE PARTNERSHIP. EXCEPT AS MAY OTHERWISE BE
SET FORTH IN THE STOCK PURCHASE AGREEMENT, THE TRANSFER BY THE GRANTOR OF AN
INDIRECT INTEREST IN THE PROPERTY ON THE CLOSING DATE WILL BE ON AN "AS IS"
AND "WHERE IS" BASIS AND THE GRANTOR SHALL NOT BE DEEMED TO HAVE MADE, AND THE
GRANTOR HEREBY DISCLAIMS, ANY OTHER REPRESENTATION OR WARRANTY, EITHER EXPRESS
OR IMPLIED, AS TO THE PROPERTY, INCLUDING WITHOUT LIMITATION, TITLE TO THE
PROPERTY, THE CONDITION OF THE PROPERTY, ABSENCE OF LIENS ON THE PROPERTY, THE
CONDITION OF THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE, ITS VALUE OR CONFORMITY OF THE PROPERTY TO THE PROVISIONS
AND SPECIFICATIONS OF ANY AGREEMENT RELATING THERETO, NOR SHALL THE GRANTOR BE
LIABLE TO THE GRANTEE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR STRICT
OR ABSOLUTE LIABILITY IN TORT WHICH MAY ARISE AS A RESULT OF THE INDIRECT
TRANSFER OF AN INTEREST IN THE PROPERTY PURSUANT HERETO.
16.9. SEVERABILITY. If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
16.10. HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
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16.11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which taken together shall constitute one and the same
instrument.
16.12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to the conflicts of law principles of such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered on the day and year first above written.
WESTFIELD CAPITAL CORPORATION
FINANCE PTY.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
CENTERMARK PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
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