EXHIBIT 99(d)(9)
Westfield Holdings Limited
The Directors ACN 000 000 000
Security Capital Preferred Growth Level 24 Westfield Towers
Incorporated 000 Xxxxxxx Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx Xxxxxx XXX 0000 Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 GPO Box 4004
UNITED STATES OF AMERICA Sydney NSW 2001
TELEPHONE 00 0 0000 0000
FACSIMILE 61 2 9358 7077
Dear Sirs
WESTFIELD AMERICA TRUST
Under an agreement (the PREFERRED STOCK TRANSACTION AGREEMENT) made on or
about February 2001, between Westfield America Management Limited (WAML) as
responsible entity and trustee of the Westfield America Trust (WAT) and
Security Capital Preferred Growth Incorporated (SCPG), WAML has given certain
covenants in relation to the composition of its Board of Directors. In
particular, WAML has made the covenants contained in clause 7(k) and clause
7(l) of the Preferred Stock Transaction Agreement. Those covenants are as
follows.
"(k) So long as any of the Series G Preferred Stock or Conversion Stock
remains outstanding and owned by Investor, (A) at least 51% of WAML's
Board of Directors shall consist of external directors (as defined under
Section 601JA(2) of the Corporations Law) or (B)(i) at least 51% of
WAT's Compliance Committee (or Board of Directors if WAT shall then have
a Board of Directors in lieu of a Compliance Committee) shall consist of
external directors or members (as defined under section 601JB(2) of the
Corporations Law) and (ii) at least 51% of the Company's Board of
Directors shall consist of independent directors (as defined under Rule
303.01(B)(2)(a) of the New York Stock Exchange Listed Company Manual).
WAML agrees to do, and to cause the Company to do, all things necessary
to maintain external or independent, as the case may be, directors to
the extent set forth in this Section 7(k), if and so long as required
hereunder, including, without limitation, obtaining the consent of WHL
to such external or independent, as the case may be, directors.
"(l) If and whenever the Investor is entitled to elect directors to the
Board of Directors of the Company pursuant to the Series G
Certificate of Designation, the Investor shall have the right to
appoint a number of members to the Board of Directors of WAML such
that the Investor has the same percentage of appointed directors to
the total number of WAML directors as it has of the Board of Directors
of the Company under the Series G Certificate of Designation. WAML
agrees to do all things necessary to enable the Investor to exercise
and make effective such right to appoint members to the Board of
Directors of WAML, including, without limitation, obtaining the consent
of WHL to such appointments and its agreement not to remove such
appointed directors."
(In the Preferred Stock Transaction Agreement, "Investor" means SCPG and
"Company" means Westfield America, Inc.).
Accordingly, in consideration of SCPG's entering into the Preferred Stock
Transaction Agreement and related transaction documentation for the purpose
of facilitating the Westfield Group's reorganisation and as the holder of 100%
of the issued capital of
WAML, Westfield Holdings Limited (WHL), to the extent that it is able to do
so under the Corporations Law:
- undertakes to take all actions necessary to be taken by WHL to ensure
that the composition, from time to time, of WAML's Board of Directors or
WAT's Compliance Committee is such that WAML at all times complies with
the covenant in clause 7(k) of the Preferred Stock Transaction Agreement;
- consents to the appointment, by SCPG, of directors to the Board of
Directors of WAML in accordance with clause 7(l) of the Preferred Stock
Transaction Agreement;
- undertakes not to withdraw that consent while the Preferred Stock
Transaction Agreement remains binding upon WAML;
- undertakes to take all actions necessary to be taken by WHL to facilitate
the appointment, by SCPG, of directors to the Board of Directors of WAML in
accordance with clause 7(l) of the Preferred Stock Transaction Agreement;
and
- undertakes not to take any action to remove directors appointed by SCPG
in accordance with clause 7(l) of the Preferred Stock Transaction Agreement.
Yours faithfully
/s/ XXXXXXX X. XXXXX /s/ XXXXX X. XXXX
--------------------------------- -------------------------------------
Westfield Holdings Limited Westfield America Management Limited
by its authorised officer by its authorised officer
Dated as of 15 February 2001 Dated as of 15 February 2001
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