Exhibit C
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of May 29, 1998,
between Westfield America, Inc., a Missouri corporation (the "Company"),
Perpetual Trustee Company Limited, an Australian company (the "Trustee"),
and Westfield America Management Limited, an Australian company (the
"Manager"). Defined terms used herein without definition shall have the
respective meanings set forth in Section 6 hereof.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Trust Deed, dated March 29, 1996,
as amended (the "Trust Deed"), between the Trustee and the Manager,
Westfield America Trust, an Australian public property trust ("WAT"), was
created, and the Trustee and the Manager have authority to act on behalf of
WAT under the Trust Deed;
WHEREAS, it is expected that the Manager will issue to
eligible investors in Australia 3,100,000 Series A Class Units (the "Series
A Units"), 3,100,000 Series B Class Units (the "Series B Units") and
3,100,000 Series C Class Units (the "Series C Units" and, together with the
Series A Units and the Series B Units, the "Units"), pursuant to the Deed
of Variation No. 4, dated May 29, 1998 (the "Deed of Variation"), to the
Trust Deed;
WHEREAS, each Unit will have an application price of
Aus.$50.20 per Unit, of which Aus.$0.20 per Unit will be paid at the time
of original issuance of the Units;
WHEREAS, the balance of the application price of Aus.$50.00
for each of the Series A Units, the Series B Units and the Series C Units
will be payable by the holder thereof twenty-three business days prior to
June 29, 2001, June 28, 2002 and June 30, 2003, respectively;
WHEREAS, the Manager has directed the Trustee on behalf of
WAT to subscribe for the purchase, and the Company desires to sell to the
Trustee on behalf of WAT, the number of shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), set forth herein on
each Closing Date (as defined herein), subject to the terms and conditions
contained herein.
NOW, THEREFORE, to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereto
hereby agree as follows:
1. Purchase and Sale of Common Stock.
(a) Purchase of Common Stock. Subject to all of the terms
and conditions of this Agreement, the Trustee on behalf of WAT shall
subscribe for and purchase, and the Company shall sell to the Trustee on
behalf of WAT, the number of shares of Common Stock calculated as provided
in Section 1(b) (the "Subscription Shares"), for an aggregate purchase
price in U.S. dollars calculated as provided in Section 1(c) (the "Purchase
Price"), at the First Closing, the Second Closing and the Third Closing, as
the case may be, provided for in Section 2(a) hereof.
(b) Subscription Shares. The number of shares of Common
Stock to be subscribed for and purchased by the Trustee on behalf of WAT at
each closing shall be calculated by dividing the applicable Subscription
Amount by the applicable Adjusted Average Share Price, rounded to the
nearest whole share, provided that, for purposes of this calculation and
the definition of the term "Subscription Shares", the number of
Subscription Shares shall in no event exceed the NYSE Maximum Permitted
Number of Shares.
(c) Purchase Price. The Purchase Price payable at each
closing shall equal the product of (x) the number of Subscription Shares to
be purchased at such Closing, times (y) the Adjusted Average Share Price.
(d) NYSE Cash Adjustment Amount. Unless the Company has made
a Cash Election or a Share Election pursuant to Section 1(e), if the NYSE
Maximum Permitted Number of shares is less than the Unadjusted Share Number
in respect of such Closing, (i) the Trustee on behalf of WAT shall
subscribe for a number of Subscription Shares equal to the NYSE Maximum
Permitted Number of Shares and (ii) the Company shall pay in cash to the
Trustee on behalf of WAT as liquidated damages an amount in U.S. dollars
(the "Cash Adjustment Amount") equal to the product of (x) such unadjusted
Share Number less the NYSE Maximum Permitted Number of Shares in respect of
such Closing, times (y) the Average share Price, times (z) 0.05. Any Cash
Adjustment Amount shall be payable at the Closing to which it relates, as
provided in Section 2(b).
(e) Cash or Share Election. Notwithstanding any other
provision of this Agreement, the Company may, in its sole and absolute
discretion, by notice to the Trustee and the Manager at any time prior to
or on May 25, 2001 in respect of the First Closing, May 23, 2002 in respect
of the Second Closing and May 23, 2003 in respect of the Third Closing (or,
in any case, if such day is not a Business Day, the immediately preceding
Business Day), (A) elect (a "Cash Election") to pay in cash to the Trustee
on behalf of WAT, in lieu of delivering Subscription Shares at such
Closing, an amount in U.S. dollars (the "Cash Election Amount") equal to
the product of (x) the Unadjusted Share Number, times (y) the Average Share
Price, times (z) 0.05, or (B) elect (a "Share Election") to deliver to the
Trustee on behalf of WAT, in lieu of delivering Subscription Shares at such
Closing, a number of shares of Common Stock ("Election Shares") calculated
by dividing the applicable Cash Election Amount (as calculated pursuant to
the foregoing clause (A)) by the applicable Average Share Price, rounded to
the nearest whole share. Any Cash Election or Share Election shall relate
to all of the Subscription Shares otherwise required to be delivered at the
applicable Closing, and in no event shall the Company be entitled to make a
partial Cash Election or Share Election.
Any Cash Election Amount shall be payable prior to or at the
Closing to which the relevant Cash Election relates, as provided in Section
2(b). Any Election Shares shall be deliverable prior to or at the Closing
to which the relevant Share Election relates, as provided in Section 2(b).
The Company shall be entitled to make either a Cash Election or a Share
Election in respect of any or all Closings and in its sole and absolute
discretion. A Cash Election or a Share Election made in respect of any
Closing shall not affect the parties' respective rights and obligations
under this Agreement in respect of any subsequent Closing, subject to all
of the terms and conditions hereof.
(f) Unit Redemption To Have No Effect. The obligations of
the Trustee and the Manager under this Agreement, including, without
limitation, the obligation to subscribe for and purchase shares of Common
Stock at each Closing, shall continue in full force and effect
notwithstanding any election by the Manager to cause the Trustee to redeem
the Series A Units, the Series B Units or the Series C Units pursuant to
the Deed of Variation.
(g) Notice by Manager and Trustee. The Manager and the
trustee hereby agree to provide written notice to the Company at least four
Business Days prior to each Closing Date of the aggregate of the Remaining
Instalment Amounts paid or deemed to be paid to the Trustee or the Manager
on behalf of WAT in respect of Series A Units, Series B Units and Series C
Units, respectively, pursuant to the Deed of Variation.
(h) ASX Maximum Permitted Number of Shares. In no event,
shall the Trustee be required to subscribe for an purchase, or the Company
be required to sell to the Trustee, shares of Common Stock in excess of the
number of shares of Common Stock for which the Trustee on behalf of WAT is
permitted to subscribe in accordance with the terms of clause 1.3 of the
letter, dated March 27, 1998, from the Australian Stock Exchange (the
"ASX") to the Manager, as and to the extent that such terms may be waived
from time to time by the ASX (such number of shares being referred to
herein as the "ASX Maximum Permitted Number of Shares"). If the NYSE
Maximum Permitted Number of Shares exceeds the ASX Maximum Permitted Number
of Shares in respect of any Closing, then for purposes of the relevant
provisions of this Agreement in respect of such Closing all references to
the term "NYSE Maximum Permitted Number of Shares" shall be deemed to be
"ASX Maximum Permitted Number of Shares."
2. Closings.
(a) Time and Place. Subject to the satisfaction of the
conditions contained herein, (i) the first closing of the sale and the
purchase of Subscription Shares and, if applicable, the payment of any Cash
Adjustment Amount or Cash Election Amount or the delivery of any Election
Shares (the "First Closing") shall be held at 9:00 a.m. (New York time) on
June 29, 2001 or such other date pursuant to clause (x) or (y) below (the
"First Closing Date"), (ii) the second closing of the sale and the purchase
of Subscription Shares and, if applicable, the payment of any Cash
Adjustment Amount or Cash Election Amount or the delivery of any Election
Shares (the "Second Closing") shall be held at 9:00 a.m. (New York time) on
June 28, 2002 or such other date pursuant to clause (x) or (y) below (the
"Second Closing Date") and (iii) the third closing of the sale and the
purchase of Subscription Shares and, if applicable, the payment of any Cash
Adjustment Amount or Cash Election Amount or the delivery of any Election
Shares (the "Third Closing" and, together with the First Closing and the
Second Closing, the "Closings") shall be held at 9:00 a.m. (New York time)
on June 30, 2003 or such other date pursuant to clause (x) or (y) below
(the "Third Closing Date" and, together with the First Closing Date and the
Second closing Date, the "Closing Dates"), or, in each case, (x) at such
other time and date as the parties may agree in writing or (y) in the case
of payment of any Cash Election Amount or delivery of any Election Shares
at such earlier date as the Company may elect in its sole and absolute
discretion by notice in writing to the Trustee and the Manager. Each
Closing shall be held at the offices of Debevoise & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(b) Delivery by the Company. At each Closing, subject to
Section 1(e)(A), the Company shall deliver to the Trustee on behalf of WAT
a stock certificate registered in the Trustee's name and representing the
Subscription Shares to be delivered at such Closing pursuant to Section
1(a) or the Election Shares to be delivered at such Closing pursuant to
Section 1(e), as the case may be. If the Company is required to pay a Cash
Adjustment Amount pursuant to Section 1(d) at any Closing, the Company
shall pay the Trustee on behalf of WAT, by wire transfer of immediately
available funds to the account of the Trustee with a bank in New York City
designated at least two Business Days prior to the relevant Closing Date,
such Cash Adjustment Amount. If the Company has made a Cash Election
pursuant to Section 1(e) (A) in respect of any Closing, the Company shall
pay to the Trustee on behalf of WAT, by wire transfer of immediately
available funds to the account of the Trustee with a bank in New York City
designated at least two Business Days prior to the relevant Closing Date,
the applicable Cash Election Amount.
(c) Delivery by the Trustee and Manager. At each Closing,
subject to Section 1(e), the Trustee and the Manager shall pay or cause to
be paid to the Company, by wire transfer of immediately available funds to
the account of the Company with a bank in New York City designated at least
two Business Days prior to the relevant Closing Date, the Purchase Price
payable pursuant to Section 1(c) hereof.
3. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Trustee as follows:
(a) Authorization. The Company has full power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Company.
(b) Common Stock. The Subscription Shares or the Election
Shares, as applicable, to be delivered by the Company at each Closing, as
of the relevant Closing Date, will have been duly authorized for issuance
and, when delivered in accordance with this Agreement, will be validly
issued, fully paid and non-assessable.
4. Representations and Warranties of Trustee and Manager.
The Manager and the Trustee hereby represent and warrant to the Company as
follows:
(a) Authorization. Each of the Trustee and the Manager has
full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby in accordance with the
terms hereof and on behalf of WAT. The execution and deliver of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by or on behalf of each of WAT, the Trustee and the
Manager.
(b) Securities Law Matters. The Manager and the Trustee
acknowledge receipt of advice from the Company that (i) neither the
Subscription Shares nor the Election Shares, as the case may be, will be
registered under the Securities Act or qualified under any state securities
or "blue sky" laws and (ii) a restrictive legend stating that such shares
of Common Stock have not been registered under the U.S. Securities Act of
1933, as amended, and setting forth or referring to the restrictions and
transferability and sale thereof shall be placed on the certificates
representing such shares.
5. Conditions.
(a) Conditions to the Obligations of the Trustee. The
obligations of the Trustee to purchase the Subscription Shares at each
Closing is subject to the satisfaction or waiver at or prior to the
applicable Closing Date of the following conditions:
(i) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all
material respects at and as of the date hereof, and true and
correct in all material respects at and as of the applicable
Closing Date as if made and as of such time; and
(ii) The Company shall have performed in all material
respects its obligations under this Agreement required to be
performed by it at or prior to the applicable Closing Date
pursuant to the terms hereof.
(iii) No Bankruptcy Event or Acceleration Event with
respect to the Company shall have occurred and be continuing, and
the Trustee shall have received a certificate of the president or
a co-president, chief financial officer or a vice present of the
Company, dated as of the applicable Closing Date, to the effect
that no such Bankruptcy Event or Acceleration Event has occurred
and is containing (in each case, subject to clause (y) of the
definition of "Acceleration Event").
A "Bankruptcy Event" shall occur with respect to the
Company if (x) a court of appropriate jurisdiction enters an order
or decree under any Bankruptcy Law that (A) is for relief against
the Company in any involuntary case, (B) appoints a Receiver of
the Company or for all or substantially all of its property or (C)
orders the liquidation of the Company; or (y) the Company
pursuant to or within the meaning of any Bankruptcy Law (A)
commences a voluntary case, (B) consents to the entry of an order
for relief in an involuntary case, (C) consents to the appointment
of a Receiver of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its
creditors.
An "Acceleration Event" shall occur with respect to the
Company if the Company defaults under the terms of any agreement
or instrument evidencing or under which the Company has at the
date of this Agreement or hereafter outstanding any Senior
Indebtedness that is full recourse to the Company and such Senior
Indebtedness shall be accelerated so that the same shall be or
become due and payable prior to the date on which the same would
otherwise become due and payable and the aggregate principle
amount thereof so accelerated exceeds U.S.$150,000,000 and such
acceleration is not rescinded or annulled within 90 Business Days;
provided, however, that (x) if such default under such agreement
or instrument is remedied or cured by the Company or waived by the
holders of such Senior Indebtedness, than the Acceleration Event
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived or (y) if the Company provides
to the Trustee a certificate of the president or a co-president,
chief financial officer or a vice president of the Company to the
effect that the Company holds sufficient funds, or has sufficient
availability under its credit facilities, to discharge such Senior
Indebtedness, then for all purposes of this Agreement the
Acceleration Event shall be deemed not to have occurred.
(b) Conditions to the Obligations of the Company. The
obligation of the Company to sell the Subscription Shares or to deliver the
Election Shares, as the case may be, at each Closing, or to pay any amount
to the Trustee as provided herein, is subject to the satisfaction or waiver
at or prior to the applicable Closing Date of the following conditions:
(i) The representations and warranties of the Manager and
the Trustee contained in this Agreement shall be true and correct
in all material respects at and as of the date hereof, and true
and correct in all material respects at and as of the applicable
Closing Date as if made at and as of such time; and
(ii) Each of the Trustee and the Manager shall have
performed in all material respects its obligations under this
Agreement required to be performed by it at or prior to the
applicable Closing Date pursuant to the terms hereof.
6. Definitions. For the purposes of this Agreement, the
following terms shall have the following respective meanings:
"Adjusted Average Share Price" means the product of (x) the
Average Share price, times (y) 0.95.
"Average Share Price" means the average price per share of
Common Stock weighted by volume traded on the relevant Determination Date
(as reported by Bloomberg L.P., or, if not so reported, another
authoritative source).
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
"Determination Date" means the Trading Day immediately prior
to the First Closing Date, the Second Closing Date or the Third Closing
Date, as the case may be.
"Exchange Rate" means (x) the spot rate for the exchange of
Australian dollars to U.S. dollars on the relevant Determination Date as
quoted on the Reuters Screen "HSRA" or any equivalent replacement reference
page at 4:00 p.m. in New York City on such date or (y) if no such rate is
available on such date, the average of the mid-rates for the exchange of
Australian dollars to U.S. dollars as quoted by any two of National
Australia Bank, Commonwealth Bank of Australia, Westpac Banking
Corporation, and Australia and New Zealand Banking Group Limited at 4:00
p.m. in New York City on the relevant Determination Date; in each case as
determined by the Company, whose determination shall be conclusive.
"Indebtedness" means (i) the principal obligations of the
Company for borrowed money (other than (x) the deferred purchase price of
property or services and (y) indebtedness to trade creditors and service
providers incurred in the ordinary course of business) and (ii) the
principal obligations of the Company evidenced by bonds, notes, debentures
or other similar instruments.
"NYSE" means the New York Stock Exchange.
"NYSE Maximum Permitted Number of Shares," in respect of any
Closing, means (except as provided in Section 1(h) hereof) the aggregate
number of shares of Common Stock that the Company is permitted to issue at
such Closing without stockholder approval, whether such Closing is
considered as one transaction or as part of a series of related
transactions in accordance with the rules of the NYSE (or, if the Company
has obtained requisite stockholder approval to issue shares in excess of
such number, the aggregate number of shares of Common Stock that the
Company is permitted to issue at such Closing in accordance with such
approval), all as determined conclusively by the Company.
"Receiver" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Remaining Instalment Amount" in respect of any Unit, means
the balance of the application price of Aus.$50.00 payable by the holder of
such Unit pursuant to the Deed of Variation.
"Senior Indebtedness" means any Indebtedness of the Company
that is not subordinated in right of payment to any other Indebtedness of
the Company.
"Subscription Amount" means the amount obtained by the
Trustee of the Manager on behalf of WAT as of the relevant Closing Date by
converting into U.S. dollars an amount equal to the aggregate Remaining
Instalment Amounts paid or deemed to be paid to the Trustee or the Manager
in respect of Series A Units, Series B Units or Series C Units, as the case
may be, pursuant to the Deed of Variation and the Underwriting Agreement,
provided that (x) if the Company has made a Cash Election or a Share
Election pursuant to Section 1(e) or (y) if the Manager has elected to
cause the Trustee to redeem the Series A Units, the Series B Units or the
Series C Units, as the case may be, pursuant to the Deed of Variation,
"Subscription Amount" in respect of any Closing means the U.S. dollar
equivalent, calculated at the applicable Exchange Rate, of the aggregate
Remaining Instalment Amounts that would have been payable to the Trustee or
the Manager in respect of Series A Units, Series B Units or Series C Units,
as the case may be, pursuant to the Deed of Variations.
"Trading Day" means a day on which the NYSE is open for the
transaction of business.
"Underwriting Agreement" means the Underwriting Agreement,
dated May 4, 1998, between the Manager and SBC Warburg Dillon Read
Australia Limited, relating to the Units.
"Unadjusted Share Number," in respect of any Closing, means
the number of shares of Common Stock calculated by dividing the applicable
Subscription Amount by the applicable Adjusted Average Share Price, rounded
to the nearest whole share, without regard to the NYSE Maximum Permitted
Number of Shares.
7. Withholding Taxes. If the Company is required under U.S.
federal, state or local tax law to withhold any taxes from or in respect of
a payment of the Cash Adjustment Amount, the Cash Election Amount or the
Election Shares, then the amount payable shall be increased as necessary so
that, after all applicable withholding (including withholding applicable to
additional sums payable under this Section 7), the Trustee on behalf of WAT
receives a sum (in cash or shares) that would have been received had no
withholding been required.
8. Termination. If the Units are not issued prior to or on
June 19, 1998, this Agreement shall terminate and be of no further force or
effect.
9. Trustee's Limitation of Liability.
(a) The Trustee enters into this Agreement only in its
capacity as trustee of WAT and in no other capacity. Any liability arising
under or in connection with this agreement will be limited to, and can be
enforced against the trustee only to the extent to which such liability can
be satisfied out of, the property or assets of WAT from which the Trustee
is actually indemnified for such liability. This limitation of the
Trustee's liability under this Agreement will apply despite any other
provisions of this Agreement and extends to all liabilities and obligations
of the Trustee in any way related to any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement, subject to
paragraph (c)(i) of this Section 9.
(b) Neither the Company nor the Manager may xxx the Trustee
in any capacity other than as trustee of WAT, including to seek the
appointment of a receiver (except in relation to the property or assets of
WAT), a liquidator, an administrator or any similar person with respect to
the Trustee or to prove in any liquidation, administration or arrangement
of or affecting the Trustee (except in relation to the property or assets
of WAT), subject to paragraph (c)(i) of this Section 9.
(c) Notwithstanding the foregoing paragraphs (a) and (b),
the provisions of this Section 9 shall not: (i) apply to any obligation of
liability of the Trustee to the extent that it is not satisfied because
under the Trust Deed establishing WAT or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the
property or assets of WAT as a result of the Trustee's fraud, negligence or
breach of trust; or (ii) in any way limit the right of the Company to bring
any action or proceeding for the performance by the Trustee (in its
capacity as trustee of WAT) or the Manager of any of their respective
obligations under this Agreement or the Company's right to recover damages
from the property or assets of WAT.
10. Miscellaneous
(a) Notices. All Notices and other communications made in
connection with this Agreement shall be in writing and shall be (a) sent by
facsimile, with a copy mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, or (b) transmitted by hand
delivery, addressed as follows (or at such other address as may be
specified in writing to the other party hereto):
(i) if to the Company, to:
Westfield America, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxx, Secretary
(ii) if to the Manager, to:
Westfield America Management Limited
Xxxxx 00 Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Telecopy: 011 612 93587077
Attention: Xxxxx Van der Laan, Secretary
(iii) if to the Trustee, to:
Perpetual Trustee Company Limited
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Telecopy: 011 612 92315606
Attention: Xxxxx Xxxxxx, National Manager-
Property Trusts
All such notices and communications shall be deemed to have
been received on the date of delivery.
(b) Binding Effect: Benefits, Etc. This Agreement shall be
binding upon and inure to the benefit of the parties of this Agreement and
their respective successors and assigns. Nothing in this Agreement, express
or implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns any
benefit or any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein.
(c) Waiver; Amendment. (i) Waiver. The Company on the one
hand and the Trustee and the Manager (considered as one party for purposes
of this paragraph (c)) on the other hand may by written notice to the other
party hereto (A) extend the time for the performance of any of the
obligations or other actions of the other party under this Agreement, (B)
waive compliance with any of the conditions or covenants of the other party
contained in this Agreement, and (C) waive or modify performance of any of
the obligations of the other party under this Agreement. Except as provided
in the preceding sentence, no action taken pursuant to this Agreement shall
be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, conditions or agreements
contained herein. The waiver by either party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to
exercise any right or privilege hereunder shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times
hereunder.
(ii) Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Company, the
Trustee and the Manager.
(d) Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall
be assignable by the Company, the Manager or the Trustee without the prior
written consent of the other parties.
(e) Separability. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
(f) Governing Law; Consent to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
The Company, the Trustee and the Manager each irrevocably
submits to the non-exclusive jurisdiction of any New York State or United
States Federal court sitting in the City of New York over any suit, action
or proceeding arising out of or relating to this Agreement. The Company,
the Trustee and the Manager each irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue or any such proceeding brought in any such court and
any claim that any such proceeding brought in such court has been brought
in an inconvenient forum. The Company, the Trustee and the Manager each
agree that final judgment in any such suit, action or proceeding brought in
such a court shall be conclusive and binding on it and may ben enforced in
any court to the jurisdiction of which it is subject by a suit upon such
judgment. The Company, the Trustee and the Manager each hereby irrevocably
consent to service of copies of the summonses and complaints and any other
process. Such services may be made by mailing or delivering a copy of such
process to their respective addresses set forth above or by any other means
provided for the applicable law.
(g) Section and Other Headings, etc. The section and other
headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company, the Manager and the Trustee
have duly executed this Agreement by their authorized representatives as of
the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Xxxxx Van Der Xxx Xx Xxxxx
------------------------------
Name: Xxxxx Van Der Xxx Xx Xxxxx
Title: Attorney Appointed Pursuant
to a Power of Attorney Dated
27 May 0000
XXXXXXXXX XXXXXXX MANAGEMENT
LIMITED, As Manager of Westfield America Trust
By: /s/ Xxxxxx Xxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxx Antink
Title: Attorney Appointed Pursuant
to a Power of Attorney Dated
27 May 1998
PERPETUAL TRUSTEE COMPANY LIMITED
As Trustee of Westfield America Trust
By: /s/ Gai Xxxxx XxXxxxx
------------------------------
Name: Gai Xxxxx XxXxxxx
Title: Attorney under
Power of Attorney
dated 28 May 1998
