EXHIBIT 10.2
WAT SUBSCRIPTION AGREEMENT
WAT SUBSCRIPTION AGREEMENT, dated as of July 15, 0000, xxxxxxx Xxxxxxxxx
Xxxxxxx, Inc. (ARBN 082 554 541), a Missouri corporation (the "COMPANY"),
Perpetual Trustee Company Limited (ACN 000 001 007), an Australian company
(the "TRUSTEE"), and Westfield America Management Limited (ACN 072 780 619),
an Australian company (the "MANAGER").
W I T N E S S E T H:
WHEREAS, pursuant to the Trust Deed, dated March 28, 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, the Manager has directed the Trustee on behalf of WAT to
subscribe for and purchase, and the Company desires to sell to the Trustee on
behalf of WAT, 477,778 shares (the "SHARES") of Series E Cumulative
Convertible Redeemable Preferred Stock of the Company, par value $1.00 (the
"SERIES E PREFERRED STOCK"), 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 THE SHARES. Subject to all of the terms and
conditions of this Agreement, the Company agrees to sell and the Trustee on
behalf of WAT agrees to purchase the Shares on the Closing Date (as defined
in Section 2) for consideration as provided in Section 2(b). The Shares shall
have the rights set forth in the Certificate of Designation relating to the
Series E Preferred Stock, substantially in the form attached as Exhibit A
hereto (the "SERIES E CERTIFICATE").
2. CLOSING.
(a) TIME AND PLACE. Subject to the satisfaction of the conditions
contained herein, the closing of the sale of the Shares (the
"CLOSING") shall take place on a date mutually agreed upon by
the parties hereto (the "CLOSING DATE"). The Closing shall
occur at the offices of Westfield America Inc., 00000 Xxxxxxxx
Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
(b) DELIVERY BY THE TRUSTEE. At the Closing, the Trustee shall
deliver to the Company its rights to the Money Market Term
Deposit with National Australia Bank Limited ("NAB") to be
acquired by the
Trustee on July 15, 1999 in an amount of $86,000,040, in form
and substance satisfactory to the Company and duly assigned to
the Company (the "NAB Deposit").
(c) DELIVERY BY THE COMPANY. At the Closing, the Company shall
deliver to the Trustee on behalf of WAT, a stock certificate
registered in the Trustee's name and representing the Shares,
provided that the Company shall not issue the Shares and shall
retain such certificates until such time as the Company
receives from NAB cash in payment of the NAB Deposit of an
amount equal to $86,000,040.
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
or will be duly authorized by the Company.
(b) THE SHARES. The Shares, to be delivered by the Company at the
Closing, as of the 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. If UnitHolder Approval is obtained, then each
of the Trustee and the Manager will have 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
delivery of this Agreement and the consummation of the
transactions contemplated hereby will be, if UnitHolder
Approval is obtained, duly authorized by or on behalf of each
of the Trustee and the Manager.
"UnitHolder Approval" means the passing by a meeting of
unitholders of WAT of a resolution authorizing and empowering
the Manager and the Trustee to, amongst other things, enter
into
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the transactions contemplated by this Agreement for the purposes
of the Listing Rules of the Australian Stock Exchange Limited.
(b) ACQUISITION FOR INVESTMENT.
(i) The Trustee is acquiring the Shares in its capacity as
Trustee of WAT for investment on behalf of WAT and not
with a view to or for sale in connection with any
distribution thereof, and WAT has no present intention or
plan to effect any distribution thereof within the
meaning of the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The Trustee and the Manager have
received copies of the Company's Reports on Form 10-K for
the year ended December 31, 1998 and Form 10-Q for the
quarter ended March 31, 1999, the reports filed with the
Securities and Exchange Commission since December 31,
1998 pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, and the Company's Registration
Statement on Form S-3 (File No. 333-52977), as filed with
the Commission on June 1, 1998 (collectively, the
"Disclosure Documents"). The Trustee and the Manager
have been furnished the opportunity to ask questions of
and receive answers from representatives of the Company
concerning the Disclosure Documents and the business and
financial affairs of the Company.
(ii) The Trustee and the Manager understand that the Shares
and the common stock to be issued upon conversion thereof
(the "CONVERSION STOCK") have not been registered under
the Securities Act or applicable state securities laws
and agree not to sell, pledge or otherwise transfer any
of the Shares or Conversion Stock in the absence of such
registration or an opinion of counsel reasonably
satisfactory to the Company that such registration is not
required. The Trustee and the Manager acknowledge that
the Company is not required to register the Shares or the
Conversion Stock.
5. LEGENDS. The Manager acknowledges and agrees that any certificates
evidencing the Series E Preferred Stock purchased pursuant to this Agreement
and the Conversion Stock issuable upon conversion thereof shall be stamped or
endorsed with legends in substantially the following form and shall be
subject to the provisions of such legends:
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"THE SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM AND AS SET FORTH HEREIN.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (2) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (i) THE
RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE ISSUER THAT SUCH REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, AND (ii) THE RECEIPT BY THE ISSUER
OF SUCH OTHER EVIDENCE REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO THE ISSUER, ITS
AFFILIATES, AND (4) IN THE CASE OF A TRANSFER UNDER (1), (2) OR (3) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
The Manager acknowledges and agrees that each certificate in respect
of the Series E Preferred Stock shall bear the following additional legend:
"THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO
INDIVIDUAL MAY BENEFICIALLY OWN SHARES IN EXCESS OF THE THEN APPLICABLE
OWNERSHIP LIMIT, WHICH MAY DECREASE OR INCREASE FROM TIME TO TIME,
UNLESS SUCH INDIVIDUAL IS AN EXISTING HOLDER. IN GENERAL, ANY
INDIVIDUAL WHO ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS OF THE
OWNERSHIP LIMIT MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL
CAPITALIZED TERMS USED IN THIS LEGEND HAVE THE MEANINGS SET FORTH IN THE
RESTATED ARTICLES OF INCORPORATION, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO
EACH SHAREHOLDER WHO SO REQUESTS. IF THE RE-
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STRICTIONS ON OWNERSHIP AND TRANSFER ARE VIOLATED, THE PREFERRED SHARES
REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR EXCESS SHARES AND
DEEMED TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN THE RESTATED ARTICLES
OF INCORPORATION."
The Manager acknowledges and agrees that the certificates in respect
of the Conversion Stock shall bear the following additional legend.
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. NO INDIVIDUAL
MAY BENEFICIALLY OWN SHARES IN EXCESS OF THE THEN APPLICABLE OWNERSHIP
LIMIT, WHICH MAY DECREASE OR INCREASE FROM TIME TO TIME, UNLESS SUCH
INDIVIDUAL IS AN EXISTING HOLDER. IN GENERAL, ANY INDIVIDUAL WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES IN EXCESS OF THE OWNERSHIP LIMIT
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS USED IN
THIS LEGEND HAVE THE MEANINGS SET FORTH IN THE RESTATED ARTICLES OF
INCORPORATION, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON OWNERSHIP
AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS. IF THE RESTRICTIONS ON OWNERSHIP AND TRANSFER ARE VIOLATED,
THE COMMON SHARES REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR
EXCESS SHARES AND DEEMED TRANSFERRED TO A SPECIAL TRUST AS PROVIDED IN
THE RESTATED ARTICLES OF INCORPORATION.
6. COVENANTS.
(a) COVENANTS OF THE COMPANY. The Company hereby covenants to
submit to a shareholder vote at its 2000 Annual Meeting (the
"2000 Annual Meeting") or at a special shareholder meeting held
prior to such time, the question of whether the Series E
Preferred Stock shall be convertible into common stock, par
value $0.01 of the Company (the "PROPOSITION").
(b) COVENANTS OF THE MANAGER. The Manager hereby agrees to convene
a meeting of unitholders of WAT for the purpose of seeking
UnitHolder Approval as soon as practicable, but in no event
later than August 31, 1999.
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(c) COVENANTS BY THE TRUSTEE. The Trustee agrees to attend, in
person or by proxy, the 2000 Annual Meeting or any special
shareholder meeting held prior to such time, and to vote upon
the Proposition.
7. CONDITIONS.
(a) CONDITIONS TO THE OBLIGATIONS OF THE TRUSTEE. The obligation
of the Trustee to purchase the Shares at the Closing is subject
to the satisfaction or waiver at or prior to the Closing Date
of the following conditions:
(i) UnitHolder Approval;
(ii) 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 Closing Date as if made at and as of such time;
(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 a
Co-President, Chief Financial Officer or the Secretary of
the Company, dated as of the Closing Date, to the effect
that no such Bankruptcy Event or Acceleration Event has
occurred and is continuing (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 an 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 principal amount
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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, then 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.
For the purposes of this Section 7:
"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.
"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.
"RECEIVER" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company that is not
subordinated in right of payment to any other Indebtedness of the Company.
(iv) 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 Closing Date
pursuant to the terms hereof.
(b) CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation
of the Company to sell the Shares at the Closing is subject to
the satisfaction or waiver at or prior to the Closing Date of
the following conditions:
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(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 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 Closing Date pursuant to the terms hereof.
8. CONDITIONS TO EFFECTIVENESS. This Agreement shall not be binding on
any party hereto and is to have no legal effect unless and until the Manager
allots and issues 90.4 million units on July 15, 1999 pursuant to the
underwriting agreement dated July 8, 1999 with Warburg Dillon Read Australia
Limited.
9. MAINTENANCE OF REIT STATUS.
(a) So long as the Trustee on behalf of WAT holds any of the Shares
of Series E Preferred Stock, the Company will continue to be
taxed as a real estate investment trust pursuant to Sections
856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code").
(b) If the Company shall fail to continue to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of
the Code (a "REIT-TERMINATION EVENT"), the Trustee on behalf of
WAT shall have the right to require the Company, to the extent
the Company shall have funds legally available therefor, to
repurchase any or all of the Series E Preferred Stock held by
the Trustee on behalf of WAT at a repurchase price payable in
cash (the "REIT-REPURCHASE PAYMENT") in an amount equal to
115% of the Liquidation Preference (as defined in the Series E
Certificate) thereof, plus accrued and unpaid dividends whether
or not declared, if any to the date of repurchase or the date
payment is made available (the "REIT-REPURCHASE DATE").
(c) Within 15 days following the Company becoming aware that a
REIT-Termination Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to
the Trustee and the Manager stating (A) that a REIT-Termination
Event has occurred and that the Trustee on behalf of WAT has
the right to require the Company to repurchase any or all of
the Series
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E Preferred Shares then held by the Trustee on behalf of WAT, (B)
the date of repurchase (which shall be a Business Day (as defined
in the Series E Certificate), no earlier than 30 days and no
later than 60 days from the date such notice is mailed, or such
later date as may be necessary to comply with the requirements
of the Securities Exchange Act of 1934, as amended), (C) the
repurchase price and (D) the instructions determined by the
Company, consistent with this subsection, that the Trustee must
follow in order to have the Series E Preferred Shares repurchased.
(d) On the REIT-Repurchase Date, the Company, to the extent lawful,
shall accept for payment Series E Preferred Stock or portions
thereof tendered by the holders thereof pursuant to the
REIT-Repurchase Offer and promptly, by wire transfer of
immediately available funds to such holders, as directed by
such holders, send an amount equal to the REIT-Repurchase
Payment in respect of all Series E Preferred Stock, or portions
thereof so tendered.
(e) Notwithstanding anything else herein to the contrary, to the
extent they are applicable to any REIT-Repurchase Offer, the
Company will comply with any federal and state securities laws,
rules and regulations and all time periods and requirements
shall be adjusted accordingly.
10. 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 provision 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
10.
(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
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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 10.
(c) Notwithstanding the foregoing paragraphs (a) and (b), the
provisions of this Section 10 shall not: (i) apply to any
obligation or 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.
11. MISCELLANEOUS.
(a) NOTICES. All notices and other communications made in
connection with this Agreement shall be in writing and shall be
(i) sent by facsimile, with a copy mailed by first-class,
registered or certified mail, return receipt requested, postage
prepaid, or (ii) 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
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: 213-687-5600
Attention: Xxxxx X. Xxxx, Esq.
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(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 to 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. 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.
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(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 LAWS OF THE
STATE OF NEW YORK. INCLUDING WITHOUT LIMITATION, SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
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 of 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 be 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 service
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 by 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.
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IN WITNESS WHEREOF, the Company, the Manager and the Trustee have duly
executed this WAT Subscription Agreement by their authorized representatives
as of the date first above written.
WESTFIELD AMERICA, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Co-President
WESTFIELD AMERICA MANAGEMENT
LIMITED,
As Manager of Westfield America Trust
By: /s/ Xxxxx van der Laan de Vries
--------------------------------
Name: Xxxxx van der Laan de Vries
Title: Attorney Appointed under Power
of Attorney, dated 15 July 1999
PERPETUAL TRUSTEE COMPANY LIMITED,
As Trustee of Westfield America Trust
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: National Manager Property Trusts
