▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
AND
SIMON PROPERTY GROUP, L.P.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT.......................................................................................... 1
SECTION 1. Representations and Warranties......................................................... 4
(a) REPRESENTATIONS AND WARRANTIES BY THE TRANSACTION ENTITIES..................... 4
(1) Compliance with Registration Requirements............................. 4
(2) Incorporated Documents................................................ 5
(3) Independent Accountants............................................... 5
(4) Financial Statements.................................................. 5
(5) No Material Adverse Change in Business................................ 6
(6) Good Standing of the Company.......................................... 7
(7) Good Standing of the Operating Partnership............................ 7
(8) Good Standing of SPG, LP.............................................. 8
(9) Good Standing of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities............................. 8
(10) Good Standing of Property Partnerships................................ 9
(11) Capitalization........................................................ 9
(12) Authorization of SPG, LP Partners' Equity............................. 9
(13) Authorization of Debt Securities...................................... 10
(14) Authorization of the Guarantee........................................ 10
(15) Authorization of the Indenture........................................ 11
(16) Descriptions of the Underwritten Securities........................... 11
(17) Authorization of this Underwriting Agreement and
Terms Agreement....................................................... 11
(18) Absence of Defaults and Conflicts..................................... 11
(19) Absence of Labor Dispute.............................................. 12
(20) Absence of Proceedings................................................ 12
(21) Accuracy of Exhibits.................................................. 13
(22) REIT Qualification.................................................... 13
(23) Investment Company Act................................................ 13
(24) Intellectual Property................................................. 13
(25) Absence of Further Requirements....................................... 13
(26) Possession of Licenses and Permits.................................... 13
(27) Registration Rights................................................... 14
(28) Title to Property..................................................... 14
(29) Environmental Laws.................................................... 15
(30) Tax Returns........................................................... 15
(31) Environmental Consultants............................................. 16
(32) Compliance with Cuba Act.............................................. 16
(33) Investment Grade Rating............................................... 16
(34) Property Information.................................................. 16
(35) Beneficial Owners, Directors and Officers of the General
Partners. ........................................................... 16
(b) OFFICERS' CERTIFICATES......................................................... 16
i
PAGE
SECTION 2. Sale and Delivery to Underwriters; Closing............................................. 17
(a) UNDERWRITTEN SECURITIES........................................................ 17
(b) OPTION UNDERWRITTEN SECURITIES................................................. 17
(c) PAYMENT........................................................................ 17
(d) DENOMINATIONS; REGISTRATION.................................................... 18
SECTION 3. Covenants of the Transaction Entities.................................................. 18
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS....................................................................... 18
(b) FILING OF AMENDMENTS........................................................... 19
(c) DELIVERY OF REGISTRATION STATEMENTS............................................ 19
(d) DELIVERY OF PROSPECTUSES....................................................... 19
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS...................................... 19
(f) BLUE SKY QUALIFICATIONS........................................................ 20
(g) EARNINGS STATEMENT............................................................. 20
(h) REPORTING REQUIREMENTS......................................................... 20
(i) REIT QUALIFICATION............................................................. 20
(j) USE OF PROCEEDS................................................................ 20
(k) EXCHANGE ACT FILINGS........................................................... 21
(l) ............................................................................... 21
SUPPLEMENTAL INDENTURES................................................................ 21
(m) RATINGS........................................................................ 21
SECTION 4. Payment of Expenses.................................................................... 21
(a) EXPENSES....................................................................... 21
(b) TERMINATION OF AGREEMENT....................................................... 22
SECTION 5. Conditions of Underwriters' Obligations................................................ 22
(a) EFFECTIVENESS OF REGISTRATION STATEMENT........................................ 22
(b) OPINION OF COUNSEL FOR TRANSACTION ENTITIES.................................... 22
(c) OPINION OF COUNSEL FOR UNDERWRITERS............................................ 22
(d) OFFICERS' CERTIFICATE.......................................................... 23
(e) ACCOUNTANT'S COMFORT LETTER.................................................... 23
(f) BRING-DOWN COMFORT LETTER...................................................... 24
(g) RATINGS........................................................................ 24
(h) NO OBJECTION................................................................... 24
(i) LOCK-UP AGREEMENTS............................................................. 24
(j) OVER-ALLOTMENT OPTION.......................................................... 24
(k) ADDITIONAL DOCUMENTS........................................................... 25
(l) TERMINATION OF TERMS AGREEMENT................................................. 25
ii
PAGE
SECTION 6. Indemnification........................................................................ 26
(a) INDEMNIFICATION OF UNDERWRITERS................................................ 26
(b) INDEMNIFICATION OF THE TRANSACTION ENTITIES, DIRECTORS AND
OFFICERS....................................................................... 26
(c) ACTIONS AGAINST PARTIES; NOTIFICATION.......................................... 27
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE............................. 27
SECTION 7. Contribution........................................................................... 28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......................... 29
SECTION 9. Termination............................................................................ 29
(a) UNDERWRITING AGREEMENT......................................................... 29
(b) TERMS AGREEMENT................................................................ 29
(c) LIABILITIES.................................................................... 30
SECTION 10. Default by One or More of the Underwriters............................................. 30
SECTION 11. Notices................................................................................ 31
SECTION 12. Parties................................................................................ 31
SECTION 13. Governing Law and Time................................................................. 32
SECTION 14. Effect of Headings..................................................................... 32
iii
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
(a Delaware limited partnership)
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
UNDERWRITING AGREEMENT
November 21, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P., a Delaware limited partnership (the
"Operating Partnership") proposes to issue and sell up to $750,000,000 aggregate
principal amount of its unsecured, unsubordinated debt securities (the "Debt
Securities") from time to time, in or pursuant to one or more offerings on terms
to be determined at the time of sale. The Debt Securities will be issued in one
or more series under an indenture, dated as of November 21, 1996, (the "Initial
Indenture"), between the Operating Partnership, the Guarantor (as defined below)
and a trustee (a "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements and any other variable terms
established by or pursuant to the Indenture, as the same may be amended or
supplemented from time to time (the "Indenture"). Simon Property Group, L.P., a
Delaware limited partnership and a subsidiary of the Operating Partnership (the
"Guarantor" and, together with the Operating Partnership, the "Partnerships")
will guarantee (the "Guarantee") the due and punctual payment of the principal
of, premium, if any, interest on, and any other amounts with respect to, the
Debt Securities, when and as the same shall become due and payable, whether at a
maturity date, on redemption, by declaration of acceleration or otherwise. As
used herein, "Securities" shall mean the Debt Securities together with the
Guarantee.
Whenever the Partnerships determine to make an offering of Securities
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Partnerships will enter into an agreement (each, a
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if
any, selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include
▇▇▇▇▇▇▇ ▇▇▇▇▇, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof); PROVIDED, that, the Partnerships are not obligated, and
shall have complete and absolute discretion to determine if and when, to make
any offering, to make any offering through ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any other person, or
to enter into any Terms Agreement. The Terms Agreement relating to the offering
of Securities shall specify the aggregate principal amount of Securities to be
initially issued (the "Initial Underwritten Securities"), the name of each
Underwriter participating in such offering (subject to substitution as provided
in Section 10 hereof), the name of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
acting as co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at which
the Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Partnerships have agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
aggregate principal amount of Securities subject to such option (the "Option
Underwritten Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any portion of any
Option Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of EXHIBIT A hereto, may take the form of an exchange
of any standard form of written telecommunication between the Partnerships and
▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if applicable, as representative of any
other Underwriters. Each offering of Underwritten Securities through ▇▇▇▇▇▇▇
▇▇▇▇▇ as sole Underwriter or through an underwriting syndicate managed by
▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by this Underwriting Agreement, as supplemented
by the applicable Terms Agreement.
The Partnerships have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-11491) and
pre-effective amendment nos. 1, 2, 3 and 4 thereto for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Partnerships have filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"),
2
is referred to herein as the "Registration Statement"; and the final prospectus
constituting a part thereof and the applicable prospectus supplement relating to
the offering of the Underwritten Securities, in the form first furnished to the
Underwriters by the Partnerships for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Partnerships file a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall be deemed to include the Rule
462 Registration Statement; provided, however, a prospectus supplement shall be
deemed to have supplemented the Prospectus only with respect to the offering of
the Underwritten Securities which it relates, and provided, further, that if the
Partnerships elect to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Partnerships in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Underwriting Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. A "preliminary prospectus" shall be deemed to
refer to any prospectus used before the registration statement became effective
and any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is or is deemed to
be incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership, a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Operating
Partnership and/or the Company or by one or more other subsidiaries of the
Operating Partnership and/or the Company.
3
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE TRANSACTION ENTITIES. The
Operating Partnership, SD Property Group, Inc. (formerly ▇▇▇▇▇▇▇▇▇ Realty
Corporation ("▇▇▇▇▇▇▇▇▇")), an Ohio corporation and the managing general partner
of the Operating Partnership ("SD Property", and together with the Company, the
"General Partners", and collectively with the Company and the Partnerships, the
"Transaction Entities"), the Company and the Guarantor represent and warrant,
jointly and severally, to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Partnerships meet the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Transaction Entities, are
contemplated by the Commission or the state securities authority of any
jurisdiction, and any request on the part of the Commission for
additional information has been complied with. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the
Transaction Entities, threatened by the Commission or the state
securities authority of any jurisdiction. In addition, the Indenture
has been duly qualified under the 1939 Act.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto (including the filing of the most recent Annual
Report on Form 10-K of any of the Company, the Operating Partnership
and the Guarantor with the Commission (the "Form 10-Ks")) became
effective and at each Representation Date, the Registration Statement,
any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus and at each
Representation Date, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Partnerships elect to rely upon Rule
434 of the 1933 Act Regulations, the Partnerships will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
4
furnished to the Partnerships in writing by any Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and Prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required
in connection with the offering and sale of the Securities, the
Partnerships have complied or will comply with the requirements of Rule
111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(2) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they become effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, and at each Representation
Date, or during the period specified in Section 3(e), did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(3) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) FINANCIAL STATEMENTS. The financial statements included,
or incorporated by reference, in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the
respective entity or entities or group presented therein at the
respective dates indicated and the statement of operations,
stockholders' equity and cash flows of such entity, as the case may be,
for the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included, or incorporated by reference,
in the Registration Statement and the Prospectus present fairly, in
accordance with GAAP, the information required to be stated therein.
The selected financial data, the summary financial information and
other financial information and data
5
included,or incorporated by reference, in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included, or
incorporated by reference, in the Registration Statement and the
Prospectus. In addition, any pro forma financial information and the
related notes thereto included, or incorporated by reference, in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines and the guidelines of the American
Institute of Certified Public Accountants ("AICPA") with respect to pro
forma information and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. All
historical financial statements and information and all pro forma
financial statements and information required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations are
included, or incorporated by reference, in the Registration Statement
and the Prospectus.
(5) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, the Partnerships, SD Property, M.S.
Management Associates, Inc., a Delaware corporation ("SPG Management
Company"), M.S. Management Associates (Indiana), Inc., an Indiana
corporation ("Management (Indiana)"), Simon MOA Management Operating
Partnership, Inc., an Indiana corporation ("MOA"), ▇▇▇▇▇▇▇▇▇ Properties
Management, Inc., an Ohio corporation ("DRC Management Operating
Partnership," and together with SPG Management Company, Management
(Indiana) and MOA, the "Management Companies") and Simon Property Group
(Delaware), Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Property, Inc. (collectively, the
"Reit Subs") or any subsidiary of the Operating Partnership (other than
any Property Partnership (as defined below)) not listed among the
foregoing entities, (the Company, the Partnerships, SD Property, the
Management Companies, and the Reit Subs and such subsidiaries being
sometimes hereinafter collectively referred to as the "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities" and individually as a "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity"), or of any
entity which owns any Portfolio Property (as such term is defined in
the Prospectus) or any direct or indirect interest in any Portfolio
Property (the "Property Partnerships") whether or not arising in the
ordinary course of business, which would be material to the Company and
the Partnerships, taken as a whole (anything which would be material to
the Company and the Partnerships, taken as a whole, being hereinafter
referred to as "Material;" and such a material adverse change, a
"Material Adverse Effect"), (B) no casualty loss or condemnation or
other adverse event with respect to the Portfolio Properties has
occurred which would be Material, (C) there have been no transactions
or acquisitions entered into by the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or the
Property Partnerships, other than those in the ordinary course of
business, which would be Material, (D) except for regular quarterly
distributions on shares of the Company's common stock, par value
$0.0001 per share (the "Common Stock"), the Class B Common Stock and
6
Class C Common Stock (each as defined below) in amounts per share that
are consistent with past practice, and except for regular quarterly
distributions of the required distributions with respect to the shares
of the Company's Series A and B Preferred Stock, par value $0.0001 per
share, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, (E)
except for distributions in amounts per unit that are consistent with
past practices, there has been no distribution of any kind declared,
paid or made by either of the Partnerships on any of its respective
general, limited and/or preferred partnership interests and (F) with
the exception of transactions in connection with (1) the Simon Property
Group and Adopting Entities Matching Savings Plan, the Simon Property
Group, L.P. Employee Stock Plan, the Simon Property Group Incentive
Bonus Plan, the Simon Property Group Stock Incentive Plan, the Simon
Property Group, Inc. Director Stock Option Plan and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Group, Inc. Stock Incentive Plan (the "Stock Option Plans"), (2) the
Simon Property Group, Inc. Automatic Dividend Reinvestment and Stock
Purchase Plan (the "Distribution Reinvestment Plan"), and (3) the
possible issuance of shares of Common Stock upon the conversion of
Series A Preferred Stock, the exchange of partnership interests in (a)
the Operating Partnership ("OP Units") or (b) SPG, L.P. ("LP Units" and
together with the OP Units, the "Units"), or upon the exchange of
shares of Class B Common Stock, par value $0.0001 per share (the "Class
B Common Stock"), or upon the exchange of Class C Common Stock, par
value $0.0001 per share (the "Class C Common Stock"), there has been no
change in the capital stock of the corporate ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities
or in the partnership interests of either of the Partnerships or any
Property Partnership, or any increase in the indebtedness of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities, the Property Partnerships or the Portfolio
Properties which would be Material.
(6) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) GOOD STANDING OF THE OPERATING PARTNERSHIP. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the applicable Terms
Agreement. The Operating Partnership is duly qualified or registered as
a foreign partnership and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
7
Material Adverse Effect. SD Property is the managing general partner of
the Operating Partnership and the Company is a general partner of the
Operating Partnership. The amended and restated agreement of limited
partnership of the Operating Partnership (the "OP Partnership
Agreement") is in full force and effect in the form in which it was
incorporated by reference as an exhibit to the Company's Registration
Statement on Form S-3 (No. 333-11431), except for subsequent amendments
relating to the admission of new partners to the Operating Partnership.
(8) GOOD STANDING OF SPG, LP. SPG, LP is duly organized and
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with the requisite power and authority
to own, lease and operate its properties, to conduct the business in
which it is engaged and proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the applicable Terms Agreement. SPG, LP is duly qualified
or registered as a foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect. The Company is the sole
general partner of SPG, L.P. The amended and restated agreement of
limited partnership of SPG, L.P. (the "SPG, L.P. Partnership
Agreement") is in full force and effect in the form in which it was
filed as an exhibit to the Company's Registration Statement on Form S-4
(No. 333-06933), except for subsequent amendments relating to the
admission of new partners to SPG, L.P.
(9) GOOD STANDING OF ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ENTITIES. Each of the
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities other than the Partnerships has been duly
organized and is validly existing as a corporation, limited
partnership, limited liability company or other entity, as the case may
be, in good standing under the laws of the state of its jurisdiction of
incorporation or organization, as the case may be, with the requisite
power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as
described in the Prospectus. Each such entity is duly qualified or
registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a Material
Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital
stock or other equity interests of each such entity has been duly
authorized and validly issued and is fully paid and non-assessable, has
been offered and sold in compliance with all applicable laws (including
without limitation, federal or state securities laws) and are owned by
the Company, the Management Companies or the Partnerships, in each case
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No shares of
capital stock or other equity interests of such entities are reserved
for any purpose, and there are no outstanding securities convertible
into or exchangeable for any capital stock or other equity interests of
such entities and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of such entities, except as
disclosed in the Prospectus.
8
No such shares of capital stock or other equity interests of such
entities were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter or bylaws or such entity
or under any agreement to which any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity is a party.
(10) GOOD STANDING OF PROPERTY PARTNERSHIPS. Each of the
Property Partnerships is duly organized and validly existing as a
limited or general partnership, as the case may be, in good standing
under the laws of its respective jurisdiction of formation. Each of the
Property Partnerships has the requisite power and authority to own,
lease and operate its properties, and to conduct the business in which
it is engaged. Each of the partnership agreements of the Property
Partnerships is in full force and effect. Each of the Property
Partnerships is duly qualified or registered as a foreign partnership
to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
Material Adverse Effect.
(11) CAPITALIZATION. If the Prospectus contains a
"Capitalization" section, the issued and outstanding units of general,
limited and/or preferred partner interests of the Operating Partnership
("partners' equity") is as set forth in the column entitled
"Historical", (except for subsequent issuances thereof, if any,
contemplated under this Underwriting Agreement, pursuant to employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus).
Such units of partners' equity have been duly authorized and validly
issued by the Operating Partnership and are fully paid and
non-assessable and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal and state securities laws), and none of such units of partners'
equity were issued in violation of preemptive or other similar rights
arising by operation of law, under the certificate of limited
partnership and the OP Partnership Agreement of the Operating
Partnership or under any agreement to which the Operating Partnership
or any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities is a party or otherwise.
There are no units of partners' equity of the Operating Partnership
reserved for any purpose and there are no outstanding securities
convertible into or exchangeable for any units of partners' equity of
the Operating Partnership and except as granted in this Underwriting
Agreement and any Terms Agreement, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such units of partners' equity or any other securities of
the Operating Partnership.
(12) AUTHORIZATION OF SPG, LP PARTNERS' EQUITY. All the issued
and outstanding units of general, limited and/or preferred partner
interests of SPG, LP ("SPG, LP partners' equity") have been duly
authorized and are validly issued, fully paid and non-assessable and
have been offered and sold or exchanged in compliance with all
applicable laws (including, without limitation, federal and state
securities laws). There are no outstanding securities convertible into
or exchangeable for any units of SPG, LP partners'
9
equity and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for units of SPG, LP partners'
equity.
(13) AUTHORIZATION OF DEBT SECURITIES. The Debt Securities
being sold pursuant to the applicable Terms Agreement has been, or as
of the date of such Terms Agreement will have been, duly authorized by
the Operating Partnership for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in
the applicable Indenture and delivered by the Operating Partnership
pursuant to the Underwriting Agreement and the applicable Terms
Agreement against payment of the consideration therefor specified in
such Terms Agreement, will constitute valid and legally binding,
unsecured obligations of the Operating Partnership, enforceable against
the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture. Such Underwritten Securities rank and will rank
on a party with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to
all subordinated indebtedness that is outstanding on a Representation
Date or that may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinate to the prior claims of each
secured mortgage lender to any specific Portfolio Property which
secures such lender's mortgage and any claims of creditors of Joint
Venture Properties.
(14) AUTHORIZATION OF THE GUARANTEE. The Guarantee being sold
pursuant to the applicable Terms Agreement has been, or as of the date
of such Terms Agreement will have been, duly authorized by the
Guarantor for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. The Guarantee, when issued and authenticated
in the manner provided for in the applicable Indenture and delivered by
the Guarantor pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration therefor specified
in such Terms Agreement, will constitute valid and legally binding,
unsecured obligations of the Guarantor, enforceable against the
Guarantor in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and except further
as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Guarantee denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B)
10
governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Guarantee will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(15) AUTHORIZATION OF THE INDENTURE. For the Underwritten
Securities and the related Guarantee being sold pursuant to the
applicable Terms Agreement, the Indenture has been, or prior to the
issuance of the Debt Securities and the related Guarantee thereunder
will have been, duly authorized, executed and delivered by the
Partnerships and, upon such authorization, execution and delivery, will
constitute a valid and legally binding agreement of the Partnerships,
enforceable against the Partnerships, as applicable, in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. The Indenture has been duly qualified under the
1939 Act and conforms, in all material respects, to the descriptions
thereof contained in the Prospectus.
(16) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES. The
Underwritten Securities and the related Guarantee being sold pursuant
to the applicable Terms Agreement and the Indenture, as of the date of
the Prospectus, when issued and delivered in accordance with the terms
of the related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the Prospectus
and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement and will comply with all applicable legal requirements.
(17) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS
AGREEMENT. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by each of the Transaction Entities, to the
extent each is a party thereto and assuming due authorization,
execution and delivery by ▇▇▇▇▇▇▇ ▇▇▇▇▇, is enforceable against each of
the Transaction Entities, to the extent each is a party thereto, in
accordance with its terms.
(18) ABSENCE OF DEFAULTS AND CONFLICTS. None of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities or any Property Partnership is in violation of its
charter, by-laws, certificate of limited partnership or partnership
agreement or other organizational document, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which each entity is a party or by which or any of
them may be bound, or to which any of its property or assets or any
Portfolio Property may be bound or subject (collectively, "Agreements
and Instruments"), except for such violations or defaults that would
not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms
Agreement, the Indenture and any other agreement or instrument entered
into or issued or to be entered into or issued by any of the
Transaction Entities in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in the
11
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by each of the Transaction Entities
with its obligations hereunder and thereunder have been duly authorized
by all necessary corporate or partnership action, as the case may be,
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Operating Partnership or any
other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership pursuant to,
any Agreements and Instruments, except for such conflicts, breaches,
defaults, Repayment Events or liens, charges or encumbrances that would
not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the respective partnership agreement
and certificate of limited partnership of the Partnerships or the
organizational documents of any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Operating Partnership, any
other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership or any of
their assets, properties or operations, except for such violations that
would not have a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a material portion of such indebtedness by the
Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership.
(19) ABSENCE OF LABOR DISPUTE. Except as otherwise described
in the Registration Statement and the Prospectus, no labor dispute with
the employees of the Operating Partnership or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entity or any Property Partnership exists or, to the knowledge of the
Transaction Entities, is imminent, and the Transaction Entities are not
aware of any existing or imminent labor disturbance by the employees of
any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which dispute or disturbance, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(20) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Transaction Entities threatened against or
affecting the Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity
thereof, or any Property Partnership or any officer or director of the
Operating Partnership which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of this Underwriting Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated herein or
therein. The aggregate of all pending legal or governmental
12
proceedings to which the Operating Partnership or any other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity, or any Property Partnership is a party or of which
any of their respective assets, properties or operations is the subject
which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(21) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or filed
as required and the descriptions thereof or references thereto are
correct in all Material respects and no Material defaults exist in the
due performance or observance of any Material obligation, agreement,
covenant or condition contained in any such contract or document.
(22) REIT QUALIFICATION. At all times since January 1, 1994
the Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code. At all times since January 1, 1994,
▇▇▇▇▇▇▇▇▇ had been organized and had operated in conformity with the
requirements for qualification as a real estate investment trust under
the Code.
(23) INVESTMENT COMPANY ACT. Each of the Operating
Partnership, the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the Property
Partnerships is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(24) INTELLECTUAL PROPERTY. To the knowledge of the
Transaction Entities, none of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or the
Property Partnerships is required to own, possess or obtain the consent
of any holder of any trademarks, service marks, trade names or
copyrights not now lawfully owned, possessed or licensed in order to
conduct the business now operated by such entity.
(25) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or any other entity or person is necessary or required for the
performance by each of the Transaction Entities of its obligations
under this Underwriting Agreement, the applicable Terms Agreement or
the Indenture or in connection with the transactions contemplated under
this Underwriting Agreement, such Terms Agreement or the Indenture,
except such as have been already obtained or as may
13
be required under state securities laws or under the by-laws and rules
of the National Association of Securities Dealers, Inc. (the "NASD").
(26) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and each Property
Partnership possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them except
for such Governmental Licenses, the failure to obtain would not, singly
or in the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and each Property
Partnership are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. Neither the Operating
Partnership nor any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities nor any
Property Partnership has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(27) REGISTRATION RIGHTS. Except as disclosed in the
Prospectus, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(28) TITLE TO PROPERTY. The Operating Partnership, the other
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the Property Partnerships have good and
marketable title to the Portfolio Properties free and clear of Liens,
except (A) as otherwise stated in the Registration Statement and the
Prospectus, or referred to in any title policy for such Portfolio
Property, or (B) those which do not, singly or in the aggregate,
Materially (i) affect the value of such property or (ii) interfere with
the use made and proposed to be made of such property by the Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership. All leases and subleases under which the Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnerships hold properties are in full force and effect, except for
such which would not have a Material Adverse Effect. Neither the
Operating Partnership, the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities nor the
Property Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the rights of the
Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or the Property
Partnerships under any material leases or subleases, or affecting or
questioning the rights of the Operating Partnership, such other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or the Property Partnerships of the continued
possession of the leased or subleased premises under any such lease or
sublease, other than claims that would not have a Material Adverse
Effect. All liens, charges, encumbrances, claims or restrictions on or
affecting any of the Portfolio Properties and the assets of any ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or any Property
14
Partnership which are required to be disclosed in the Prospectus are
disclosed therein. None of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities, the Property
Partnerships or any tenant of any of the Portfolio Properties is in
default under any of the ground leases (as lessee) or space leases (as
lessor or lessee, as the case may be) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the Portfolio Properties, and none of
the Transaction Entities knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default
under any of such documents or agreements, in each case, other than
such defaults that would not have a Material Adverse Effect. No tenant
under any of the leases, pursuant to which the Company, either of the
Partnerships or any Property Partnership, as lessor, leases its
Portfolio Property, has an option or right of first refusal to purchase
the premises demised under such lease, the exercise of which would have
a Material Adverse Effect. Each of the Portfolio Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Portfolio Properties), except for such
failures to comply that would not in the aggregate have a Material
Adverse Effect. None of the Transaction Entities has knowledge of any
pending or threatened condemnation proceeding, zoning change, or other
proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on or access to, the Portfolio
Properties, except such proceedings or actions that would not have a
Material Adverse Effect.
(29) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Operating Partnership, any of the other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities nor any Property Partnership is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree of judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership, the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the Property
Partnerships have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Operating Partnership, any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or
the Property Partnerships and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Operating Partnership, any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities
15
or any Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(30) TAX RETURNS. Each of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the
Property Partnerships has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which an extension has been granted or the failure to so file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith.
(31) ENVIRONMENTAL CONSULTANTS. None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to certain of the Portfolio Properties was
employed for such purpose on a contingent basis or has any substantial
interest in any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership and
none of them nor any of their directors, officers or employees is
connected with any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership
as a promoter, selling agent, voting trustee, director, officer or
employee.
(32) COMPLIANCE WITH CUBA ACT. The Company and the Operating
Partnership has complied with, and is and will be in compliance with,
the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt
therefrom.
(33) INVESTMENT GRADE RATING. The Securities will have an
investment grade rating from one or more nationally recognized
statistical rating organizations at each applicable Representation
Date.
(34) PROPERTY INFORMATION. Information in respect of the
Portfolio Properties presented in the Prospectus and any applicable
Prospectus Supplement on a combined basis shall be true and accurate in
all Material respects as of the date of applicable Prospectus
Supplement.
(35) BENEFICIAL OWNERS, DIRECTORS AND OFFICERS OF THE GENERAL
PARTNERS. No person who (a) in the aggregate beneficially owns 5% or
more of the common stock of either of the General Partners (a
"Beneficial Owner"), (b) is a director of either of the General
Partners or (c) is an officer of each of the General Partners is a
member of the NASD, a controlling stockholder of a member, or an
affiliate of a member, or of an underwriter or related person of a
member or underwriter with respect to any proposed offering under this
Underwriting Agreement and any applicable Terms Agreement. No
beneficial owner of either of the General Partners' unregistered
securities acquired within the 12 months prior to the filing of the
Registration Statement, or any amendments thereto, or to the filing of
the Prospectus, or any amendment or supplement thereto, has any direct
or indirect affiliation or association with any NASD member.
16
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of either of the
Company, SPG, L.P. and SD Property and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by such entity or
person, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) OPTION UNDERWRITTEN SECURITIES. In addition, subject to the terms
and conditions set forth therein, the Partnerships may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option
Underwritten Securities set forth therein at a price per Option Underwritten
Security equal to the price per Initial Underwritten Security, less an amount
equal to any interest or redemption payments payable by the Operating
Partnership on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Partnerships setting forth the
aggregate principal amount of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Partnerships. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total aggregate principal amount of Option Underwritten
Securities then being purchased which the aggregate principal amount of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total aggregate principal
amount of Initial Underwritten Securities, subject to such adjustments as
▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make to eliminate any sales or purchases
of a fractional aggregate principal amount of Option Underwritten Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇,
or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Partnerships, at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date of the applicable Terms Agreement (unless postponed in accordance with the
17
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Partnerships (such time and date of payment and delivery being herein called
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of ▇▇▇▇▇▇
& ▇▇▇▇▇, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Operating Partnership, on the relevant Date of Delivery as specified in the
notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Partnerships.
Payment shall be made to the Operating Partnership by wire
transfer of same day funds payable to the order of the Operating Partnership,
against delivery to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Underwritten Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall be
in such denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request
in writing at least one full business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities will
be made available for examination and packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE TRANSACTION ENTITIES.
Each of the Transaction Entities covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Partnerships, subject to Section 3(b), will comply with the requirements of Rule
430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if
and as applicable, and will notify the Representative(s) immediately, and
confirm the notice in writing, of (i) the effectiveness of any post-effective
amendment to the Registration Statement or the filing of any supplement or
amendment to the Prospectus, (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the
18
initiation or threatening of any proceedings for any of such purposes. The
Partnerships will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Partnerships will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Partnerships will give ▇▇▇▇▇▇▇ ▇▇▇▇▇
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations),
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters
shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Partnerships have
furnished or will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for
the Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto for each of the Underwriters.
If applicable, the copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Partnerships will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Partnerships hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Partnerships
will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Partnerships will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934
19
Act to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriter or for the Partnerships, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Partnerships will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Partnerships will furnish to the
Underwriters and counsel for the Underwriters, without charge, such number of
copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) BLUE SKY QUALIFICATIONS. The Partnerships will use their best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that neither Partnership shall be obligated
to file any general consent to service of process or to qualify or register as a
foreign partnership or as a dealer in securities in any jurisdiction in which it
is not so qualified or registered, or provide any undertaking or make any change
in its charter or bylaws that the Board of Directors of SD Property or the
Company, as applicable, reasonably determines to be contrary to the best
interests of the Partnerships, respectively, and their respective unitholders or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Underwritten Securities or any related Underlying Securities have been so
qualified or registered, the Partnerships will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date of
such Terms Agreement.
(g) EARNINGS STATEMENT. The Partnerships will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable an earnings statement (in form
complying with Rule 158 of the 1933 Act Regulations) for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) REPORTING REQUIREMENTS. The Partnerships, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
20
(i) REIT QUALIFICATION. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment trust"
under the Code for the taxable year in which in which sales of the Underwritten
Securities are to occur.
(j) USE OF PROCEEDS. The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(k) EXCHANGE ACT FILINGS. During the period from each Closing Time
until five years after such Closing Time, the Operating Partnership will deliver
to ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Operating Partnership mailed to its
unitholders or filed with any securities exchange or with the Commission or any
governmental authority succeeding to any of the Commission's functions, and (ii)
such other information concerning the Operating Partnership as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may
reasonably request.
(l) SUPPLEMENTAL INDENTURES. In respect of each offering, the
Partnerships will execute a supplemental indenture designating the series of
debt securities to be offered and its related terms and provisions in accordance
with the provisions of the Indenture.
(m) RATINGS. The Partnerships will take all reasonable action
necessary to enable Standard & Poor's Corporation ("S&P"), ▇▇▇▇▇'▇ Investors
Service, Inc. ("▇▇▇▇▇'▇"), Fitch Investors Services, L.P. or any other
nationally recognizable rating organization to provide their respective credit
ratings of any Underwritten securities, if applicable.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, any Indenture and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities, (iii) the preparation, issuance and
delivery of the Underwritten Securities, or any certificates for the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Operating Partnership's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the reasonable fees and
disbursements of any Trustee, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities and real
estate syndication laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, the Registration Statement (including financial statements
21
and exhibits) as originally filed and of each amendment thereto and the
Prospectus and any amendments or supplements thereto, (vii) the fees charged by
nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, if applicable, (viii) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the NASD of the terms of the sale of the
Underwritten Securities, (ix) the fees and expenses of any Underwriter acting in
the capacity of a "qualified independent underwriter" (as defined in Section
2(l) of Schedule E of the bylaws of the NASD), if applicable, and (x) any
transfer taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) or Section 10 hereof, the Operating Partnership shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Transaction
Entities contained in Section 1 hereof or in certificates of any officer or
authorized representative of the Partnerships or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entity delivered pursuant to the provisions hereof, to the performance by the
Transaction Entities of their covenants and other obligations hereunder, and to
the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of the
Commission or the state securities authority of any jurisdiction for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Partnerships have elected to rely upon
Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434
Information shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) OPINION OF COUNSEL FOR TRANSACTION ENTITIES. At Closing Time,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the favorable opinions, dated as of Closing
Time, of Paul, Weiss, Rifkind, Wharton, & ▇▇▇▇▇▇▇▇, special securities counsel
for the Transaction Entities, Piper & Marbury, LLP, special Maryland counsel for
the Transaction Entities, Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, special Ohio counsel
to the Transaction Entities and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the General Counsel of
22
the Transaction Entities or such other counsel as is designated by the Operating
Partnership in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, such opinion shall address such of the items set forth in Exhibits
▇-▇, ▇-▇, ▇-▇ and B-4 hereto as may be relevant to the particular offering
contemplated or to such further effect as counsel to the Underwriters may
reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Underwriters, or such other counsel as may be designated
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to the matters set forth in (1) of
Exhibit B-1 hereto, (2) (with respect to the first clause only), (3) (with
respect to the first clause only), (4) (with respect to SD Property only and
with respect to the first clause only) and (8) of Exhibit B-2 hereto, (1), (6),
(7), (8) and the last three paragraphs of Exhibit B-3 hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers or authorized
representatives of the Partnerships and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and
certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Partnerships and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities
considered as one enterprise, whether or not arising in the ordinary course of
business, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a certificate of (x) the Chief
Executive Officer, President or a Vice President and of the chief financial
officer or chief accounting officer of the Company for itself, as a general
partner of the Operating Partnership and as the sole general partner of SPG,
L.P. and (y) the Chief Executive Officer, President or a Vice-President of and
the chief financial or accounting officer of SD Property, for itself and as
managing general partner of the Operating Partnership, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Transaction Entities have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission or by the state
securities authority of any jurisdiction and (v) the Registration Statement and
the Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1993 Act and the 1993
Act Regulations; the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the
23
statements therein not misleading; and the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter, dated such date, in form and substance satisfactory to
▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" as set forth in the AICPA's Statement on Auditing Standards 72
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical organization," as defined by the Commission for purposes
of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Partnerships shall have delivered to ▇▇▇▇▇▇▇
▇▇▇▇▇ a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Underwritten Securities or any of the Company's, SPG, LP's or the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Underwritten
Securities or any of the Company's, SPG, LP's or the Operating Partnership's
other securities.
(h) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) LOCK-UP AGREEMENTS. On the date of the applicable Terms Agreement,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(j) OVER-ALLOTMENT OPTION. In the event that the Underwriters are
granted an over-allotment option by the Operating Partnership in the applicable
Terms Agreement and the Underwriters exercise their option to purchase all or
any portion of the Option Underwritten Securities, the representations and
warranties of the Transaction Entities contained herein and the
24
statements in any certificates furnished by the Transaction Entities hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant Date
of Delivery, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received:
(1) A certificate dated such Date of Delivery, of (x) the
Chief Executive Officer, President or a Vice President and the chief
financial officer or chief accounting officer of the Company for
itself, as a general partner of the Operating Partnership and as the
sole general partner of SPG, L.P. and (y) the Chief Executive Officer,
President or a Vice-President and the chief financial or accounting
officer of SD Property, for itself
and as managing general partner of the Operating Partnership,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinions of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, special securities counsel for the Transaction Entities,
Piper & Marbury, LLP, special Maryland counsel to the Transaction
Entities, Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, special Ohio counsel to the
Transaction Entities and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the
Transaction Entities, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Partnerships in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters.
(l) TERMINATION OF TERMS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may
25
be terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Operating Partnership at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any other party
except as provided in Section 4, and except that Sections 1, 6 and 7 shall
survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Transaction Entities agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
26
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF THE TRANSACTION ENTITIES, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees to indemnify and hold harmless the
Transaction Entities, each of the General Partners' directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Transaction Entities within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Operating Partnership by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation,
27
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(2) effected without
its written consent if (i) such settlement is entered into in good faith by the
indemnified party more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Transaction Entities, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Transaction
Entities, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Transaction Entities, on the one
hand, and the Underwriter, on the other hand, in connection with the offering of
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Operating Partnership and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Transaction Entities, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Transaction Entities or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
28
The Transaction Entities and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriter were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the General Partners, each officer of the General Partners who
signed the Registration Statement, and each person, if any, who controls the
Transaction Entities within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Transaction
Entities. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Partnerships or authorized representatives of each of the
Transaction Entities submitted pursuant hereto or thereto shall remain operative
and in full force and effect, regardless or any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Transaction Entities, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. TERMINATION.
29
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Partnerships or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Partnerships, at any time at or prior to the Closing
Time or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or internationally or any outbreak of
hostilities or escalation thereof or other calamity or crisis, or any change or
development involving a prospective change in national or international
political, financial, or economic conditions, in each case the effect of which
is such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, (iv) a
banking moratorium has been declared by either Federal, New York, Delaware or
Maryland authorities or (v) if the rating assigned by any nationally recognized
statistical rating organization to any Debt Securities of the Operating
Partnership as of the date of the applicable Terms Agreement shall have been
downgraded since such date or if any such rating organization shall have
publicly announced that it has placed any series of Debt Securities of the
Operating Partnership under surveillance or review, with possible negative
implications, as to the rating of such Debt Securities or any of the Company's,
SPG, LP's or the Operating Partnership's other securities.
(c) LIABILITIES. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7, 8, 10 and 13 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms
30
herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount, of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the
Operating Partnership to sell, such Option Underwritten Securities on
such Date of Delivery) shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Partnerships with respect to the related Option
Underwritten Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the
Partnerships shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to ▇▇▇▇▇▇▇
▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director; and notices to the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities shall be directed to any of them at National City Center, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
Mr. ▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq.
SECTION 12. PARTIES.
31
This Underwriting Agreement and the applicable Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
such Terms Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Transaction Entities and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇, the General Partners and each
of the Partnerships in accordance with its terms.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, Inc.,
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
SD PROPERTY GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
34
Exhibit A
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
TERMS AGREEMENT
__________ __, 1996
To: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, ▇.▇.
▇▇▇▇▇ Property Group, L.P.
National City Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell
$___,____,___ aggregate principal amount of debt securities (hereinafter the
"Initial Underwritten Securities") as guaranteed by Simon Property Group, L.P.,
a Delaware limited partnership ("SPG, LP"). Subject to the terms and conditions
set forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
number of Initial Underwritten Securities as guaranteed by SPG, LP set forth
below opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) as guaranteed by SPG, LP, set forth
below, to the extent any are purchased.
Principal Amount of
UNDERWRITER INITIAL UNDERWRITTEN SECURITIES
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated............................... $
_______________________________
A-1
Total $
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from Purchase price per share: % of principal amount,
plus accrued interest [amortized original issue discount], if any, from
(payable in next day funds).
Form:
Lock-Up Provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P. AND SIMON PROPERTY GROUP, L.P. Debt
Securities together with the Guarantee--Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ________________________________
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: ___________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, Inc.
General Partner
By: ____________________________
Name:
Title:
Exhibit B-1
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease and
operate its properties, to conduct its business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, the Underwriting Agreement, the
applicable Terms Agreement and the Indenture.
(3) The issued and outstanding shares of capital stock of the Company
are as set forth on Schedule A attached hereto. The issued and outstanding
shares of capital stock of the Company have been duly authorized and validly
issued by the Company, are fully paid and non-assessable, and have been offered
and sold in compliance with all applicable laws of the State of Maryland and, to
such counsel's knowledge, none of such shares of capital stock were issued in
violation of preemptive or other similar rights. To such counsel's knowledge, no
shares of capital stock of the Company are reserved for any purpose except in
connection with (i) the Stock Option Plans, (ii) the Distribution Reinvestment
Plan, and (iii) the possible issuance of shares of Common Stock upon exchange of
OP Units or upon the conversion of shares of Class B Common Stock, Class C
Common Stock or Series A Preferred Stock. To the knowledge of such counsel,
except for OP Units, shares of Class B Common Stock, Class C Common Stock and
Series A Preferred Stock, and stock options issued under the Stock Option Plans
and except as described in the Prospectus, there are no outstanding securities
convertible into or exchangeable for any shares of capital stock of the Company,
and except for options under the Stock Option Plans, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such stock or any other securities of the Company.
(4) The Underwriting Agreement, the applicable Terms Agreement and the
Indenture, were duly and validly authorized by the Company, on behalf of itself
and as general partner of SPG, LP, the proper officers of the Company have been
duly authorized by the Company on behalf of itself and as general partner of
SPG, LP, to execute and deliver the Underwriting Agreement, the applicable Terms
Agreement and the Indenture, and, assuming they have been executed and delivered
by any of such officers, the Underwriting Agreement, the Terms Agreement and the
Indenture are duly and validly executed and delivered by the Company, on behalf
of itself and as general partner of SPG, LP.
B-1-1
(5) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture by the Company on
its own behalf or as general partner of SPG, LP, as the case may be, and the
consummation of the transactions contemplated in the Underwriting Agreement,
such Terms Agreement and the Indenture and compliance by the Company with its
obligations thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default under (i) any provisions of the Charter or by-laws of the Company;
(ii) any applicable law, statute, rule, regulation of Maryland; or (iii) to such
counsel's knowledge, any judgment, order, writ or decree of any Maryland court
or governmental entity binding upon the Company or to which the Company is
subject, except in each case for conflicts, breaches, violations or defaults
that in the aggregate would not have a Material Adverse Effect.
(6) The information in Part II of the Registration Statement under
"Indemnification of Directors and Officers" and in the annual Report on Form
10-K of the Company under "o", and such other information in the Prospectus
Supplement and the 10-K as may be agreed upon from time to time by the
Partnerships and ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the extent that such information constitutes
matters of Maryland law, descriptions of Maryland statutes, rules or
regulations, summaries of Maryland legal matters, the Company's Charter and
bylaws or Maryland legal proceedings, or legal conclusions of Maryland law, has
been reviewed by them and is correct in all material respects.
(7) The Guarantee by SPG, LP of the obligations of the Operating
Partnership under the Indenture have been duly authorized by the Company, in its
capacity as the general partner of SPG, LP.
B-1-2
Exhibit B-2
FORM OF OPINION OF THE TRANSACTION ENTITIES' GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or register or be in good standing would not result in a
Material Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, the applicable Terms Agreement and
the Indenture and is duly qualified or registered as a foreign limited
partnership to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect. The issued and outstanding units of partner's equity of the
Operating Partnership is as set forth under the caption "Capitalization" in the
Prospectus. Except as otherwise stated in the Registration Statement and the
Prospectus, such units of partners' equity has been duly authorized and are
validly issued, fully paid and non-assessable and have been offered and sold or
exchanged in compliance with all applicable laws of the United States and the
Delaware Revised Uniform Limited Partnership Act, and none of such units of
partners' equity was issued in violation of preemptive or other similar rights
of any unitholder of the Operating Partnership. The OP Partnership Agreement has
been duly and validly authorized, executed and delivered by the parties thereto
and is a valid and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except as rights to indemnity thereunder
may be limited by applicable law.
(3) SPG, L.P. has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of Delaware,
with partnership power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged or proposes to engage as
described in the Prospectus and to enter into and perform its obligations under
the Underwriting Agreement, the applicable Terms Agreement and the Indenture and
is duly qualified or registered as a foreign limited partnership to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of
B-2-1
the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the units of SPG partners' equity have been
duly authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all applicable laws of the
United States and the Delaware Revised Uniform Limited Partnership Act and none
of such units of SPG, LP partners' equity was issued in violation of preemptive
or other similar rights of any unitholder of SPG, LP. The SPG, LP Partnership
Agreement has been duly and validly authorized, executed and delivered by the
parties thereto and is a valid and binding agreement, enforceable against the
parties thereto in accordance with its terms, except as such enforceability may
be subject to (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights generally and
(2) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law.
(4) Each ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity other than the Company and the
Partnerships has been duly incorporated or organized and is validly existing as
a corporation, limited partnership or other legal entity, as the case may be, in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, and has the requisite power and authority to
own, lease and operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and is duly
qualified or registered as a foreign corporation, limited partnership or other
legal entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register or to be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entity other than the Company and the Partnerships has been duly authorized and
is validly issued, fully paid and non-assessable and has been offered and sold
in compliance with all applicable laws of the United States and the
organizational laws of the jurisdictions of organization of such entity, and is
owned by the Company, the Management Companies or the Partnerships, directly or
through subsidiaries, in each case, free and clear of any Liens. There are no
outstanding securities convertible into or exchangeable for any capital stock or
other equity interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares of
such capital stock or any other securities of such entities. None of the
outstanding shares of capital stock or other equity interests of such entity was
issued in violation of preemptive or other similar rights of any securityholder
of such entity.
(5) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the Prospectus. Each Property Partnership is duly qualified or registered as
a foreign partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of ownership or
leasing of property or the conduct of business,
B-2-2
except where the failure to so qualify or register would not have a Material
Adverse Effect. The general or limited partnership agreement of each of the
Property Partnerships has been duly and validly authorized, executed and
delivered by the parties thereto and is a valid and binding agreement,
enforceable against the parties thereto in accordance with its terms, except as
such enforceability may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or similar laws
affecting creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except as rights to indemnity thereunder may be limited
by applicable law.
(6) The Debt Securities have been duly authorized by SD Property as the
managing general partner of the Operating Partnership for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement, the applicable Terms
Agreement and the Indenture. The Debt Securities, when issued and authenticated
in the manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to the Underwriting Agreement and the applicable Terms
Agreement against payment of the consideration set forth in the applicable Terms
Agreement, will constitute valid and legally binding obligations of the
Operating Partnership enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Underwritten Securities
denominated other than in U.S. dollars (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Debt Securities are in the form contemplated by,
and are entitled to the benefits of, the Indenture.
(7) The Guarantee has been duly authorized by the Company as the sole
general partner of the Guarantor, for issuance and sale pursuant to the
Underwriting Agreement, the Terms Agreement and the Indenture and, when issued
and authenticated in the manner provided for in the Indenture, and delivered by
the Guarantor pursuant to the Underwriting Agreement and the applicable Terms
Agreement, against payment of the consideration for the related Debt Securities
specified in such Terms Agreement, will constitute valid and legally binding
obligations of the Guarantor, enforceable against the Guarantor in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to the Guarantee of any Underwritten Securities denominated
other than in U.S. dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments outside the United
States.
B-2-3
(8) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Transaction Entities and
(assuming due authorization, execution and delivery thereof by the applicable
Trustee) constitutes a valid and legally binding agreement of the Transaction
Entities, enforceable against the Transaction Entities in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(9) The Debt Securities and the Guarantee being sold pursuant to the
applicable Terms Agreement and the Indenture each conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form contemplated by the Indenture.
(10) The obligations of SPG, LP under the Indenture have been duly
authorized by the Company, in its capacity as the sole general partner of SPG,
LP.
(11) Neither the Operating Partnership nor any of the other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities nor any Property Partnership is in violation of its charter,
by-laws, partnership agreement, or other organizational document, as the case
may be, and no default by the Operating Partnership or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entity or any Property Partnership exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement or the 10-K, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(12) The Underwriting Agreement, the applicable Terms Agreement and the
Indenture have been duly authorized, executed and delivered by the Transaction
Entities to the extent they are parties thereto.
(13) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and the consummation
of the transactions contemplated thereby did not and do not, conflict with or
constitute a breach or violation of, or default or Repayment Event under, or
result in the creation or imposition of any Lien upon any Portfolio Property,
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, to which the
Transaction Entities or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Transaction Entities or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership or any
applicable laws, statutes, rules or regulations of the United States or any
jurisdiction of incorporation or formation of any of the Transaction Entities or
any Property Partnership or any judgment, order, writ or decree binding upon the
Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership,
B-2-4
which judgement, order, writ or decree, is known to such counsel, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or
any Property Partnership or any of their assets, properties or operations,
except for such conflicts, breaches, violations, defaults, events or Liens that
would not result in a Material Adverse Effect.
(14) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is required in connection with the offering, issuance or
sale of the Underwritten Securities and the Guarantee to the Underwriters under
the Underwriting Agreement, the applicable Terms Agreement and the Indenture,
except as may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act and the 1939 Act Regulations, or the by-laws and rules of the NASD (as to
which such counsel expresses no opinion) or state securities laws (as to which
such counsel expresses no opinion), or such as have been obtained.
(15) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership thereof which is
required to be disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which might reasonably be expected to result in a
Material Adverse Effect.
(16) All descriptions in the Registration Statement and the Prospectus
of contacts and other documents to which the Operating Partnership or any other
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity is a party are accurate in all material respects. To the
best knowledge and information of such counsel, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto by the 1933 Act
Regulations, and the descriptions thereof or references thereto are correct in
all material respects.
(17) To the best of such counsel's knowledge and information, there are
no statutes or regulations that are required to be described in the Prospectus
that are not described as required.
(18) To the best knowledge of such counsel, except as described in a
schedule to this opinion or in the Prospectus, there are no persons with
registration or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Partnerships under
the 1933 Act.
If the Prospectus Supplement to which the applicable Terms Agreement
relates is the first Prospectus Supplement (the "First Prospectus Supplement")
distributed under this Agreement, the opinions set forth in this Exhibit B-2
above with respect to the Property Partnerships shall only be required for those
Property Partnerships that have acquired or developed Properties since April 12,
1995. For each Prospectus Supplement, distributed after the First Prospectus
Supplement, such Property Partnership opinions shall only be required for those
Property Partnerships that have
B-2-5
acquired or developed Properties since the date of the Prospectus Supplement
last preceding the Prospectus Supplement as to which the Opinions are being
delivered.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL SECURITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) At the time the Registration Statement became effective, and at
each of the Representation Dates, the Registration Statement and the Prospectus,
excluding (a) the documents incorporated by reference therein, (b) the financial
statements and supporting schedules included and other financial data that are
therein and (c) the Trustee's Statement of Eligibility on Form T-1 (the "T-1"),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. In passing upon the compliance as to form of
such documents, such counsel may assume that the statements made or incorporated
by reference therein are complete and correct.
(2) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and supporting
schedules therein and other financial data, as to which no opinion need be
rendered), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(3) The information in the Prospectus Supplement under "Prospectus
Supplement Summary -The Offering," "the Operating Partnership," "Recent
Developments -the Merger and -Financings and Indebtedness" and "Description of
the Notes" and in the Prospectus under "The Operating Partnership," "The Merger"
and "Description of Debt Securities" and any description of the Underwritten
Securities included therein, and such other information in the Prospectus
Supplement or in any Annual Report on Form 10-K of the Company, Operating
Partnership and/or SPG, LP as may be agreed upon from time to time by the
Partnerships and ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the extent that it purports to summarize
matters of law, descriptions of statutes, rules or regulations, summaries of
legal matters, the Transaction Entities' organizational documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel, is correct
and presents fairly the information required to be disclosed therein in all
material respects.
confirmed.
(4) The Partnerships satisfy all conditions and requirements for filing
the Registration Statement on Form S-3 under the 1933 Act and 1933 Act
Regulations.
(5) None of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or any Property Partnership is
required to be registered as an investment company under the 1940 Act.
B-3-1
(6) The Debt Securities being sold pursuant to the applicable Terms
Agreement have been duly authorized by SD Property as the managing general
partner of the Operating Partnership for issuance and sale to the Underwriters
pursuant to the Underwriting Agreement, the applicable Terms Agreement and the
Indenture and, when issued and authenticated in the manner provided for in the
Indenture and delivered by the Operating Partnership pursuant to the
Underwriting Agreement and the applicable Terms Agreement against payment of the
consideration set forth in the applicable Terms Agreement, will constitute valid
and legally binding obligations of the Operating Partnership enforceable against
the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Debt Securities are in the form contemplated by,
and are entitled to the benefits of, the Indenture.
(7) The Guarantee under the Indenture has been duly authorized by the
Company, as the sole general partner of the Operating Partnership for issuance
and sale pursuant to the Underwriting Agreement and, when the Debt Securities
are issued and authenticated in the manner provided for in the Indenture and
delivered by the Operating Partnership pursuant to the Underwriting Agreement
and the applicable Terms Agreement, against payment of the consideration
therefor specified in such Terms Agreement and the Guarantee is endorsed thereon
in the manner provided for in the Indenture, the Guarantee will constitute a
valid and legally binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, (b) by
general equitable principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to the Guarantee of any
Underwritten Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States, (C) the enforceability of forum
selection clauses in the federal courts, and (D) any provision in the Guarantee
purporting to preserve and maintain the liability of any party thereto despite
the fact that the guaranteed debt is unenforceable due to illegality.
(8) This Agreement, the applicable Terms Agreement and the Indenture
were duly and validly authorized, executed and delivered by the Transaction
Entities, to the extent they are parties thereto.
(9) The obligations of SPG, LP under the Indenture have been duly
authorized by the Company, in its capacity as the sole general partner of SPG,
LP.
B-3-2
(10) Commencing with the Company's taxable year beginning January 1,
1994, the Company has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the Code.
At the Underwriters' request, ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
shall also confirm to the Underwriters that it has been informed by the Staff of
the Commission that the Registration Statement is effective under the 1933 Act
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
In connection with the preparation of the Registration Statement and
the Prospectus, such counsel has participated in conferences with officers and
other representatives of the Transaction Entities and the independent public
accountants for the Partnerships and the Company at which the contents of the
Registration Statement and the Prospectus and related matters were discussed. On
the basis of such participation and review, but without independent verification
by such counsel of, and without assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or any amendments or supplements thereto, no facts
have come to the attention of such counsel that would lead them to believe that
the Registration Statement (except for financial statements and schedules and
other financial data included therein and for the T-1, as to which we make no
statement), at the time the Registration Statement or any post-effective
amendment thereto became effective or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and the schedules and other
financial data included therein and for the T-1, as to which we make to
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the opinion of
Piper & Marbury and Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, respectively, special
Maryland and Ohio counsel, respectively, to the Transaction Entities (which
opinion shall be dated and furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at the Closing Time, shall
be satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the counsel for the Underwriters may rely on such opinions
as if it were addressed to them), and (B), as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Partnerships and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Underwritten Securities, having the benefit of the Guarantee,
have been duly authorized for issuance and sale pursuant to the Underwriting
Agreement, the Terms Agreement and the Indenture.
(2) Each of the Underwriting Agreement, the applicable Terms Agreement
and the Indenture has been duly and validly authorized by SD Property on behalf
of itself and on behalf of the Operating Partnership in its capacity as the
managing general partner thereof, the proper officers of SD Property have been
duly authorized on behalf of itself and on behalf of the Operating Partnership,
in its capacity as the managing general partner thereof, to execute and deliver
each of the Underwriting Agreement, the applicable Terms Agreement and the
Indenture, and assuming they have been executed and delivered by any of such
officer, each of the Underwriting Agreement, the Terms Agreement and the
Indenture are duly and validly executed and delivered by SD Property on behalf
of itself and on behalf of the Operating Partnership in its capacity as the
managing general partner thereof.
B-4-1
ANNEX I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(i) in our opinion, the audited financial statements
and the related financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination
in accordance with generally accepted auditing standards) consisting of
a reading of the unaudited interim [consolidated] financial statements
of the Operating Partnership for the [three month periods ended
__________, 19__, and __________, 19__, the three and six month periods
ended __________, 19__, and __________, 19__, and the three and nine
month periods ended __________, 19__, and __________, 19__, included or
incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")] /1/ [, a reading of
the unaudited interim [consolidated] financial statements of the
Operating Partnership for the _____-month periods ended __________,
19__, and __________, 19__, included in the Registration Statement and
the Prospectus (the "_____-month financials")] /2/ [, a reading of the
latest available unaudited interim [consolidated] financial statements
of the Operating Partnership] /3/, a reading of the minutes of all
meetings of the stockholders and directors of the Operating Partnership
[and its subsidiaries] and the Committees of the Operating
Partnership's Board of Directors [and any subsidiary committees] since
[day after end of last audited period], inquiries of certain officials
of the Operating Partnership [and its subsidiaries] responsible for
financial and accounting matters, a review of interim financial
information in accordance with standards established by the American
Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71") /4/, with
respect to the
----------
/1/ Include the appropriate dates of the 10-Q Financials.
/2/ Include if non-10-Q interim financial statements are included
in the Registration Statement and the Prospectus.
/3/ Include if the most recent unaudited financial statements
are not included in the Registration Statement and the
Prospectus.
/4/ Note that a review in accordance with Statements on Auditing
Standards ("SAS") No. 71
(continued...)
Annex I-1
[description of relevant periods] /5/ and such other inquiries and
procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be
made to the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;] /6/
[( ) the _____-month financials included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included
in registration statements or any material modifications
should be made to the _____-month
----------
/4/(continued...)
is required for an accountant to give negative assurance on interim
financial information. A review in accordance with SAS No. 71 will only be
performed at the request of the Company and the accountant's report, if any,
related to that review will be addressed only to the Company. Many companies
have a SAS No. 71 review performed in connection with the preparation of their
10-Q financial statements. See CODIFICATION OF STATEMENTS ON AUDITING STANDARDS,
AU ss. 722 for a description of the procedures thaT constitute such a review.
The comfort letter itself should recite that the review was performed and a copy
of the report, if any, should be attached to the comfort letter. Any report
issued pursuant to SAS No. 71 that is mentioned in the Registration Statement
should also be included in the Registration Statement as an exhibit. If a review
in accordance with SAS No. 71 has not and will not be performed by the
accountants, they should be prepared to perform certain agreed-upon procedures
on the interim financial information and to report their findings thereon in the
comfort letter. See CODIFICATION OF STATEMENTS ON AUDITING STANDARDS, AU ss. 622
for a discussion of reports related to the accountant's performance of
agreed-upon procedures. Any question as to whether a review in accordance with
SAS No. 71 will be performed by the accountants should be resolved early.
/5/ The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
/6/ Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
Annex I-2
financials included in the Registration Statement and the
Prospectus for them to be in conformity with generally
accepted accounting principles;] /7/
( ) at [____________, 19__ and at] /8/ a specified
date not more than five days /9/ prior to the date of the
applicable Terms Agreement, there was any change in the
__________ of the Operating Partnership [and its subsidiaries]
or any decrease in the _________ of the Operating Partnership
[and its subsidiaries] or any increase in the ___________ of
the Operating Partnership [and its subsidiaries,] /10/ in each
case as compared with amounts shown in the latest balance
sheet included in the Registration Statement and the
Prospectus, except in each case for changes, decreases or
increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
( ) [for the period from ___________, 19__ to
___________, 19__ and] /11/ for the period from _________,
19__ to a specified date not more than five days prior to the
date of the applicable Terms Agreement, there was any decrease
in __________, ___________ or ___________, /12/ in each case
as compared with
----------
/7/ Include if unaudited financial statements, not just selected
unaudited data, are included in the Registration Statement and the
Prospectus.
/8/ Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and the
Prospectus.
/9/ According to Example A of SAS No. 72, the specified date should be
five calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
/10/ The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which
items should be included rests with the banker, comfort is routinely
requested for certain balance sheet items, including long-term debt,
stockholders' equity, capital stock and net current assets.
/11/ Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial
statements of the Company, if those dates are different. Regardless of
whether this language is inserted or not, the period including five
days prior to the date of the applicable Terms Agreement should run
from the date of the last financial statement included in the
Registration Statement and the Prospectus, not from the later one that
is not included in the Registration Statement and the Prospectus.
/12/ The blanks should be filled in with significant income statements
items, selected by the
(continued...)
Annex I-3
the comparable period in the preceding year, except in each
case for any decreases that the Registration Statement and
the Prospectus discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the [Selected Financial Data] included in the
Registration Statement and the Prospectus [and a reading of the
financial statements from which such data were derived,] /13/ nothing
came to our attention that caused us to believe that the [Selected
Financial Data] included in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the
disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the [Selected Financial Data] are not
in agreement with the corresponding amounts in the audited
[consolidated] financial statements for the respective periods or that
the financial statements not included in the Registration Statement and
the Prospectus from which certain of such data were derived are not in
conformity with generally accepted accounting principles] /14/;
(iv) we have compared the information in the
Registration Statement and the Prospectus under selected captions with
the disclosure requirements of Regulation S-K of the 1933 Act and on
the basis of limited procedures specified herein. Nothing came to our
attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
----------
/12/(...continued)
banker and tailored to the issuer's industry in general and operations
in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for
certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
/13/ Include only if there are selected financial data that have been
derived from financial statements not included in the Registration
Statement and the Prospectus.
/14/ In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, REPORTING ON CONDENSED
FINANCIAL STATEMENTS AND SELECTED FINANCIAL DATA, and include in their
report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the
Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the
Registration Statement and the Prospectus includes the additional
language prescribed by SAS No. 42.9, the bracketed language may be
eliminated.
Annex I-4
[(v) based upon the procedures set forth in clause (ii)
above, a reading of the unaudited financial statements of the Operating
Partnership for [the most recent period] that have not been included in
the Registration Statement and the Prospectus and a review of such
financial statements in accordance with SAS 71, nothing came to our
attention that caused us to believe that the unaudited amounts for
__________________ for the [most recent period] do not agree with the
amounts set forth in the unaudited consolidated financial statements
for those periods or that such unaudited amounts were not determined on
a basis substantially consistent with that of the corresponding amounts
in the audited [consolidated] financial statements;] /15/
[(vi)] we are unable to and do not express any opinion on
the [Pro Forma Combining Statement of Operations] (the "Pro Forma
Statement") included in the Registration Statement and the Prospectus
or on the pro forma adjustments applied to the historical amounts
included in the Pro Forma Statement; however, for purposes of this
letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in
accordance with SAS 71] of the financial statements
to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of
the Operating Partnership who have responsibility for
financial and accounting matters about the basis for
their determination of the pro forma adjustments and
whether the Pro Forma Statement complies as to form
in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement
included in the Registration Statement does not comply as to
form in all material respects with the applicable requirements
of Rule 11-02 of
----------
/15/ This language should be included when the Registration Statement and
the Prospectus include earnings or other data for a period after the
date of the latest financial statements in the Registration Statement
and the Prospectus, but the unaudited interim financial statements from
which the earnings or other data is derived is not included in the
Registration Statement and the Prospectus. The blank should be filled
in with a description of the financial statement item(s) included.
Annex I-5
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements; and
[(vii)] in addition to the procedures referred to in
clause (ii) above, we have performed other procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement and
the Prospectus, which are specified herein, and have compared certain
of such items with, and have found such items to be in agreement with,
the accounting and financial records of the Operating Partnership; /17/
and
[(viii) in addition, we [comfort on a financial
forecast that is included in the Registration Statement and the
Prospectus.] /18/
--------
/16/ If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro
forma financial statements is not otherwise available, the accountants
should be requested to perform certain other procedures with respect to
such pro forma financial statements. See Example O of SAS No. 72.
/17/ This language is intended to encompass all other
financial/numerical information appearing in the Registration Statement
and the Prospectus for which comfort may be given, including (but not
limited to) amounts appearing in the Registration Statement and the
Prospectus narrative and other summary financial data appearing in
tabular form (e.g., the capitalization table).
/18/ Accountants' services with respect to a financial forecast may be
in one of three forms: an examination of the forecast, a compilation of
the forecast or the application of agreed-upon procedures to the
forecast. If the accountant is to perform an examination of the
forecast included in the Registration Statement and the Prospectus,
delivery of the related report should be treated separately in Section
5(f) as follows (remember to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement
is executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus are
presented in conformity with guidelines for presentation of a
forecast established by the AICPA, and that the underlying
assumptions provide a reasonable basis for management's
forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included
(continued...)
Annex I-6
----------
/18/(...continued)
in the Registration Statement and the Prospectus, delivery of the
related report should be treated separately in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement
is executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus in
accordance with the guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus, SAS
No. 72 requires that the accountant first prepare a compilation report
with respect to the forecast and attach that report to the comfort
letter. The accountant may then report on specific procedures performed
and findings obtained.
Annex I-7
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
November 21, 1996
To: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, ▇.▇.
▇▇▇▇▇ Property Group, L.P.
National City Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), proposes to issue and sell
$250,000,000 aggregate principal amount of debt securities (hereinafter the
"Initial Underwritten Securities") as guaranteed by Simon Property Group, L.P.,
a Delaware limited partnership ("SPG, LP"). Subject to the terms and conditions
set forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
number of Initial Underwritten Securities as guaranteed by SPG, LP set forth
below opposite their names at the purchase price set forth below
Principal Amount of
Underwriter Initial Underwritten Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.................. $ 50,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.......................................... 50,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................................... 50,000,000
Salomon Brothers Inc................................................ 50,000,000
UBS Securities LLC.................................................. 50,000,000
Total $ 250,000,000
====================
The Underwritten Securities shall have the following terms:
Title: 67/8% Notes Due November 15, 2006
Rank: The Underwritten Securities will rank pari
passu with each other and with all other
unsecured and unsubordinated indebtedness of
the Operating Partnership except that the
Underwritten Securities will be effectively
subordinated to (i) the prior claims of each
secured mortgage lender to any specific
Portfolio Property which secures such
lender's mortgage and (ii) any claims of
creditors of entities wholly or partly
owned, directly or indirectly, by the
Operating Partnership.
Ratings: Baa1 by ▇▇▇▇▇'▇ Investor Service
BBB by Standard & Poor's
BBB+ by Fitsch Investors Service, L.P.
Aggregate principal amount: $250,000,000
Currency of payment: U.S. Dollars
Interest rate or formula: 67/8% payable semi-annually in arrears
Interest payment dates: Each May 15 and November 15
Stated maturity date: November 26, 2006
Redemption provisions: The Underwritten Securities are redeemable
at any time at the option of the Operating
Partnership, in whole or in part, at a
redemption price equal to the sum of
(i) the principal amount of the Underwritten
Securities being redeemed plus accrued
interest to the redemption date and (ii) the
Make-Whole Amount, if any.
Sinking fund requirements: None
Conversion provisions: None
Listing requirements: None
Black-out provisions: None
Guarantee: SPG, LP will guarantee the due and punctual
payment of the principal of, premium, if
any, interest on, and any other amounts
payable with respect to, the Underwritten
Securities, when and as the same shall
become due and payable, whether at a
maturity date, on redemption, by declaration
of acceleration or otherwise.
Initial public offering price: 99.662% of the principal amount, plus
accrued interest or amortized original
issue discount, if any, from date of
issuance.
Purchase price per share: 99.012% of principal amount, plus
accrued interest or amortized original
issue discount, if any, from date of
issuance (payable in same day funds).
Lock-Up Provisions: None
Other terms and conditions: The Underwritten Securities shall be in the
form of Exhibit A to the First Supplemental
Indenture, dated as of November 26,
1996, between the Partnerships and The
Chase Manhattan Bank.
Closing date and location: November 26, 1996 at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
All of the provisions contained in the document attached as Annex I
hereto entitled "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P. AND SIMON PROPERTY GROUP,
L.P.--Debt Securities together with the Guarantee Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than five o'clock P.M. (New York City
time) on November 21, 1996 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, Inc.
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer