CONFORMED COPY
SIMON PROPERTY GROUP, INC.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT ............................................................................. 1
SECTION 1. Representations and Warranties .......................................................... 3
(a) Representations and Warranties by the Companies and the Operating Partnership ............ 3
(1) Compliance with Registration Requirements ........................................... 3
(2) Incorporated Documents .............................................................. 4
(3) Independent Accountants ............................................................. 5
(4) Financial Statements ................................................................ 5
(5) No Material Adverse Change in Business .............................................. 5
(6) Good Standing of the Companies ...................................................... 6
(7) Good Standing of the Operating Partnership .......................................... 6
(8) Good Standing of Simon Entities ..................................................... 6
(9) Good Standing of Property Partnerships .............................................. 7
(10) Capitalization ...................................................................... 7
(11) Authorization of this Underwriting Agreement and Terms Agreement .................... 8
(12) Authorization of OP Units ........................................................... 8
(13) Authorization of Common Stock ....................................................... 8
(14) Authorization of Preferred Stock and/or Depositary Shares ........................... 8
(15) Authorization of Deposit Agreement .................................................. 9
(16) Authorization of Warrants ........................................................... 9
(17) Authorization of Warrant Agreement .................................................. 9
(18) Authorization of Underlying Securities .............................................. 9
(19) Descriptions of the Underwritten Securities, Underlying Securities,
Deposit Agreement and Warrant Agreement ............................................. 10
(20) Absence of Defaults and Conflicts ................................................... 10
(21) Absence of Labor Dispute ............................................................ 11
(22) Absence of Proceedings .............................................................. 11
(23) Accuracy of Exhibits ................................................................ 11
(24) REIT Qualification .................................................................. 11
(25) Investment Company Act .............................................................. 11
(26) Intellectual Property ............................................................... 12
(27) Absence of Further Requirements ..................................................... 12
(28) Possession of Licenses and Permits .................................................. 12
(29) Registration Rights ................................................................. 12
TABLE OF CONTENTS
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PAGE
(30) Title to Property ................................................................... 12
(31) Environmental Laws .................................................................. 13
(32) Tax Returns ......................................................................... 13
(33) Environmental Consultants ........................................................... 14
(34) Compliance with Cuba Act ............................................................ 14
(35) Listing ............................................................................. 14
(36) Investment Grade Rating ............................................................. 14
(37) Property Information ................................................................ 14
(38) Beneficial Owners, Directors and Officers of the Companies .......................... 14
(b) Officers'Certificates .................................................................... 14
SECTION 2. Sale and Delivery to Underwriters; Closing .............................................. 15
(a) Underwritten Securities .................................................................. 15
(b) Option Underwritten Securities ........................................................... 15
(c) Payment .................................................................................. 15
(d) Denominations; Registration .............................................................. 16
SECTION 3. Covenants of the Companies and the Operating Partnership ................................ 16
(a) Compliance with Securities Regulations and Commission Requests ........................... 16
(b) Filing of Amendments ..................................................................... 16
(c) Delivery of Registration Statements ...................................................... 16
(d) Delivery of Prospectuses ................................................................. 17
(e) Continued Compliance with Securities Laws ................................................ 17
(f) Blue Sky Qualifications .................................................................. 17
(g) Earnings Statement ....................................................................... 18
(h) Reporting Requirements ................................................................... 18
(i) Listing .................................................................................. 18
(j) Restriction on Sale of Securities ........................................................ 18
(k) REIT Qualification ....................................................................... 18
(l) Reservation of Securities ................................................................ 18
(m) Use of Proceeds .......................................................................... 18
(n) Exchange Act Filings ..................................................................... 18
SECTION 4. Payment of Expenses ..................................................................... 18
(a) Expenses ................................................................................. 18
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TABLE OF CONTENTS
(CONTINUED)
PAGE
(b) Termination of Agreement ................................................................. 19
SECTION 5. Conditions of Underwriters' Obligations ................................................. 19
(a) Effectiveness of Registration Statement .................................................. 19
(b) Opinion of Counsel for Companies and the Operating Partnership ........................... 20
(c) Opinion of Counsel for Underwriters ...................................................... 20
(d) Officers' Certificate .................................................................... 20
(e) Accountant's Comfort Letter .............................................................. 21
(f) Bring-down Comfort Letter ................................................................ 21
(g) Ratings .................................................................................. 21
(h) Approval of Listing ...................................................................... 21
(i) No Objection ............................................................................. 21
(j) Lock-up Agreements ....................................................................... 21
(k) Over-Allotment Option .................................................................... 21
(l) Additional Documents ..................................................................... 22
(m) Termination of Terms Agreement ........................................................... 22
(n) Inclusion in S&P 500 Index ............................................................... 22
SECTION 6. Indemnification ......................................................................... 22
(a) Indemnification of Underwriters .......................................................... 22
(b) Indemnification of Companies, Operating Partnership, Directors and Officers .............. 23
(c) Actions against Parties; Notification .................................................... 23
(d) Settlement without Consent if Failure to Reimburse ....................................... 24
SECTION 7. Contribution ............................................................................ 24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery .......................... 25
SECTION 9. Termination ............................................................................. 26
(a) Underwriting Agreement ................................................................... 26
(b) Terms Agreement .......................................................................... 26
(c) Liabilities .............................................................................. 26
SECTION 10. Default by One or More of the Underwriters ............................................. 26
SECTION 11. Notices ................................................................................ 27
SECTION 12. Parties ................................................................................ 27
SECTION 13. Governing Law and Time ................................................................. 28
SECTION 14. Effect of Headings ..................................................................... 28
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TABLE OF CONTENTS
(CONTINUED)
EXHIBITS
EXHIBIT A Simon Property Group, Inc. - Terms Agreement
EXHIBIT B-1 Form of Opinion of General Counsel of Companies and Operating
Partnership To be Delivered pursuant to Section 5(b)
EXHIBIT B-2 Form of Opinion of Special Counsel to Companies and Operating
Partnership To be Delivered pursuant to Section 5(b).
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SIMON PROPERTY GROUP, INC.
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
UNDERWRITING AGREEMENT
June 26, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Simon Property Group, Inc., a Delaware corporation ("SPG") and its "paired
share" affiliate, SPG Realty Consultants, Inc., a Delaware corporation ("SRC"
and together with the SPG, the "Companies") propose to issue and sell up to
$500,000,000 aggregate public offering price of (i) shares of common stock, par
value $0.0001 per share (the "Common Stock"), (ii) warrants to purchase shares
of Common Stock (the "Common Stock Warrants"), (iii) shares of preferred stock,
par value $0.0001 per share (the "Preferred Stock"), or (iv) warrants to
purchase shares of Preferred Stock (the "Preferred Stock Warrants"), or any
combination thereof, from time to time, in or pursuant to one or more offerings
on terms to be determined at the time of sale. Shares of Common Stock of SPG and
any other securities convertible into shares of Common Stock of SPG will be
paired with beneficial interests in shares of Common Stock of SRC.
The Preferred Stock will be issued in one or more series and each series of
Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable certificate of designations (each, the "Certificate of Designations")
relating to such series of Preferred Stock. A series of Preferred Stock may be
represented by depositary shares (the "Depositary Shares") that are evidenced by
depositary receipts (the "Depositary Receipts") issued pursuant to a deposit
agreement (each, a "Deposit Agreement") among the Companies, the depositary
identified therein (the "Depositary") and the registered holders of the
Depositary Receipts issued thereunder.
Each issue of Common Stock Warrants and Preferred Stock Warrants
(collectively, the "Warrants") will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Companies and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary, as
applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the related
Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants or Depositary Shares, or any
combination thereof, initially issuable by the Companies and "Underlying
Securities" shall mean the Common Stock, Preferred Stock or Depositary Shares,
issuable upon exercise of the Warrants, as applicable, or upon conversion of the
Preferred Stock or Depositary Shares, as applicable.
Whenever the Companies determine to make an offering of Securities through
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney"), or through an underwriting syndicate managed by Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney, Goldman, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and the Companies will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such Securities
to, and the purchase and offering thereof by, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and such other underwriters, if any, selected by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ (the "Underwriters," which term shall include Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, whether acting as the only Underwriters or as members of an underwriting
syndicate, as well as any Underwriter substituted pursuant to Section 10
hereof); PROVIDED, that the Companies 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 number 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 than Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ acting as
co-manager in connection with such offering, the number of Init ial 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 Companies have
agreed to grant to the Underwriters an option to purchase additional Securities
to cover over-allotments, if any, and the number 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
Companies, on the one hand, and Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, on the other
hand, acting for themselves and, if applicable, as representatives of any other
Underwriters. Each offering of Underwritten Securities through Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as the only Underwriters or through an underwriting
syndicate managed by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Companies have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-68938 and
333-68938-01) for the registration of the Securities and the Underlying
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 Companies have filed such 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. 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"), 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
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to the Underwriters by the Companies 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 Companies 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 to which it relates, and PROVIDED, FURTHER, that if
the Companies 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 Companies 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 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, partnership or other equity interests, as the case
may be, of which is controlled, directly or indirectly, by the Companies.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANIES AND THE OPERATING
PARTNERSHIP. The Companies and Simon Property Group, L.P., a Delaware limited
partnership (the "Operating Partnership") represent and warrant, jointly and
severally, to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 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 Companies 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
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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 Companies, 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 Companies, threatened by the Commission or the state securities
authority of any jurisdiction.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the Companies' most recent Annual Report on Form 10-K with
the Commission (the "Annual Report on Form 10-K")) 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 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 Companies elect to rely upon Rule 434 of the 1933 Act Regulations, the
Companies 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
furnished to the Companies in writing by any Underwriter through Goldman
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 Companies 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, as applicable, 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 in which a Prospectus is required to be delivered in
connection with sales of the Underwritten Securities, 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.
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(3) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus were independent public accountants and the
current accountants of the Companies are independent public accountants, in
each case, 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 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 Companies,
the Operating Partnership, 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 Company, Inc., an Indiana corporation ("MOA"), ▇▇▇▇▇▇▇▇▇
Properties Management, Inc., an Ohio corporation ("DRC Management Company"
and together with SPG Management Company, Management (Indiana), MOA and DRC
Management Company, the "Management Companies"), Simon Property Group
(Delaware), Inc., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Property, Inc., SDG Forum Developers,
Inc., ▇▇▇▇▇▇▇▇▇ Properties, Inc., ▇▇▇▇▇▇▇▇▇ Properties II, Inc., and
▇▇▇▇▇▇▇▇▇ Properties III, Inc. (collectively, the "REIT Subs") or any
subsidiary of either of the Companies (other than any Property Partnership
(as defined below)) not listed among the foregoing entities, (the
Companies, the Operating Partnership, the Management Companies, and the
REIT Subs and such other subsidiaries being sometimes hereinafter
collectively referred to as the "Simon Entities" and individually as a
"Simon 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
Companies and the Operating Partnership, taken as a whole (anything which
would be material to the Companies and
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the Operating Partnership, 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
Simon Entities or the Property Partnerships, other than those in the
ordinary course of business, which would be Material, and (D) except for
distributions in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid or
made by the Companies on any class of their capital stock and (E) with the
exception of transactions in connection with (1) the Simon Property Group
and Adopting Entities Matching Savings Plan and the Simon Property Group,
L.P. 1998 Stock Incentive Plan, the (the "Stock 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 SPG Series A Preferred
Shares, SPG Series B Preferred Shares, SPG Series C Preferred Shares, the
exchange of partnership interests in the Operating Partnership ("OP
Units"), or upon the exchange of shares of SPG Class B Common Stock, par
value $0.0001 per share (the "Class B Common Stock"), or upon the exchange
of SPG 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 Simon Entities or in the partnership interests of Operating
Partnership or any Property Partnership, or any increase in the
indebtedness of the Simon Entities, the Property Partnerships or the
Portfolio Properties which would be Material.
(6) GOOD STANDING OF THE COMPANIES. Each of the Companies has been
duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware 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. Each of the Companies 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 Material Adverse Effect. SPG is the sole
general partner of the Operating Partnership. The amended and restated
agreement of limited partnership of the Operating Partnership (the
"Operating Partnership Agreement") is in full force and effect in the form
in which it was filed as an exhibit to the Operating Partnership's Annual
Report on Form 10-K, for the year ended December 31, 2000 except for
subsequent amendments relating to the admission of new partners to the
Operating Partnership.
(8) GOOD STANDING OF SIMON ENTITIES. Each of the Simon Entities other
than the Companies and the Operating Partnership 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,
- 6 -
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
have been duly authorized and validly issued and are fully paid and
non-assessable, have been offered and sold in compliance with all
applicable laws (including without limitation, federal or state securities
laws) and are owned by the Companies, the Management Companies or the
Operating Partnership, 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 interest 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. 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 by-laws of such entity or under any agreement to which any Simon
Entity is a party.
(9) 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. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding equity
interests of each Property Partnership have been duly authorized and are
validly issued and fully paid and are owned by the Companies, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding equity
interests of any Property Partnership was issued in violation of preemptive
or other similar rights of any securityholder of such Property Partnership.
(10) CAPITALIZATION. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Companies are as set forth in the column entitled "Actual" under such
section (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 shares of
capital stock have been duly authorized and validly issued by the Companies
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 shares of
capital stock were issued in violation of preemptive or other similar
rights arising by operation of law, under the charter and by-laws of the
Companies or under any agreement to which any of the Companies or any of
the other Simon Entities is a party or otherwise. Except for shares of
Common Stock issuable upon conversion of SPG Series A Preferred Shares, SPG
Series B Preferred Shares, SPG Series C Preferred Shares, exchange of OP
- 7 -
Units or shares of Class B Common Stock or Class C Common Stock, upon the
exercise of options under the Stock Plans or under the Distribution
Reinvestment Plan, there are no shares of capital stock of the Companies
reserved for any purpose and there are no outstanding securities
convertible into or exchangeable for any shares of capital stock of the
Companies and except as granted in this Underwriting Agreement, any Terms
Agreement and any Warrant Agreement, 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 Companies.
(11) 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 the Companies and the Operating Partnership, to the extent each is a
party thereto and assuming due authorization, execution and delivery by
Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, is enforceable against the Companies and
the Operating Partnership, to the extent each is a party thereto, in
accordance with its terms.
(12) AUTHORIZATION OF OP UNITS. All the issued and outstanding OP
Units 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 and no outstanding options, rights (preemptive
or otherwise) or warrants to purchase or to subscribe for OP Units.
(13) AUTHORIZATION OF COMMON STOCK. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Companies for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and delivered by the Companies
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights arising by operation of law,
under the charter and by-laws of the Companies or under any agreement to
which either of the Companies or any of the other Simon Entities is a
party, or otherwise. Upon payment of the purchase price and delivery of
such Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all Liens. No holder of such
Underwritten Securities will be subject to personal liability by reason of
being such a holder.
(14) AUTHORIZATION OF PREFERRED STOCK AND/OR DEPOSITARY SHARES. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Companies for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement. The
applicable Preferred Stock, when issued and delivered by the Companies
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor, or for the related Depositary
Shares, as the case may be, specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Companies or under any agreement to which either
of the Companies or any of the other Simon Entities is a party, or
otherwise. In addition, upon deposit by the Companies of any Preferred
Stock represented by Depositary Shares with the applicable Depositary and
the execution and delivery by such Depositary of the Depositary Receipts
evidencing such Depositary Shares, in each case pursuant to the applicable
Deposit
- 8 -
Agreement, such Depositary Shares will represent legal and valid interests
in such Preferred Stock. Upon payment of the purchase price and delivery of
such Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all Liens. No holder of
Preferred Stock or Depositary Receipts evidencing Depositary Shares will be
subject to personal liability by reason of being such a holder. The
applicable Certificates of Designations will be in full force and effect
prior to the Closing Time and will comply with all applicable legal
requirements.
(15) AUTHORIZATION OF DEPOSIT AGREEMENT. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Depositary Shares, the applicable Deposit Agreement has been, or prior to
the issuance of such Depositary Shares will have been, duly authorized,
executed and delivered by the Companies and, upon such authorization,
execution and delivery, will constitute a valid and legally binding
agreement of the Companies, enforceable against the Companies in accordance
with its 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.
Each registered holder of a Depositary Receipt under the applicable Deposit
Agreement will be entitled to the proportional rights, preferences and
limitations of the Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement.
(16) AUTHORIZATION OF WARRANTS. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Companies 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 the applicable Warrant Agreement and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Companies, entitled
to the benefits provided by such Warrant Agreement and enforceable against
the Companies 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.
(17) AUTHORIZATION OF WARRANT AGREEMENT. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities will have been, duly authorized,
executed and delivered by the Companies and, upon such authorization,
execution and delivery, will constitute a valid and legally binding
agreement of the Companies, enforceable against the Companies in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar law relating to or
affecting creditors' rights generally or by general equitable principles.
(18) AUTHORIZATION OF UNDERLYING SECURITIES. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized and reserved for
issuance by the Companies upon exercise of the Common Stock Warrants or
Preferred Stock Warrants, as applicable, or upon conversion of the related
Preferred Stock or Depositary Shares, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such Underlying
Securities, when issued upon such exercise or conversion, as applicable,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights arising
- 9 -
by operation of law, under the charter and by-laws of the Companies or
under any agreement to which the Companies or any of the other Simon
Entities is a party, or otherwise. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the
Companies of the Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary of the
Depositary Receipts evidencing such Depositary Shares, in each case
pursuant to the applicable Deposit Agreement, will represent legal and
valid interests in such Preferred Stock. No holder of such Common Stock,
Preferred Stock or Depositary Receipts evidencing Depositary Shares will be
subject to personal liability by reason of being such a holder.
(19) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES, UNDERLYING
SECURITIES, DEPOSIT AGREEMENT AND WARRANT AGREEMENT. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and each
applicable Deposit Agreement and Warrant Agreement, as of the date of the
Prospectus, and any Underlying Securities, 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. The form of stock certificate or warrant to be used
to evidence the Underwritten Securities or any Underlying Securities will
be in due and proper form and will comply with all applicable legal
requirements.
(20) ABSENCE OF DEFAULTS AND CONFLICTS. None of the Simon 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 (other than with respect to the charter, by-laws, partnership
agreement, or other organizational document of the Companies, as the case
may be) or defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement and each applicable Warrant Agreement and
Deposit Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Companies or the Operating
Partnership 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
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 the Companies and the Operating Partnership
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 Companies or any other Simon 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 charter,
by-laws of the Companies or the organizational documents of any other Simon
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 Companies, any other
Simon Entity or any
- 10 -
Property Partnership or any of their assets, properties or operations,
except for such violations (other than with respect to the charter,
by-laws, partnership agreement, or other organizational document of the
Companies, as the case may be) 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 Companies, any other Simon Entity or
any Property Partnership.
(21) ABSENCE OF LABOR DISPUTE. Except as otherwise described in the
Registration Statement or the Prospectus, no labor dispute with the
employees of the Companies or any other Simon Entity or any Property
Partnership exists or, to the knowledge of the Companies and the Operating
Partnership, is imminent, and none of the Companies or the Operating
Partnership is 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.
(22) 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
Companies and the Operating Partnership threatened against or affecting the
Companies, any other Simon Entity thereof, or any Property Partnership or
any officer or director of the Companies 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 any applicable Warrant Agreement or Deposit Agreement or the
transactions contemplated herein or therein. The aggregate of all pending
legal or governmental proceedings to which the Companies or any other Simon
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.
(23) 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.
(24) REIT QUALIFICATION. At all times since January 1, 1973 SPG (as
Corporate Property Investors, a Massachusetts business trust) has been, and
upon the sale of the applicable Underwritten Securities, SPG 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.
(25) INVESTMENT COMPANY ACT. Each of the Companies, the Operating
Partnership, the other Simon 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").
- 11 -
(26) INTELLECTUAL PROPERTY. To the knowledge of the Companies and the
Operating Partnership, none of the Simon 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.
(27) 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 the Companies and the Operating Partnership of their obligations under
this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or any applicable Warrant Agreement or
Deposit Agreement, except such as have been already obtained or as may be
required under state securities laws or under the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD").
(28) POSSESSION OF LICENSES AND PERMITS. Each of the Companies, the
other Simon Entities and the Property Partnerships possesses 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 it except for such Governmental Licenses, the failure to obtain
would not, singly or in the aggregate, result in a Material Adverse Effect.
Each of the Companies, the other Simon Entities and the Property
Partnerships is 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. None of the Companies or any of the other Simon
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.
(29) REGISTRATION RIGHTS. Except as disclosed in the Prospectus, in
the Companies' Annual Report on Form 10-K or in the Operating Partnership
Agreement 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 Companies under the 1933 Act.
(30) TITLE TO PROPERTY. The Companies, the other Simon 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
Companies, the Operating Partnership, any other Simon Entity or any
Property Partnership. All leases and subleases under which the Companies,
any other Simon Entity or any Property Partnerships hold properties are in
full force and effect, except for such which would not have a Material
Adverse Effect. None of the Companies, the other Simon Entities or 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
Companies, any other Simon Entity or the Property Partnerships under any
material leases or subleases, or affecting or questioning the rights of the
Companies, such other Simon Entity or the Property Partnerships of the
continued possession of the leased or subleased premises under any such
lease or sublease, other than claims
- 12 -
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 Simon Entity or any Property Partnership
which are required to be disclosed in the Prospectus are disclosed therein.
None of the Simon 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 Companies or the Operating Partnership 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 either
of the Companies, of the Operating Partnership 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 Companies or the Operating Partnership
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.
(31) 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) none of the Companies, the other Simon Entities or the Property
Partnerships 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 Companies, the other Simon 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 Companies, any of the other
Simon 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
Companies, any of the other Simon Entities or any Property Partnership
relating to any Hazardous Materials or the violation of any Environmental
Laws.
(32) TAX RETURNS. Each of the Simon 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,
- 13 -
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.
(33) 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 Simon Entity or any
Property Partnership and none of them nor any of their directors, officers
or employees is connected with any Simon Entity or any Property Partnership
as a promoter, selling agent, voting trustee, director, officer or
employee.
(34) COMPLIANCE WITH CUBA ACT. The Companies have complied with, and
are 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 are exempt therefrom.
(35) LISTING. The Common Stock will be listed on the
New York Stock
Exchange on each Representation Date. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Preferred Stock
and/or Warrants, and if so stated in the Prospectus as of each
Representation Date, the Preferred Stock and/or Warrants, as applicable,
will have been approved for listing on the
New York Stock Exchange upon
notice of issuance.
(36) INVESTMENT GRADE RATING. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Preferred Stock
and/or Depositary Shares and unless otherwise agreed to by the
Underwriters, the Preferred Stock will have an investment grade rating from
one or more nationally recognized statistical rating organizations at each
applicable Representation Date.
(37) 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.
(38) BENEFICIAL OWNERS, DIRECTORS AND OFFICERS OF THE COMPANIES. No
person who in the aggregate beneficially owns 5% or more of the common
stock of the Companies (a "Beneficial Owner"), director of the Companies or
officer of the Companies 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 the Companies' 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.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of the
Companies or any authorized representative of the Operating Partnership 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.
- 14 -
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 Companies may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number 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 dividends or
distributions declared by the Companies and paid or payable 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
Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to the Companies setting forth the number 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 Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, 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 Companies. 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 number of Option Underwritten Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities, subject
to such adjustments as Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in their discretion
shall make to eliminate any sales or purchases of a fractional number 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 ▇▇▇▇▇▇▇▇ Chance
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the Companies, 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 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 Companies (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 ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, or at such other
place as shall be agreed upon by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the
Companies, on the relevant Date of Delivery as specified in the notice from
Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to the Companies.
Payment shall be made to the Companies by certified or official bank check
or checks drawn in
New York Clearing House funds or similar next day funds
payable to the order of the Companies, against delivery to Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter has
authorized Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 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. Each of Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, individually and not as a
- 15 -
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, certificates
for the Underwritten Securities of Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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, certificates for the Underwritten
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, will be made available for examination and packaging by Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 COMPANIES AND THE OPERATING PARTNERSHIP.
Each of the Companies and the Operating Partnership covenants with Goldman
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and with each Underwriter participating in the offering
of Underwritten Securities, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Companies, 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 initiation or threatening of any proceedings
for any of such purposes. The Companies will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as they deem 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 they were
not, they will promptly file the Prospectus. The Companies 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 Companies and the Operating Partnership will
give Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ notice of their 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 furnish Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 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 Companies 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
- 16 -
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 Companies will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Companies hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Companies 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 Companies 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 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 Companies, 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
Companies 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 Companies 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 Companies 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
Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 the Companies shall not
be obligated to file any general consent to service of process or to qualify or
register as a foreign corporation or as a dealer in securities in any
jurisdiction in which either of them is not so qualified or registered, or to
provide any undertaking or make any change in their respective charters or
by-laws that the Board of Directors of the respective Companies reasonably
determines to be contrary to the best interests of the Companies and their
stockholders or to subject the Companies to taxation in respect of doing
business in any jurisdiction in which they are not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any related Underlying
Securities have been so qualified or registered, the Companies will file such
statements and reports as may be
- 17 -
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 Companies will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to their 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 Companies, 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.
(i) LISTING. The Companies will use their best efforts to effect and
maintain the listing of the Underwritten Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities exchange or
quotation system if and as specified in the applicable Terms Agreement.
(j) RESTRICTION ON SALE OF SECURITIES. Between the date of the applicable
Terms Agreement and the Closing Time and/or such other date specified in such
Terms Agreement, the Companies, the Operating Partnership and any other entity
or person named in the applicable Terms Agreement will not, without the prior
written consent of Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, directly or indirectly,
issue, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, the securities specified in such Terms Agreement subject to any
conditions listed therein.
(k) REIT QUALIFICATION. SPG 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.
(l) RESERVATION OF SECURITIES. If the applicable Terms Agreement specifies
that any related Underlying Securities include Common Stock, Preferred Stock
and/or Depositary Shares, the Companies will reserve and keep available at all
times, free of preemptive or other similar rights, a sufficient number of shares
of Common Stock and/or Preferred Stock, as applicable, for the purpose of
enabling the Companies to satisfy any obligations to issue such Underlying
Securities upon exercise of the related Warrants, as applicable, or upon
conversion of the Preferred Stock or Depositary Shares, as applicable.
(m) USE OF PROCEEDS. The Companies will use the net proceeds received by
them from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(n) EXCHANGE ACT FILINGS. During the period from each Closing Time until
five years after such Closing Time, the Companies will deliver to Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Companies mailed to stockholders 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 Companies as Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ may
reasonably request.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Companies will pay all expenses incident to the
performance of their 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
- 18 -
Underwriters of this Underwriting Agreement, any Terms Agreement, any Agreement
among Underwriters, any Deposit Agreement, any Warrant Agreement and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities or any related Underlying Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities and
any related Underlying Securities, any certificates for the Underwritten
Securities or such Underlying Securities or Depositary Receipts evidencing the
Depositary Shares, as applicable, to the Underwriters, including any transfer
taxes, any stamp or other duties payable upon the sale, issuance and delivery of
the Underwritten Securities to the Underwriters, (iv) the fees and disbursements
of the Companies' counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the reasonable fees and
disbursements of any Depositary and any Warrant Agent, and their respective
counsel, (v) the qualification of the Underwritten Securities and any related
Underlying 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 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 and any related Underlying Securities, if applicable, (viii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (ix) 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 and any related Underlying Securities,
(x) 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 by-laws of the NASD), if applicable, and (xi) 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 Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with the provisions
of Section 5, Section 9 or Section 10 hereof, the Companies 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 Companies and the
Operating Partnership contained in Section 1 hereof or in certificates of any
officer or authorized representative of the Companies or any other Simon Entity
delivered pursuant to the provisions hereof, to the performance by the Companies
and the Operating Partnership 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
- 19 -
and declared effective in accordance with the requirements of Rule 430A), or, if
the Companies 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 COMPANIES AND THE OPERATING PARTNERSHIP. At
Closing Time, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received the favorable
opinions, dated as of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the
Companies and the Operating Partnership, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., the General
Counsel of the Companies and the Operating Partnership or such other counsel as
is designated by the Companies or 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 B-1 and B-2 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, Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Underwriters, or such other counsel as may be designated by Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ together with signed or reproduced copies of such letter for each
of the other Underwriters, with respect to the matters set forth in items (1),
(3) (with respect to the first clause only), (4), (9), (10) (with respect to the
first sentence only), (11) and the last three paragraphs of Exhibit B-2 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 Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇. 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 Companies and the
other Simon 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 Companies and the other Simon Entities considered
as one enterprise, whether or not arising in the ordinary course of business,
and Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received a certificate of (x)
the Chief Executive Officer, President or a Vice President of the Companies for
themselves and for SPG as the sole 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 respects, with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Companies and the
Operating Partnership 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, (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 1933 Act and the 1933 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 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, and (vi) none of the
events listed in Section 9(b) have occurred, and (y) the Chief Accounting
Officer or other relevant or appropriate officers of the Companies for
themselves and for SPG as the sole general partner of the
- 20 -
Operating Partnership, dated as of the Closing Time, as to any other matters
requested by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received
from the Companies' independent accountants a letter, dated such date, in form
and substance satisfactory to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ shall have received from the Companies' independent accountants 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 Companies shall have delivered to Goldman
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, 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
Companies' 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 Companies' other securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten Securities
shall be listed or shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) 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.
(j) LOCK-UP AGREEMENTS. On the date of the applicable Terms Agreement,
Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
(k) OVER-ALLOTMENT OPTION. In the event that the Underwriters are granted
an over-allotment option by the Companies and 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 Companies and the Operating Partnership
contained herein and the statements in any certificates furnished by the
Companies or the Operating Partnership hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, Goldman and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received:
- 21 -
(1) A certificate dated such Date of Delivery, of (x) the Chief
Executive Officer, President or a Vice President of the Companies for
themselves and for SPG as sole 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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Companies and the Operating Partnership, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
General Counsel of the Companies and the Operating Partnership, 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 ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
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 the Companies' independent accountants, in form and
substance satisfactory to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
(l) 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 Companies in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and counsel for the Underwriters.
(m) 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 be terminated by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ by notice to the
Companies 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.
(n) INCLUSION IN S&P 500 INDEX. At Closing Time, SPG shall have been
included in the S&P 500 Index by Standard and Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Companies and the Operating
Partnership 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:
- 22 -
(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
Companies; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇), 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;
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 Companies by
any Underwriter through Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use 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).
(b) INDEMNIFICATION OF COMPANIES, OPERATING PARTNERSHIP, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees to indemnify and hold harmless the
Companies and the Operating Partnership, each of the Companies' directors, each
of their officers who signed the Registration Statement, and each person, if
any, who controls the Companies or the Operating Partnership 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 Companies by such Underwriter through Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ 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
- 23 -
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 Goldman and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Companies. 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 to 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, 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 Companies and the Operating Partnership, 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 Companies and
the Operating Partnership, 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 Companies and the Operating
Partnership, 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 Companies 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
- 24 -
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Companies and the Operating Partnership, 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 Companies or the Operating Partnership or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Companies, the Operating Partnership 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 Companies, each officer of the Companies who signed the
Registration Statement, and each person, if any, who controls the Companies or
the Operating Partnership 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
Companies. 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 Companies or authorized representatives of the Operating
Partnership 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 Companies or
the Operating Partnership, and shall survive delivery of and payment for the
Underwritten Securities.
- 25 -
SECTION 9. TERMINATION.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Companies or by Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ may terminate the
applicable Terms Agreement, by notice to the Companies, 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 Companies and the other Simon 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, the declaration by the United States of a
national emergency or war, 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 Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
impracticable or inadvisable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
securities of the Companies 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 or Delaware authorities, (v) a material disruption in
commercial banking or securities settlement or clearance services in the United
States has occurred or (vi) if Preferred Stock is offered and the rating
assigned by any nationally recognized statistical rating organization to any
preferred shares of the Companies 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
Preferred Stock of the Companies under surveillance or review, with possible
negative implications, as to the rating of such Preferred Stock or any of the
Companies' 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 Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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 herein set forth; if, however, Goldman
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall not have completed such arrangements within such
24-hour period, then:
- 26 -
(a) if the number or aggregate amount, as the case may be, of Defaulted
Securities does not exceed 10% of the number or aggregate 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 number or aggregate amount of Defaulted Securities exceeds 10%
of the number or aggregate 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
Companies 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 Companies with respect to the related Option Underwritten Securities, as the
case may be, each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the Companies 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 ▇▇▇▇▇▇▇,
Sachs & Co. at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ Ingrassias; and notices to the Simon
Entities shall be directed to any of them at National City Center, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Mr.
▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
SECTION 12. PARTIES.
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 Companies and the Operating
Partnership 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
- 27 -
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.
- 28 -
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Companies a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement among ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, the Companies and the Operating
Partnership in accordance with its terms.
Very truly yours,
SIMON PROPERTY GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and CFO
SPG REALTY CONSULTANTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and CFO
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and CFO
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
-----------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory.
EXHIBIT A
SIMON PROPERTY GROUP, INC.
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
TERMS AGREEMENT
__________ __, 20__
To: Simon Property Group, Inc.
National City Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Simon Property Group, Inc., a Delaware corporation,
proposes to issue and sell [[_____] shares of its common stock, par value
$0.0001 per share (the "Common Stock")] [[_____] shares of its preferred stock,
par value $0.0001 per share (the "Preferred Stock")] [in the form of (state
number) depositary shares (the "Depositary Shares") each representing [____] of
a share of Preferred Stock] [[_____] warrants (the "Common Stock Warrants") to
purchase common stock, par value $0.0001 per share] [[_____] warrants (the
"Preferred Stock Warrants") to purchase preferred stock, par value $0.0001 per
share], such securities, to the extent that they represent Common Stock or
securities convertible into Common Stock, shall also be paired with beneficial
interests in the Common Stock of SPG Realty Consultants, Inc. ([securities also
being hereinafter referred to as] the "Initial Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective number of Initial Underwritten
Securities set forth below opposite their names at the purchase price set forth
below, and a proportionate share of Option Underwritten Securities (as defined
in the Underwriting Agreement referred to below) set forth below, to the extent
any are purchased.
UNDERWRITER [Number] of [Initial]
UNDERWRITTEN SECURITIES
Total [$]
A-1
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Voting Provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if any, from
Purchase price per share: $
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
A-2
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if any, from
Purchase price per share: $ plus accumulated dividends, if any, from
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Warrants]
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock]: [Yes] [No]
Number of [Common Stock] [Preferred Stock] Warrants issued with each [share of
Common Stock] [share of Preferred Stock]:
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Warrants] are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Warrants] expire:
Exercise price(s): $
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] purchasable upon exercise of one [Common Stock] [Preferred Stock] [Warrant]:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "SIMON PROPERTY GROUP, INC. - Common Stock, Warrants to Purchase Common
Stock, Preferred Stock, Warrants to Purchase Preferred Stock and Depositary
Shares - 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.
A-3
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,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
-----------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
-----------------------------------------
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other
named Underwriters.
Accepted:
SIMON PROPERTY GROUP, INC.
By:
-----------------------------------------
Name:
Title: Authorized Signatory
SPG REALTY CONSULTANTS, INC.
By:
-----------------------------------------
Name:
Title: Authorized Signatory.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF GENERAL COUNSEL
OF COMPANIES AND OPERATING PARTNERSHIP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(1) Each of the Companies has been duly organized and is validly existing
as a corporation in good standing under the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(2) Each of the Companies 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.
(3) 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 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 to enter into and perform its
obligations under the Underwriting Agreement and the applicable Terms Agreement
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.
Except as otherwise stated in the Registration Statement and the Prospectus, all
of the OP Units 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.
(4) Each Simon Entity other than the Companies and the Operating
Partnership 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 Simon Entity other
than the Companies and the Operating Partnership 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
Companies, the Management Companies or the Operating Partnership, 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 interest 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 security-holder
of such entity.
B-1-1
(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, 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 (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (b) 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) None of the Companies, the other Simon Entities or the Property
Partnerships is in violation of its charter, by-laws, partnership agreement, or
other organizational document, as the case may be, and no default by the
Companies or any other Simon 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 Annual Report on Form 10-K,
except in each case for violations or defaults (other than with respect to the
charter, by-laws, partnership agreement, or other organizational document of the
Companies, as the case may be) which in the aggregate are not reasonably
expected to result in a Material Adverse Effect.
(7) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Companies and the Operating
Partnership.
(8) The execution, delivery and performance of the Underwriting Agreement
and the applicable Terms Agreement 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 Companies, the Operating Partnership
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 Companies,
the Operating Partnership 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 Companies, any
other Simon 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 Companies, the Operating Partnership or any Property
Partnership or any judgment, order, writ or decree binding upon the Companies,
any Simon Entity or any Property Partnership, 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 Companies or any
other Simon Entity or any of their assets, properties or operations, except for
such conflicts, breaches, violations (other than with respect to the charter,
by-laws, partnership agreement, or other organizational document of the
Companies, as the case may be), defaults, events or Liens that would not result
in a Material Adverse Effect.
(9) 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 to the Underwriters under the Underwriting
B-1-2
Agreement, and the applicable Terms Agreement, except as may be required under
the 1933 Act, the 1933 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.
(10) 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 Companies or any other Simon Entity or
any Property Partnership thereof which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated or incorporated
by reference therein), or which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to affect
materially and adversely the consummation of the transactions contemplated in
the Underwriting Agreement and the applicable Terms Agreement, the performance
by the Companies of their obligations thereunder or the transactions
contemplated by the Registration Statement and the Prospectus.
(11) All descriptions in the Registration Statement and Prospectus of
contacts and other documents to which the Companies or any other Simon Entity
are 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.
(12) 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.
(13) 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 Companies 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 above in this Exhibit
B-1 with respect to the Property Partnerships shall only be required for those
Property Partnerships that have acquired or developed Properties since September
24, 2001. For each Prospectus Supplement, distributed after the First Prospectus
Supplement, such Property Partnership opinions shall only be required for those
Property Partnerships that have acquired or developed Properties since the date
of the Prospectus Supplement last preceding the Prospectus Supplement as to
which the Opinions are being delivered.
B-1-3
EXHIBIT B -2
FORM OF OPINION OF SPECIAL COUNSEL
TO COMPANIES AND OPERATING PARTNERSHIP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(1) Each of the Companies has been duly incorporated and is validly
existing as a corporation in good standing under the State of Delaware.
(2) Each of the Companies has the 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, the Underwriting Agreement and the applicable Terms
Agreement. For purposes of this opinion, such counsel has assumed that the
business in which the Companies are engaged or propose to engage consists of the
business of (i) a self-administered and self-managed real estate investment
trust under the Internal Revenue Code of 1986, as amended, (ii) owning
partnership interests and other equity interests in subsidiary entities, (iii)
acting as a general partner and/or limited partner in subsidiary partnerships,
and (iv) providing management, leasing, accounting, design, and construction
expertise through its own personnel or through outside professionals.
(3) 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 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.
(4) At the time the Registration Statement became effective, and at each
of the Representation Dates, the Registration Statement, the Prospectus,
excluding (a) the documents incorporated by reference therein and (b) the
financial statements and supporting schedules and other financial data that are
included or incorporated by reference therein, complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. In passing upon compliance as to the form of such documents, such
counsel has assumed that the statements made or incorporated by reference
therein are complete and correct.
(5) 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 has
assumed that the statements made or incorporated by reference therein are
complete and correct.
(6) The information in the Prospectus under "Important Federal Income Tax
Considerations" 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 Companies as may be agreed upon from time to
time by the Companies, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, to the extent that it
purports to summarize matters of law, descriptions of statutes, rules or
regulations, summaries of legal matters, the Companies' organizational documents
and documents or legal proceedings, or legal conclusions, has been reviewed by
them, is correct and presents fairly the information required to be disclosed
therein in all material respects; and such opinion set forth under "Important
Federal Income Tax Considerations," in the Prospectus, is confirmed.
B-2-1
(7) The Companies satisfy all conditions and requirements for filing the
Registration Statement on Form S-3 under the 1933 Act and 1933 Act Regulations.
(8) None of the Simon Entities or the Property Partnerships is required to
be registered under the ▇▇▇▇ ▇▇▇.
(9) The Underwriting Agreement and the applicable Terms Agreement were
duly and validly authorized by the Companies. The Underwriting Agreement was
duly and validly authorized by the Operating Partnership. Any one of the
Co-Chairmen of the Board, Chief Executive Officer, President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, or any
Assistant Secretary of the Companies (hereinafter, collectively, the "Authorized
Officers") has been duly authorized to execute and deliver the Underwriting
Agreement, for itself and on behalf of the Operating Partnership, and the
applicable Terms Agreement. Assuming each has been executed and delivered by any
one of the Authorized Officers, the Underwriting Agreement and Terms Agreement
are duly and validly executed and delivered by the Companies and the
Underwriting Agreement is duly and validly executed and delivered by the
Operating Partnership.
(10) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and the applicable Terms
Agreement and, when issued and delivered by the Companies pursuant to the
Underwriting Agreement and the applicable Terms Agreement against payment of the
consideration set forth in the applicable Terms Agreement, will be validly
issued, fully paid and non-assessable. The issuance of the Underwritten
Securities being sold pursuant to the applicable Terms Agreement is not subject
to any preemptive or other similar rights arising under the Delaware General
Corporation Law, the charter or the by-laws of the Companies.
(11) Each of the Underwritten Securities conforms in all material respects
to the statements relating thereto that are contained in the Prospectus.
(12) The authorized, issued and outstanding shares of capital stock of the
Companies are as set forth in the Prospectus Supplement in the column entitled
"Historical Adjusted" under the caption "Capitalization" (except for subsequent
issuances thereof, if any, contemplated under the Underwriting Agreement, or as
described as reserved for issuance below). Such shares of capital stock have
been duly authorized and validly issued by the Companies and are fully paid and
non-assessable, and have been offered and sold in compliance with all applicable
laws of the State of Delaware 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 Companies
are reserved for any purpose except in connection with (i) the Stock Plans, (ii)
the Distribution Reinvestment Plan, and (iii) the possible issuance of shares of
Common Stock upon the conversion of SPG Series A Preferred Shares, SPG Series B
Preferred Shares, and SPG Series C Preferred Shares, upon the exchange of OP
Units or upon the conversion of shares of Class B Common Stock or Class C Common
Stock. To the knowledge of such counsel, except for OP Units, shares of Class B
Common Stock and Class C Common Stock, and stock options issued under the Stock
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 Companies, and except for options under the Stock 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 Companies.
(13) The execution, delivery and performance of the Underwriting Agreement
and the applicable Terms Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and such Terms Agreement and
compliance by the Companies with their obligations
B-2-2
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 organizational documents of the Companies; any
applicable law, statute, rule, regulation of Delaware; or (iii) to such
counsel's knowledge, any Delaware order or Delaware administrative or court
decree, binding upon the Companies or to which the Companies are subject, except
in each case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(14) The information in the Prospectus under "The Securities," "Description
of the Warrants," "Restrictions on Ownership and Transfer" and in Part II of the
Registration Statement under "Indemnification of Directors and Officers", and
such other information in the Prospectus Supplement as may be agreed upon from
time to time by the Companies, Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to the extent
that such information constitutes matters of Delaware law, descriptions of
Delaware statutes, rules or regulations, summaries of Delaware legal matters,
the Companies' organizational documents or Delaware legal proceedings, or legal
conclusions of Delaware law, has been reviewed by them and is correct in all
material respects.
(15) SPG has, at all times since the effective date of its election to be
taxed as a "real estate investment trust" under the Code, been organized in
conformity with the requirements for qualification and taxation as a "real
estate investment trust" under the Code. Its proposed organization structure
will permit it to remain so qualified.
At the Underwriters' request, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Companies and the independent public accountants for the
Companies 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
as to which such counsel need not make any statement), at the time the
Registration Statement or any post-effective amendment thereto (including the
filing of the Companies' Annual Report on Form 10-K with the Commission) 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 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, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Companies, the Operating Partnership
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
B-2-3
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-2-4