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EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 22, 1998
AMONG
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
AND
UBS SECURITIES LLC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 22nd day of June, 1998, among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P.,
a Delaware limited partnership (the "Operating Partnership"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), ▇▇▇▇▇ Securities Inc.,
▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC and UBS Securities LLC (collectively, the "Initial Purchasers").
Capitalized terms used, but not defined, herein shall have the meanings ascribed
to them in the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement,
dated June 16, 1998, among the Operating Partnership and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Operating
Partnership to the Initial Purchasers of an aggregate of $1,075,000,000
principal amount of the Operating Partnership's 6 5/8% senior unsecured notes
due 2003 (the "2003 Notes"), 6 3/4% senior unsecured notes due 2005 (the "2005
Notes"), 7 3/8% senior unsecured notes due 2018 (the "2018 Notes") and 7.0%
MandatOry Par Put Remarketed Securities(sm) ("MOPPRS(sm)") due 2028 (the
"MOPPRS(sm)" and, together with the 2003 Notes, the 2005 Notes and the 2018
Notes, the "Securities"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Operating Partnership has agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
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"MandatOry Par Put Remarketed Securities(sm)" and "MOPPRS(sm)" are service marks
owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. Incorporated.
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"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Operating Partnership, provided, however, that
such depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Offer" shall mean the exchange offer by the
Operating Partnership of Exchange Securities for Registrable Securities pursuant
to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2.1 hereof.
"Exchange Securities" shall mean the 6 5/8% senior unsecured
notes due 2003, 6 3/4% senior unsecured notes due 2005, 7 3/8% senior unsecured
notes due June 2018 and 7.0% MandatOry Par Put Remarketed Securities(sm)
("MOPPRS(sm)") due 2028, respectively issued by the Operating Partnership under
the Indenture containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of November 26,1996, between the Operating Partnership,
Simon Property Group, L.P., a Delaware limited partnership (which, effective
December 31, 1997, was merged into the Operating Partnership) and The Chase
Manhattan Bank, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
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"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Operating Partnership and other
obligors or any Affiliate (as defined in the Indenture) of the Operating
Partnership shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage amount.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" shall have the meaning set forth in the
preamble.
"Operating Partnership" shall have the meaning set forth in
the preamble and shall also include the Operating Partnership's successors.
"Participating Broker-Dealer" shall mean any of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other broker-dealer which makes a market in the
Securities and exchanges Registrable Securities in the Exchange Offer for
Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2.1 hereof.
"Private Exchange Securities" shall have the meaning set forth
in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including
any such prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, the Securities and,
if issued, the Private Exchange Securities, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities
shall have been declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii) such
Securities have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding, or (iv) the Exchange Offer is
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consummated (except in the case of Securities purchased from the Operating
Partnership and continued to be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Operating Partnership with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with the blue sky qualification of any of
the Exchange Securities or Registrable Securities and any filings with the
NASD), (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Operating Partnership and of the independent
public accountants of the Operating Partnership, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee, and any
escrow agent or custodian, (viii) the reasonable fees and expenses of the
Initial Purchasers in connection with the Exchange Offer, including the
reasonable fees and expenses of counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of any special counsel
representing the Holders of Registrable Securities, and (x) any fees and
disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities and the fees and expenses of any special experts retained
by the Operating Partnership in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Operating Partnership which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
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"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Operating Partnership pursuant to the provisions
of Section 2.2 of this Agreement which covers all of the Registrable Securities
or all of the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
from time to time.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1 Exchange Offer. The Operating Partnership shall, for the
benefit of the Holders, at the Operating Partnership's cost, (A) use its
reasonable best efforts to prepare and, as soon as practicable but not later
than 90 days after the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities (other than Private Exchange
Securities), of a like principal amount of Exchange Securities, (B) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 135 days of the Closing Date, (C)
use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer, and (D) use its
reasonable best efforts to cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date. The Exchange Securities will be issued
under the Indenture. Upon the effectiveness of the Exchange Offer Registration
Statement, the Operating Partnership shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder (a) is not an affiliate of the Operating Partnership within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Securities acquired directly from the Operating Partnership for its
own account, (c) acquired the Exchange Securities in the ordinary course of such
Holder's business, and (d) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Operating
Partnership shall:
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(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period
of not less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m. (Eastern Time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Operating Partnership upon the
request of any Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange (the "Private Exchange") for the Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Operating
Partnership that are identical (except that such securities shall bear
appropriate transfer restrictions) to the Exchange Securities (the "Private
Exchange Securities").
The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture and which, in either case, has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from
such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter.
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The Private Exchange Securities shall be of the same series as and the Operating
Partnership shall use all commercially reasonable efforts to have the Private
Exchange Securities bear the same CUSIP number as the Exchange Securities. The
Operating Partnership shall not have any liability under this Agreement solely
as a result of such Private Exchange Securities not bearing the same CUSIP
number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Operating Partnership
shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may be,
to each Holder of Registrable Securities so accepted for exchange in a
principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange
Security will accrue from the last date on which interest was paid on the
Registrable Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available, and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Operating Partnership's judgment, would reasonably be
expected to impair the ability of the Operating Partnership to proceed with the
Exchange Offer or the Private
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Exchange. The Operating Partnership shall inform the Initial Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law,
SEC rules or regulations or applicable interpretations thereof by the staff of
the SEC, the Operating Partnership is not permitted to effect the Exchange Offer
as contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer is not consummated within 180 days after the original issue of the
Registrable Securities, or (iii) if a Holder is not permitted to participate in
the Exchange Offer or does not receive fully tradeable Exchange Securities
pursuant to the Exchange Offer (other than due solely to the status of such
holder as an affiliate of the Operating Partnership within the meaning of the
1933 Act or as a broker dealer), then in case of each of clauses (i) through
(iii) the Operating Partnership shall (x) promptly deliver to the holders
written notice thereof and (y) at the Operating, Partnership's sole expense:
(a) As promptly as practicable, (but in no event more than 60
days after so required or requested pursuant to this Agreement) file
with the SEC, and thereafter shall use its best efforts to cause to be
declared effective as promptly as practicable but no later than 180
days after the original issue of the Registrable Securities, a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement.
(b) Use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the
"Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Shelf Registration Statement shall be extended
to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the 1933 Act and as
otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or
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supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they
were made, not misleading.
No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder and furnishes to
the Operating Partnership in writing within 15 days after receipt of a request
therefor, such information as the Operating Partnership may, after conferring
with counsel, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Operating Partnership
all information with respect to such Holder necessary to make the information
previously furnished to the Operating Partnership by such Holder not materially
misleading.
The Operating Partnership shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Operating Partnership further agrees, if necessary, to supplement
or amend the Shelf Registration Statement, as required by Section 3(b) below,
and to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
2.3 Expenses. The Operating Partnership shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Operating Partnership will be
deemed not have used its best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Operating Partnership
voluntarily takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless such action is required
by applicable law.
(a) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
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2.5 Interest. The Indenture executed in connection with the
Securities will provide that if (i) the Exchange Offer Registration Statement is
not filed with the Commission on or prior to the 90th day following the Closing
Date, (ii) the Exchange Offer Registration Statement is not declared effective
on or prior to the 135th day following the Closing Date or (iii) the Exchange
Offer is not consummated or the Shelf Registration Statement is not declared
effective on or prior to the 180th day following the Closing Date, the Special
Interest Premium shall accrue from and including the next day following each of
(a) such 90 day period in the case of clause (i) above, (b) such 135-day period
in the case of clause (ii) above and (c) such 180-day period in the case of
clause (iii) above, in each case at a rate equal to 0.5% per annum. The
aggregate amount of the Special Interest Premium payable pursuant to the above
provisions will in no event exceed 0.5% per annum. If the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date and the Operating Partnership shall request holders
of Securities to provide the information called for by the Registration Rights
Agreement referred to herein for inclusion in the Shelf Registration Statement,
the Securities owned by holders who do not deliver such information to the
Operating Partnership when required pursuant to the Registration Rights
Agreement will not be entitled to any such increase in the interest rate for any
day after the 180th day following the Closing Date. Upon (1) the filing of the
Exchange Offer Registration Statement after the 90-day period described in
clause (i) above, (2) the effectiveness of the Exchange Offer Registration
Statement after the 135-day period described in clause (ii) above or (3) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 180-day period described in clause
(iii) above, the interest rate on each series of Securities from the date of
such effectiveness or consummation, as the case may be, will be reduced to the
original interest rate.
If a Shelf Registration Statement is declared effective
pursuant to the foregoing paragraphs, and if the Operating Partnership fails to
keep such Shelf Registration Statement continuously (x) effective or (y) useable
for resales for the period required by this Agreement due to certain
circumstances relating to pending corporate developments, public filings with
the Commission and similar events, or because the prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and such failure continues for more than 60 days (whether or not
consecutive) in any 12-month period (the 61st day being referred to as the
"Default Day"), then from the Default Day until the earlier of (i) the date that
the Shelf Registration Statement is again deemed effective or is useable, (ii)
the date that is the second anniversary of the Closing Date (or, if Rule 144(k)
is amended to provide a shorter restrictive period, the end of such shorter
period) or (iii) the date as of which all the Securities are sold pursuant to
the Shelf Registration Statement, the Special Interest Premium shall accrue at a
rate equal to 0.5% per annum.
If the Operating Partnership fails to keep the Shelf
Registration Statement continuously effective or useable for resales pursuant to
the preceding paragraph, it shall give the holders notice to suspend the sale of
the Securities and shall extend the relevant period referred to
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above during which the Operating Partnership is required to keep effective the
Shelf Registration Statement (or the period during which Participating
Broker-Dealers are entitled to use the prospectus included in the Exchange Offer
Registration Statement in connection with the resale of Exchange Securities, as
the case may be) by the number of days during the period from and including the
date of the giving of such notice to and including the date when holders shall
have received copies of the supplemental or amended prospectus necessary to
permit resales of the Securities or to and including the date on which the
Operating Partnership has given notice that the sale of Securities may be
resumed, as the case may be.
Each Note will contain a legend to the effect that the holder
thereof, by its acceptance thereof, will be deemed to have agreed to be bound by
the provisions of this Agreement.
The Operating Partnership shall notify the Trustee within
three business days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event Date").
Additional Interest shall be paid by depositing with the Trustee, in trust, for
the benefit of the Holders of Registrable Securities, on or before the
applicable semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Operating
Partnership with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Operating Partnership shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Operating
Partnership, (ii) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith or incorporated by reference therein,
and (iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
13
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advise such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby consent to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts
to register or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by the
time the applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Operating Partnership shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has notified
the Operating Partnership that it is utilizing the Exchange Offer Registration
Statement as provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the
14
closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Operating Partnership contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to the offering cease to be true and correct in all material
respects, (v) of the happening of any event or the discovery of any facts during
the period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Operating Partnership of any notification
with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (vii) of any determination by the Operating Partnership that a
post-effective amendment to such Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution" which section shall be reasonably acceptable to
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Participating Broker-Dealers,
and which shall contain a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading activities and
that will be the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable judgment of
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Participating Broker-Dealers
and its counsel, represent the prevailing views of the staff of the SEC,
including a statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has delivered
to the Operating Partnership the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto, by
any Person subject to the prospectus delivery requirements of the SEC, including
all Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any
15
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that, by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(A) in the case of any Exchange Offer Registration Statement,
the Operating Partnership agrees to deliver to the Initial Purchasers on behalf
of the Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement (i) an opinion of counsel or opinions of counsel
substantially in the form attached hereto as Exhibit A, (ii) officers'
certificates substantially in the form customarily delivered in a public
offering of debt securities and (iii) a comfort letter or comfort letters in
customary form to the extent permitted by Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accountants (or if such a comfort
letter is not permitted, an agreed upon procedures letter in customary form)
from the Operating Partnership's independent certified public accountants (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Operating Partnership or of any business acquired by the
Operating Partnership for which financial statements are, or are required to be,
included in the Registration Statement) at least as broad in scope and coverage
as the comfort letter or comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Securities to the Initial Purchasers;
(g) The Operating Partnership may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Operating Partnership, as applicable, such information regarding such seller as
may be required by the staff of the SEC to be included in a Registration
Statement. The Operating Partnership shall have no obligation to register under
the Securities Act the Registrable Securities of a seller who so fails to
furnish such information.
(h) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel
for the Holders of Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(i) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(j) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested);
16
(k) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(l) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use its best efforts to prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities or
Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Operating Partnership determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any omitted
material fact, the Operating Partnership agrees promptly to notify each Holder
of such determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably request;
(m) in the case of a Shelf Registration, a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Operating Partnership as shall be reasonably requested by
the Holders of Registrable Securities, or the Initial Purchasers on behalf of
such Holders, available for discussion of such document;
(n) use its reasonable best efforts to obtain a CUSIP number for all
Exchange Securities, Private Exchange Securities or Registrable Securities, as
the case may be, not later than the effective date of a Registration Statement,
and provide the Trustee with printed certificates for the Exchange Securities,
Private Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;
(o) use its reasonable best effort to (i) cause the Indenture
Supplement to be qualified under the TIA in connection with the registration of
the Exchange Securities or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA, and (iii) execute, and use its best efforts to cause
the Trustee to execute,
17
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(p) in the case of a Shelf Registration, enter into agreements (including
underwriting agreements) and take all other customary and appropriate actions in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Operating Partnership and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority in principal amount of the Registrable Securities
being sold) addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Operating Partnership's independent certified public accountants (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Operating Partnership or of any business acquired by the
Operating Partnership for which financial statements are, or are required
to be, included in the Registration Statement) addressed to the
underwriters, if any, and use reasonable efforts to have such letter
addressed to the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accounts), such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the appointment
of such agent for the selling Holders for the purpose of soliciting
purchases of Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the
18
indemnification provisions and procedures set forth in Section 4 hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable Securities
being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(q) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Holders
of the Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Operating
Partnership reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Operating
Partnership to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Operating
Partnership available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Purchasers by the Representative and on behalf of the other parties, by one
counsel designated by the Representatives and on behalf of such other parties as
described in Section 2(c) hereof. Records which the Operating Partnership
determines in good faith, to be confidential and any records which they notify
such representatives are confidential shall not be disclosed by such
representatives unless (i) the disclosure of such Records is necessary to avoid
or correct a material misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court a competent jurisdiction or is necessary in connection with
any action, suit or proceeding or (iii) the information in such Records has been
made generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to agree
in writing that information obtained by it as a result of such inspections shall
be deemed confidential, shall not be communicated to any third-party (other than
its agents and affiliates (who shall also be subject to the confidentially
requirements of this paragraph) on a "need-to-know" basis) and shall not be used
by it as the basis for market transaction in the securities of the Operating
Partnership unless and until such is made generally available to the public.
Each selling holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the
19
Operating Partnership and allow the Operating Partnership at its expense to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(r) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and to
counsel to the Holders of Registrable Securities and make such changes in any
such document prior to the filing thereof as the Initial Purchasers or counsel
to the Holders of Registrable Securities may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers on behalf of the Holders of Registrable Securities
and counsel to the Holders of Registrable Securities shall not have previously
been advised and furnished a copy of or to which the Initial Purchasers on
behalf of the Holders of Registrable Securities or counsel to the Holders of
Registrable Securities shall reasonably object, and make the representatives of
the Operating Partnership available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; and
(i) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such document in
a form to which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised and
furnished a copy of or to which the Majority Holders, the Initial Purchasers on
behalf of the Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object, and make the
representatives of the Operating Partnership available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.
(s) in the case of a Shelf Registration, use its best efforts
to cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Operating Partnership are then
listed if requested by the Majority Holders, or if requested by the underwriter
or underwriters of an underwritten offering of Registrable Securities, if any;
(t) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Securities to be rated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
20
(u) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(v) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the performance of
any due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(w) upon consummation of an Exchange Offer or a Private
Exchange, obtain a customary opinion of counsel to the Operating Partnership
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or Private Exchange, and which
includes an opinion that (i) the Operating Partnership has duly authorized,
executed and delivered the Exchange Securities and/or Private Exchange
Securities, as applicable, and the related indenture, and (ii) each of the
Exchange Securities and related indenture constitute a legal, valid and binding
obligation of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Operating
Partnership may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities to furnish to the
Operating Partnership such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Operating
Partnership may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Operating Partnership of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Operating Partnership, such
Holder will deliver to the Operating Partnership (at its expense) all copies in
such Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
In the event that the Operating Partnership fails to effect
the Exchange Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided herein, the
Operating Partnership shall not file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the ▇▇▇▇ ▇▇▇) of the
Operating Partnership other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers
21
that will manage such offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be acceptable to the
Operating Partnership. No Holder of Registrable Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. INDEMNIFICATION, CONTRIBUTION.
(a) The Operating Partnership agrees to indemnify and hold harmless the
Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person
who participates as an underwriter (any such Person being an "Underwriter") and
each Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) 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 any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, 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 contained in
any 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;
(ii) 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 4(d) below) any such settlement is effected
with the written consent of the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), 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
22
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) 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 Operating
Partnership by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Operating Partnership, the Initial Purchasers,
each Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Operating
Partnership, the Initial Purchasers, any Underwriter or any other selling Holder
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 Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Operating Partnership by such Holder expressly for use in the
Shelf Registration Statement (or any amendment thereto) or such Prospectus (or
any amendment or supplement thereto); provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof, and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of 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 party or parties be liable
for the 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 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such
23
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) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into 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.
(e) If the indemnification provided for in this Section 4 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, in such proportion as is
appropriate to reflect the relative fault of the Operating Partnership on the
one hand and the Holders and the Initial Purchasers 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 fault of the Operating Partnership on the one
hand and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Operating
Partnership, the Holders or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Operating Partnership, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers 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 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 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.
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Notwithstanding the provisions of this Section 4, no Holder or
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold by it were offered
exceeds the amount of any damages which such Holder or Initial Purchaser 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 4, each Person, if any, who
controls an Initial Purchaser or Holder 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 Initial Purchaser or Holder, and each director of the
Operating Partnership, and each Person, if any, who controls 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 Operating
Partnership. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Operating
Partnership is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Operating Partnership covenants that it will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Operating Partnership ceases to be so required to file such reports, the
Operating Partnership covenants that it will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Operating Partnership will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Operating Partnership has
not entered into and the Operating Partnership will not after the date of this
Agreement enter into any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
25
hereunder do not and will not for the term of this Agreement in any way conflict
with the rights granted to the holders of the Operating Partnership's other
issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Operating Partnership has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Operating Partnership by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Operating Partnership, initially at the Operating Partnership's address set
forth in the Purchase Agreement, and thereafter at such other address of which
notice is given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
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5.6 Third Party Beneficiaries. The Initial Purchasers (even if
the Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Operating
Partnership, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Operating Partnership,
on the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Operating Partnership
acknowledges that any failure by the Operating Partnership to comply with its
obligations under Sections 2.1 through 2.4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Operating Partnership's obligations under Sections 2.1
through 2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years
after the original issuance of the Securities, the Operating Partnership and the
Guarantor will not, and will cause its "affiliates" (as such term is defined in
Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) not to, resell any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3) under the
▇▇▇▇ ▇▇▇) that have been reacquired by any of them and shall immediately upon
any purchase of any such Securities submit such Securities to the Trustee for
cancellation.
5.9 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GROUP, L.P.
By: SD Property Group, Inc.
By: ____________________________________
Name:
Title:
Confirmed and accepted
as of the date first above
written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
UBS SECURITIES LLC
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By:_______________________
Name:
Title:
28
Exhibit A
FORM OF OPINION OF COUNSEL
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Chase Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
and
UBS Securities LLC ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Investment Banking Division
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), in connection with the sale
by the Operating Partnership to the Initial Purchasers (as defined below) of
$1,075,000,000 aggregate principal amount of 6 5/8% senior unsecured notes due
June 15, 2003, 6 3/4% senior unsecured notes due June 15, 2005, 7 3/8% senior
unsecured notes due June 15, 2018 and 7.0% MandatOry Par Put Remarketed
Securities(sm) due June 15, 2028 (the "Securities") of the Operating Partnership
pursuant to the Purchase Agreement dated June 16, 1998 (the "Purchase
Agreement") among the Operating Partnership and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Chase Securities Inc., ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇
Securities Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and UBS Securities LLC
(collectively, the "Initial Purchasers") and the filing by the Operating
Partnership of an Exchange Offer Registration Statement (the "Registration
Statement") in connection with an Exchange Offer to be effected pursuant to the
Registration Rights Agreement (the "Registration Rights Agreement"), dated June
22, 1998, between the Operating Partnership and the Initial Purchasers. This
opinion is furnished to you pursuant to Section 3(f)(B) of the Registration
Rights Agreement. Unless otherwise defined herein, capitalized terms used in
this opinion that are defined in the Registration Rights Agreement are used
herein as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant
29
to this opinion, we have assumed the completeness and accuracy of, and are
relying solely upon, the representations and warranties of each of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Group, Inc. (the "Company"), the Operating Partnership and SD Property
Group,Inc., a Maryland corporation, ("SD Property") set forth in the Purchase
Agreement and the statements set forth in certificates of public officials and
officers of the Operating Partnership, without making any independent
investigation or inquiry with respect to the completeness or accuracy of such
representations, warranties or statements, other than a review of the
certificate of incorporation, by-laws and relevant minute books of the Operating
Partnership.
Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial data and supplemental schedules included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
2. We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers and other representatives of the
Operating Partnership and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Operating Partnership's
independent public accountants, during which the contents of the Registration
Statement and the Prospectus were discussed. We have not, however, independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus. Based on our participation as
described above, nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements and schedules
and other financial data included therein as to which we make no statement)
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 schedules and other financial data included
therein, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes 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.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
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Very truly yours,