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Exhibit 1.1
SIMON PROPERTY GROUP, L.P.
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
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TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT...................................................... 1
SECTION 1. Representations and Warranties............................ 4
(a) Representations and Warranties by the Operating
Partnership .............................................. 4
(1) Compliance with Registration Requirements........... 4
(2) Incorporated Documents.............................. 5
(3) Independent Accountants............................. 5
(4) Financial Statements................................ 5
(5) No Material Adverse Change in Business.............. 6
(6) Good Standing of the Company........................ 6
(7) Good Standing of the Operating Partnership.......... 6
(8) [Intentionally Omitted]............................. 7
(9) Good Standing of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities........... 7
(10) Good Standing of Property Partnerships.............. 7
(11) Capitalization...................................... 7
(12) [Intentionally Omitted]............................. 8
(13) Authorization of Debt Securities.................... 8
(14) [Intentionally Omitted]............................. 8
(15) Authorization of the Indenture...................... 8
(16) Descriptions of the Underwritten Securities......... 9
(17) Authorization of this Underwriting Agreement and
Terms Agreement..................................... 9
(18) Absence of Defaults and Conflicts................... 9
(19) Absence of Labor Dispute............................ 10
(20) Absence of Proceedings.............................. 10
(21) Accuracy of Exhibits................................ 10
(22) REIT Qualification.................................. 10
(23) Investment Company Act.............................. 10
(24) Intellectual Property............................... 10
(25) Absence of Further Requirements..................... 11
(26) Possession of Licenses and Permits.................. 11
(27) Title to Property................................... 11
(28) Environmental Laws.................................. 12
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TABLE OF CONTENTS
(continued)
PAGE
(29) Tax Returns......................................... 12
(30) Environmental Consultants........................... 12
(31) Investment Grade Rating............................. 13
(b) Officers' Certificates.................................... 13
SECTION 2. Sale and Delivery to Underwriters; Closing................ 13
(a) Underwritten Securities................................... 13
(b) Option Underwritten Securities............................ 13
(c) Payment................................................... 13
(d) Denominations; Registration............................... 14
SECTION 3. Covenants of the Operating Partnership.................... 14
(a) Compliance with Securities Regulations and Commission
Requests.................................................. 14
(b) Filing of Amendments...................................... 15
(c) Delivery of Registration Statements....................... 15
(d) Delivery of Prospectuses.................................. 15
(e) Continued Compliance with Securities Laws................. 15
(f) Blue Sky Qualifications................................... 16
(g) Earnings Statement........................................ 16
(h) Reporting Requirements.................................... 16
(i) REIT Qualification........................................ 16
(j) Use of Proceeds........................................... 16
(k) Exchange Act Filings...................................... 16
(l) Supplemental Indentures................................... 16
(m) Ratings................................................... 16
SECTION 4. Payment of Expenses....................................... 17
(a) Expenses.................................................. 17
(b) Termination of Agreement.................................. 17
SECTION 5. Conditions of Underwriters' Obligations................... 17
(a) Effectiveness of Registration Statement................... 17
(b) Opinion of Counsel for Partnerships....................... 18
(c) Opinion of Counsel for Underwriters....................... 18
(d) Officers' Certificate..................................... 18
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TABLE OF CONTENTS
(continued)
PAGE
(e) Accountant's Comfort Letter............................... 18
(f) Bring-down Comfort Letter................................. 19
(g) Ratings................................................... 19
(h) No Objection.............................................. 19
(i) Over-Allotment Option..................................... 19
(j) Additional Documents...................................... 20
(k) Termination of Terms Agreement............................ 20
SECTION 6. Indemnification........................................... 20
(a) Indemnification of Underwriters........................... 20
(b) Indemnification of the Operating Partnership, General
Partners, Directors and Officers.......................... 21
(c) Actions against Parties; Notification..................... 21
(d) Settlement without Consent if Failure to Reimburse........ 22
SECTION 7. Contribution.............................................. 22
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................. 23
SECTION 9. Termination............................................... 23
(a) Underwriting Agreement.................................... 23
(b) Terms Agreement........................................... 23
(c) Liabilities............................................... 24
SECTION 10. Default by One or More of the Underwriters................ 24
SECTION 11. Notices................................................... 25
SECTION 12. Parties................................................... 25
SECTION 13. GOVERNING LAW AND TIME.................................... 25
SECTION 14. Effect of Headings........................................ 25
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SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
February 4, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
On October 22, 1997 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group, L.P., a Delaware limited
partnership (the "Operating Partnership") and Simon Property Group, L.P., a
Delaware limited partnership ("SPG, L.P.") entered into that certain letter
agreement confirmed and accepted by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") entitled "Debt Securities -- together with the
Guarantee -- UNDERWRITING AGREEMENT" (the "Original Underwriting Agreement")
providing for the sale of up to $1,000,000,000 aggregate principal amount of the
Operating Partnership's unsecured, unsubordinated debt securities (the "Debt
Securities") guaranteed by SPG, L.P. to, and the purchase and offering thereof
by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, from time to time. On December 31, 1997, SPG, LP was merged into the
Operating Partnership with the Operating Partnership being the surviving entity.
On September 24, 1998 the Operating Partnership changed its name from "▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Group, L.P" to "Simon Property Group, L.P." In order to account for
the foregoing events and certain other events including changes to the partners
of the Operating Partnership, the Original Underwriting Agreement is amended and
restated as set forth herein.
The Operating Partnership proposes to issue and sell the Debt Securities
from time to time, in or pursuant to one or more offerings on terms to be
determined at the time of sale. The Debt Securities will be issued in one or
more series under an indenture, dated as of November 26, 1996, (the "Initial
Indenture"), between the Operating Partnership, SPG, L.P. and The Chase
Manhattan Bank, as trustee (the "Trustee"). Each series of Debt Securities may
vary, as applicable, as to title, aggregate principal amount, rank, interest
rate or formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other variable
terms established by or pursuant to the Initial Indenture, as the same may be
amended or supplemented from time to time (the "Indenture"). The merger of SPG,
L.P. into the Operating Partnership terminated the guarantee of SPG, L.P. under
the Indenture. As used herein, "Securities" shall mean the Debt Securities.
Whenever the Operating Partnership determines to make an offering of
Securities through, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or through an underwriting syndicate managed
by ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Operating Partnership will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such Securities
to, and the purchase and offering thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other
underwriters, if any, selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters," which term
shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇, whether acting as sole Underwriter or as a member
of an underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof); provided, that, the Operating Partnership is not obligated,
and shall have complete and absolute discretion to determine if and when, to
make any offering, to make any
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offering through ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any other person, or to enter into any Terms
Agreement. The Terms Agreement relating to the offering of Securities shall
specify the aggregate principal amount of Securities to be initially issued (the
"Initial Underwritten Securities"), the name of each Underwriter participating
in such offering (subject to substitution as provided in Section 10 hereof), the
name of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as co-manager in
connection with such offering, the aggregate principal amount of Initial
Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the
Operating Partnership has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
aggregate principal amount of Securities subject to such option (the "Option
Underwritten Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any portion of any
Option Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between the Operating
Partnership and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if applicable, as
representative of any other Underwriters. Unless and until this Underwriting
Agreement is amended or superseded, each offering of Underwritten Securities
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or through an underwriting syndicate
managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
The Operating Partnership has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-33545-01) and pre-effective amendment no. 1 thereto for the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Operating Partnership has filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement. Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus constituting a part thereof
and the applicable prospectus supplement relating to the offering of the
Underwritten Securities, in the form first furnished to the Underwriters by the
Operating Partnership 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 Operating Partnership files a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462 Registration Statement"), then, after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462 Registration Statement; provided, however, a prospectus supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Underwritten Securities which it relates, and provided, further,
that if the Operating Partnership elects 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 Operating Partnership 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
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before the registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"). Capitalized terms used
but not otherwise defined herein shall have the meanings given to those terms in
the Prospectus.
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is or is deemed to
be incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership, a majority of
the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Operating
Partnership.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Operating Partnership. The
Operating Partnership represents and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date
hereof, and to each Underwriter named in the applicable Terms Agreement, as of
the date thereof, as of the Closing Time (as defined below) and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
(1) Compliance with Registration Requirements. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Operating Partnership, 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 Operating Partnership, threatened by the
Commission or the state securities authority of any jurisdiction. In
addition, the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the most recent Annual Report on Form 10-K of the
Operating Partnership with the Commission (the "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 the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at each Representation Date,
the Prospectus and any amendments and supplements thereto did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If
the Operating Partnership elects to rely upon Rule 434 of the 1933 Act
Regulations, the Operating Partnership 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
Operating Partnership in writing by or on behalf of any Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or
the Prospectus or to that part of the Registration Statement which
constitutes the Trustee's Statement of Eligibility under the 1939 Act (the
"Form T-1").
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.
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If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Operating Partnership
has 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, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, and at each Representation Date, or during the period in which
a prospectus is required to be delivered in connection with sales of
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. 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
Operating Partnership in writing by or on behalf of any Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or
the Prospectus or to the Form T-1.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements included, or
incorporated by reference, in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the respective
entity or entities or group presented therein at the respective dates
indicated and the statement of operations, stockholders' equity and cash
flows of such entity, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included, or incorporated by reference, in the Registration Statement and
the Prospectus present fairly, in accordance with GAAP, the information
required to be stated therein. The selected financial data, the summary
financial information and other financial information and data 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.
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(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
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, Inc., an Indiana corporation ("MOA"), ▇▇▇▇▇▇▇▇▇ Properties
Management, Inc., an Ohio corporation ("DRC Management Company," and
together with SPG Management Company, Management (Indiana) and MOA, the
"Management Companies") and 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 the
Operating Partnership (other than any Property Partnership (as defined
below)) not listed among the foregoing entities, (the Operating
Partnership, the Management Companies, the Reit Subs and such subsidiaries
being sometimes hereinafter collectively referred to as the "▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities" and individually as a "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity"), or of
any entity which owns any Portfolio Property (as such term is defined in
the Prospectus) or any direct or indirect interest in any Portfolio
Property (the "Property Partnerships") whether or not arising in the
ordinary course of business, which would be material to the Operating
Partnership (anything which would be material to the Operating Partnership
being hereinafter referred to as "Material;" and such a material adverse
change, a "Material Adverse Effect"), (B) no casualty loss or condemnation
or other adverse event with respect to the Portfolio Properties has
occurred which would be Material, (C) there have been no transactions or
acquisitions entered into by the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or the Property
Partnerships, other than those in the ordinary course of business, which
would be Material, (D) except for distributions in amounts per unit that
are consistent with past practices, there has been no distribution of any
kind declared, paid or made by the Operating Partnership on any of its
respective general, limited and/or preferred partnership interests and (E)
there has been no change in the capital stock of the corporate ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities or in the partnership interests of the Operating
Partnership or any Property Partnership, or any increase in the
indebtedness of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities, the Property Partnerships or
the Portfolio Properties which would be Material.
(6) Good Standing of the Company. Simon Property Group, Inc., a
Delaware corporation (the "Company"), 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. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware, with
the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the applicable Terms Agreement. The
Operating Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. SD Property Group, Inc., an Ohio corporation ("SD Property") is a
non-managing general partner of the Operating Partnership, SPG Properties,
Inc., a Maryland corporation ("SPG Properties"), is a
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non-managing general partner and the Company is the sole managing general
partner of the Operating Partnership. The amended and restated agreement
of limited partnership of the Operating Partnership (the "OP Partnership
Agreement") is in full force and effect in the form in which it was filed
as an exhibit to the Operating Partnership's Current Report on Form 8-K
filed November 2, 1998 except for subsequent amendments relating to the
admission of new partners to the Operating Partnership and the issuance of
preferred units to the Company.
(8) [Intentionally Omitted]
(9) Good Standing of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities. Each of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities other than 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, and to conduct the
business in which it is engaged or proposes to engage as described in the
Prospectus. Each such entity is duly qualified or registered as a foreign
corporation, limited partnership or limited liability company or other
entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect. Except as otherwise stated in
the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each such entity
has been duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state securities
laws) and are owned by the Company, the Management Companies or the
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 interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of such
entities, except as disclosed in the Prospectus. No such shares of capital
stock or other equity interests of such entities were issued in violation
of preemptive or other similar rights arising by operation of law, under
the charter or bylaws of such entity or under any agreement to which any
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity is a party.
(10) Good Standing of Property Partnerships. Each of the Property
Partnerships is duly organized and validly existing as a limited or
general partnership, as the case may be, in good standing under the laws
of its respective jurisdiction of formation. Each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged. Each of the partnership agreements of the Property Partnerships
is in full force and effect. Each of the Property Partnerships is duly
qualified or registered as a foreign partnership to transact business and
is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(11) Capitalization. If the Prospectus contains a "Capitalization"
section, the issued and outstanding units of general, limited and/or
preferred partner interests of the Operating Partnership ("partners'
equity") and the total consolidated debt of the Operating Partnership
("debt") is as set forth in the column entitled "Historical" (except for
subsequent issuances thereof, if any, contemplated under this Underwriting
Agreement, pursuant to employee benefit
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plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
(12) [Intentionally Omitted]
(13) Authorization of Debt Securities. The Debt Securities being
sold pursuant to the applicable Terms Agreement have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Operating Partnership for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities, when
issued and authenticated in the manner provided for in the applicable
Indenture and delivered by the Operating Partnership pursuant to the
Underwriting Agreement and the applicable Terms Agreement against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding, unsecured obligations of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
applicable Indenture. Such Underwritten Securities rank and will rank
equally with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or
that may be incurred thereafter, except that such Underwritten Securities
will be effectively subordinate to the prior claims of each secured
mortgage lender to any specific Portfolio Property which secures such
lender's mortgage and any claims of creditors of entities wholly or partly
owned, directly or indirectly, by the Operating Partnership.
(14) [Intentionally Omitted]
(15) Authorization of the Indenture. For the Underwritten Securities
being sold pursuant to the applicable Terms Agreement, the Indenture has
been, or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by the Operating Partnership
and, upon such authorization, execution and delivery, will constitute a
valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership, as applicable, in
accordance with its terms, except as the enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), (iii) requirements that a
claim with respect to any Securities issued under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law, or (iv) governmental authority to limit, delay or prohibit
the making of payments outside the United States. The Indenture has been
duly qualified under the 1939 Act and conforms, in all material respects,
to the descriptions thereof contained in the Prospectus.
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(16) Descriptions of the Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and the
Indenture, as of the date of the Prospectus, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement and will comply with all applicable legal
requirements.
(17) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Operating Partnership and assuming due authorization,
execution and delivery by ▇▇▇▇▇▇▇ ▇▇▇▇▇, is enforceable against the
Operating Partnership in accordance with its terms.
(18) Absence of Defaults and Conflicts. None of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities or any Property Partnership is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which each entity is a party or by which or any of them may be bound, or
to which any of its property or assets or any Portfolio Property may be
bound or subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement, the Indenture and any other
agreement or instrument entered into or issued or to be entered into or
issued by 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 Operating Partnership
with its obligations hereunder and thereunder have been duly authorized by
all necessary partnership action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Operating
Partnership or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership pursuant to, any Agreements and Instruments, except for such
conflicts, breaches, defaults, Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect, nor will
such action result in any violation of the provisions of the respective
partnership agreement and certificate of limited partnership of the
Operating Partnership or the organizational documents of any other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any
Property Partnership or any of their assets, properties or operations,
except for such violations that would not have a Material Adverse Effect.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a material portion of such
indebtedness by the Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entity or any Property Partnership.
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(19) Absence of Labor Dispute. Except as otherwise described in the
Registration Statement and the Prospectus, no labor dispute with the
employees of the Operating Partnership or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity
or any Property Partnership exists or, to the knowledge of the Operating
Partnership, is imminent, and the Operating Partnership is not aware of
any existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which dispute or disturbance, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership threatened against or affecting the Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity thereof, or any Property
Partnership or any officer or director of the Operating Partnership which
is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the assets, properties or
operations thereof or the consummation of this Underwriting Agreement, the
applicable Terms Agreement or the Indenture or the transactions
contemplated herein or therein. The aggregate of all pending legal or
governmental proceedings to which the Operating Partnership or any other
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity, or any Property Partnership is a party or of which
any of their respective assets, properties or operations is the subject
which are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed as required
and the descriptions thereof or references thereto are correct in all
Material respects and no Material defaults exist in the due performance or
observance of any Material obligation, agreement, covenant or condition
contained in any such contract or document.
(22) REIT Qualification. At all times since January 1, 1971 the
Company (as Corporate Property Investors, a Massachusetts business trust)
has been, at all times since January 1, 1994 SD Property (as ▇▇▇▇▇▇▇▇▇
Realty Corporation) has been, and at all times since January 1, 1994 SPG
Properties (as Simon Property Group, Inc.) has been and upon the sale of
the applicable Underwritten Securities, the Company, SD Property and SPG
Properties 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 their
respective proposed methods of operation will enable each of them to
continue to meet the requirements for taxation as a real estate investment
trust under the Code.
(23) Investment Company Act. Each of the Operating Partnership, the
other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the Property Partnerships is not, and
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(24) Intellectual Property. To the knowledge of the Operating
Partnership, none of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or the Property
Partnerships is required to own, possess or obtain the consent of any
holder of any trademarks, service marks, trade names or copyrights not now
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15
lawfully owned, possessed or licensed in order to conduct the business now
operated by such entity.
(25) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the performance
by the Operating Partnership of its obligations under this Underwriting
Agreement, the applicable Terms Agreement or the Indenture or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or the Indenture, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD").
(26) Possession of Licenses and Permits. The Operating Partnership
and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and each Property Partnership
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except for such
Governmental Licenses, the failure to obtain would not, singly or in the
aggregate, result in a Material Adverse Effect. The Operating Partnership
and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and each Property Partnership are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Operating Partnership nor any of the
other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities nor any Property Partnership has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(27) Title to Property. The Operating Partnership, the other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities and the Property Partnerships have good and marketable
title to the Portfolio Properties free and clear of Liens, except (A) as
otherwise stated in the Registration Statement and the Prospectus, or
referred to in any title policy for such Portfolio Property, or (B) those
which do not, singly or in the aggregate, Materially (i) affect the value
of such property or (ii) interfere with the use made and proposed to be
made of such property by the Operating Partnership, any other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership. All leases and subleases
under which the Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or
any Property Partnerships hold properties are in full force and effect,
except for such which would not have a Material Adverse Effect. Neither
the Operating Partnership, the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities nor the
Property Partnerships has received any notice of any Material claim of any
sort that has been asserted by anyone adverse to the rights of the
Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or the Property
Partnerships under any material leases or subleases, or affecting or
questioning the rights of the Operating Partnership, such other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or the Property Partnerships of the continued possession
of the leased or subleased premises under any such lease or sublease,
other than claims that would not have a Material Adverse Effect. All
liens, charges, encumbrances, claims or restrictions on or affecting any
of the Portfolio Properties and the assets of any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity
or any Property Partnership which are required to be disclosed in the
Prospectus are disclosed therein. None of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities,
the Property Partnerships or any tenant of any of the Portfolio Properties
is in default under any of the ground leases (as lessee) or space leases
(as lessor or lessee, as the case may be) relating to, or any of the
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mortgages or other security documents or other agreements encumbering or
otherwise recorded against, the Portfolio Properties, and the Operating
Partnership knows of no event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such
documents or agreements, in each case, other than such defaults that would
not have a Material Adverse Effect. No tenant under any of the leases,
pursuant to which the 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. The Operating Partnership has no 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.
(28) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Operating Partnership, any of the other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities nor any Property Partnership is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree of judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Operating Partnership, the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities
and the Property Partnerships have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Operating Partnership, any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or the
Property Partnerships and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Operating
Partnership, any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or any Property
Partnership relating to any Hazardous Materials or the violation of any
Environmental Laws.
(29) Tax Returns. Each of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and the
Property Partnerships has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which an extension has been granted or the failure to so file
would not have a Material Adverse Effect) and has paid all taxes required
to be paid and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith.
(30) Environmental Consultants. None of the environmental
consultants which prepared environmental and asbestos inspection reports
with respect to certain of the Portfolio
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Properties was employed for such purpose on a contingent basis or has any
substantial interest in any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership and none of them nor any of their directors, officers or
employees is connected with any ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership as a promoter, selling agent, voting trustee, director,
officer or employee.
(31) Investment Grade Rating. The Securities will have an investment
grade rating from one or more nationally recognized statistical rating
organizations at each applicable Representation Date.
(b) Officers' Certificates. Any certificate signed by any officer of the
Operating Partnership or any authorized representative of the Company and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions set forth therein, the Operating Partnership may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal amount of
the Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any interest or redemption payments payable by the Operating
Partnership on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Operating Partnership setting
forth the aggregate principal amount of Option Underwritten Securities as to
which the several Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall be
determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Operating
Partnership. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities, subject to such
adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make to eliminate any sales
or purchases of a fractional aggregate principal amount of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Operating Partnership, at 10:00 A.M. (Eastern time) on the third (fourth, if
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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
Operating Partnership (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
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇
▇▇▇▇▇ and the Operating Partnership, on the relevant Date of Delivery as
specified in the notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Operating Partnership.
Payment shall be made to the Operating Partnership by wire transfer of
same day funds payable to the order of the Operating Partnership, against
delivery to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose check has not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities will be made
available for examination and packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Operating Partnership.
The Operating Partnership covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Operating Partnership, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 Operating Partnership will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Operating Partnership 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.
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(b) Filing of Amendments. The Operating Partnership will give ▇▇▇▇▇▇▇
▇▇▇▇▇ notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel
for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Operating Partnership has
furnished or will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for
the Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto for each of the Underwriters.
If applicable, the copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Operating Partnership will deliver to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Operating Partnership hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Operating Partnership 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 Operating Partnership
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 Operating Partnership,
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 Operating Partnership 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 Operating Partnership 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.
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(f) Blue Sky Qualifications. The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that the Operating Partnership shall not be
obligated to file any general consent to service of process or to qualify or
register as a foreign partnership or as a dealer in securities in any
jurisdiction in which it is not so qualified or registered, or provide any
undertaking or make any change in its charter or bylaws that the Board of
Directors of the Company, reasonably determines to be contrary to the best
interests of the Operating Partnership, and its unitholders or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Underwritten Securities
or any related Underlying Securities have been so qualified or registered, the
Operating Partnership will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings statement
(in form complying with Rule 158 of the 1933 Act Regulations) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reporting Requirements. The Operating Partnership, 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) REIT Qualification. The Company, SD Property and SPG Properties will
use their best efforts to continue to meet the requirement to qualify as a "real
estate investment trust" under the Code for the taxable year in which in which
sales of the Underwritten Securities are to occur.
(j) Use of Proceeds. The Operating Partnership will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(k) Exchange Act Filings. During the period from each Closing Time until
one year after such Closing Time, the Operating Partnership will deliver to
▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Operating Partnership filed with
any securities exchange or with the Commission or any governmental authority
succeeding to any of the Commission's functions, and (ii) such other information
concerning the Operating Partnership as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably request.
(l) Supplemental Indentures. In respect of each offering, the Operating
Partnership will execute a supplemental indenture designating the series of debt
securities to be offered and its related terms and provisions in accordance with
the provisions of the Indenture.
(m) Ratings. The Operating Partnership will take all reasonable action
necessary to enable Standard & Poor's Ratings Services ("S&P"), ▇▇▇▇▇'▇
Investors Service, Inc. ("▇▇▇▇▇'▇") or any other nationally recognized
statistical rating organization to provide their respective credit ratings of
any Underwritten Securities, if applicable.
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SECTION 4. Payment of Expenses.
(a) Expenses. The Operating Partnership will pay all expenses incident to
the performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any agreement among Underwriters, any Indenture and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities, (iii) the preparation, issuance and
delivery of the Underwritten Securities, or any certificates for the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Operating Partnership's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the reasonable fees and
disbursements of any Trustee, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities and real
estate syndication laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, the Registration Statement (including financial statements and exhibits)
as originally filed and of each amendment thereto and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, if applicable, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the
Underwritten Securities, and (ix) any transfer taxes imposed on the sale of the
Underwritten Securities to the several Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) or Section 10 hereof, the Operating Partnership shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Operating
Partnership contained in Section 1 hereof or in certificates of any officer or
authorized representative of the Operating Partnership or any other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity delivered pursuant to the provisions hereof, to the performance
by the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission or the state securities authority of
any jurisdiction, and any request on the part of the Commission or the state
securities authority of any jurisdiction for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the description of
the Underwritten Securities and any related Underlying Securities, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Operating
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Partnership has 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 Partnerships. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received the favorable opinions, dated as of Closing Time, of ▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Operating Partnership, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
General Counsel of the Operating Partnership or such other counsel as is
designated by the Operating Partnership in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, such opinion shall address such of
the items set forth in Exhibits 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, counsel for the Underwriters, or such other counsel as may be
designated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the matters set forth
in (2) (with respect to the first clause only) and (5) of Exhibit B-1 hereto,
and (1), (2) (with respect to the first clause only), (6), (7) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇. 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
Operating Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities and certificates of
public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Operating Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a certificate of the
Chief Executive Officer, President or a Vice President and of the chief
financial officer or chief accounting officer of the Company, as the sole
managing general partner of the Operating Partnership dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Operating Partnership has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission or by the state
securities authority of any jurisdiction and (v) the Registration Statement and
the Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1993 Act and the 1993
Act Regulations; the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter, dated such date, in form and substance satisfactory to
▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel to the Underwriters, together with signed or
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reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" as set forth in the AICPA's Statement on Auditing Standards 72
to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating 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 Operating Partnership shall have
delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Underwritten
Securities or any of the Operating Partnership's other securities.
(h) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Operating Partnership in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Operating Partnership contained herein and the statements in
any certificates furnished by the Operating Partnership hereunder shall be true
and correct as of each Date of Delivery, and, at the relevant Date of Delivery,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received:
(1) A certificate dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the chief financial
officer or chief accounting officer of the Company, as the sole managing
general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ counsel for the
Operating Partnership, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to 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 ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially in the same form and substance as the letter
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furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(f) hereof, except that
the "specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(j) 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 Operating Partnership in connection with the issuance and sale of
the Underwritten Securities as herein contemplated shall be satisfactory in form
and substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters.
(k) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Operating
Partnership at any time at or prior to the Closing Time (or such Date of
Delivery, as applicable), and such termination shall be without liability of any
party to any other party except as provided in Section 4, and except that
Sections 1, 6 and 7 shall survive any such termination and remain in full force
and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Operating Partnership agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any
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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 Operating
Partnership by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of the Operating Partnership, General Partners,
Directors and Officers. Each Underwriter severally agrees to indemnify and hold
harmless the Operating Partnership, each general partner of the Operating
Partnership (the "General Partners"), each of the General Partners' directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Operating Partnership or the General Partners within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Operating Partnership by such Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, 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.
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(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 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 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 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 Operating Partnership and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the 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 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 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.
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Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the General Partners, each officer of the General Partners who
signed the Registration Statement, and each person, if any, who controls the
Operating Partnership or the General Partners 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 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 Operating Partnership or the General Partners or authorized
representatives of each of the Operating Partnership or the General Partners
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 Operating
Partnership or the General Partners, and shall survive delivery of and payment
for the Underwritten Securities.
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
Operating Partnership or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Operating Partnership, at any time at or prior to
the Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of such Terms Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or internationally or any outbreak of
hostilities or escalation thereof or other calamity or crisis, or any change or
development involving a prospective change in national or international
political, financial, or economic conditions, in each case the effect of which
is such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock
23
28
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 or (v) if the rating assigned by any
nationally recognized statistical rating organization to any Debt Securities of
the Operating Partnership as of the date of the applicable Terms Agreement shall
have been downgraded since such date or if any such rating organization shall
have publicly announced that it has placed any series of Debt Securities of the
Operating Partnership under surveillance or review, with possible negative
implications, as to the rating of such Debt Securities or any of the Operating
Partnership's other securities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7, 8, 10 and 13 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount, of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms Agreement,
the non-defaulting Underwriters named in such Terms Agreement shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations under
such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten Securities
to be purchased on such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase, and the Operating Partnership to sell,
such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Operating Partnership with respect to the related Option
Underwritten Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the
Operating Partnership shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not
24
29
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to ▇▇▇▇▇▇▇
▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director; and notices to the ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entities shall be directed to any of them at National City Center, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
Mr. ▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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, the Operating Partnership, the
General Partners 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, the General Partners and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
25
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Operating Partnership
in accordance with its terms.
Very truly yours,
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
26
31
Exhibit A
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
__________ __, 199__
To: Simon Property Group, L.P.
National City Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Simon Property Group, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell
$__________ aggregate principal amount of debt securities (hereinafter the
"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
principal amounts of Underwritten Securities set forth below opposite their
names at the purchase price set forth below, to the extent any are purchased.
Principal Amount of
Underwriter Initial Underwritten Securities
----------- -------------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $
-----------------------
Total $
1
32
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price
Offering:
If Fixed Price Offering,
initial public offering price % of the principal amount, plus
per share: accrued interest [amortized original issue
discount], if any,
from
Purchase price per share: % of principal amount, plus accrued
interest [amortized original issue discount],
if any, from (payable
in next day funds).
Form:
Lock-Up Provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "SIMON PROPERTY GROUP, L.P. -- Debt Securities -- AMENDED AND RESTATED
UNDERWRITING AGREEMENT" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York City time)
on by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:_______________________________________
Name:
Title: Authorized Signatory
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33
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.
Managing General Partner
By:_________________________________
Name:
Title:
3
34
Exhibit B-1
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is duly qualified or registered as a foreign corporation
to transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or register or be in good standing would not result in a Material
Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, the applicable Terms Agreement and
the Indenture and is duly qualified or registered as a foreign limited
partnership to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect. The OP Partnership Agreement has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid and
binding agreement, enforceable against the parties thereto in accordance with
its terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and except as rights to indemnity thereunder may be
limited by applicable law.
(3) Each ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity other than 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity other than 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 Company, 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 interests
of such entities and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such capital stock or any
other securities of such entities. None of the outstanding shares of capital
stock or other equity interests of such entity was issued in violation of
preemptive or other similar rights of any securityholder of such entity.
B 1-1
35
(4) 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 (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except as rights to indemnity thereunder
may be limited by applicable law.
(5) The Indenture has been duly qualified under the 1939 Act and has been
duly authorized, executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. Dollars (or a
foreign currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(6) The Debt Securities being sold pursuant to the applicable Terms
Agreement and the Indenture each conform, in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form contemplated by the Indenture.
(7) Neither the Operating Partnership nor any of the other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Entities nor any Property Partnership is in violation of its charter, by-laws,
partnership agreement, or other organizational document, as the case may be, and
no default by the Operating Partnership or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or
any Property Partnership exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement or the Form 10-K, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(8) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and the consummation of the
transactions contemplated thereby did not and do not, conflict with or
constitute a breach or violation of, or default or Repayment Event under, or
result in the creation or imposition of any Lien upon any Portfolio Property,
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, to which the
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 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 Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership or any
applicable
B 1-2
36
laws, statutes, rules or regulations of the United States or any jurisdiction of
incorporation or formation of any of the Operating Partnership or any Property
Partnership or any judgment, order, writ or decree binding upon the Operating
Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 Operating Partnership, any other ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity or any Property
Partnership or any of their assets, properties or operations, except for such
conflicts, breaches, violations, defaults, events or Liens that would not result
in a Material Adverse Effect.
(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 Agreement,
the applicable Terms Agreement and the Indenture, except as may be required
under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, or the by-laws and rules of the NASD (as to which such counsel
expresses no opinion) or state securities laws (as to which such counsel
expresses no opinion), or such as have been obtained.
(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 Operating Partnership or any other ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Entity or any Property Partnership thereof which is required to be
disclosed in the Registration Statement and the Prospectus (other than as stated
or incorporated by reference therein), or which might reasonably be expected to
result in a Material Adverse Effect.
(11) All descriptions in the Registration Statement and the Prospectus of
contracts and other documents to which the Operating Partnership or any other
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entity is a party are accurate in all material respects. To the
best knowledge and information of such counsel, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, 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.
If the Prospectus Supplement to which the applicable Terms Agreement
relates is the first Prospectus Supplement (the "First Prospectus Supplement")
distributed under this Agreement, the opinions set forth in this Exhibit B-2
above with respect to the Property Partnerships shall only be required for those
Property Partnerships that have acquired or developed Properties since July 22,
1997. 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
37
Exhibit B-2
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S
COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) At the time the Registration Statement became effective, and at each
of the Representation Dates, the Registration Statement and the Prospectus,
excluding (a) the documents incorporated by reference therein, (b) the financial
statements and supporting schedules included and other financial data that are
therein and (c) the Form T-1, and each amendment or supplement to the
Registration Statement and Prospectus complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations. In
passing upon the compliance as to form of such documents, such counsel may
assume that the statements made or incorporated by reference therein are
complete and correct.
(2) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and supporting
schedules therein and other financial data, as to which no opinion need be
rendered), when they were filed with the Commission, complied as to form in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(3) The information in the Prospectus Supplement under "the Operating
Partnership," "Recent Developments" and "Description of the Notes" and in the
Prospectus under "The Operating Partnership," and "Description of Debt
Securities" and any description of the Underwritten Securities included therein,
and such other information in the Prospectus Supplement or in any Annual Report
on Form 10-K of the Operating Partnership agreed upon from time to time by the
Operating Partnership and ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the extent that it purports to
summarize matters of law, descriptions of statutes, rules or regulations,
summaries of legal matters, the Operating Partnership's organizational documents
or legal proceedings, or legal conclusions, has been reviewed by such counsel,
is correct and presents fairly the information required to be disclosed therein
in all material respects. confirmed.
(4) The Operating Partnership satisfies all conditions and requirements
for filing the Registration Statement on Form S-3 under the 1933 Act and 1933
Act Regulations.
(5) None of the Operating Partnership, the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Entities or any
Property Partnership is required to be registered as an investment company under
the 1940 Act.
(6) The Debt Securities being sold pursuant to the applicable Terms
Agreement have been duly authorized on behalf of the Operating Partnership by
the Company as the managing general partner of the Operating Partnership for
issuance and sale to the Underwriters pursuant to the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and, when issued and
authenticated in the manner provided for in the Indenture and delivered by the
Operating Partnership pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration set forth in the
applicable Terms Agreement, (i) the Debt Securities will constitute valid and
legally binding obligations of the Operating Partnership enforceable
B 2-1
38
against the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Debt Securities denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States and (C) the
enforceability of forum selection clauses in the federal courts, and (ii) each
holder of the Debt Securities will be entitled to the benefits of the Indenture.
The Debt Securities are in the form contemplated by the Indenture.
(7) This Agreement, the applicable Terms Agreement, the Indenture and the
applicable Indenture Supplement were duly and validly authorized, executed and
delivered by, or on behalf of, the Operating Partnership.
(8) The Company has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the Code.
(9) The Company 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.
(10) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus.
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 Operating Partnership and the independent public
accountants for the Operating Partnership and the Company at which the contents
of the Registration Statement and the Prospectus and related matters were
discussed. On the basis of such participation and review, but without
independent verification by such counsel of, and without assuming any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto, no facts have come to the attention of such counsel that
would lead them to believe that the Registration Statement (except for financial
statements and schedules and other financial data included therein and for the
Form T-1, as to which such counsel need make no statement), at the time the
Registration Statement or any post-effective amendment thereto became effective
or at the date of the applicable Terms Agreement, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and the schedules and other financial data included therein and for
the Form T-1, 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, contained or contains an untrue statement of
a material fact or omitted or omits to state a
B 2-2
39
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinion of Piper &
Marbury, special Maryland counsel to the General Partners (which opinion shall
be dated and furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the counsel for the Underwriters may rely on such opinions
as if it were addressed to them), and (B), as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the 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
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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40
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements of
the Operating Partnership for the [three month periods ended __________,
19__, and __________, 19__, the three and six month periods ended
__________, 19__, and __________, 19__, and the three and nine month
periods ended __________, 19__, and __________, 19__, included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")](1) [, a reading of the unaudited
interim [consolidated] financial statements of the Operating Partnership
for the _____-month periods ended __________, 19__, and __________, 19__,
included in the Registration Statement and the Prospectus (the
"_____-month financials")](2) [, a reading of the latest available
unaudited interim [consolidated] financial statements of the Operating
Partnership],(3) a reading of the minutes of all meetings of the
stockholders and directors of the Operating Partnership [and its
subsidiaries] and the Committees of the Operating Partnership's Board of
Directors [and any subsidiary committees] since [day after end of last
audited period], inquiries of certain officials of the Operating
Partnership [and its subsidiaries] responsible for financial and
accounting matters, a review of interim financial information in
accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
Interim Financial Information ("SAS 71"),(4) with respect to the
[description of relevant periods](5) and
--------------
1 Include the appropriate dates of the 10-Q Financials.
2 Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
3 Include if the most recent unaudited financial statements are not included
in the Registration Statement and the Prospectus.
4 Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative assurance on
interim financial information. A review in accordance with SAS No. 71 will
only be performed at the request of the Underwriters. Many companies have
a SAS No. 71 review performed in connection with the preparation of their
10-Q financial statements. See Codification of Statements on Auditing
Standards, AU Section 722 for a description of the procedures that
constitute such a review. The comfort letter itself should recite that the
review was performed and a copy of the report, if any, should be attached
to the comfort
(contined...)
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41
such other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting
principles;](6)
[( ) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting
principles;](7)
( ) at [____________, 19__ and at](8) a specified date not
more than five days(9) prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Operating
Partnership [and its subsidiaries] or any decrease in the
-----------------
(continued...)
letter. Any report issued pursuant to SAS No. 71 that is mentioned in the
Registration Statement should also be included in the Registration
Statement as an exhibit. If a review in accordance with SAS No. 71 has not
and will not be performed by the accountants, they should be prepared to
perform certain agreed-upon procedures on the interim financial
information and to report their findings thereon in the comfort letter.
See Codification of Statements on Auditing Standards, AU Section 622 for a
discussion of reports related to the accountant's performance of
agreed-upon procedures. Any question as to whether a review in accordance
with SAS No. 71 will be performed by the accountants should be resolved
early.
5 The relevant periods include all interim unaudited condensed consolidation
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus.
6 Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
7 Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
8 Include, and insert the date of most recent balance sheet of the Company,
if those statements are more recent than the unaudited financial
statements included in the Registration Statement and the Prospectus.
9 According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
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42
_________ of the Operating Partnership [and its subsidiaries] or any
increase in the ___________ of the Operating Partnership [and its
subsidiaries,](10) in each case as compared with amounts shown in
the latest balance sheet included in the Registration Statement and
the Prospectus, except in each case for changes, decreases or
increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
( ) [for the period from ___________, 19__ to ___________,
19__ and](11) for the period from _________, 19__ to a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there was any decrease in __________, ___________
or ___________,(12) in each case as compared with the comparable
period in the preceding year, except in each case for any decreases
that the Registration Statement and the Prospectus discloses have
occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the [Selected Financial Data] included in the Registration
Statement and the Prospectus [and a reading of the financial statements
from which such data were derived,](13) nothing came to our attention that
caused us to believe that the [Selected Financial Data] included in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
[Selected Financial Data] are not in agreement with the corresponding
amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles];(14)
-----------------
10 The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain balance sheet items, including long-term debt, stockholders'
equity, capital stock and net current assets.
11 Include, and insert dates to describe the period from the date of the most
recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements
of the Company, if those dates are different. Regardless of whether this
language is inserted or not, the period including five days prior to the
date of the applicable Terms Agreement should run from the date of the
last financial statement included in the Registration Statement and the
Prospectus, not from the later one that is not included in the
Registration Statement and the Prospectus.
12 The blanks should be filled in with significant income statements items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
13 Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement and
the Prospectus.
14 In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and
(continued...)
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43
(iv) we have compared the information in the Registration Statement
and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of limited
procedures specified herein. Nothing came to our attention that caused us
to believe that this information does not comply as to form in all
material respects with the disclosure requirements of Items 302, 402 and
503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Operating Partnership
for [the most recent period] that have not been included in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 71, nothing came to our attention that
caused us to believe that the unaudited amounts for __________________ for
the [most recent period] do not agree with the amounts set forth in the
unaudited consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited [consolidated]
financial statements;](15)
[(vi)] we are unable to and do not express any opinion on the [Pro
Forma Combining Statement of Operations] (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Operating
Partnership who have responsibility for financial and accounting
matters about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statement complies as to form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statement; and
-------------------
(continued...)
include in their report in the Registration Statement and the Prospectus
the paragraph contemplated by SAS No. 42.9. This situation may arise only
if the Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the Registration
Statement and the Prospectus includes the additional language prescribed
by SAS No. 42.9, the bracketed language may be eliminated.
15 This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of
the latest financial statements in the Registration Statement and the
Prospectus, but the unaudited interim financial statements from which the
earnings or other data is derived is not included in the Registration
Statement and the Prospectus. The blank should be filled in with a
description of the financial statement item(s) included.
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44
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe that
the Pro Forma Statement included in the Registration Statement does not comply
as to form in all material respects with the applicable requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;(16)
and
[(vii)] in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement and the Prospectus,
which are specified herein, and have compared certain of such items with,
and have found such items to be in agreement with, the accounting and
financial records of the Operating Partnership;(17) and
------------------------
16 If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro
forma financial statements. See Example O of SAS No. 72.
17 This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus for
which comfort may be given, including (but not limited to) amounts
appearing in the Registration Statement and the Prospectus narrative and
other summary financial data appearing in tabular form (e.g., the
capitalization table).
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[(viii) in addition, we [comfort on a financial forecast that is
included in the Registration Statement and the Prospectus.18]
---------------------
18 Accountants' services with respect to a financial forecast may be in one
of three forms: an examination of the forecast, a compilation of the
forecast or the application of agreed-upon procedures to the forecast. If
the accountant is to perform an examination of the forecast included in
the Registration Statement and the Prospectus, delivery of the related
report should be treated separately in Section 5(f) as follows (remember
to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report,
dated such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus are presented in conformity with
guidelines for presentation of a forecast established by the AICPA, and
that the underlying assumptions provide a reasonable basis for
management's forecast.
If the accountant is to perform a compilation of the forecasted financial
statements included in the Registration Statement and the Prospectus,
delivery of the related report should be treated separately in Section
5(e) as follows:
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report,
dated such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus in accordance with the
guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus, SAS
No. 72 requires that the accountant first prepare a compilation report
with respect to the forecast and attach that report to the comfort letter.
The accountant may then report on specific procedures performed and
findings obtained.
I-6