<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1997
REGISTRATION NO. 333-33545-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIMON DEBARTOLO GROUP, L.P.
SIMON PROPERTY GROUP, L.P.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 34-1755769
DELAWARE 35-1903854
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
NATIONAL CITY CENTER
115 WEST WASHINGTON STREET
SUITE 15 EAST
INDIANAPOLIS, IN 46204
(317) 636-1600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
DAVID SIMON
CHIEF EXECUTIVE OFFICER
SIMON GROUP, INC.
NATIONAL CITY CENTER
115 WEST WASHINGTON STREET
SUITE 15 EAST
INDIANAPOLIS, IN 46204
(317) 636-1600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
DAVID C. WORRELL, ESQ. JAMES M. ASHER, ESQ.
BAKER & DANIELS ROBERT E. KING, JR., ESQ.
300 NORTH MERIDIAN STREET ROGERS & WELLS
SUITE 2700 200 PARK AVENUE
INDIANAPOLIS, INDIANA 46204 NEW YORK, NEW YORK 10166
(317) 237-1110 (212) 878-8000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time or at one time after the effective date of the Registration
Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
------------------------
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement relates to securities which may be offered from
time to time by Simon DeBartolo Group, L.P. (the "Operating Partnership"), as
guaranteed by Simon Property Group, L.P. ("SPG, LP"). This Registration
Statement contains a form of Base Prospectus which will be used in connection
with an offering of securities by the Operating Partnership, as guaranteed by
SPG, LP. The specific terms of the securities and of the guarantee thereto to be
offered will be set forth in a Prospectus Supplement relating to such
securities.
<PAGE> 3
PROSPECTUS
Simon DeBartolo Group Logo
$1,000,000,000
SIMON DeBARTOLO GROUP, L.P.
Debt Securities
------------------------
Simon DeBartolo Group, L.P. (the "Operating Partnership") may from time to
time offer in one or more series unsecured non-convertible investment grade debt
securities ("Debt Securities") in an aggregate principal amount of up to $1
billion (or its equivalent in another currency based on the exchange rate at the
time of sale) in amounts, at prices and on terms to be set forth in one or more
supplements to this Prospectus (each a "Prospectus Supplement"). The Operating
Partnership is a subsidiary of Simon DeBartolo Group, Inc. (the "Company") and
is the Company's primary operating partnership. Simon Property Group, L.P., a
Delaware limited partnership and a subsidiary partnership of the Operating
Partnership, will guarantee (the "Guarantee") the due and punctual payment of
the principal of, premium, if any, interest on, and any other amounts payable
with respect to, the Debt Securities, when and as the same shall become due and
payable, whether at a maturity date, on redemption, by declaration of
acceleration or otherwise, and as set forth in the applicable Prospectus
Supplement with respect to such Debt Securities.
The specific terms of the Debt Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include a specific title, aggregate principal amount,
currency, form (which may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of calculation thereof) and
time of payment of interest, terms for redemption at the option of the Operating
Partnership or repayment at the option of the holder, terms for sinking fund
payments, covenants and any initial public offering price.
The applicable Prospectus Supplement will also contain information, where
applicable, concerning material United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Debt Securities
covered by such Prospectus Supplement.
The Debt Securities may be offered directly, through agents designated from
time to time by the Operating Partnership, or to and through underwriters or
dealers. If any agents, dealers or underwriters are involved in the sale of any
of the Debt Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in an accompanying Prospectus
Supplement. See "Plan of Distribution." No Debt Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such series of Debt Securities.
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership and will, unless otherwise described in the applicable Prospectus
Supplement, rank equally with all other unsecured and unsubordinated
indebtedness of the Operating Partnership. On June 30, 1997, the total
outstanding debt of the Operating Partnership, including its pro rata share of
joint venture debt, was approximately $4,296 million, 79.6% of which was secured
debt. Except as otherwise described in the applicable Prospectus Supplement, the
Indenture pursuant to which the Debt Securities are issued does not limit the
amount of other indebtedness of the Operating Partnership including secured
debt.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is October 15, 1997.
<PAGE> 4
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
AVAILABLE INFORMATION
The Operating Partnership is a subsidiary of Simon DeBartolo Group, Inc.
(the "Company"). Simon Property Group, L.P. ("SPG, LP") is a subsidiary
partnership of the Operating Partnership. The Company, the Operating Partnership
and SPG, LP are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, file reports, proxy statements (if applicable) and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company, the Operating
Partnership and SPG, LP can be inspected and copied, at the prescribed rates, at
the public reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
at 7 World Trade Center, Suite 1300, New York, New York 10048, and Northwestern
Atrium Center, 500 W. Madison Street, Chicago, Illinois 60661. The Company's
Common Stock is traded on the New York Stock Exchange ("NYSE"). Reports and
other information concerning the Company may be inspected at the principal
office of the NYSE at 20 Broad Street, New York, New York 10005.
The Company, the Operating Partnership and SPG, LP, will provide without
charge to each person to whom a copy of this Prospectus is delivered, upon
written or oral request, a copy of any or all of the documents incorporated
herein by reference (other than exhibits to such documents). Written requests
for such copies should be addressed to National City Center, 115 West Washington
Street, Suite 15 East, Indianapolis, Indiana 46204, Attn: Investor Relations,
telephone number (317) 685-7330.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Operating Partnership and SPG, LP
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Debt Securities and Guarantee offered
hereby. This Prospectus omits certain of the information contained in the
Registration Statement and the exhibits and schedules thereto, in accordance
with the rules and regulations of the Commission. For further information
concerning the Operating Partnership, SPG, LP and the Debt Securities offered
hereby, reference is hereby made to the Registration Statement and the exhibits
and schedules filed therewith, which may be inspected without charge at the
office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and
copies of which may be obtained from the Commission at prescribed rates. The
Commission maintains a World Wide Web Site (http://www.sec.gov) that contains
such material regarding issuers that file electronically with the Commission.
This Registration Statement has been so filed and may be obtained at such site.
Any statements contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
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<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Operating Partnership and SPG, LP which have
been filed with the Commission are hereby incorporated by reference in this
Prospectus.
1. The Operating Partnership's Annual Report on Form 10-K for the year
ended December 31, 1996;
2. The Operating Partnership's Quarterly Reports on Form 10-Q for the
calendar quarters ended March 31, 1997 and June 30, 1997;
3. The Operating Partnership's Current Reports on Form 8-K filed May 16,
1997, July 22, 1997 as amended July 23, 1997, August 15, 1997, September 4,
1997, September 10, 1997 and September 15, 1997;
4. SPG, LP's Annual Report on Form 10-K for the year ended December 31,
1996;
5. SPG, LP's Quarterly Reports on Form 10-Q for the calendar quarters ended
March 31, 1997 and June 30, 1997; and
6. SPG, LP's Current Reports on Form 8-K filed on May 16, 1997, July 22,
1997, August 15, 1997 and September 10, 1997.
The Exchange Act filing numbers of the Operating Partnership and SPG, LP
are 333-11491 and 33-98364.
Each document filed by the Operating Partnership and SPG, LP subsequent to
the date of this Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to termination of the offering of all Debt Securities to
which this Prospectus relates shall be deemed to be incorporated by reference in
this Prospectus and shall be part hereof from the date of filing of such
document. Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus (in the case of a statement in a previously-filed
document incorporated or deemed to be incorporated by reference herein), in any
accompanying Prospectus Supplement relating to a specific offering of Debt
Securities or in any other subsequently filed document that is also incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus or
any accompanying Prospectus Supplement. Subject to the foregoing, all
information appearing in this Prospectus and each accompanying Prospectus
Supplement is qualified in its entirety by the information appearing in the
documents incorporated by reference.
3
<PAGE> 6
THE OPERATING PARTNERSHIP
Simon DeBartolo Group, L.P. (the "Operating Partnership") is a subsidiary
partnership of Simon DeBartolo Group, Inc. (the "Company") and is the primary
operating partnership of the Company. The Company is a self-administered and
self-managed real estate investment trust ("REIT"). Simon Property Group, L.P.
("SPG, LP" and together with the Operating Partnership, the "Partnerships") is a
subsidiary partnership of the Operating Partnership. The Partnerships are
engaged primarily in the ownership, development, management, leasing,
acquisition and expansion of income producing properties, primarily regional
malls and community shopping centers. On August 9, 1996, the Company acquired
the national shopping center business of DeBartolo Realty Corporation ("DRC"),
The Edward J. DeBartolo Corporation and their affiliates as the result of the
merger (the "Merger") of DRC with a subsidiary of the Company. As a result of
the Merger, the Portfolio Properties (as defined below) were expanded by 61
properties and the management resources of the merged entities were combined.
Management believes that the Portfolio Properties, as measured in gross leasable
area ("GLA"), constitute the largest and most geographically diverse portfolio
of any publicly traded REIT in North America and that the Company's market
capitalization is the largest of any publicly traded real estate company in
North America.
SPG, LP continues to hold interests in certain properties and is a party to
various agreements binding on itself and on subsidiary partnerships of which it
is the general partner. These agreements require the continued existence of SPG,
LP. The consents necessary under these agreements to permit the combination of
SPG, LP and the Operating Partnership were not obtained at the time of the
Merger. To date, all of the required consents have been obtained. As a result
thereof, it is currently expected that subsequent to the first anniversary of
the date of the Merger, reorganizational transactions will be effected so that
the Operating Partnership will directly own all of the assets and partnership
interests now owned by SPG, LP. Prior to such proposed reorganizational
transactions, holders of the Debt Securities to be offered hereby will not, as a
result of the Guarantee, be structurally subordinated to holders of unsecured
and unsubordinated indebtedness of SPG, LP, but will rank pari passu with them.
After the proposed reorganizational transactions, holders of the Debt Securities
will remain pari passu with holders of such indebtedness. However, there can be
no assurance that such reorganizational transactions will be so effected.
As of June 30, 1997, the Partnerships, owned or held interests in a
diversified portfolio of 186 income producing properties (the "Portfolio
Properties"), including 114 super-regional and regional malls, 65 community
shopping centers, three specialty retail centers and four mixed-use properties
located in 33 states; the Portfolio Properties contain an aggregate of
approximately 114 million square feet of gross leasable area ("GLA"), of which
approximately 68 million square feet is GLA owned by the Partnerships ("Owned
GLA"); approximately 3,100 different retailers occupy approximately 12,000
stores in the Portfolio Properties; total estimated retail sales at the
Portfolio Properties exceeded $16 billion in 1996; the Partnerships have
interests in six properties under construction in the United States aggregating
approximately four million square feet of GLA, and own land held for future
development. The Partnerships, together with their affiliated management
companies (collectively, the "Management Companies"), manage approximately 130
million square feet of GLA of retail and mixed-use properties.
The Company is a general partner of the Operating Partnership and the sole
general partner of SPG, LP. The other general partner of the Operating
Partnership is SD Property Group, Inc. (the "Managing General Partner"). The
Company owns a 99.9% interest in the Managing General Partner.
As of June 30, 1997, the Operating Partnership and the Management Companies
had approximately 5,700 employees. The Operating Partnership's executive offices
are located at National City Center, 115 West Washington Street, Suite 15 East,
Indianapolis, Indiana 46204, and its telephone number is (317) 636-1600.
4
<PAGE> 7
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement,
proceeds to the Operating Partnership from the sale of the Debt Securities
offered hereby will be added to the working capital of the Operating Partnership
and will be available for general purposes, which may include the repayment of
indebtedness, the financing of capital commitments and possible future
acquisitions associated with the continued expansion of the Partnerships'
business.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical consolidated ratio of
earnings to fixed charges of the Operating Partnership and its predecessors for
the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
------------------- ------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
1.71x 1.54x 1.64x 1.67x 1.43x 3.36x(1) --(1)
</TABLE>
- ---------------
(1) Prior to the commencement of business by SPG, LP in December 1993, the
predecessor of SPG, LP maintained a different ownership and equity
structure. The operating properties of the predecessor of SPG, LP
historically generated positive net cash flow. The financial statements of
the predecessor of SPG, LP show net income for the period January 1, 1993
through December 19, 1993, and net losses for the year ended December 31,
1992. The ratio of earnings to fixed charges for the period January 1, 1993
through December 19, 1993 was 1.11x. As a consequence of the net losses for
the year ended December 31, 1992, the computation of the ratio of earnings
to fixed charges for 1992 indicates that earnings were inadequate to cover
fixed charges by approximately $12.8 million.
For purposes of computing the ratio of earnings to fixed charges, earnings
have been calculated by adding fixed charges, excluding capitalized interest, to
income (loss) from continuing operations including income from minority
interests which have fixed charges, and including distributed operating income
from unconsolidated joint ventures instead of income from unconsolidated joint
ventures. Fixed charges consist of interest costs, whether expensed or
capitalized, the interest component of rental expense and amortization of debt
issuance costs.
5
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of November
26, 1996 (the "Indenture"), among the Operating Partnership, SPG, LP, as
guarantor, and The Chase Manhattan Bank, as trustee. The Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part and is available for inspection at the corporate trust office of the
trustee at 450 West 33rd Street, 15th Floor, New York, New York 10001, or as
described above under "Available Information." The Indenture is subject to, and
governed by, the Trust Indenture Act of 1939, as amended (the "TIA"). The
statements made hereunder or in any Prospectus Supplement relating to the
Indenture and the Debt Securities to be issued thereunder are summaries of
certain provisions thereof and do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all provisions of the
Indenture and such Debt Securities. All section references appearing herein are
to sections of the Indenture, and capitalized terms used but not defined herein
shall have the respective meanings set forth in the Indenture.
The Debt Securities to be offered hereby and in any applicable Prospectus
Supplement will be "investment grade" securities, meaning at the time of the
offering of such Debt Securities, at least one nationally recognized statistical
rating organization (as defined in the Exchange Act) has rated such Debt
Securities in one of its generic rating categories which signifies investment
grade (typically the four highest rating categories, within which there may be
subcategories or gradations indicating relative standing, signify investment
grade). An investment grade rating is not a recommendation to buy, sell or hold
securities, is subject to revision or withdrawal at any time by the assigning
entity, and should be evaluated independently of any other rating.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership and, unless otherwise described in the applicable Prospectus
Supplement, will rank equally with all other unsecured and unsubordinated
indebtedness of the Operating Partnership. No partner (whether limited or
general, including the Company and the Managing General Partner) of the
Operating Partnership has any obligation for payment of principal of (and
premium, if any) and interest, if any, on, or any other amount with respect to,
the Debt Securities (Section 1602). At June 30, 1997, the total outstanding debt
of the Operating Partnership, including its pro rata share of joint venture
debt, was approximately $4,296 million, 79.6% of which was secured debt. Except
as otherwise described in the applicable Prospectus Supplement, the Indenture
does not limit the amount of other indebtedness of the Operating Partnership
that may rank equally with or senior to the Debt Securities. The Debt Securities
may be issued without limit as to aggregate principal amount, in one or more
series, in each case as established from time to time in or pursuant to
authority granted by a resolution of the Board of Directors of the Managing
General Partner, as the managing general partner of the Operating Partnership or
as established in one or more indentures supplemental to the Indenture. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301).
The Indenture provides that there may be more than one trustee (the
"Trustee") thereunder, each with respect to one or more series of Debt
Securities. Any Trustee under the Indenture may resign or be removed with
respect to one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series (Section 608). In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a trustee of a trust under the
Indenture separate and apart from the trust administered by any other Trustee
(Section 609), and, except as otherwise indicated herein, any action described
herein to be taken by a Trustee may be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Debt Securities for
which it is Trustee under the Indenture.
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<PAGE> 9
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon acceleration of
the maturity thereof;
(4) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(5) the rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(6) the date or dates, or the method for determining such date or
dates, from which any interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment dates,
or the method by which any such record date shall be determined, the
persons to whom such interest shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(7) the place or places where the principal of (and premium, if any)
and interest, if any, on such Debt Securities will be payable, such Debt
Securities may be surrendered for registration of transfer or exchange and
notices or demands to or upon the Operating Partnership in respect of such
Debt Securities and the Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Debt Securities may be
redeemed, in whole or in part, at the option of the Operating Partnership,
if the Operating Partnership is to have such an option;
(9) the obligation, if any, of the Operating Partnership to redeem,
repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, and the terms and conditions relating thereto;
(11) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on a currency, currencies, currency unit
or units or composite currency or currencies) and the manner in which such
amounts shall be determined;
(12) the events of default or covenants of such Debt Securities, to
the extent different from or in addition to those described herein;
(13) whether such Debt Securities will be issued in certificated or
book-entry form;
(14) whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the denominations
thereof if other than $5,000, and any integral multiple thereof and the
terms and conditions relating thereto;
(15) the applicability, if any, of the defeasance and covenant
defeasance provisions described herein, or any modification thereof;
7
<PAGE> 10
(16) if such Debt Securities are to be issued upon the exercise of
debt warrants, the time, manner and place of such Debt Securities to be
authenticated and delivered;
(17) whether and under what circumstances the Operating Partnership
will pay additional amounts on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Operating
Partnership will have the option to redeem such Debt Securities in lieu of
making such payment;
(18) with respect to any Debt Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as a
change of control of the Operating Partnership), (i) the possible effects
of such provisions on the market price of the Operating Partnership's
securities or in deterring certain mergers, tender offers or other takeover
attempts, and the intention of the Operating Partnership to comply with the
requirements of Rule 14e-1 under the Exchange Act and any other applicable
securities laws in connection with such provisions; (ii) whether the
occurrence of the specified events may give rise to cross-defaults on other
indebtedness such that payment on such Debt Securities may be effectively
subordinated; and (iii) the existence of any limitation on the Operating
Partnership's financial or legal ability to repurchase such Debt Securities
upon the occurrence of such an event (including, if true, the lack of
assurance that such a repurchase can be effected) and the impact, if any,
under the Indenture of such a failure, including whether and under what
circumstances such a failure may constitute an Event of Default; and
(19) any other terms of such Debt Securities.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon acceleration of the maturity thereof ("Original Issue
Discount Securities"). If material or applicable, special U.S. federal income
tax, accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Except as described under "-- Merger, Consolidation or Sale" below or as
may be set forth in any Prospectus Supplement, the Indenture does not contain
any other provisions that would limit the ability of the Operating Partnership
to incur indebtedness or that would afford holders of the Debt Securities
protection in the event of (i) a highly leveraged or similar transaction
involving the Operating Partnership, the Company or the management of the
Company, or any affiliate of any such party, (ii) a change of control, or (iii)
a reorganization, restructuring, merger or similar transaction involving the
Operating Partnership that may adversely affect the holders of the Debt
Securities. In addition, subject to the limitations set forth under "-- Merger,
Consolidation or Sale," the Operating Partnership may, in the future, enter into
certain transactions, such as the sale of all or substantially all of its assets
or the merger or consolidation of the Operating Partnership, that would increase
the amount of the Operating Partnership's indebtedness or substantially reduce
or eliminate the Operating Partnership's assets, which may have an adverse
effect on the Operating Partnership's ability to service its indebtedness,
including the Debt Securities. Reference is made to the applicable Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the events of default or covenants that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
Reference is made to "-- Certain Covenants" below and to the description of
any additional covenants with respect to a series of Debt Securities in the
applicable Prospectus Supplement. Except as otherwise described in the
applicable Prospectus Supplement, compliance with such covenants generally may
not be waived with respect to a series of Debt Securities unless the Holders of
at least a majority in principal amount of all outstanding Debt Securities of
such series consent to such waiver, except to the extent that the defeasance and
covenant defeasance provisions of the Indenture described under "-- Discharge"
and "-- Defeasance and Covenant Defeasance" below apply to such series of Debt
Securities. See "-- Modification of the Indenture."
Debt Securities may be denominated and payable in a foreign currency or
units of two or more foreign currencies or a composite currency or currencies.
As more fully described in the applicable Prospectus Supplement, awards or
judgments by a court in the United States in connection with a claim with
respect to
8
<PAGE> 11
any Debt Securities denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of such
claims) may be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series which are registered securities, other than
registered securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof
and the Debt Securities which are bearer securities, other than bearer
securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof (Section
302).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
in registered form will be payable at the corporate trust office of the Trustee,
initially located at 450 West 33rd Street, 15th Floor, New York, New York 10001,
provided that, at the option of the Operating Partnership, payment of interest
may be made by check mailed to the address of the Person entitled thereto as it
appears in the applicable Security Register or by wire transfer of funds to such
Person at an account maintained within the United States (Sections 301, 307 and
1002).
Unless otherwise specified in the applicable Prospectus Supplement, any
interest not punctually paid or duly provided for on any Interest Payment Date
with respect to a Debt Security in registered form ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the Indenture
(Section 307).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the Trustee referred to above.
In addition, subject to certain limitations imposed upon Debt Securities issued
in book-entry form, the Debt Securities of any series may be surrendered for
registration of transfer thereof at the corporate trust office of the Trustee
referred to above. Every Debt Security surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer. No service charge will be made for any registration of transfer or
exchange of any Debt Securities, but the Trustee or the Operating Partnership
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 305). If the applicable
Prospectus Supplement refers to any transfer agent (in addition to the Trustee)
initially designated by the Operating Partnership with respect to any series of
Debt Securities, the Operating Partnership may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Operating
Partnership will be required to maintain a transfer agent in each place of
payment for such series. The Operating Partnership may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002).
Neither the Operating Partnership nor the Trustee shall be required (i) to
issue, register the transfer of or exchange any Debt Security if such Debt
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Debt Securities to be
redeemed and ending at the close of business on (A) if such Debt Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Debt Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Debt Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that, to the
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extent provided with respect to such Bearer Security, such Bearer Security may
be exchanged for a Registered Security of that series and of like tenor,
provided that such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or exchange any Debt
Security which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Debt Security not to be so repaid (Section
305).
MERGER, CONSOLIDATION OR SALE
The Operating Partnership or the Guarantor may consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge with or
into, any other entity, provided that (a) the Operating Partnership or the
Guarantor, as the case may be, shall be the continuing entity, or the successor
entity (if other than the Operating Partnership or the Guarantor) formed by or
resulting from any such consolidation or merger or which shall have received the
transfer of such assets shall expressly assume payment of the principal of (and
premium, if any) and interest on all the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in the Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Operating Partnership or the Guarantor, such successor entity or any Subsidiary
as a result thereof as having been incurred by the Operating Partnership or the
Guarantor, such successor entity or such Subsidiary at the time of such
transaction, no Event of Default under the Indenture, and no event which, after
notice or the lapse of time, or both, would become such an Event of Default,
shall have occurred and be continuing; and (c) an officer's certificate and
legal opinion covering such conditions shall be delivered to the Trustee
(Sections 801 and 803).
CERTAIN COVENANTS
Existence. Except as permitted under "-- Merger, Consolidation or Sale"
above, the Operating Partnership is required to do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (statutory and charter) and franchises; provided, however, that the
Operating Partnership shall not be required to preserve any such right or
franchise if it determines that the loss thereof is not disadvantageous in any
material respect to the Holders of the Debt Securities (Section 1006).
Maintenance of Properties. The Operating Partnership is required to cause
all of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and to cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Operating Partnership may be
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that the Operating
Partnership and its subsidiaries shall not be prevented from selling or
otherwise disposing for value their respective properties in the ordinary course
of business (Section 1007).
Insurance. The Operating Partnership is required to, and is required to
cause each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value
(subject to reasonable deductibles determined from time to time by the Operating
Partnership) with financially sound and reputable insurance companies (Section
1008).
Payment of Taxes and Other Claims. The Operating Partnership is required
to pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon its income, profits or property or
that of any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Operating Partnership or any Subsidiary; provided, however, that the Operating
Partnership shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings (Section
1009).
Provision of Financial Information. The Holders of Debt Securities will be
provided with copies of the annual reports and quarterly reports of the
Operating Partnership. Whether or not the Operating Partnership is
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subject to Section 13 or 15(d) of the Exchange Act and for so long as any Debt
Securities are outstanding, the Operating Partnership will, to the extent
permitted under the Exchange Act, be required to file with the Commission the
annual reports, quarterly reports and other documents which the Operating
Partnership would have been required to file with the Commission pursuant to
such Section 13 or 15(d) (the "Financial Statements") if the Operating
Partnership were so subject, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Operating Partnership would have been required so to file such documents if the
Operating Partnership were so subject. The Operating Partnership will also in
any event (x) within 15 days of each Required Filing Date (i) transmit by mail
to all Holders of Debt Securities, as their names and addresses appear in the
Security Register, without cost to such Holders, copies of the annual reports
and quarterly reports which the Operating Partnership would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Operating Partnership were subject to such Sections and (ii) file with
the Trustee copies of the annual reports, quarterly reports and other documents
which the Operating Partnership would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Operating
Partnership were subject to such Sections and (y) if filing such documents by
the Operating Partnership with the Commission is not permitted under the
Exchange Act, promptly upon written request and payment of the reasonable cost
of duplication and delivery, supply copies of such documents to any prospective
Holder (Section 1010).
Additional Covenants. Any additional or different covenants of the
Operating Partnership with respect to any series of Debt Securities will be set
forth in the Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest on any Debt Security of
such series; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such series; (d)
default in the performance of any other covenant of the Operating Partnership
contained in the Indenture (other than a covenant added to the Indenture solely
for the benefit of a series of Debt Securities issued thereunder other than such
series), such default having continued for 60 days after written notice as
provided in the Indenture; (e) default in the payment of an aggregate principal
amount exceeding $30,000,000 of any recourse indebtedness of the Operating
Partnership, however evidenced, such default having occurred after the
expiration of any applicable grace period and having resulted in the
acceleration of the maturity of such indebtedness, but only if such indebtedness
is not discharged or such acceleration is not rescinded or annulled within 10
days after written notice as provided in the Indenture; (f) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Operating Partnership or any Significant Subsidiary
or any of their respective property; and (g) any other Event of Default provided
with respect to a particular series of Debt Securities (Section 501).
If an Event of Default under the Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series of the Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms thereof) of all of the Debt Securities of that series to
be due and payable immediately by written notice thereof to the Operating
Partnership (and to the Trustee if given by the Holders); provided, that in the
case of an Event of Default described under paragraph (f) of the preceding
paragraph, acceleration is automatic. However, at any time after such
acceleration with respect to Debt Securities of such series has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of not less than a majority in principal amount of
Outstanding Debt Securities of such series may rescind and annul such
acceleration and its consequences if (a) the Operating Partnership shall have
deposited with the Trustee all amounts due otherwise than on account of such
declaration, plus certain fees, expenses, disbursements and advances of the
Trustee and (b) all Events of Default, other than the non-payment of accelerated
principal of the Debt Securities of such series, have been cured or waived as
provided in the Indenture (Section 502). The Indenture also provides that the
Holders of
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not less than a majority in principal amount of the Outstanding Debt Securities
of any series may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series or (y) in
respect of a covenant or provision contained in the Indenture that cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security affected thereby (Section 513).
The Trustee will be prepared to give notice to the Holders of Debt
Securities within 90 days of a default under the Indenture unless such default
has been cured or waived; provided, however, that the Trustee may withhold
notice to the Holders of any series of Debt Securities of any default with
respect to such series (except a default in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if a trust committee of Responsible Officers of the Trustee consider
such withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the Trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series, as well as
an offer of indemnity reasonably satisfactory to it (Section 507). This
provision will not prevent, however, any Holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such Debt Securities at the respective due
dates thereof (Section 508).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request of any Holders of any series of Debt
Securities then Outstanding under the Indenture, unless such Holders shall have
offered to the Trustee thereunder reasonable security or indemnity (Section
602). The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or of exercising any trust or power conferred upon the Trustee with
respect to the Debt Securities of such series. However, the Trustee may refuse
to follow any direction which is in conflict with any law or the Indenture,
which may involve the Trustee in personal liability or which may be unduly
prejudicial to the Holders of Debt Securities of such series not joining therein
(Section 512).
Within 120 days after the close of each fiscal year, each of the Operating
Partnership and the Guarantor must deliver to the Trustee a certificate, signed
by one of several specified officers of the Operating Partnership or the
Guarantor, as the case may be, stating whether or not such officer has knowledge
of any default under the Indenture and, if so, specifying each such default and
the nature and status thereof (Section 1011).
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the Holders of not less than a majority in principal
amount of all Outstanding Debt Securities which are affected by such
modification or amendment (voting as one class); provided, however, that no such
modification or amendment may, without the consent of the Holder of each such
Debt Security affected thereby: (a) change the Stated Maturity of the principal
of, or premium (if any) or any installment of interest on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security that would be due
and payable upon acceleration of the maturity thereof or that would be provable
in bankruptcy, or adversely affect any right of repayment at the option of the
holder of any such Debt Security; (c) change the Place of Payment, or the coin
or currency, for payment of principal of, premium, if any, or interest on any
such Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
above-stated percentage in principal amount of Outstanding Debt Securities
necessary to modify or amend the Indenture, reduce the percentage of Outstanding
Debt Securities of any series necessary to waive compliance with certain
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provisions thereof or certain defaults and consequences thereunder, or to reduce
the quorum or voting requirements set forth in the Indenture; or (f) modify any
of the foregoing provisions or any of the provisions relating to the waiver of
certain past defaults or certain covenants, except to increase the percentage
required to effect such action or to provide that certain other provisions may
not be modified or waived without the consent of the Holder of each Outstanding
Debt Security affected thereby (Section 902).
The Indenture provides that the Holders of not less than a majority in
principal amount of a series of Outstanding Debt Securities have the right to
waive compliance by the Operating Partnership with certain covenants relating to
such series of Debt Securities in the Indenture (Section 1013).
Modifications and amendments of the Indenture will be permitted to be made
by the Operating Partnership and the Guarantor, and the Trustee without the
consent of any Holder of Debt Securities for any of the following purposes: (i)
to evidence the succession of another Person to the Operating Partnership or the
Guarantor as obligor under the Indenture; (ii) to add to the covenants of the
Operating Partnership or the Guarantor for the benefit of the Holders of all or
any series of Debt Securities or to surrender any right or power conferred upon
the Operating Partnership in the Indenture; (iii) to add Events of Default for
the benefit of the Holders of all or any series of Debt Securities; (iv) to add
or change any provisions of the Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in bearer form, to change or
eliminate any restrictions on payment of the principal of or premium or interest
on Debt Securities, to modify the provisions relating to global Debt Securities,
or to permit or facilitate the issuance of Debt Securities in uncertificated
form, provided that such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material respect; (v) to
change or eliminate any provisions of the Indenture, provided that any such
change or elimination shall become effective only when there are no Debt
Securities Outstanding of any series created prior thereto which are entitled to
the benefit of such provision or such amendment shall not apply to any then
Outstanding Debt Security; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series; (viii) to provide
for the acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in the Indenture, provided that
such action shall not adversely affect the interests of Holders of Debt
Securities of any series in any material respect; or (x) to supplement any of
the provisions of the Indenture to the extent necessary to permit or facilitate
defeasance and discharge of any series of such Debt Securities, provided that
such action shall not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect (Section 901).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities of a series have
given any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the maturity thereof, (ii) the principal amount of a Debt
Security denominated in a foreign currency that shall be deemed Outstanding
shall be the U.S. dollar equivalent, determined on the issue date for such Debt
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the issue date of such Debt Security of
the amount determined as provided in (i) above) of such Debt Security, (iii) the
principal amount of an Indexed Security that shall be deemed Outstanding shall
be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to the
Indenture, and (iv) Debt Securities owned by the Operating Partnership or any
other obligor upon the Debt Securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded (Section 101).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issuable, in whole or in part, as Bearer Securities
(Section 1501). A meeting will be permitted to be called at any time by the
Trustee, and also, upon request, by the Operating Partnership or the Holders of
at least 10% in principal amount of the Outstanding Debt Securities of such
series, in any such case upon notice given as provided in the Indenture (Section
1502). Except for any consent that must be given by the Holder of each Debt
Security affected by certain modifications and amendments of the Indenture, any
resolution presented at
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a meeting or adjourned meeting duly reconvened at which a quorum is present will
be permitted to be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series; provided,
however, that, except as referred to above, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the Holders of a specified percentage
in principal amount of the Outstanding Debt Securities of a series may be
adopted at a meeting at which a quorum is present by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding Debt
Securities of that series. Any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all Holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be Persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which may be
made, given or taken by the Holders of not less than a specified percentage in
principal amount of the Outstanding Debt Securities of a series, then with
respect to such action (and only such action) the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more additional
series: (i) there shall be no minimum quorum requirement for such meeting and
(ii) the principal amount of the Outstanding Debt Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under the Indenture (Section
1504).
DISCHARGE
The Operating Partnership may discharge certain obligations to Holders of
any series of Debt Securities that have not already been delivered to the
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with the Trustee, in trust, funds in an amount
sufficient to pay the entire indebtedness on such Debt Securities in respect of
principal (and premium, if any) and interest to the date of such deposit (if
such Debt Securities have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be (Section 401).
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within any series pursuant to Section
301 of the Indenture, the Operating Partnership or the Guarantor may elect
either (a) to defease and be discharged from any and all obligations with
respect to such Debt Securities (except for the obligation to pay Additional
Amounts, if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency in respect of such Debt Securities and to hold
moneys for payment in trust) ("defeasance") (Section 1402) or (b) to be released
from its obligations with respect to such Debt Securities under Sections 1006 to
1010, inclusive, of the Indenture (including the restrictions described under
"-- Certain Covenants" above) and its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event of Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403), in either case upon the irrevocable deposit by the
Operating Partnership or the Guarantor, as the case may be, with the Trustee, in
trust, of an amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below),
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or both, applicable to such Debt Securities which through the scheduled payment
of principal and interest in accordance with their terms will provide money in
an amount sufficient to pay the principal of (and premium, if any) and interest
on such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor (Section 1404).
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership or the Guarantor, as the case may be, has
delivered to the Trustee an Opinion of Counsel (as specified in the Indenture)
to the effect that the Holders of such Debt Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance, must refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable United States
federal income tax law occurring after the date of the Indenture (Section 1404).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligations or a specific payment of interest on
or principal of any such Government Obligations held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt (Section 101).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Operating Partnership or the Guarantor, as the case may be, has deposited
funds or Government Obligations to effect defeasance or covenant defeasance with
respect to Debt Securities of any series, (a) the Holder of a Debt Security of
such series is entitled to, and does, elect pursuant to the Indenture or the
terms of such Debt Security to receive payment in a currency, currency unit or
composite currency other than that in which such deposit has been made in
respect of such Debt Security, or (b) a Conversion Event (as defined below)
occurs in respect of the currency, currency unit or composite currency in which
such deposit has been made, the indebtedness represented by such Debt Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest on
such Debt Security as they become due out of the proceeds yielded by converting
the amount so deposited in respect of such Debt Security into a currency,
currency unit or composite currency in which such Debt Security becomes payable
as a result of such election or such Conversion Event based on the applicable
market exchange rate (Section 1405). "Conversion Event" means the cessation of
use of (i) a currency, currency unit or composite currency both by the
government of the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Community or (iii) any currency unit (or composite currency)
other than the ECU for the purposes for which it was established (Section 101).
Unless otherwise provided in the applicable Prospectus Supplement, all payments
of principal of (and premium, if any) and interest on any Debt Security that is
payable in a foreign currency that ceases to be used by its government of
issuance shall be made in U.S. dollars.
In the event the Operating Partnership or the Guarantor effects covenant
defeasance with respect to any Debt Securities and such Debt Securities are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in clause (d) under "-- Events of Default,
Notice and Waiver" with respect to Sections 1006 to 1010, inclusive, of the
Indenture (which sections would no
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longer be applicable to such Debt Securities) or described in clause (g) under
"-- Events of Default, Notice and Waiver" with respect to any other covenant as
to which there has been covenant defeasance, the amount in such currency,
currency unit or composite currency in which such Debt Securities are payable,
and Government Obligations on deposit with the Trustee, will be sufficient to
pay amounts due on such Debt Securities at the time of their Stated Maturity but
may not be sufficient to pay amounts due on such Debt Securities at the time of
the acceleration resulting from such Event of Default. However, the Operating
Partnership would remain liable to make payment of such amounts due at the time
of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above with respect to the Debt
Securities of or within a particular series.
THE GUARANTEE
The Indenture provides that SPG, LP will, and as further set forth in
detail in the applicable Prospectus Supplement, guarantee (the "Guarantee") the
due and punctual payment of the principal of, premium, if any, interest on, and
any other amounts payable with respect to, the Debt Securities, when and as the
same shall become due and payable, whether at a maturity date, on redemption, by
declaration of acceleration or otherwise in accordance with the terms of the
Debt Securities and the Indenture (Section 1701). The Indenture provides that
(i) the Trustee may exercise its rights thereunder on behalf of the Holders and
(ii) SPG, LP shall covenant that it shall take no action which would cause the
Operating Partnership to violate any covenant, agreement or any other condition
thereunder (Section 1705). The Guarantee will terminate upon the consummation of
the reorganizational transactions pursuant to which the Operating Partnership is
expected to own directly all of the assets and partnership interest then owned
by SPG, LP (Section 1706). However, there can be no assurance that such
reorganizational transactions will be so effected. See "The Operating
Partnership." No partner (whether limited or general, including the Company) of
SPG, LP will have any obligation for any obligations of SPG, LP under the
Guarantee (Section 1707).
In the absence of the Guarantee, Holders of the Debt Securities will have
no claims, with regards to any payments in connection with the Debt Securities
against the assets of SPG, LP or the assets of any other Subsidiary of the
Operating Partnership. Any such claim that such Holders may make will have to be
made indirectly through the equity interest that the Operating Partnership has
in SPG, LP (or other Subsidiaries), and will thus be structurally subordinated
to the claims of creditors of SPG, LP (or other Subsidiaries). As a result of
the Guarantee, Holders of the Debt Securities, upon exercising their rights with
respect to the Guarantee against SPG, LP, will be considered creditors of SPG,
LP and their claims will rank pari passu with those of unsecured and
unsubordinated creditors of SPG, LP and will not be structurally subordinated to
such creditors.
MISCELLANEOUS
No Conversion Rights. The Debt Securities will not be convertible into or
exchangeable for any capital stock of the Company or equity interest in the
Operating Partnership.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities (the "Global
Securities") that will be deposited with, or on behalf of, a depositary (the
"Depositary") identified in the applicable Prospectus Supplement relating to
such series. Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form. The specific terms of the depositary
arrangement with respect to a series of Debt Securities will be described in the
applicable Prospectus Supplement relating to such series.
PLAN OF DISTRIBUTION
The Operating Partnership may sell the Debt Securities to or through
underwriters, and also may sell the Debt Securities directly to one or more
other purchasers or through agents. The distribution of the Debt Securities may
be effected from time to time in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices.
16
<PAGE> 19
The Prospectus Supplement will set forth terms of the offering of the Debt
Securities, including (i) the name of any underwriters or agents with whom the
Operating Partnership has entered into arrangements with respect to the sale or
issuance of Debt Securities, (ii) the initial public offering or purchase price
of the Debt Securities, (iii) any underwriting discounts, commissions and other
items constituting underwriter's compensation from the Operating Partnership and
any other discounts, concessions or commissions allowed or reallowed or paid by
any underwriters to other dealers, (iv) any commissions paid to any agents and
(v) the net proceeds to the Operating Partnership. In connection with the sale
of Debt Securities, underwriters may receive compensation from the Operating
Partnership or from purchasers of Debt Securities, for whom they may act as
agents, in the form of discounts, concessions or commissions. Underwriters may
sell Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or commissions
they receive from the Operating Partnership, and any profit on the resale of
Debt Securities they realize, may be deemed to be underwriting discounts and
commissions under the Securities Act.
Under agreements the Operating Partnership may enter into, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Operating Partnership against certain
liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Operating Partnership in the
ordinary course of business.
Unless otherwise set forth in the Prospectus Supplement relating to the
issuance of Debt Securities, the obligations of the underwriters to purchase
such Debt Securities will be subject to certain conditions precedent and each of
the underwriters with respect to such Debt Securities will be obligated to
purchase all of the Debt Securities allocated to it if any such Debt Securities
are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If so indicated in the applicable Prospectus Supplement, the Operating
Partnership will authorize underwriters or other persons acting as the Operating
Partnership's agents to solicit offers by certain institutions to purchase Debt
Securities from the Operating Partnership pursuant to contracts providing for
payment and delivery on a future date. Institutions with which such contracts
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by the Operating
Partnership. The obligations of any purchaser under any such contract will be
subject only to the condition that the purchase of the Debt Securities shall not
at any time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents will not
have any responsibility in respect of the validity or performance of such
contracts.
LEGAL MATTERS
The validity of each issue of the Debt Securities will be passed upon for
the Operating Partnership by Baker & Daniels, Indianapolis, Indiana. Baker &
Daniels will also pass upon certain tax matters. Rogers & Wells, New York, New
York, will act as counsel to any underwriters, dealers or agents.
EXPERTS
The audited financial statements and schedules incorporated by reference in
the Registration Statement of which this Prospectus is a part have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
17
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM. 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses (not including underwriting commissions and fees) of issuance
and distribution of the securities are estimated to be:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee...................... $ 303,030
Printing Costs........................................................... $ 150,000(1)
NASD Filing Fees......................................................... $ 30,500
Fees of Rating Agencies.................................................. $ 90,000
Accounting Fees and Expenses............................................. $ 100,000(1)
Attorneys' Fees and Expenses............................................. $ 150,000(1)
Trustee Fees............................................................. $ 20,000(1)
Miscellaneous Expenses................................................... $ 49,470(1)
--------
Total.......................................................... $ 893,000(1)
========
</TABLE>
- ------------------
(1) Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Partnership Agreement of each of the Operating Partnership and SPG, LP
contains provisions indemnifying their respective general partners' officers and
directors against certain liabilities. Each such Partnership Agreement provides
for indemnification of such general partners and their officers and directors to
the same extent indemnification is provided to officers and directors of the
Company in its Charter, and limits the liability of such general partners and
their officers and directors to the Partnerships and their partners to the same
extent liability of officers and directors of the Company to the Company and its
stockholders is limited under the Company's Charter. In addition, the Company's
officers and directors are indemnified under Maryland law and the Company's
Charter. The Company's Charter requires the Company to indemnify its directors
and officers to the fullest extent permitted from time to time by the laws of
Maryland. The Company's By-Laws contain provisions which implement the
indemnification provisions of the Company's Charter.
The Maryland General Corporation Law (the "MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that the act
or omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, or the director or officer actually received an improper
personal benefit in money, property or services, or in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. No amendment of the Company's Charter shall limit or
eliminate the right to indemnification provided with respect to acts or
omissions occurring prior to such amendment or repeal. Maryland law permits the
Company to provide indemnification to an officer to the same extent as a
director, although additional indemnification may be provided if such officer is
not also a director.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, subject to specified
restrictions. The MGCL does not, however, permit the liability of directors and
officers to the corporation or its stockholders to be limited to the extent that
(1) it is proved that the person actually received an improper benefit or profit
in money, property or services (to the extent such benefit or profit was
received) or (2) a judgment or other final adjudication adverse to such person
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. The Company's
Charter contains a provision consistent with the
II-1
<PAGE> 21
MGCL. No amendment of the Company's Charter shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Company has entered into indemnification agreements with each of the
Company's directors and officers. The indemnification agreements require, among
other things, that the Company indemnify its directors and officers to the
fullest extent permitted by law, and advance to the directors and officers all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company also must indemnify and advance
all expenses incurred by directors and officers seeking to enforce their rights
under the indemnification agreements, and cover each director and officer if the
Company obtains directors' and officers' liability insurance.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------
<C> <C> <S>
1* -- Form of Underwriting Agreement
4.1 -- Indenture dated as of November 26, 1996 among the Operating Partnership, SPG, LP
and The Chase Manhattan Bank, as trustee (incorporated by reference to the form
of this document filed as Exhibit 4.1 to the Registration Statement on Form S-3
(Reg. No. 333-11491))
5 -- Opinion of Baker & Daniels
12.1** -- Calculation of Ratio of Earnings to Fixed Charges
23.1** -- Consent of Arthur Andersen LLP
23.2 -- Consent of Baker & Daniels is contained in its opinion filed as Exhibit 5.
24** -- Power of Attorney (included in the signature pages)
25 -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference herein by a Current
Report on Form 8-K.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) Each of the undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or section
II-2
<PAGE> 22
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the Offering.
(b) Each of the undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
such registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or controlling
person of such registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Indianapolis, State of Indiana, on October 1, 1997.
SIMON DeBARTOLO GROUP, L.P.
By: SD PROPERTY GROUP, INC.,
General Partner
By: /s/ DAVID SIMON
------------------------------------
David Simon, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------------- ---------------------------------- ----------------
<C> <S> <C>
/s/ MELVIN SIMON* Co-Chairman of the Board of October 1, 1997
- ---------------------------------------- Directors
Melvin Simon
/s/ HERBERT SIMON* Co-Chairman of the Board of October 1, 1997
- ---------------------------------------- Directors
Herbert Simon
/s/ DAVID SIMON Chief Executive Officer and October 1, 1997
- ---------------------------------------- Director (Principal Executive
David Simon Officer)
/s/ RICHARD S. SOKOLOV* President, Chief Operating Officer October 1, 1997
- ---------------------------------------- and Director
Richard S. Sokolov
/s/ BIRCH BAYH* Director October 1, 1997
- ----------------------------------------
Birch Bayh
/s/ EDWARD J. DEBARTOLO, JR.* Director October 1, 1997
- ----------------------------------------
Edward J. DeBartolo, Jr.
/s/ M. DENISE DEBARTOLO YORK* Director October 1, 1997
- ----------------------------------------
M. Denise DeBartolo York
/s/ WILLIAM T. DILLARD, II* Director October 1, 1997
- ----------------------------------------
William T. Dillard, II
/s/ G. WILLIAM MILLER* Director October 1, 1997
- ----------------------------------------
G. William Miller
/s/ FREDRICK W. PETRI* Director October 1, 1997
- ----------------------------------------
Fredrick W. Petri
/s/ TERRY S. PRINDIVILLE* Director October 1, 1997
- ----------------------------------------
Terry S. Prindiville
</TABLE>
II-4
<PAGE> 24
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------------- ---------------------------------- ----------------
<C> <S> <C>
/s/ J. ALBERT SMITH, JR.* Director October 1, 1997
- ----------------------------------------
J. Albert Smith, Jr.
/s/ PHILIP J. WARD* Director October 1, 1997
- ----------------------------------------
Philip J. Ward
/s/ STEPHEN E. STERRETT Senior Vice President and October 1, 1997
- ---------------------------------------- Treasurer (Principal Financial
Stephen E. Sterrett Officer)
/s/ JOHN DAHL Senior Vice President and Chief October 1, 1997
- ---------------------------------------- Accounting Officer (Principal
John Dahl Accounting Officer)
By: /s/ DAVID SIMON
- ----------------------------------------
David Simon, Attorney-in-fact
</TABLE>
II-5
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Indianapolis, State of Indiana, on October 1, 1997.
SIMON PROPERTY GROUP, L.P.
By: SIMON DeBARTOLO GROUP, INC.,
General Partner
By: /s/ DAVID SIMON
------------------------------------
David Simon, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------------- --------------------------------- ----------------
<C> <S> <C>
/s/ MELVIN SIMON* Co-Chairman of the Board of October 1, 1997
- ---------------------------------------- Directors
Melvin Simon
/s/ HERBERT SIMON* Co-Chairman of the Board of October 1, 1997
- ---------------------------------------- Directors
Herbert Simon
/s/ DAVID SIMON Chief Executive Officer and October 1, 1997
- ---------------------------------------- Director (Principal Executive
David Simon Officer)
/s/ RICHARD S. SOKOLOV* President, Chief Operating October 1, 1997
- ---------------------------------------- Officer
Richard S. Sokolov and Director
/s/ BIRCH BAYH* Director October 1, 1997
- ----------------------------------------
Birch Bayh
/s/ EDWARD J. DEBARTOLO, JR.* Director October 1, 1997
- ----------------------------------------
Edward J. DeBartolo, Jr.
/s/ M. DENISE DEBARTOLO YORK* Director October 1, 1997
- ----------------------------------------
M. Denise DeBartolo York
/s/ WILLIAM T. DILLARD, II* Director October 1, 1997
- ----------------------------------------
William T. Dillard, II
/s/ G. WILLIAM MILLER* Director October 1, 1997
- ----------------------------------------
G. William Miller
/s/ FREDRICK W. PETRI* Director October 1, 1997
- ----------------------------------------
Fredrick W. Petri
/s/ TERRY S. PRINDIVILLE* Director October 1, 1997
- ----------------------------------------
Terry S. Prindiville
</TABLE>
II-6
<PAGE> 26
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------------- --------------------------------- ----------------
<C> <S> <C>
/s/ J. ALBERT SMITH, JR.* Director October 1, 1997
- ----------------------------------------
J. Albert Smith, Jr.
/s/ PHILIP J. WARD* Director October 1, 1997
- ----------------------------------------
Philip J. Ward
/s/ STEPHEN E. STERRETT Senior Vice President and October 1, 1997
- ---------------------------------------- Treasurer (Principal Financial
Stephen E. Sterrett Officer)
/s/ JOHN DAHL Senior Vice President and Chief October 1, 1997
- ---------------------------------------- Accounting Officer (Principal
John Dahl Accounting Officer)
*By: /s/ DAVID SIMON
- ----------------------------------------
David Simon, Attorney-in-fact
</TABLE>
II-7
<PAGE> 27
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------
<S> <C> <C>
1* -- Form of Underwriting Agreement
4.1 -- Indenture dated as of November 26, 1996 among the Operating Partnership, SPG, LP
and The Chase Manhattan Bank, as trustee (incorporated by reference to the form
of this document filed as Exhibit 4.1 to the Registration Statement on Form S-3
(Reg. No. 333-11491))
5 -- Opinion of Baker & Daniels
12.1** -- Calculation of Ratio of Earnings to Fixed Charges
23.1** -- Consent of Arthur Andersen LLP
23.2 -- Consent of Baker & Daniels is contained in its opinion filed as Exhibit 5.
24** -- Power of Attorney (included in the signature pages)
25 -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference herein by a Current
Report on Form 8-K.
** Previously filed.
II-8
<PAGE> 1
EXHIBIT 5
BAKER & DANIELS
300 North Meridian Street, Suite 2700
Indianapolis, Indiana 46204
(317) 237-0300 (317) 237-1000 (fax)
October 14, 1997
Simon DeBartolo Group, L.P.
Simon Property Group, L.P.
115 West Washington Street
Indianapolis, IN 46204
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), and Simon Property Group,
L.P., a Delaware limited partnership (the "Guarantor"), in connection with the
proposed issuance and sale of up to $1,000,000,000 (or its equivalent (based on
the applicable exchange rate at the time of sale) in one or more foreign
currencies or currency units) aggregate principal amount of debt securities of
the Operating Partnership (the "Debt Securities") and the guarantee of the Debt
Securities by the Guarantor (the "Guarantee").
In connection therewith, we have examined the following documents:
(a) the joint Registration Statement on Form S-3 of the Operating
Partnership and the Guarantor (Registration No. 333-33545-01) relating to the
Debt Securities and the Guarantee (the "Registration Statement"); and
(b) the Indenture among the Operating Partnership, the Guarantor and
The Chase Manhattan Bank ("Chase Manhattan"), as Trustee, dated as of November
26, 1996, pursuant to which the Debt Securities and the Guarantee are to be
issued (the "Original Indenture").
We also have examined such corporate records and documents of SD
Property Group, Inc., an Ohio corporation and the managing general partner of
the Operating Partnership ("SD Property"), and Simon DeBartolo Group, Inc., a
Maryland corporation and the sole general partner of the Guarantor (the
"Company"), and have reviewed and considered such questions of law and fact, as
we deemed necessary or appropriate as a basis for the opinions expressed herein.
In our examination, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the authenticity of all documents submitted to
us as originals, the conformity to original
<PAGE> 2
documents of all documents submitted to us as copies and the authenticity of the
originals of such copies. As to facts relevant to the opinions expressed herein,
we have relied upon certificates, statements or representations of officers of
the Company and SD Property, public officials and others, without any
independent verification thereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each of the Operating Partnership and the Guarantor is existing
and in good standing as a limited partnership under the laws of the State of
Delaware.
2. When the issuance of a Debt Security has been duly authorized by
the Board of Directors of SD Property on behalf of the Operating Partnership as
contemplated by the Original Indenture and by the Supplemental Indenture to be
entered into among the Operating Partnership, the Guarantor and Chase Manhattan
pursuant to which such Debt Security is to be issued (the "Supplemental
Indenture" and, together with the Original Indenture, the "Indenture"), subject
to the Supplemental Indenture having been duly authorized, executed and
delivered by the Operating Partnership and the Guarantor and to the terms of
such Debt Security being otherwise in compliance with then applicable law, and
when such Debt Security has been duly executed, authenticated, sold and
delivered in the form approved pursuant to and in accordance with the terms of
the Indenture, the Registration Statement, which Registration Statement shall
have become effective, the supplement or supplements to the Prospectus
constituting a part thereof and, if applicable, such agreement or agreements as
may have been duly authorized and executed in connection with the sale of such
Debt Security, such Debt Security will constitute a valid and binding obligation
of the Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as enforcement thereof may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization,
rearrangement, receivership, moratorium or other laws and matters of public
policy now or hereafter in effect relating to or affecting creditors' rights
generally, (b) general equity principles, (c) 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, (d) governmental authority to limit,
delay or prohibit the making of payments outside the United States, and (e) the
enforceability of forum selection clauses in the federal courts. To the extent
that the obligations of the Operating Partnership under such Debt Security may
be dependent upon such matters, we assume for purposes of this opinion that
Chase Manhattan is a New York banking corporation at all times duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with full power and authority to enter into
and perform its obligations under the Indenture, and that the Indenture will
have been, before the issuance and sale of such Debt Security, duly authorized,
executed and delivered by Chase Manhattan and will, at such time, constitute the
valid and legally binding obligation of Chase Manhattan, enforceable against
Chase Manhattan in accordance with its terms.
3. When the Guarantee with respect to a duly authorized Debt
Security has been duly authorized by the Board of Directors of the Company on
behalf of the Guarantor as contemplated by the Indenture, subject to the
Supplemental Indenture pursuant to which such Debt Security and Guarantee are to
be issued having been duly authorized, executed and delivered by the Operating
Partnership and the Guarantor and to the terms of such Debt Security and
Guarantee being otherwise
<PAGE> 3
in compliance with then applicable law, and when such Debt Security and
Guarantee have been duly executed, authenticated, sold and delivered in the form
approved pursuant to and in accordance with the terms of the Indenture, the
Registration Statement, which Registration Statement shall have become
effective, the supplement or supplements to the Prospectus constituting a part
thereof and, if applicable, such agreement or agreements as may have been duly
authorized and executed in connection with the sale of such Debt Security and
Guarantee, such Guarantee will constitute a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
except as enforcement thereof may be limited by (a) bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, rearrangement, receivership,
moratorium or other laws and matters of public policy now or hereafter in effect
relating to or affecting creditors' rights generally, (b) general equity
principles, (c) requirements that a claim with respect to the Guarantee of any
Debt Security 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, (d) governmental authority to limit, delay or prohibit the
making of payments outside the United States, (e) the enforceability of forum
selection clauses in the federal courts, and (f) any provision in the Guarantee
purporting to preserve and maintain the liability of any party thereto despite
the fact that the guaranteed debt is unenforceable due to illegality. To the
extent that the obligations of the Guarantor under such Guarantee may be
dependent upon such matters, we assume for purposes of this opinion that Chase
Manhattan is a New York banking corporation at all times duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation with full power and authority to enter into and perform its
obligations under the Indenture, and that the Indenture will have been, before
the issuance and sale of the Debt Security to which such Guarantee relates, duly
authorized, executed and delivered by Chase Manhattan and will, at such time,
constitute the valid and legally binding obligation of Chase Manhattan,
enforceable against Chase Manhattan in accordance with its terms.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus included in the Registration Statement. In giving
such consent, we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules or regulations of the Securities and Exchange Commission
thereunder.
Yours very truly,
/s/ Baker & Daniels
<PAGE> 1
EXHIBIT 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
SIMON DEBARTOLO GROUP, L.P.
(Exact name of obligor as specified in its charter)
DELAWARE 34-1755769
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
NATIONAL CITY CENTER
115 WEST WASHINGTON ST., SUITE 15 EAST
INDIANAPOLIS, IN 46204
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SIMON PROPERTY GROUP, L.P.
(Exact name of obligor as specified in its charter)
DELAWARE 35-1903854
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
NATIONAL CITY CENTER
115 WEST WASHINGTON ST., SUITE 15 EAST
INDIANAPOLIS, IN 46204
(Address of principal executive offices) (Zip Code)
------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b)Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE> 3
- 2 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(On July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of SEPTEMBER, 1997.
THE CHASE MANHATTAN BANK
By /s/Anne G. Brenner
------------------------------------------
Anne G. Brenner
Vice President
- 2 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 13,892
Interest-bearing balances .................................... 4,282
Securities:
Held to maturity securities ..................................... 2,857
Available for sale securities ................................... 34,091
Federal Funds sold and securities purchased under
agreements to resell ......................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ..................... $124,827
Less: Allowance for loan and lease losses .................... 2,753
Less: Allocated transfer risk reserve ........................ 13
Loans and leases, net of unearned income, --------
allowance, and reserve ....................................... 122,061
Trading Assets .................................................. 56,042
Premises and fixed assets (including capitalized
leases) ...................................................... 2,904
Other real estate owned ......................................... 306
Investments in unconsolidated subsidiaries and
associated companies ......................................... 232
Customers' liability to this bank on acceptances
outstanding .................................................. 2,092
Intangible assets ............................................... 1,532
Other assets .................................................... 10,448
--------
TOTAL ASSETS .................................................... $280,709
========
</TABLE>
- 3 -
<PAGE> 5
LIABILITIES
<TABLE>
<S> <C> <C>
Deposits
In domestic offices ..................................... $ 91,249
Noninterest-bearing ..................................... $ 38,157
Interest-bearing ........................................ 53,092
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ............................................... 70,192
Noninterest-bearing ..................................... $ 3,712
Interest-bearing ........................................ 66,480
Federal funds purchased and securities sold under agree-
ments to repurchase ........................................ 35,185
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ........................................ 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 4,593
With a remaining maturity of more than one year
through three years .............................. 260
With a remaining maturity of more than three years ... 146
Bank's liability on acceptances executed and outstanding ... 2,092
Subordinated notes and debentures .......................... 5,715
Other liabilities .......................................... 11,373
TOTAL LIABILITIES .......................................... 264,112
---------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus .............. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock) .. 10,283
Undivided profits and capital reserves ..................... 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities ........................... (193)
Cumulative foreign currency translation adjustments ........ 16
TOTAL EQUITY CAPITAL ....................................... 16,597
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ....................... $ 280,709
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR. )
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