SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 24, 1997
(October 22, 1997)
SIMON DeBARTOLO GROUP,L.P.
(Exact name of registrant as specified in its charter)
Delaware 333-11491 34-1755769
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 WEST WASHINGTON STREET
INDIANAPOLIS, INDIANA 46204
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: (317) 636-1600
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
Simon DeBartolo Group, L.P. (the "Issuer") is filing this
Current Report on Form 8-K in connection with the offering and sale of
$150,000,000 aggregate principal amount of its 6-7/8% Notes due
October 27, 2005 (the "Notes") pursuant to the joint registration
statement on Form S-3 of the Issuer and Simon Property Group, L.P. (the
"Guarantor") (Registration No. 333-33545-01) (the "Registration
Statement"), the Prospectus, dated October 15, 1997, and the related
Prospectus Supplement, dated October 22, 1997. The due and punctual
payment of the principal of, premium (if any) and interest on, and any
other amounts payable with respect to, the Notes is guaranteed by the
Guarantor.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
(c) The exhibits listed on the Exhibit Index on
page 4 of this Report are filed as part of this Report
and as part of the Registration Statement.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Dated: October 24, 1997
SIMON DeBARTOLO GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By: /s/ James M. Barkley
James M. Barkley, Secretary
and General Counsel
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1.1 Underwriting Agreement, dated October 22, 1997
1.2 Terms Agreement, dated October 22, 1997,
relating to the Notes
4.1 Form of Fifth Supplemental Indenture relating to the
Notes
4.2 Form of 6-7/8% Notes due October 27, 2005
5 Opinion of Baker & Daniels, special counsel to
the Issuer and the Guarantor, as to the legality of the
Notes
23 Consent of Baker & Daniels (contained in the opinion
filed as Exhibit 5 hereto)
EXHIBIT 1.1
SIMON DEBARTOLO GROUP, L.P.
AND
SIMON PROPERTY GROUP, L.P.
UNDERWRITING AGREEMENT
Table of Contents
Page
UNDERWRITING AGREEMENT 1
SECTION 1. Representations and Warranties 4
(a) Representations and Warranties by the Partnerships. 4
(1) Compliance with Registration Requirements 4
(2) Incorporated Documents 5
(3) Independent Accountants 5
(4) Financial Statements 5
(5) No Material Adverse Change in Business 6
(6) Good Standing of the Company 7
(7) Good Standing of the Operating Partnership 7
(8) Good Standing of SPG, LP 8
(9) Good Standing of Simon DeBartolo Entities 8
(10) Good Standing of Property Partnerships 9
(11) Capitalization 9
(12) Authorization of SPG, LP Partners' Equity 9
(13) Authorization of Debt Securities 10
(14) Authorization of the Guarantee 10
(15) Authorization of the Indenture 11
(16) Descriptions of the Underwritten Securities 11
(17) Authorization of this Underwriting Agreement and
Terms Agreement 11
(18) Absence of Defaults and Conflicts 11
(19) Absence of Labor Dispute 12
(20) Absence of Proceedings 12
(21) Accuracy of Exhibits 13
(22) REIT Qualification 13
(23) Investment Company Act 13
(24) Intellectual Property 13
(25) Absence of Further Requirements 13
(26) Possession of Licenses and Permits 14
(27) Title to Property 14
(28) Environmental Laws 15
(29) Tax Returns 15
(30) Environmental Consultants 16
(31) Investment Grade Rating 16
(b) Officers' Certificates 16
SECTION 2. Sale and Delivery to Underwriters; Closing 16
(a) Underwritten Securities 16
(b) Option Underwritten Securities 16
(c) Payment 17
(d) Denominations; Registration 17
SECTION 3. Covenants of the Partnerships 18
(a) Compliance with Securities Regulations and
Commission Requests 18
(b) Filing of Amendments 18
(c) Delivery of Registration Statements 18
(d) Delivery of Prospectuses 19
(e) Continued Compliance with Securities Laws 19
(f) Blue Sky Qualifications 19
(g) Earnings Statement 20
(h) Reporting Requirements 20
(i) REIT Qualification 20
(j) Use of Proceeds 20
(k) Exchange Act Filings 20
(l) Supplemental Indentures 20
(m) Ratings 20
SECTION 4. Payment of Expenses 21
(a) Expenses 21
(b) Termination of Agreement 21
SECTION 5. Conditions of Underwriters' Obligations 21
(a) Effectiveness of Registration Statement 22
(b) Opinion of Counsel for Partnerships 22
(c) Opinion of Counsel for Underwriters 22
(d) Officers' Certificate 22
(e) Accountant's Comfort Letter 23
(f) Bring-down Comfort Letter 23
(g) Ratings 23
(h) No Objection 24
(i) Over-Allotment Option 24
(j) Additional Documents 25
(k) Termination of Terms Agreement 25
SECTION 6. Indemnification 25
(a) Indemnification of Underwriters 25
(b) Indemnification of the Partnerships, Directors and
Officers 26
(c) Actions against Parties; Notification 26
(d) Settlement without Consent if Failure to Reimburse
27
SECTION 7. Contribution 27
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery 29
SECTION 9. Termination 29
(a) Underwriting Agreement 29
(b) Terms Agreement 29
(c) Liabilities 29
SECTION 10. Default by One or More of the Underwriters 30
SECTION 11. Notices 30
SECTION 12. Parties 31
SECTION 13. Governing Law and Time 31
SECTION 14. Effect of Headings 31
<PAGE>
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
UNDERWRITING AGREEMENT
October 22, 1997
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Operating Partnership") proposes to issue and sell up to $1,000,000,000
aggregate principal amount of its unsecured, unsubordinated debt
securities (the "Debt Securities") from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series under an
indenture, dated as of November 26, 1996, (the "Initial Indenture"),
between the Operating Partnership, the Guarantor (as defined below) and
The Chase Manhattan Bank, as trustee (the "Trustee"). Each series of
Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments
thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the Initial Indenture, as the same may be amended or
supplemented from time to time (the "Indenture"). Simon Property Group,
L.P., a Delaware limited partnership and a subsidiary of the Operating
Partnership ("SPG, L.P." or the "Guarantor" and, together with the
Operating Partnership, the "Partnerships") will guarantee (the
"Guarantee") the due and punctual payment of the principal of, premium,
if any, interest on, and any other amounts 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. As used herein, "Securities" shall mean the
Debt Securities together with the Guarantee.
Whenever the Partnerships determine to make an offering of
Securities through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), or through an underwriting
syndicate managed by Merrill Lynch, Merrill Lynch and the Partnerships
will enter into an agreement (each, a "Terms Agreement") providing for
the sale of such Securities to, and the purchase and offering thereof
by, Merrill Lynch and such other underwriters, if any, selected by
Merrill Lynch (the "Underwriters", which term shall include Merrill
Lynch, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant
to Section 10 hereof); provided, that, the Partnerships are not
obligated, and shall have complete and absolute discretion to determine
if and when, to make any offering, to make any offering through Merrill
Lynch or any other person, or to enter into any Terms Agreement. The
Terms Agreement relating to the offering of Securities shall specify the
aggregate principal amount of Securities to be initially issued (the
"Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in
Section 10 hereof), the name of any Underwriter other than Merrill Lynch
acting as co-manager in connection with such offering, the aggregate
principal amount of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a
fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date
and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten
Securities. In addition, if applicable, such Terms Agreement shall
specify whether the Partnerships have agreed to grant to the
Underwriters an option to purchase additional Securities to cover over-
allotments, if any, and the aggregate principal amount of Securities
subject to such option (the "Option Underwritten Securities"). As used
herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the
Partnerships and Merrill Lynch, acting for itself and, if applicable, as
representative of any other Underwriters. Unless and until this
Underwriting Agreement is amended or superseded, each offering of
Underwritten Securities through Merrill Lynch as sole Underwriter or
through an underwriting syndicate managed by Merrill Lynch will be
governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
The Partnerships have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-33545-01) and pre-effective amendment no. 1 thereto for the
registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and the Partnerships
have filed such post-effective amendments thereto as may be required
prior to the execution of the applicable Terms Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable), including
the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or
Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is
referred to herein as the "Registration Statement"; and the final
prospectus constituting a part thereof and the applicable prospectus
supplement relating to the offering of the Underwritten Securities, in
the form first furnished to the Underwriters by the Partnerships for use
in connection with the offering of the Underwritten Securities, are
collectively referred to herein as the "Prospectus"; provided, however,
that all references to the "Registration Statement" and the "Prospectus"
shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), prior to the execution of the applicable Terms
Agreement; provided, further, that if the Partnerships file a
registration statement with the Commission pursuant to Section 462(b) of
the 1933 Act Regulations (the "Rule 462 Registration Statement"), then,
after such filing, all references to "Registration Statement" shall be
deemed to include the Rule 462 Registration Statement; provided,
however, a prospectus supplement shall be deemed to have supplemented
the Prospectus only with respect to the offering of the Underwritten
Securities which it relates, and provided, further, that if the
Partnerships elect to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall be deemed to include the final
or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Partnerships in reliance upon Rule
434 of the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information,
the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable
Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR"). Capitalized terms used but not otherwise defined herein
shall have the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include all such financial statements and schedules
and other information which is or is deemed to be incorporated by
reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be; and all references in this Underwriting
Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to
be incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership, a
majority of the outstanding voting stock or partnership interests, as
the case may be, of which is owned or controlled, directly or
indirectly, by the Operating Partnership.
PARAGRAPH NUMBERING DEFINITION HERE SECTION Representations and
Warranties.
a. Representations and Warranties by the Partnerships. The
Partnerships represent and warrant, jointly and severally, to Merrill
Lynch, as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Closing
Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
1. Compliance with Registration Requirements. The Partnerships meet
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Partnerships, are contemplated by the Commission or
the state securities authority of any jurisdiction, and any request on
the part of the Commission for additional information has been complied
with. No order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Partnerships, threatened by the Commission or
the state securities authority of any jurisdiction. In addition, the
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto (including the filing of the most recent
Annual Report on Form 10-K of either of the Partnerships with
the Commission (the "Form 10-Ks")) became effective and at
each Representation Date, the Registration Statement, any
Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939
Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading. At the date of the
Prospectus and at each Representation Date, the Prospectus
and any amendments and supplements thereto did not and will
not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If the Partnerships
elect to rely upon Rule 434 of the 1933 Act Regulations, the
Partnerships will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished to the Partnerships in writing by or on
behalf of any Underwriter through Merrill Lynch expressly for
use in the Registration Statement or the Prospectus or to
that part of the Registration Statement which constitutes the
Trustee's Statement of Eligibility under the 1939 Act (the
"Form T-1").
Each preliminary prospectus and Prospectus filed as part
of the Registration Statement as originally filed or as part
of any amendment or supplement thereto, or filed pursuant to
Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act
Regulations and, if applicable, each preliminary prospectus
and the Prospectus delivered to the Underwriters for use in
connection with the offering of Underwritten Securities will,
at the time of such delivery, be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
If a Rule 462(b) Registration Statement is required
in connection with the offering and sale of the Securities,
the Partnerships have complied or will comply with the
requirements of Rule 111 under the 1933 Act Regulations
relating to the payment of filing fees therefor.
2. Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the
date of the Prospectus, and at each Representation Date, or
during the period in which a prospectus is required to be
delivered in connection with sales of Securities, did not and
will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. Notwithstanding the
foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Partnerships in writing by or on behalf of any Underwriter
through Merrill Lynch expressly for use in the Registration
Statement or the Prospectus or to the Form T-1.
3. Independent Accountants. The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
4. Financial Statements. The financial statements
included, or incorporated by reference, in the Registration
Statement and the Prospectus, together with the related
schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein,
present fairly the financial position of the respective
entity or entities or group presented therein at the
respective dates indicated and the statement of operations,
stockholders' equity and cash flows of such entity, as the
case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The
supporting schedules, if any, included, or incorporated by
reference, in the Registration Statement and the Prospectus
present fairly, in accordance with GAAP, the information
required to be stated therein. The selected financial data,
the summary financial information and other financial
information and data included, or incorporated by reference,
in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with
that of the audited financial statements included, or
incorporated by reference, in the Registration Statement and
the Prospectus. In addition, any pro forma financial
information and the related notes thereto included, or
incorporated by reference, in the Registration Statement and
the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules
and guidelines and the guidelines of the American Institute
of Certified Public Accountants ("AICPA") with respect to pro
forma information and have been properly compiled on the
bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions
and circumstances referred to therein. All historical
financial statements and information and all pro forma
financial statements and information required by the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations are included, or incorporated by reference, in
the Registration Statement and the Prospectus.
5. No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or
in the earnings, assets, business affairs or business
prospects of the Partnerships, M.S. Management Associates,
Inc., a Delaware corporation ("SPG Management Company"), M.S.
Management Associates (Indiana), Inc., an Indiana corporation
("Management (Indiana)"), Simon MOA, Inc., an Indiana
corporation ("MOA"), DeBartolo Properties Management, Inc.,
an Ohio corporation ("DRC Management Company," and together
with SPG Management Company, Management (Indiana) and MOA,
the "Management Companies") and Simon Property Group
(Delaware), Inc., Jefferson Simon Property, Inc., SDG Forum
Developers, Inc., DeBartolo Properties, Inc., DeBartolo
Properties II, Inc. and DeBartolo Properties III, Inc.
(collectively, the "Reit Subs") or any subsidiary of the
Operating Partnership (other than any Property Partnership
(as defined below)) not listed among the foregoing entities,
(the Partnerships, the Management Companies, the Reit Subs
and such subsidiaries being sometimes hereinafter
collectively referred to as the "Simon DeBartolo Entities"
and individually as a "Simon DeBartolo Entity"), or of any
entity which owns any Portfolio Property (as such term is
defined in the Prospectus) or any direct or indirect interest
in any Portfolio Property (the "Property Partnerships")
whether or not arising in the ordinary course of business,
which would be material to the Partnerships, taken as a whole
(anything which would be material to the Partnerships, taken
as a whole, being hereinafter referred to as "Material;" and
such a material adverse change, a "Material Adverse Effect"),
(B) no casualty loss or condemnation or other adverse event
with respect to the Portfolio Properties has occurred which
would be Material, (C) there have been no transactions or
acquisitions entered into by the Simon DeBartolo Entities or
the Property Partnerships, other than those in the ordinary
course of business, which would be Material, (D) except for
distributions in amounts per unit that are consistent with
past practices, there has been no distribution of any kind
declared, paid or made by either of the Partnerships on any
of its respective general, limited and/or preferred
partnership interests and (E) there has been no change in the
capital stock of the corporate Simon DeBartolo Entities or in
the partnership interests of either of the Partnerships or
any Property Partnership, or any increase in the indebtedness
of the Simon DeBartolo Entities, the Property Partnerships or
the Portfolio Properties which would be Material.
6. Good Standing of the Company. Simon DeBartolo
Group, Inc., a Maryland corporation (the "Company"), has been
duly organized and is validly existing as a corporation in
good standing under the laws of the State of Maryland and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or be in good standing would not result in a
Material Adverse Effect.
7. Good Standing of the Operating Partnership. The
Operating Partnership is duly organized and validly existing
as a limited partnership in good standing under the laws of
the State of Delaware, with the requisite power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and proposes to engage as
described in the Prospectus and to enter into and perform its
obligations under this Agreement and the applicable Terms
Agreement. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing
in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a
Material Adverse Effect. SD Property Group, Inc., an Ohio
corporation ("SD Property") is the managing general partner
of the Operating Partnership and the Company is a general
partner of the Operating Partnership. The amended and
restated agreement of limited partnership of the Operating
Partnership (the "OP Partnership Agreement") is in full force
and effect in the form in which it was incorporated by
reference as an exhibit to the Company's Registration
Statement on Form S-3 (No. 333-11431), except for subsequent
amendments relating to the admission of new partners to the
Operating Partnership and the issuance of preferred units to
the Company.
8. Good Standing of SPG, LP. SPG, LP is duly organized
and validly existing as a limited partnership in good
standing under the laws of the State of Delaware, with the
requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged
and proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Agreement
and the applicable Terms Agreement. SPG, LP is duly
qualified or registered as a foreign partnership and is in
good standing in each jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register
would not have a Material Adverse Effect. The Company is the
sole general partner of SPG, L.P. The amended and restated
agreement of limited partnership of SPG, L.P. (the "SPG, L.P.
Partnership Agreement") is in full force and effect in the
form in which it was filed as an exhibit to the Company's
Registration Statement on Form S-4 (No. 333-06933), except
for subsequent amendments relating to the admission of new
partners to SPG, L.P.
9. Good Standing of Simon DeBartolo Entities. Each of
the Simon DeBartolo Entities other than the Partnerships has
been duly organized and is validly existing as a corporation,
limited partnership, limited liability company or other
entity, as the case may be, in good standing under the laws
of the state of its jurisdiction of incorporation or
organization, as the case may be, with the requisite power
and authority to own, lease and operate its properties, and
to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus. Each such entity is
duly qualified or registered as a foreign corporation,
limited partnership or limited liability company or other
entity, as the case may be, to transact business and is in
good standing in each jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register
would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock
or other equity interests of each such entity has been duly
authorized and validly issued and is fully paid and non-
assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or
state securities laws) and are owned by the Company, the
Management Companies or the Partnerships, in each case free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No
shares of capital stock or other equity interests of such
entities are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for
any capital stock or other equity interests of such entities
and no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of such entities,
except as disclosed in the Prospectus. No such shares of
capital stock or other equity interests of such entities were
issued in violation of preemptive or other similar rights
arising by operation of law, under the charter or bylaws of
such entity or under any agreement to which any Simon
DeBartolo Entity is a party.
10. Good Standing of Property Partnerships. Each of the
Property Partnerships is duly organized and validly existing
as a limited or general partnership, as the case may be, in
good standing under the laws of its respective jurisdiction
of formation. Each of the Property Partnerships has the
requisite power and authority to own, lease and operate its
properties, and to conduct the business in which it is
engaged. Each of the partnership agreements of the Property
Partnerships is in full force and effect. Each of the
Property Partnerships is duly qualified or registered as a
foreign partnership to transact business and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a
Material Adverse Effect.
11. Capitalization. If the Prospectus contains a
"Capitalization" section, the issued and outstanding units of
general, limited and/or preferred partner interests of the
Operating Partnership ("partners' equity") and the total
consolidated debt of the Operating Partnership ("debt") is as
set forth in the column entitled "Historical", (except for
subsequent issuances thereof, if any, contemplated under this
Underwriting Agreement, pursuant to employee benefit plans
referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the
Prospectus).
12. Authorization of SPG, LP Partners' Equity. All the
issued and outstanding units of general, limited and/or
preferred partner interests of SPG, LP ("SPG, LP partners'
equity") have been duly authorized and are validly issued,
fully paid and non-assessable and have been offered and sold
or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities
laws). There are no outstanding securities convertible into
or exchangeable for any units of SPG, LP partners' equity and
no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for units of SPG, LP
partners' equity.
13. Authorization of Debt Securities. The Debt
Securities being sold pursuant to the applicable Terms
Agreement have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Operating
Partnership for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the
manner provided for in the applicable Indenture and delivered
by the Operating Partnership pursuant to the Underwriting
Agreement and the applicable Terms Agreement against payment
of the consideration therefor specified in such Terms
Agreement, will constitute valid and legally binding,
unsecured obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance
with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making
of payments outside the United States. Such Underwritten
Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture. Such Underwritten Securities rank and
will rank on a party with all unsecured indebtedness (other
than subordinated indebtedness) of the Operating Partnership
that is outstanding on a Representation Date or that may be
incurred thereafter and senior to all subordinated
indebtedness that is outstanding on a Representation Date or
that may be incurred thereafter, except that such
Underwritten Securities will be effectively subordinate to
the prior claims of each secured mortgage lender to any
specific Portfolio Property which secures such lender's
mortgage and any claims of creditors of entities wholly or
partly owned, directly or indirectly, by the Operating
Partnership.
14. Authorization of the Guarantee. The Guarantee being
sold pursuant to the applicable Terms Agreement has been, or
as of the date of such Terms Agreement will have been, duly
authorized by the Guarantor for issuance and sale pursuant to
this Underwriting Agreement and such Terms Agreement. The
Guarantee, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered by the
Guarantor pursuant to the Underwriting Agreement and the
applicable Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding, unsecured
obligations of the Guarantor, enforceable against the
Guarantor in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to the Guarantee of any Debt Securities denominated
other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
outside the United States. The Guarantee will be in the form
contemplated by, and each registered holder thereof is
entitled to the benefits of, the applicable Indenture.
15. Authorization of the Indenture. For the
Underwritten Securities and the related Guarantee being sold
pursuant to the applicable Terms Agreement, the Indenture has
been, or prior to the issuance of the Debt Securities and the
related Guarantee thereunder will have been, duly authorized,
executed and delivered by the Partnerships and, upon such
authorization, execution and delivery, will constitute a
valid and legally binding agreement of the Partnerships,
enforceable against the Partnerships, as applicable, in
accordance with its terms, except as the enforcement thereof
may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable
principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), (iii) requirements that
a claim with respect to any Securities issued under the
Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law, or (iv) governmental authority to limit,
delay or prohibit the making of payments outside the United
States. The Indenture has been duly qualified under the 1939
Act and conforms, in all material respects, to the
descriptions thereof contained in the Prospectus.
16. Descriptions of the Underwritten Securities. The
Underwritten Securities and the related Guarantee being sold
pursuant to the applicable Terms Agreement and the Indenture,
as of the date of the Prospectus, when issued and delivered
in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and
will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the
Registration Statement and will comply with all applicable
legal requirements.
17. Authorization of this Underwriting Agreement and
Terms Agreement. This Underwriting Agreement has been, and
the applicable Terms Agreement as of the date thereof will
have been, duly authorized, executed and delivered by each of
the Partnerships and assuming due authorization, execution
and delivery by Merrill Lynch, is enforceable against each of
the Partnerships in accordance with its terms.
18. Absence of Defaults and Conflicts. None of the
Simon DeBartolo Entities or any Property Partnership is in
violation of its charter, by-laws, certificate of limited
partnership or partnership agreement or other organizational
document, as the case may be, or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which each entity
is a party or by which or any of them may be bound, or to
which any of its property or assets or any Portfolio Property
may be bound or subject (collectively, "Agreements and
Instruments"), except for such violations or defaults that
would not result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement, the Indenture and
any other agreement or instrument entered into or issued or
to be entered into or issued by either of the Partnerships in
connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use
of Proceeds") and compliance by each of the Partnerships with
its obligations hereunder and thereunder have been duly
authorized by all necessary partnership action and do not and
will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any assets, properties or operations of
the Operating Partnership or any other Simon DeBartolo Entity
or any Property Partnership pursuant to, any Agreements and
Instruments, except for such conflicts, breaches, defaults,
Repayment Events or liens, charges or encumbrances that would
not result in a Material Adverse Effect, nor will such action
result in any violation of the provisions of the respective
partnership agreement and certificate of limited partnership
of the Partnerships or the organizational documents of any
other Simon DeBartolo Entity or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Operating Partnership,
any other Simon DeBartolo Entity or any Property Partnership
or any of their assets, properties or operations, except for
such violations that would not have a Material Adverse
Effect. As used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a material portion of such
indebtedness by the Operating Partnership, any other Simon
DeBartolo Entity or any Property Partnership.
19. Absence of Labor Dispute. Except as otherwise
described in the Registration Statement and the Prospectus,
no labor dispute with the employees of the Operating
Partnership or any other Simon DeBartolo Entity or any
Property Partnership exists or, to the knowledge of the
Partnerships, is imminent, and the Partnerships are not aware
of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which
dispute or disturbance, in either case, may reasonably be
expected to result in a Material Adverse Effect.
20. Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court
or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Partnerships threatened
against or affecting the Operating Partnership, any other
Simon DeBartolo Entity thereof, or any Property Partnership
or any officer or director of the Operating Partnership which
is required to be disclosed in the Registration Statement and
the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially
and adversely affect the assets, properties or operations
thereof or the consummation of this Underwriting Agreement,
the applicable Terms Agreement or the Indenture or the
transactions contemplated herein or therein. The aggregate
of all pending legal or governmental proceedings to which the
Operating Partnership or any other Simon DeBartolo Entity, or
any Property Partnership is a party or of which any of their
respective assets, properties or operations is the subject
which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result
in a Material Adverse Effect.
21. Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the
Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and/or filed as
required and the descriptions thereof or references thereto
are correct in all Material respects and no Material defaults
exist in the due performance or observance of any Material
obligation, agreement, covenant or condition contained in any
such contract or document.
22. REIT Qualification. At all times since January 1,
1994 the Company has been, and upon the sale of the
applicable Underwritten Securities, the Company will continue
to be, organized and operated in conformity with the
requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will
enable it to continue to meet the requirements for taxation
as a real estate investment trust under the Code. At all
times since January 1, 1994, SD Property and its predecessors
have been organized and had operated in conformity with the
requirements for qualification as a real estate investment
trust under the Code.
23. Investment Company Act. Each of the Operating
Partnership, the other Simon DeBartolo Entities and the
Property Partnerships is not, and upon the issuance and sale
of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
24. Intellectual Property. To the knowledge of the
Partnerships, none of the Simon DeBartolo Entities or the
Property Partnerships is required to own, possess or obtain
the consent of any holder of any trademarks, service marks,
trade names or copyrights not now lawfully owned, possessed
or licensed in order to conduct the business now operated by
such entity.
25. Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency or any other entity or
person is necessary or required for the performance by each
of the Partnerships of its obligations under this
Underwriting Agreement, the applicable Terms Agreement or the
Indenture or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or
the Indenture, except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the by-laws and
rules of the National Association of Securities Dealers, Inc.
(the "NASD").
26. Possession of Licenses and Permits. The Operating
Partnership and the other Simon DeBartolo Entities and each
Property Partnership possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except
for such Governmental Licenses, the failure to obtain would
not, singly or in the aggregate, result in a Material Adverse
Effect. The Operating Partnership and the other Simon
DeBartolo Entities and each Property Partnership are in
compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material
Adverse Effect. All of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would
not result in a Material Adverse Effect. Neither the
Operating Partnership nor any of the other Simon DeBartolo
Entities nor any Property Partnership has received any notice
of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
27. Title to Property. The Operating Partnership, the
other Simon DeBartolo Entities and the Property Partnerships
have good and marketable title to the Portfolio Properties
free and clear of Liens, except (A) as otherwise stated in
the Registration Statement and the Prospectus, or referred to
in any title policy for such Portfolio Property, or (B) those
which do not, singly or in the aggregate, Materially (i)
affect the value of such property or (ii) interfere with the
use made and proposed to be made of such property by the
Operating Partnership, any other Simon DeBartolo Entity or
any Property Partnership. All leases and subleases under
which the Operating Partnership, any other Simon DeBartolo
Entity or any Property Partnerships hold properties are in
full force and effect, except for such which would not have a
Material Adverse Effect. Neither the Operating Partnership,
the other Simon DeBartolo Entities nor the Property
Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the
rights of the Operating Partnership, any other Simon
DeBartolo Entity or the Property Partnerships under any
material leases or subleases, or affecting or questioning the
rights of the Operating Partnership, such other Simon
DeBartolo Entity or the Property Partnerships of the
continued possession of the leased or subleased premises
under any such lease or sublease, other than claims that
would not have a Material Adverse Effect. All liens,
charges, encumbrances, claims or restrictions on or affecting
any of the Portfolio Properties and the assets of any Simon
DeBartolo Entity or any Property Partnership which are
required to be disclosed in the Prospectus are disclosed
therein. None of the Simon DeBartolo Entities, the Property
Partnerships or any tenant of any of the Portfolio Properties
is in default under any of the ground leases (as lessee) or
space leases (as lessor or lessee, as the case may be)
relating to, or any of the mortgages or other security
documents or other agreements encumbering or otherwise
recorded against, the Portfolio Properties, and neither of
the Partnerships knows of any event which, but for the
passage of time or the giving of notice, or both, would
constitute a default under any of such documents or
agreements, in each case, other than such defaults that would
not have a Material Adverse Effect. No tenant under any of
the leases, pursuant to which either of the Partnerships or
any Property Partnership, as lessor, leases its Portfolio
Property, has an option or right of first refusal to purchase
the premises demised under such lease, the exercise of which
would have a Material Adverse Effect. Each of the Portfolio
Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to
access to the Portfolio Properties), except for such failures
to comply that would not in the aggregate have a Material
Adverse Effect. Neither of the Partnerships has knowledge of
any pending or threatened condemnation proceeding, zoning
change, or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on
or access to, the Portfolio Properties, except such
proceedings or actions that would not have a Material Adverse
Effect.
28. Environmental Laws. Except as otherwise stated in
the Registration Statement and the Prospectus and except such
violations as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Operating
Partnership, any of the other Simon DeBartolo Entities nor
any Property Partnership is in violation of any federal,
state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including
any judicial or administrative order, consent, decree of
judgment, relating to pollution or protection of human
health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the
Operating Partnership, the other Simon DeBartolo Entities and
the Property Partnerships have all permits, authorizations
and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Operating Partnership, any of the other Simon DeBartolo
Entities or the Property Partnerships and (D) there are no
events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or
governmental body or agency, against or affecting the
Operating Partnership, any of the other Simon DeBartolo
Entities or any Property Partnership relating to any
Hazardous Materials or the violation of any Environmental
Laws.
29. Tax Returns. Each of the Simon DeBartolo Entities
and the Property Partnerships has filed all federal, state,
local and foreign income tax returns which have been required
to be filed (except in any case in which an extension has
been granted or the failure to so file would not have a
Material Adverse Effect) and has paid all taxes required to
be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due
and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good
faith.
30. Environmental Consultants. None of the
environmental consultants which prepared environmental and
asbestos inspection reports with respect to certain of the
Portfolio Properties was employed for such purpose on a
contingent basis or has any substantial interest in any Simon
DeBartolo Entity or any Property Partnership and none of them
nor any of their directors, officers or employees is
connected with any Simon DeBartolo Entity or any Property
Partnership as a promoter, selling agent, voting trustee,
director, officer or employee.
31. Investment Grade Rating. The Securities will have
an investment grade rating from one or more nationally
recognized statistical rating organizations at each
applicable Representation Date.
b. Officers' Certificates. Any certificate signed by any officer of
the Operating Partnership or any authorized representative of either of
the Company, SPG, L.P. and SD Property and delivered to any Underwriter
or to counsel for the Underwriters in connection with the offering of
the Underwritten Securities shall be deemed a representation and
warranty by such entity or person, as the case may be, to each
Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
2. SECTION 2 Sale and Delivery to Underwriters; Closing.
a. Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
b. Option Underwritten Securities. In addition, subject to the terms
and conditions set forth therein, the Partnerships may grant, if so
provided in the applicable Terms Agreement, an option to the
Underwriters, severally and not jointly, to purchase up to the aggregate
principal amount of the Option Underwritten Securities set forth therein
at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security, less an amount equal to any interest or
redemption payments payable by the Operating Partnership on the Initial
Underwritten Securities but not payable on the Option Underwritten
Securities. Such option, if granted, will expire 30 days after the date
of such Terms Agreement, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by Merrill Lynch to the Partnerships
setting forth the aggregate principal amount of Option Underwritten
Securities as to which the several Underwriters are then exercising the
option and the time, date and place of payment and delivery for such
Option Underwritten Securities. Any such time and date of payment and
delivery (each, a "Date of Delivery") shall be determined by Merrill
Lynch, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by Merrill Lynch and the Partnerships. If
the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total aggregate principal
amount of Option Underwritten Securities then being purchased which the
aggregate principal amount of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as Merrill Lynch in
its discretion shall make to eliminate any sales or purchases of a
fractional aggregate principal amount of Option Underwritten Securities.
c. Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Rogers &
Wells, or at such other place as shall be agreed upon by Merrill Lynch
and the Partnerships, at 10:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as
shall be agreed upon by Merrill Lynch and the Partnerships (such time
and date of payment and delivery being herein called "Closing Time").
In addition, in the event that the Underwriters have exercised their
option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned
offices of Rogers & Wells, or at such other place as shall be agreed
upon by Merrill Lynch and the Operating Partnership, on the relevant
Date of Delivery as specified in the notice from Merrill Lynch to the
Partnerships.
Payment shall be made to the Operating Partnership by wire transfer of
same day funds payable to the order of the Operating Partnership,
against delivery to Merrill Lynch for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them.
It is understood that each Underwriter has authorized Merrill Lynch,
for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Underwritten Securities which it has
severally agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Underwritten Securities
to be purchased by any Underwriter whose check has not been received
by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
d. Denominations; Registration. The Underwritten Securities shall be
in such denominations and registered in such names as Merrill Lynch may
request in writing at least one full business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be. The
Underwritten Securities will be made available for examination and
packaging by Merrill Lynch in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Partnerships.
Each of the Partnerships covenants with Merrill Lynch and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
a) Compliance with Securities Regulations and Commission Requests.
The Partnerships, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of
the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii)
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Partnerships will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under
Rule 424 was received for filing by the Commission and, in the event
that it was not, it will promptly file the Prospectus. The Partnerships
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
b) Filing of Amendments. The Partnerships will give Merrill Lynch
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement
at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish Merrill Lynch
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which Merrill Lynch or counsel for the
Underwriters shall reasonably object.
c) Delivery of Registration Statements. The Partnerships have
furnished or will deliver to Merrill Lynch and counsel for the
Underwriters, without charge, a signed copy of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to Merrill Lynch and counsel for the Underwriters,
without charge, conformed copies of the Registration Statement as
originally filed and of each amendment thereto for each of the
Underwriters. If applicable, the copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
d) Delivery of Prospectuses. The Partnerships will deliver to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the
Partnerships hereby consent to the use of such copies for purposes
permitted by the 1933 Act. The Partnerships will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus as such Underwriter may reasonably request.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Partnerships will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriter or for the Partnerships, to amend
the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Partnerships will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Partnerships will furnish to the Underwriters and
counsel for the Underwriters, without charge, such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
f) Blue Sky Qualifications. The Partnerships will use their best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities and any related Underlying Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as Merrill Lynch may
designate and to maintain such qualifications in effect for a period of
not less than one year from the date of the applicable Terms Agreement;
provided, however, that neither Partnership shall be obligated to file
any general consent to service of process or to qualify or register as a
foreign partnership or as a dealer in securities in any jurisdiction in
which it is not so qualified or registered, or provide any undertaking
or make any change in its charter or bylaws that the Board of Directors
of SD Property or the Company, as applicable, reasonably determines to
be contrary to the best interests of the Partnerships, respectively, and
their respective unitholders or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities or
any related Underlying Securities have been so qualified or registered,
the Partnerships will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the date of such
Terms Agreement.
g) Earnings Statement. The Partnerships will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings
statement (in form complying with Rule 158 of the 1933 Act Regulations)
for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
h) Reporting Requirements. The Partnerships, during the period when
the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
i) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment
trust" under the Code for the taxable year in which in which sales of
the Underwritten Securities are to occur.
j) Use of Proceeds. The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under "Use of Proceeds."
k) Exchange Act Filings. During the period from each Closing Time
until one year after such Closing Time, the Operating Partnership will
deliver to Merrill Lynch, (i) promptly upon their becoming available,
copies of all current, regular and periodic reports of the Operating
Partnership filed with any securities exchange or with the Commission or
any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Operating
Partnership as Merrill Lynch may reasonably request.
l) Supplemental Indentures. In respect of each offering, the
Partnerships will execute a supplemental indenture designating the
series of debt securities to be offered and its related terms and
provisions in accordance with the provisions of the Indenture.
m) Ratings. The Partnerships will take all reasonable action
necessary to enable Standard & Poor's Ratings Services ("S&P"), Moody's
Investors Service, Inc. ("Moody's"), Fitch Investors Services, L.P. or
any other nationally recognized statistical rating organization to
provide their respective credit ratings of any Underwritten securities,
if applicable.
SECTION 4 Payment of Expenses.
a) Expenses. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Underwriting Agreement
and each applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters
of this Underwriting Agreement, any Terms Agreement, any Agreement among
Underwriters, any Indenture and such other documents as may be required
in connection with the offering, purchase, sale and delivery of the
Underwritten Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities, or any certificates for the Underwritten
Securities to the Underwriters, (iv) the fees and disbursements of the
Operating Partnership's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the
reasonable fees and disbursements of any Trustee, and their respective
counsel, (v) the qualification of the Underwritten Securities under
state securities and real estate syndication laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing
and delivery of the Blue Sky Survey, (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term
Sheet, the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto and the
Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the
filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by
the NASD of the terms of the sale of the Underwritten Securities, and
(ix) any transfer taxes imposed on the sale of the Underwritten
Securities to the several Underwriters.
b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section
5 or Section 9(b)(i) or Section 10 hereof, the Operating Partnership
shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
SECTION 5 Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the
Partnerships contained in Section 1 hereof or in certificates of any
officer or authorized representative of the Partnerships or any other
Simon DeBartolo Entity delivered pursuant to the provisions hereof, to
the performance by the Partnerships of their covenants and other
obligations hereunder, and to the following further conditions:
a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission or the state securities authority of any jurisdiction, and
any request on the part of the Commission or the state securities
authority of any jurisdiction for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A),
or, if the Partnerships have elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 Information shall
have been filed with the Commission in accordance with Rule 424(b)(7).
b) Opinion of Counsel for Partnerships. At Closing Time, Merrill
Lynch shall have received the favorable opinions, dated as of Closing
Time, of Baker & Daniels, special securities counsel for the
Partnerships, Piper & Marbury, LLP, special Maryland counsel for the
Company, Vorys, Sater, Seymour and Pease, special Ohio counsel to SD
Property and James M. Barkley, the General Counsel of the Partnerships
or such other counsel as is designated by the Operating Partnership in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters, such opinion shall address such of the items set
forth in Exhibits B-1, B-2, B-3 and B-4 hereto as may be relevant to the
particular offering contemplated or to such further effect as counsel to
the Underwriters may reasonably request.
c) Opinion of Counsel for Underwriters. At Closing Time, Merrill
Lynch shall have received the favorable opinion, dated as of Closing
Time, of Rogers & Wells, counsel for the Underwriters, or such other
counsel as may be designated by Merrill Lynch together with signed or
reproduced copies of such letter for each of the other Underwriters,
with respect to the matters set forth in (1) of Exhibit B-1 hereto, (2)
(with respect to the first clause only), (3) (with respect to the first
clause only), (4) (with respect to SD Property only and with respect to
the first clause only) and (8) of Exhibit B-2 hereto, (1), (6), (7), (8)
and the last three paragraphs of Exhibit B-3 hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to Merrill
Lynch. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or authorized representatives of
the Partnerships and the other Simon DeBartolo Entities and certificates
of public officials.
d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Partnerships and
the other Simon DeBartolo Entities considered as one enterprise, whether
or not arising in the ordinary course of business, and Merrill Lynch
shall have received a certificate of (x) the Chief Executive Officer,
President or a Vice President and of the chief financial officer or
chief accounting officer of the Company, as a general partner of the
Operating Partnership and as the sole general partner of SPG, L.P. and
(y) the Chief Executive Officer, President or a Vice-President of and
the chief financial or accounting officer of SD Property, as managing
general partner of the Operating Partnership, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 are true and
correct, in all material respect, with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the
Partnerships have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission or by the
state securities authority of any jurisdiction and (v) the Registration
Statement and the Prospectus shall contain all statements that are
required to be stated therein in accordance with the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1993 Act and the 1993 Act Regulations; the
Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
the Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from
Arthur Andersen LLP a letter, dated such date, in form and substance
satisfactory to Merrill Lynch and counsel to the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" as set forth in
the AICPA's Statement on Auditing Standards 72 to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
f) Bring-down Comfort Letter. At Closing Time, Merrill Lynch shall
have received from Arthur Andersen LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical rating organization," as defined by
the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, if and as specified in the applicable Terms Agreement, and
the Partnerships shall have delivered to Merrill Lynch a letter, dated
as of such date, from each such rating organization, or other evidence
satisfactory to Merrill Lynch, confirming that the Underwritten
Securities have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Securities or any of SPG, LP's or the
Operating Partnership's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Underwritten Securities or any
of the SPG, LP's or the Operating Partnership's other securities.
h) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
i) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Operating Partnership in the
applicable Terms Agreement and the Underwriters exercise their option to
purchase all or any portion of the Option Underwritten Securities, the
representations and warranties of the Partnerships contained herein and
the statements in any certificates furnished by the Partnerships
hereunder shall be true and correct as of each Date of Delivery, and, at
the relevant Date of Delivery, Merrill Lynch shall have received:
A certificate dated such Date of Delivery, of (x) the
Chief Executive Officer, President or a Vice President and the
chief financial officer or chief accounting officer of the Company,
as a general partner of the Operating Partnership and as the sole
general partner of SPG, L.P. and (y) the Chief Executive Officer,
President or a Vice-President and the chief financial or accounting
officer of SD Property, as managing general partner of the
Operating Partnership, confirming that the certificate delivered at
the Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
The favorable opinions of Baker & Daniels special
securities counsel for the Partnerships, Piper & Marbury, LLP,
special Maryland counsel to the Company, Vorys, Sater, Seymour and
Pease, special Ohio counsel to SD Property and James M. Barkley,
General Counsel to the Partnerships, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section
5(b) hereof.
The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
A letter from Arthur Andersen LLP, in form and substance
satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to Merrill Lynch pursuant to Section 5(f) hereof, except
that the "specified date" on the letter furnished pursuant to this
paragraph shall be a date not more than three business days prior
to such Date of Delivery.
j) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Partnerships in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in
form and substance to Merrill Lynch and counsel for the Underwriters.
k) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after
the Closing Time, the obligations of the Underwriters to purchase the
Option Underwritten Securities on such Date of Delivery) may be
terminated by Merrill Lynch by notice to the Operating Partnership at
any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any
party to any other party except as provided in Section 4, and except
that Sections 1, 6 and 7 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
a) Indemnification of Underwriters. The Partnerships agree, jointly
and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
1. against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
2. against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Operating Partnership; and
3. against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Operating Partnership by any Underwriter through
Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto), including the 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
b) Indemnification of the Partnerships, General Partners, Directors
and Officers. Each Underwriter severally agrees to indemnify and hold
harmless the Partnerships, each general partner of any Partnership (the
"General Partners"), each of the General Partners' directors, each of
its officers who signed the Registration Statement, and each person, if
any, who controls the Partnerships or the General Partners within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Operating Partnership by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto).
c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Operating
Partnership. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition any local counsel) separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel in
accordance with the provisions hereof, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such
settlement is entered into in good faith by the indemnified party more
than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date
of such settlement.
SECTION 7 Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Partnerships, on the one hand, and the Underwriters, on the other
hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Partnerships, on the
one hand, and of the Underwriters, on the other hand, in connection with
the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Partnerships, on the one
hand, and the Underwriter, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of such Underwritten Securities
(before deducting expenses) received by the Operating Partnership and
the total underwriting discount received by the Underwriters, in each
case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet bear to the aggregate
initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Partnerships, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Partnerships or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Partnerships and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriter were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Underwritten Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the General Partners, each
officer of the General Partners who signed the Registration Statement,
and each person, if any, who controls the Partnerships or the General
Partners within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the
Partnerships. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number or
aggregate principal amount, as the case may be, of Initial Underwritten
Securities set forth opposite their respective names in the applicable
Terms Agreement and not joint.
SECTION 8 Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Partnerships or authorized
representatives of each of the Partnerships or the General Partners
submitted pursuant hereto or thereto shall remain operative and in full
force and effect, regardless or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the
Partnerships, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9 Termination.
a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time
by the Partnerships or by Merrill Lynch upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Partnerships, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been,
since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Operating
Partnership and the other Simon DeBartolo Entities considered as one
enterprise, whether or not arising in the ordinary course of business,
or (ii) there has occurred any material adverse change in the financial
markets in the United States or internationally or any outbreak of
hostilities or escalation thereof or other calamity or crisis, or any
change or development involving a prospective change in national or
international political, financial, or economic conditions, in each case
the effect of which is such as to make it, in the judgment of Merrill
Lynch, impracticable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading
in any securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on
the New York Stock Exchange or the American Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority,
(iv) a banking moratorium has been declared by either Federal, New York,
Delaware or Maryland authorities or (v) if the rating assigned by any
nationally recognized statistical rating organization to any Debt
Securities of the Operating Partnership as of the date of the applicable
Terms Agreement shall have been downgraded since such date or if any
such rating organization shall have publicly announced that it has
placed any series of Debt Securities of the Operating Partnership under
surveillance or review, with possible negative implications, as to the
rating of such Debt Securities or any of SPG, LP's or the Operating
Partnership's other securities.
c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7, 8, 10 and 13 hereof shall survive such termination and
remain in full force and effect.
SECTION 10 Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time
or the relevant Date of Delivery, as the case may be, to purchase the
Underwritten Securities which it or they are obligated to purchase under
the applicable Terms Agreement (the "Defaulted Securities"), then
Merrill Lynch shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have
completed such arrangements within such 24-hour period, then:
a) if the aggregate principal amount, of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten Securities
to be purchased on such date pursuant to such Terms Agreement, the non-
defaulting Underwriters named in such Terms Agreement shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase, and the Operating Partnership to sell,
such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a
Date of Delivery after the Closing Time, a termination of the
obligations of the Underwriters and the Partnerships with respect to the
related Option Underwritten Securities, as the case may be, either
Merrill Lynch or the Partnerships shall have the right to postpone the
Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes
in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11 Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall
be directed to Merrill Lynch at World Financial Center, North Tower, New
York, New York 10281-1201, attention of Martin J. Cicco, Managing
Director; and notices to the Simon DeBartolo Entities shall be directed
to any of them at National City Center, 115 West Washington Street,
Suite 15 East, Indianapolis, Indiana 46204, attention of Mr. David
Simon, with a copy to Baker & Daniels, 300 North Meridian Street, Suite
2700, Indianapolis, IN 46204, attention of David C. Worrell, Esq.
SECTION 12 Parties.
This Underwriting Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties
hereto and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation,
other than the Underwriters, the Partnerships, the General Partners and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors, the General
Partners and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities
from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
SECTION 13 GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14 Effect of Headings.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a
counterpart hereof, whereupon this Underwriting Agreement, along with
all counterparts, will become a binding agreement between Merrill Lynch
and each of the Partnerships in accordance with its terms.
Very truly yours,
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ Steve Sterrett
Name: Steve Sterrett
Title: Treasurer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By: /s/ Steve Sterrett
Name: Steve Sterrett
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Alex Rubin
Name: Alex Rubin
Title: Authorized Signatory
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
together with
the Guarantee
TERMS AGREEMENT
__________ __, 1997
To: Simon DeBartolo Group, L.P.
Simon Property Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, L.P., a Delaware
limited partnership (the "Operating Partnership"), proposes to issue and
sell $___,____,___ aggregate principal amount of debt securities
(hereinafter the "Initial Underwritten Securities") as guaranteed by
Simon Property Group, L.P., a Delaware limited partnership ("SPG, LP").
Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters")
offer to purchase, severally and not jointly, the respective number of
Initial Underwritten Securities as guaranteed by SPG, LP set forth below
opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) as guaranteed by SPG, LP, set
forth below, to the extent any are purchased.
Principal Amount of
Underwriter Initial Underwritten
Securities
Merrill Lynch, Pierce, Fenner &
Smith $
Incorporated
Total $
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original issue
discount], if any, from
Purchase price per share: % of principal amount, plus accrued
interest [amortized original
issue discount], if any, from (payable in next day funds).
Form:
Lock-Up Provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DEBARTOLO GROUP, L.P. AND SIMON PROPERTY GROUP,
L.P. Debt Securities together with the Guarantee--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein
and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York
City time) on by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: ___________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.
General Partner
By: ____________________________
Name:
Title:Exhibit B-1
FORM OF OPINION OF THE COMPANY'S
SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1 The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
2 The Underwriting Agreement, the applicable Terms Agreement and the
Indenture, were duly and validly authorized by the Company, as general
partner of SPG, LP, the proper officers of the Company have been duly
authorized by the Company as general partner of SPG, LP, to execute and
deliver the Underwriting Agreement, the applicable Terms Agreement and
the Indenture, and, assuming they have been executed and delivered by
any of such officers, the Underwriting Agreement, the Terms Agreement
and the Indenture are duly and validly executed and delivered by the
Company, as general partner of SPG, LP.
3 The information in Part II of the Registration Statement under
"Indemnification of Directors and Officers" and such other information
in the Prospectus Supplement and the 10-K as may be agreed upon from
time to time by the Partnerships and Merrill Lynch to the extent that
such information constitutes matters of Maryland law, descriptions of
Maryland statutes, rules or regulations, summaries of Maryland legal
matters, the Company's Charter and bylaws or Maryland legal proceedings,
or legal conclusions of Maryland law, has been reviewed by them and is
correct in all material respects.
Exhibit B-2
FORM OF OPINION OF THE PARTNERSHIPS' GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or register or be in
good standing would not result in a Material Adverse Effect.
2. The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware, with partnership power and authority to own, lease
and operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and is duly qualified
or registered as a foreign limited partnership to transact business and
is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect. The OP Partnership Agreement has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid
and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject
to (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights
generally and (2) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except as rights to indemnity thereunder may be limited by
applicable law.
3. SPG, L.P. has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of
Delaware, with partnership power and authority to own, lease and operate
its properties and to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement, the applicable
Terms Agreement and the Indenture and is duly qualified or registered as
a foreign limited partnership to transact business and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect. The SPG, LP Partnership Agreement has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid
and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject
to (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights
generally and (2) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except as rights to indemnity thereunder may be limited by
applicable law.
4. Each Simon DeBartolo Entity other than the Partnerships has been
duly incorporated or organized and is validly existing as a corporation,
limited partnership or other legal entity, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, and has the requisite power and
authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in
the Prospectus and is duly qualified or registered as a foreign
corporation, limited partnership or other legal entity, as the case may
be, to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register or to be in good
standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock or other equity interests of
each Simon DeBartolo Entity other than the Partnerships has been duly
authorized and is validly issued, fully paid and non-assessable and has
been offered and sold in compliance with all applicable laws of the
United States and the organizational laws of the jurisdictions of
organization of such entity, and is owned by the Company, the Management
Companies or the Partnerships, directly or through subsidiaries, in each
case, free and clear of any Liens. There are no outstanding securities
convertible into or exchangeable for any capital stock or other equity
interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
shares of such capital stock or any other securities of such entities.
None of the outstanding shares of capital stock or other equity
interests of such entity was issued in violation of preemptive or other
similar rights of any securityholder of such entity.
5. Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in
good standing under the laws of its respective jurisdiction of
formation, with the requisite power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged and proposes to engage as described in the Prospectus. Each
Property Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a Material
Adverse Effect. The general or limited partnership agreement of each of
the Property Partnerships has been duly and validly authorized, executed
and delivered by the parties thereto and is a valid and binding
agreement, enforceable against the parties thereto in accordance with
its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors' rights
generally and (2) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except as rights to indemnity thereunder may be limited by
applicable law.
6. The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Partnerships and
(assuming due authorization, execution and delivery thereof by the
Trustee) constitutes a valid and legally binding agreement of the
Partnerships, enforceable against the Partnerships in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Debt
Securities (or with respect to the Guarantee thereof) denominated other
than in U.S. Dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit the making
of payments outside the United States.
7. The Debt Securities and the Guarantee being sold pursuant to the
applicable Terms Agreement and the Indenture each conform, in all
material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form contemplated by the
Indenture.
8. Neither the Operating Partnership nor any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of its
charter, by-laws, partnership agreement, or other organizational
document, as the case may be, and no default by the Operating
Partnership or any other Simon DeBartolo Entity or any Property
Partnership exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as an
exhibit to the Registration Statement or the 10-K, except in each case
for violations or defaults which in the aggregate are not reasonably
expected to result in a Material Adverse Effect.
9. The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and the
consummation of the transactions contemplated thereby did not and do
not, conflict with or constitute a breach or violation of, or default or
Repayment Event under, or result in the creation or imposition of any
Lien upon any Portfolio Property, pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, to which the Partnerships or any Property
Partnership is a party or by which it of any of them may be bound, or to
which any of the assets, properties or operations of the Partnerships or
any Property Partnership is subject, nor will such action result in any
violation of the provisions of the charter, by-laws, partnership
agreement or other organizational document of the Operating Partnership,
any other Simon DeBartolo Entity or any Property Partnership or any
applicable laws, statutes, rules or regulations of the United States or
any jurisdiction of incorporation or formation of any of the
Partnerships or any Property Partnership or any judgment, order, writ or
decree binding upon the Operating Partnership, any other Simon DeBartolo
Entity or any Property Partnership, which judgement, order, writ or
decree, is known to such counsel, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership, any other Simon DeBartolo Entity or any
Property Partnership or any of their assets, properties or operations,
except for such conflicts, breaches, violations, defaults, events or
Liens that would not result in a Material Adverse Effect.
10. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is required in connection with the
offering, issuance or sale of the Underwritten Securities and the
Guarantee to the Underwriters under the Underwriting Agreement, the
applicable Terms Agreement and the Indenture, except as may be required
under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act Regulations, or the by-laws and rules of the NASD (as to which such
counsel expresses no opinion) or state securities laws (as to which such
counsel expresses no opinion), or such as have been obtained.
11. There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or
foreign, now pending or threatened, against or affecting the Operating
Partnership or any other Simon DeBartolo Entity or any Property
Partnership thereof which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated or
incorporated by reference therein), or which might reasonably be
expected to result in a Material Adverse Effect.
12. All descriptions in the Registration Statement and the Prospectus
of contracts and other documents to which the Operating Partnership or
any other Simon DeBartolo Entity is a party are accurate in all material
respects. To the best knowledge and information of such counsel, there
are no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
13. To the best of such counsel's knowledge and information, there are
no statutes or regulations that are required to be described in the
Prospectus that are not described as required.
If the Prospectus Supplement to which the applicable Terms
Agreement relates is the first Prospectus Supplement (the "First
Prospectus Supplement") distributed under this Agreement, the opinions
set forth in this Exhibit B-2 above with respect to the Property
Partnerships shall only be required for those Property Partnerships that
have acquired or developed Properties since July 22, 1997. For each
Prospectus Supplement, distributed after the First Prospectus
Supplement, such Property Partnership opinions shall only be required
for those Property Partnerships that have acquired or developed
Properties since the date of the Prospectus Supplement last preceding
the Prospectus Supplement as to which the Opinions are being
delivered.
Exhibit B-3
FORM OF OPINION OF THE PARTNERSHIPS'
SPECIAL SECURITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. At the time the Registration Statement became effective, and at
each of the Representation Dates, the Prospectus, excluding (a) the
documents incorporated by reference therein, (b) the financial
statements and supporting schedules included and other financial data
that are therein and (c) the Form T-1, complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. In passing upon the compliance as to form of such
documents, such counsel may assume that the statements made or
incorporated by reference therein are complete and correct.
2. The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules therein and other financial data, as to which no
opinion need be rendered), when they were filed with the Commission,
complied as to form in all material respects to the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations
of the Commission thereunder. In passing upon compliance as to the form
of such documents, such counsel may have assumed that the statements
made or incorporated by reference therein are complete and correct.
3. The information in the Prospectus Supplement under "the Operating
Partnership," "Recent Developments" and "Description of the Notes" and
in the Prospectus under "The Operating Partnership," and "Description of
Debt Securities" and any description of the Underwritten Securities
included therein, and such other information in the Prospectus
Supplement or in any Annual Report on Form 10-K of the Partnerships
agreed upon from time to time by the Partnerships and Merrill Lynch, to
the extent that it purports to summarize matters of law, descriptions of
statutes, rules or regulations, summaries of legal matters, the
Partnerships' organizational documents or legal proceedings, or legal
conclusions, has been reviewed by such counsel, is correct and presents
fairly the information required to be disclosed therein in all material
respects. confirmed.
4. The Partnerships satisfy all conditions and requirements for filing
the Registration Statement on Form S-3 under the 1933 Act and 1933 Act
Regulations.
5. None of the Simon DeBartolo Entities or any Property Partnership is
required to be registered as an investment company under the 1940 Act.
6. The Debt Securities being sold pursuant to the applicable Terms
Agreement have been duly authorized by SD Property as the managing
general partner of the Operating Partnership for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement, the applicable
Terms Agreement and the Indenture and, when issued and authenticated in
the manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration set forth in the
applicable Terms Agreement, (i) the Debt Securities will constitute
valid and legally binding obligations of the Operating Partnership
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and except further
as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law, (B) governmental
authority to limit, delay or prohibit the making of payments outside the
United States and (C) the enforceability of forum selection clauses in
the federal courts, and (ii) each holder of the Debt Securities will be
entitled to the benefits of the Indenture. The Debt Securities are in
the form contemplated by the Indenture.
7. The Guarantee under the Indenture has been duly authorized by the
Company, as the sole general partner of the Guarantor, for issuance and
sale pursuant to the Underwriting Agreement and, when the Debt
Securities and the Guarantee have been executed and authenticated in the
manner provided for in the Indenture and delivered by the Operating
Partnership pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration therefor specified
in such Terms Agreement and the Guarantee is endorsed thereon in the
manner provided for in the Indenture, the Guarantee will constitute a
valid and legally binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or other
similar laws relating to or affecting creditors' rights generally, or by
general equitable principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to the
Guarantee of 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, (B) governmental
authority to limit, delay or prohibit the making of payments outside the
United States, (C) the enforceability of forum selection clauses in the
federal courts, and (D) any provision in the Guarantee purporting to
preserve and maintain the liability of any party thereto despite the
fact that the guaranteed debt is unenforceable due to illegality.
8. This Agreement, the applicable Terms Agreement and the Indenture
were duly and validly authorized, executed and delivered by the
Partnerships.
9. Commencing with the Company's taxable year beginning January 1,
1994, and ending on August 9, 1996, the Company (as Simon Property
Group, Inc.) has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the
Code. Commencing August 9, 1996, the Company (as Simon DeBartolo Group,
Inc.) has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the
Code.
At the Underwriters' request, Baker & Daniels shall also confirm to
the Underwriters that it has been informed by the Staff of the
Commission that the Registration Statement is effective under the 1933
Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
In connection with the preparation of the Registration Statement
and the Prospectus, such counsel has participated in conferences with
officers and other representatives of the Partnerships and the
independent public accountants for the Partnerships and the Company at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed. On the basis of such participation and
review, but without independent verification by such counsel of, and
without assuming any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus or any amendments or supplements thereto, no facts have
come to the attention of such counsel that would lead them to believe
that the Registration Statement (except for financial statements and
schedules and other financial data included therein and for the Form T-
1, as to which such counsel need make no statement), at the time the
Registration Statement or any post-effective amendment thereto became
effective or at the date of the applicable Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and the schedules
and other financial data included therein and for the Form T-1, as to
which such counsel need make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was
issued or at the Closing Time, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the
opinion of Piper & Marbury and Vorys, Sater, Seymour and Pease,
respectively, special Maryland and Ohio counsel, respectively, to the
General Partners (which opinion shall be dated and furnished to Merrill
Lynch at the Closing Time, shall be satisfactory in form and substance
to counsel for the Underwriters and shall expressly state that the
counsel for the Underwriters may rely on such opinions as if it were
addressed to them), and (B), as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of
responsible officers of the Partnerships and public officials. Such
opinion shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
Exhibit B-4
FORM OF OPINION OF THE SD PROPERTY'S
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Underwritten Securities, having the benefit of the Guarantee,
have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement, the Terms Agreement and the Indenture.
2. Each of the Underwriting Agreement, the applicable Terms Agreement
and the Indenture has been duly and validly authorized by SD Property in
its capacity as the managing general partner of the Operating
Partnership, the proper officers of SD Property have been duly
authorized on behalf of the Operating Partnership, in its capacity as
the managing general partner thereof, to execute and deliver each of the
Underwriting Agreement, the applicable Terms Agreement and the
Indenture, and assuming they have been executed and delivered by any of
such officer, each of the Underwriting Agreement, the Terms Agreement
and the Indenture are duly and validly executed and delivered by SD
Property in its capacity as the managing general partner of the
Operating Partnership.Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Operating
Partnership within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and
the related financial statement schedules included or incorporated
by reference in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the published rules and
regulations thereunder;
(ii) on the basis of procedures (but not an examination
in accordance with generally accepted auditing standards)
consisting of a reading of the unaudited interim [consolidated]
financial statements of the Operating Partnership for the [three
month periods ended __________, 19__, and __________, 19__, the
three and six month periods ended __________, 19__, and __________,
19__, and the three and nine month periods ended __________, 19__,
and __________, 19__, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials")]1 [, a reading of the unaudited interim [consolidated]
financial statements of the Operating Partnership for the _____-
month periods ended __________, 19__, and __________, 19__,
included in the Registration Statement and the Prospectus (the
"_____-month financials")]2 [, a reading of the latest available
unaudited interim [consolidated] financial statements of the
Operating Partnership],3 a reading of the minutes of all meetings
of the stockholders and directors of the Operating Partnership [and
its subsidiaries] and the Committees of the Operating Partnership's
Board of Directors [and any subsidiary committees] since [day after
end of last audited period], inquiries of certain officials of the
Operating Partnership [and its subsidiaries] responsible for
financial and accounting matters, a review of interim financial
information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS
71"),4 with respect to the [description of relevant periods]5 and
such other inquiries and procedures as may be specified in such
letter, nothing came to our attention that caused us to believe
that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form
10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;]6
[( ) the _____-month financials included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included
in registration statements or any material modifications
should be made to the _____-month financials included in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;]7
( ) at [____________, 19__ and at]8 a specified date not
more than five days9 prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the
Operating Partnership [and its subsidiaries] or any decrease
in the _________ of the Operating Partnership [and its
subsidiaries] or any increase in the ___________ of the
Operating Partnership [and its subsidiaries,]10 in each case as
compared with amounts shown in the latest balance sheet
included in the Registration Statement and the Prospectus,
except in each case for changes, decreases or increases that
the Registration Statement and the Prospectus disclose have
occurred or may occur; or
( ) [for the period from ___________, 19__ to
___________, 19__ and]11 for the period from _________, 19__ to
a specified date not more than five days prior to the date of
the applicable Terms Agreement, there was any decrease in
__________, ___________ or ___________,12 in each case as
compared with the comparable period in the preceding year,
except in each case for any decreases that the Registration
Statement and the Prospectus discloses have occurred or may
occur;
(iii) based upon the procedures set forth in clause
(ii) above and a reading of the [Selected Financial Data] included
in the Registration Statement and the Prospectus [and a reading of
the financial statements from which such data were derived,]13
nothing came to our attention that caused us to believe that the
[Selected Financial Data] included in the Registration Statement
and the Prospectus do not comply as to form in all material
respects with the disclosure requirements of Item 301 of Regulation
S-K of the 1933 Act [, that the amounts included in the [Selected
Financial Data] are not in agreement with the corresponding amounts
in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in
the Registration Statement and the Prospectus from which certain of
such data were derived are not in conformity with generally
accepted accounting principles];14
(iv) we have compared the information in the Registration
Statement and the Prospectus under selected captions with the
disclosure requirements of Regulation S-K of the 1933 Act and on
the basis of limited procedures specified herein. Nothing came to
our attention that caused us to believe that this information does
not comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of
Regulation S-K;
[(v) based upon the procedures set forth in clause (ii)
above, a reading of the unaudited financial statements of the
Operating Partnership for [the most recent period] that have not
been included in the Registration Statement and the Prospectus and
a review of such financial statements in accordance with SAS 71,
nothing came to our attention that caused us to believe that the
unaudited amounts for __________________ for the [most recent
period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
[consolidated] financial statements;]15
[(vi)] we are unable to and do not express any opinion
on the [Pro Forma Combining Statement of Operations] (the "Pro
Forma Statement") included in the Registration Statement and the
Prospectus or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however,
for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance
with SAS 71] of the financial statements to which the pro
forma adjustments were applied;
(C) made inquiries of certain officials of the
Operating Partnership who have responsibility for
financial and accounting matters about the basis for
their determination of the pro forma adjustments and
whether the Pro Forma Statement complies as to form in
all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement
included in the Registration Statement does not comply as to
form in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;16 and
[(vii)] in addition to the procedures referred to in
clause (ii) above, we have performed other procedures, not
constituting an audit, with respect to certain amounts,
percentages, numerical data and financial information appearing in
the Registration Statement and the Prospectus, which are specified
herein, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and
financial records of the Operating Partnership;17 and
[(viii) in addition, we [comfort on a financial
forecast that is included in the Registration Statement and the
Prospectus.18]
and (3) the possible issuance of shares of Common Stock upon the
conversion of Series A Preferred Stock, the exchange of partnership
interests in (a) the Operating Partnership ("OP Units") or (b) SPG,
L.P. ("LP Units" and together with the OP Units, the "Units"), or
upon the exchange of shares of Class B Common Stock, par value
$0.0001 per share (the "Class B Common Stock"), or upon the
exchange of Class C Common Stock, par value $0.0001 per share (the
"Class C Common Stock"),
_______________________________
1 Include the appropriate dates of the 10-Q Financials.
2 Include if non-10-Q interim financial statements are included in
the Registration Statement and the Prospectus.
3 Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
4 Note that a review in accordance with Statements on Auditing
Standards ("SAS") No. 71 is required for an accountant to give
negative assurance on interim financial information.
A review in accordance with SAS No. 71 will only be performed at the
request of the Company and the accountant's report, if any, related to
that review will be addressed only to the Company. Many companies have
a SAS No. 71 review performed in connection with the preparation of
their 10-Q financial statements. See Codification of Statements on
Auditing Standards, AU 722 for a description of the procedures that
constitute such a review. The comfort letter itself should recite that
the review was performed and a copy of the report, if any, should be
attached to the comfort letter. Any report issued pursuant to SAS No.
71 that is mentioned in the Registration Statement should also be
included in the Registration Statement as an exhibit. If a review in
accordance with SAS No. 71 has not and will not be performed by the
accountants, they should be prepared to perform certain agreed-upon
procedures on the interim financial information and to report their
findings thereon in the comfort letter. See Codification of Statements
on Auditing Standards, AU 622 for a discussion of reports related to
the accountant's performance of agreed-upon procedures. Any question as
to whether a review in accordance with SAS No. 71 will be performed by
the accountants should be resolved early.
5 The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
6 Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
7 Include if unaudited financial statements, not just selected
unaudited data, are included in the Registration Statement and the
Prospectus.
8 Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and the
Prospectus.
9 According to Example A of SAS No. 72, the specified date should be
five calendar days prior to the date of the applicable Terms
Agreement. However, in unusual circumstances, five business days
may be used.
10 The blanks should be filled in with significant balance sheet
items, selected by the banker and tailored to the issuer's industry
in general and operations in particular. While the ultimate
decision of which items should be included rests with the banker,
comfort is routinely requested for certain balance sheet items,
including long-term debt, stockholders' equity, capital stock and
net current assets.
11 Include, and insert dates to describe the period from the date of
the most recent financial statements in the Registration Statement
and the Prospectus to the date of the most recent unaudited
financial statements of the Company, if those dates are different.
Regardless of whether this language is inserted or not, the period
including five days prior to the date of the applicable Terms
Agreement should run from the date of the last financial statement
included in the Registration Statement and the Prospectus, not from
the later one that is not included in the Registration Statement
and the Prospectus.
12 The blanks should be filled in with significant income statements
items, selected by the banker and tailored to the issuer's industry
in general and operations in particular. While the ultimate
decision of which items should be included rests with the banker,
comfort is routinely requested for certain income statement items,
including net sales, total and per share amounts of income before
extraordinary items and of net income.
13 Include only if there are selected financial data that have been
derived from financial statements not included in the Registration
Statement and the Prospectus.
14 In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and include in
their report in the Registration Statement and the Prospectus the
paragraph contemplated by SAS No. 42.9. This situation may arise
only if the Selected Financial Data do not include interim period
data and the five-year selected data are derived entirely from
financial statements audited by the auditors whose report is
included in the Registration Statement and the Prospectus. If the
guidelines set forth in SAS No. 42 are followed and the
accountant's report as included in the Registration Statement and
the Prospectus includes the additional language prescribed by SAS
No. 42.9, the bracketed language may be eliminated.
15 This language should be included when the Registration Statement
and the Prospectus include earnings or other data for a period
after the date of the latest financial statements in the
Registration Statement and the Prospectus, but the unaudited
interim financial statements from which the earnings or other data
is derived is not included in the Registration Statement and the
Prospectus. The blank should be filled in with a description of
the financial statement item(s) included.
16 If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying
historical financial statements, or if negative assurance on the
Company's pro forma financial statements is not otherwise
available, the accountants should be requested to perform certain
other procedures with respect to such pro forma financial
statements. See Example O of SAS No. 72.
17 This language is intended to encompass all other
financial/numerical information appearing in the Registration
Statement and the Prospectus for which comfort may be given,
including (but not limited to) amounts appearing in the
Registration Statement and the Prospectus narrative and other
summary financial data appearing in tabular form (e.g., the
capitalization table).
18 Accountants' services with respect to a financial forecast may be
in one of three forms: an examination of the forecast, a
compilation of the forecast or the application of agreed-upon
procedures to the forecast. If the accountant is to perform an
examination of the forecast included in the Registration Statement
and the Prospectus, delivery of the related report should be
treated separately in Section 5(f) as follows (remember to change
subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus are
presented in conformity with guidelines for presentation of a
forecast established by the AICPA, and that the underlying
assumptions provide a reasonable basis for management's
forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included in the Registration Statement and the
Prospectus, delivery of the related report should be treated
separately in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or
reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted
financial statements for the [relevant period or periods]
included in the Registration Statement and the Prospectus in
accordance with the guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on
a forecast included in the Registration Statement and the
Prospectus, SAS No. 72 requires that the
accountant first prepare a compilation report with respect to the
forecast and attach that report to the comfort letter. The accountant
may then report on specific procedures performed and findings obtained.
<PAGE>
Exhibit 1.2
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
October 22, 1997
To: Simon DeBartolo Group, L.P.
Simon Property Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, L.P., a
Delaware limited partnership (the "Operating Partnership"),
proposes to issue and sell $150,000,000 aggregate principal
amount of debt securities (hereinafter the "Initial Underwritten
Securities") as guaranteed by Simon Property Group, L.P., a
Delaware limited partnership ("SPG, LP"). Subject to the terms
and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective number of Initial
Underwritten Securities as guaranteed by SPG, LP set forth below
opposite their names at the purchase price set forth below
Principal Amount of
Underwriter Initial Underwritten Securities
Merrill Lynch, Pierce, Fenner &
Smith Incorporated $ 60,000,000
J.P. Morgan Securities Inc. 30,000,000
Lehman Brothers Inc. 30,000,000
UBS Securities LLC 30,000,000
Total $ 150,000,000
<PAGE>
The Underwritten Securities shall have the following
terms:
Title: 6 7/8% Notes Due October 27, 2005
Rank: The Underwritten Securities will rank paripassu with
each other and with all other
unsecured and unsubordinated
indebtedness of the Operating
Partnership except that the
Underwritten Securities will be
effectively subordinated to (i) the
prior claims of each secured
mortgage lender to any specific
Portfolio Property which secures
such lender's mortgage and (ii) any
claims of creditors of entities
wholly or partly owned, directly or
indirectly, by the Operating
Partnership.
Ratings: Baa1 by Moody's Investor Service
BBB by Standard & Poor's
BBB+ by Fitch Investors Service, L.P.
Aggregate principal amount: $150,000,000
Currency of payment: U.S. Dollars
Interest rate or formula: 6 7/8% payable semi-annually in arrears
Interest payment dates: Each October 15 and April 15
Stated maturity date: October 27, 2005
Redemption provisions: The Underwritten Securities are redeemable at
time at the option of the Operating
Partnership, in whole or in part, at
a redemption price equal to the sum
of (i) the principal amount of the
Underwritten Securities being
redeemed plus accrued interest to
the redemption date and (ii) the
Make-Whole Amount, if any.
Sinking fund requirements: None
Conversion provisions: None
Listing requirements: None
Black-out provisions: None
Guarantee: SPG, LP will guarantee the
due and punctual payment of the
principal of, premium, if any,
interest on, and any other amounts
payable with respect to, the
Underwritten Securities, when and as
the same shall become due and
payable, whether at a maturity date,
on redemption, by declaration of
acceleration or otherwise.
Initial public offering price: 99.0000% of the
principal amount.
Purchase price: 98.3625% of principal
amount (payable in same day funds).
Lock-Up Provisions: None
Other terms and conditions: The Underwritten
Securities shall be in the form of
Exhibit A to the Fifth Supplemental
Indenture, dated as of October 27,
1997, between the Partnerships and
The Chase Manhattan Bank.
Closing date and location: October 27, 1997 at the
offices of Rogers & Wells, 200 Park
Avenue, New York, New York 10166.
All of the provisions contained in the document attached as
Annex I hereto entitled "SIMON DEBARTOLO GROUP, L.P. AND SIMON
PROPERTY GROUP, L.P.--Debt Securities together with the Guarantee
Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are
used herein as therein defined.
<PAGE>
Please accept this offer no later than five o'clock P.M.
(New York City time) on October ___, 1997 by signing a copy of
this Terms Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/Alex Rubin
Name: Alex Rubin
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By: /s/ Steve Sterrett
Name: Steve Sterrett
Title: Treasurer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.
General Partner
By: /s/ Steve Sterrett
Name: Steve Sterrett
Title: Treasurer
<PAGE>
Exhibit 4.1
SIMON DEBARTOLO GROUP, L.P.
ISSUER
AND
SIMON PROPERTY GROUP, L.P.
GUARANTOR
TO
THE CHASE MANHATTAN BANK
TRUSTEE
____________________
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 27, 1997
____________________
$150,000,000 6 7/8% NOTES DUE OCTOBER 27, 2005
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
AMONG
SIMON DEBARTOLO GROUP, L.P.
SIMON PROPERTY GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
<PAGE>
FIFTH SUPPLEMENTAL INDENTURE, dated as of October
27, 1997, among SIMON DEBARTOLO GROUP, L.P., a Delaware limited
partnership (the "Issuer" or the "Operating Partnership"), having
its principal offices at National City Center, 115 West
Washington Street, Suite 15 East, Indianapolis, Indiana 46204,
SIMON PROPERTY GROUP, L.P., a Delaware limited partnership (the
"Guarantor") having its principal offices at National City
Center, 115 West Washington Street, Suite 15 East, Indianapolis,
Indiana 46204 and THE CHASE MANHATTAN BANK, a New York banking
corporation, as trustee (the "Trustee"), having its Corporate
Trust Office at 450 West 33rd Street, 15th Floor, New York, New
York 10001.
RECITALS
WHEREAS, the Issuer executed and delivered its
Indenture (the "Original Indenture"), dated as of November
26, 1996, to the Trustee to issue from time to time for its
lawful purposes debt securities evidencing its unsecured and
unsubordinated indebtedness issued under the Original Indenture;
WHEREAS, the Guarantor executed and delivered the
Original Indenture to the Trustee to guarantee the due and
punctual payment of principal of, premium, if any, interest on,
and any other amounts with respect to, each series of debt
securities evidencing the unsecured and unsubordinated
indebtedness of the Issuer, issued under the Original Indenture,
when and as the same shall become due and payable, whether on an
interest payment date, a maturity date, on redemption, by
declaration of acceleration or otherwise;
WHEREAS, the Original Indenture provides that by means
of a supplemental indenture, the Issuer may create one or more
series of its debt securities, which shall be guaranteed by the
Guarantor, and establish the form and terms and conditions
thereof;
WHEREAS, the Issuer intends by this Fifth Supplemental
Indenture (i) to create a series of debt securities, in an
aggregate principal amount of $150,000,000 entitled "Simon
DeBartolo Group, L.P. 6 7/8% Notes due October 27, 2005 (the
"Notes"); and (ii) to establish the form and the terms and
conditions of such Notes;
WHEREAS, the Guarantor intends by this Fifth
Supplemental Indenture to guarantee the due and punctual payment
of principal of, premium, if any, interest on, and any other
amounts with respect to, the Notes, when and as the same shall
become due and payable, whether on an interest payment date, a
maturity date, on redemption, by declaration of acceleration or
otherwise (the "Guarantee");
WHEREAS, the Board of Directors of SD Property Group,
Inc., the managing general partner of the Issuer, has approved
the creation of the Notes and the forms, terms and conditions
thereof;
WHEREAS, the Board of Directors of Simon DeBartolo
Group, Inc., the sole general partner of the Guarantor, has
approved the creation of the Guarantee and the forms, terms and
conditions thereof; and
WHEREAS, all actions required to be taken under the
Original Indenture with respect to this Fifth Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
Definitions, Creation, Forms and Terms and
Conditions of the Notes
SECTION 1.01 Definitions. Capitalized terms used in
this Fifth Supplemental Indenture and not otherwise defined shall
have the meanings ascribed to them in the Original Indenture.
Certain terms, used principally in Article Two of this Fifth
Supplemental Indenture, are defined in that Article. In
addition, the following terms shall have the following meanings
to be equally applicable to both the singular and the plural
forms of the terms defined:
"Global Note" means a single fully-registered global
note in book-entry form, without Coupons, substantially in the
form of Exhibit A attached hereto.
"Indenture" means the Original Indenture as
supplemented by this Fifth Supplemental Indenture.
"Make-Whole Amount" means, in connection with any
optional redemption or accelerated payment of any Notes, the
excess, if any, of (i) the aggregate present value, as of the
date of such redemption or accelerated payment of each Dollar of
principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of
each such Dollar if such redemption or accelerated payment had
not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined
on the third Business Day preceding the date notice of such
redemption is given or declaration of acceleration is made) from
the respective dates on which such principal and interest would
have been payable if such redemption or accelerated payment had
not been made, to the date of redemption or accelerated payment,
over (ii) the aggregate principal amount of the Notes being
redeemed or accelerated.
"Notes" means the Issuer's 6 7/8% Notes due October
27, 2005, initially issued in an aggregate principal amount of
$150,000,000.
"Reinvestment Rate" means the yield on treasury
securities at a constant maturity corresponding to the remaining
life (as of the date of redemption and rounded to the nearest
month) to Stated Maturity of the principal being redeemed (the
"Treasury Yield"), plus .25%. For purposes hereof, the Treasury
Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release under the heading "Week
Ending" for "U.S. Government Securities -- Treasury Constant
Maturities" with a maturity equal to such remaining life;
provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield shall be
interpolated or extrapolated on a straight-line basis from the
arithmetic means of the yields for the next shortest and next
longest published maturities, rounding each of such relevant
periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall
be used. If the format or content of the Statistical Release
changes in a manner that precludes determination of the Treasury
Yield in the above manner, then the Treasury Yield shall be
determined in the manner that most closely approximates the above
manner, as reasonably determined by the Issuer.
"Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve System and which reports
yields on actively traded United States government securities
adjusted to constant maturities, or, if such statistical release
is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which
shall be designated by the Issuer.
SECTION 1.02 Creation of the Notes. In accordance
with Section 301 of the Original Indenture, the Issuer hereby
creates the Notes as a separate series of its Securities issued
pursuant to the Indenture. The Notes shall be issued in an
aggregate principal amount of $150,000,000.
SECTION 1.03 Form of the Notes. The Notes will be
issued in the form of a Global Note which will be deposited with,
or on behalf of, DTC and registered in the name of "Cede & Co" as
the nominee of DTC. The Notes shall be substantially in the form
of Exhibit A attached hereto. So long as DTC, or its nominee, is
the registered owner of a Global Note, DTC or its nominee, as the
case may be, will be considered the sole owner or Holder of the
Notes represented by such Global Note for all purposes under the
Indenture. Ownership of beneficial interests in such Global Note
will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial
interests of participants) or by participants or Persons that
hold interests through participants (with respect to beneficial
interests of beneficial owners).
SECTION 1.04 Terms and Conditions of the Notes. The
Notes shall be governed by all the terms and conditions of the
Original Indenture, as supplemented by this Fifth Supplemental
Indenture, and in particular, the following provisions shall be
terms of the Notes:
(a) Title and Aggregate Principal Amount. The
title of the Notes shall be as specified in the
Recitals; and the aggregate principal amount of the
Notes shall be as specified in Section 1.02 of this
Fifth Supplemental Indenture, except as permitted by
Section 306 of the Original Indenture.
(b) Stated Maturity. The Notes shall mature, and
the unpaid principal thereon shall be payable, on
October 27, 2005.
(c) Interest. The rate per annum at which
interest shall be payable on the Notes shall be 6 7/8%,
and such interest shall accrue beginning October
27, 1997. Interest on the Notes shall be payable semi-
annually in arrears on each October 15 and April 15,
commencing April 15, 1998 (each an "Interest Payment
Date"), and on the Stated Maturity as specified in
Section 1.04(b) of this Fifth Supplemental Indenture,
to the Persons (the "Holders") in whose names the
applicable Notes are registered in the Security
Register applicable to the Notes at the close of
business 15 calendar days prior to such payment date
regardless of whether such day is a Business Day (each,
a "Regular Record Date"). Interest on the Notes will
be computed on the basis of a 360-day year of twelve 30-
day months.
(d) Sinking Fund, Redemption or Repayment. No
sinking fund shall be provided for the Notes and the
Notes shall not be repayable at the option of the
Holders thereof prior to Stated Maturity. The Notes
may be redeemed at any time at the option of the
Issuer, in whole or from time to time in part, at a
redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued
interest thereon to the redemption date and (ii) the
Make-Whole Amount, if any, with respect to such Notes
(the "Redemption Price"), all in accordance with the
provisions of Article Eleven of the Original Indenture.
If notice of redemption has been given as provided
in the Original Indenture and funds for the redemption
of any Notes called for redemption shall have been made
available on the Redemption Date referred to in such
notice, such Notes will cease to bear interest on the
Redemption Date and the only right of the Holders of
the Notes from and after the Redemption Date will be to
receive payment of the Redemption Price upon surrender
of such Notes in accordance with such notice.
(e) Registration and Form. The Notes shall be
issuable as Registered Securities in permanent global
form, and the depositary with respect to the Notes
shall initially be DTC. Principal and interest
payments on Notes represented by a Global Note will be
made to DTC or its nominee, as the case may be, as the
registered Holder of such Global Note. All payments of
principal and interest in respect of the Notes will be
made by the Issuer in immediately available funds.
(f) Defeasance and Covenant Defeasance. The
provisions for defeasance in Section 1402 of the
Original Indenture, and the provisions for covenant
defeasance (which provisions shall apply, without
limitation, to the covenants set forth in Article Two
of this Fifth Supplemental Indenture) in Section 1403
of the Original Indenture, shall be applicable to the
Notes.
(g) Make-Whole Amount Payable Upon Acceleration.
Upon any acceleration of the Stated Maturity of the
Notes in accordance with Section 502 of the Original
Indenture, the Make-Whole Amount on the Notes shall
become immediately due and payable, subject to the
terms and conditions of the Indenture.
(h) Guarantee. The provisions of Article Seventeen of
the Original Indenture shall be applicable to the Notes.
ARTICLE TWO
Covenants for Benefit of Holders of Notes
SECTION 2.01 Covenants for Benefit of Holders of
Notes. The Operating Partnership covenants and agrees, for the
benefit of the Holders of the Notes, as follows:
(a) Limitations on Incurrence of Debt. The Operating
Partnership will not, and will not permit any Subsidiary to,
incur any Debt (as defined below), other than intercompany debt
(representing Debt to which the only parties are the Company (as
defined below), the Operating Partnership and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the Company, the Operating Partnership and any Subsidiary)
that is subordinate in right of payment to the Notes), if,
immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all
outstanding Debt would be greater than 60% of the sum of (i) the
Operating Partnership's Adjusted Total Assets (as defined below)
as of the end of the fiscal quarter prior to the incurrence of
such additional Debt and (ii) any increase in Adjusted Total
Assets from the end of such quarter including, without
limitation, any pro forma increase from the application of the
proceeds of such additional Debt.
In addition to the foregoing limitation on the
incurrence of Debt, the Operating Partnership will not, and will
not permit any Subsidiary to, incur any Debt secured by any
mortgage, lien, pledge, encumbrance or security interest of any
kind upon any of the property of the Operating Partnership or any
Subsidiary ("Secured Debt"), whether owned at the date of the
Indenture or thereafter acquired, if, immediately after giving
effect to the incurrence of such additional Secured Debt, the
aggregate principal amount of all outstanding Secured Debt is
greater than 55% of the sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the fiscal quarter prior
to the incurrence of such additional Secured Debt and (ii) any
increase in Adjusted Total Assets from the end of such quarter
including, without limitation, any pro forma increase from the
application of the proceeds of such additional Secured Debt.
In addition to the foregoing limitations on the
incurrence of Debt, the Operating Partnership will not, and will
not permit any Subsidiary to, incur any Debt if the ratio of
Annualized EBITDA After Minority Interest to Interest Expense (in
each case as defined below) for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date
on which such additional Debt is to be incurred shall have been
less than 1.75 to 1 on a pro forma basis after giving effect to
the incurrence of such Debt and to the application of the
proceeds therefrom, and calculated on the assumption that
(i) such Debt and any other Debt incurred since the first day of
such four-quarter period had been incurred, and the proceeds
therefrom had been applied (to whatever purposes such proceeds
had been applied as of the date of calculation of such ratio), at
the beginning of such period, (ii) any other Debt that has been
repaid or retired since the first day of such four-quarter period
had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt
under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period),
(iii) any income earned as a result of any assets having been
placed in service since the end of such four-quarter period had
been earned, on an annualized basis, during such period, and
(iv) in the case of any acquisition or disposition by the
Operating Partnership, any Subsidiary or any unconsolidated joint
venture in which the Operating Partnership or any Subsidiary owns
an interest, of any assets since the first day of such four-
quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or
disposition and any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments
with respect to such acquisition or disposition being included in
such pro forma calculation.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Operating Partnership, its Subsidiaries and by
any unconsolidated joint venture, whenever the Operating
Partnership, any Subsidiary, or any unconsolidated joint venture,
as the case may be, shall create, assume, guarantee or otherwise
become liable in respect thereof.
(b) Maintenance of Unencumbered Assets. The Operating
Partnership is required to maintain Unencumbered Assets (as
defined below) of not less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt (as defined below) of the
Operating Partnership.
SECTION 2.02 Definitions. As used herein:
"Adjusted Total Assets" as of any date means the sum of
(i) the amount determined by multiplying the sum of the shares of
common stock of the Company (as defined below) issued in the
initial public offering of the Company (the "IPO") and the units
of the Operating Partnership not held by the Company outstanding
on the date of the IPO, by $22.25 (the "IPO Price"), (ii) the
principal amount of the outstanding consolidated debt of the
Company on the date of the IPO, less any portion applicable to
minority interests, (iii) the Operating Partnership's allocable
portion, based on its ownership interest, of outstanding
indebtedness of unconsolidated joint ventures on the date of the
IPO, (iv) the purchase price or cost of any real estate assets
acquired (including the value, at the time of such acquisition,
of any units of the Operating Partnership or shares of common
stock of the Company issued in connection therewith) or developed
after the IPO by the Operating Partnership or any Subsidiary,
less any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership
interest, of the purchase price or cost of any real estate assets
acquired or developed after the IPO by any unconsolidated joint
venture, (v) the value of the Merger compiled as the sum of (a)
the purchase price including all related closing costs and (b)
the value of all outstanding indebtedness less any portion
attributable to minority interests, including the Operating
Partnership's allocable portion, based on its ownership interest,
of outstanding indebtedness of unconsolidated joint ventures at
the Merger date, and (vi) working capital of the Operating
Partnership; subject, however, to reduction by the amount of the
proceeds of any real estate assets disposed of after the IPO by
the Operating Partnership or any Subsidiary, less any portion
applicable to minority interests, and by the Operating
Partnership's allocable portion, based on its ownership interest,
of the proceeds of any real estate assets disposed of after the
IPO by unconsolidated joint ventures.
"Annualized EBITDA" means earnings before interest,
taxes, depreciation and amortization for all properties with
other adjustments as are necessary to exclude the effect of items
classified as extraordinary items in accordance with generally
accepted accounting principles, adjusted to reflect the
assumption that (i) any income earned as a result of any assets
having been placed in service since the end of such period had
been earned, on an annualized basis, during such period, and (ii)
in the case of any acquisition or disposition by the Operating
Partnership, any Subsidiary or any unconsolidated joint venture
in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such period, such
acquisition or disposition and any related repayment of Debt had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition.
"Annualized EBITDA After Minority Interest" means
Annualized EBITDA after distributions to third party joint
venture partners.
"Company" means Simon DeBartolo Group, Inc., a Maryland
corporation and a general partner of the Operating Partnership
and the sole general partner of the Guarantor.
"Debt" means any indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis, less
any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership
interest, of indebtedness of unconsolidated joint ventures, in
respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, as determined in accordance
with generally accepted accounting principles, (ii) indebtedness
secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Operating
Partnership or any Subsidiary directly, or indirectly through
unconsolidated joint ventures, as determined in accordance with
generally accepted accounting principles, (iii) reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued
expense or trade payable and (iv) any lease of property by the
Operating Partnership or any Subsidiary as lessee which is
reflected in the Operating Partnership's consolidated balance
sheet as a capitalized lease or any lease of property by an
unconsolidated joint venture as lessee which is reflected in such
joint venture's balance sheet as a capitalized lease, in each
case, in accordance with generally accepted accounting
principles; provided, that Debt also includes, to the extent not
otherwise included, any obligation by the Operating Partnership
or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise, items of indebtedness of another Person
(other than the Operating Partnership or any Subsidiary)
described in clauses (i) through (iv) above (or, in the case of
any such obligation made jointly with another Person, the
Operating Partnership's or Subsidiary's allocable portion of such
obligation based on its ownership interest in the related real
estate assets).
"Fixed Charges and Preferred Unit Distributions"
consist of interest costs, whether expensed or capitalized, the
interest component of rental expense and amortization of debt
issuance costs, including the Operating Partnership's pro rata
share based on its ownership interest of joint venture interest
costs, whether expensed or capitalized, and the interest
components of rental expense and amortization of debt issuance
costs, plus any distributions on outstanding preferred units.
"Interest Expense" includes the Operating Partnership's
pro rata share of joint venture interest expense and is reduced
by amortization of debt issuance costs.
"Unencumbered Annualized EBITDA After Minority
Interest" means Annualized EBITDA After Minority Interest less
any portion thereof attributable to assets serving as collateral
for Secured Debt (as defined above).
"Unencumbered Assets" as of any date shall be equal to
Adjusted Total Assets as of such date multiplied by a fraction,
the numerator of which is Unencumbered Annualized EBITDA After
Minority Interest and the denominator of which is Annualized
EBITDA After Minority Interest.
"Unsecured Debt" means Debt which is not secured by any
mortgage, lien, pledge, encumbrance or security interest of any
kind.
ARTICLE THREE
Trustee
SECTION 3.01 Trustee. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Fifth Supplemental Indenture or
the due execution thereof by the Issuer or the Guarantor. The
recitals of fact contained herein shall be taken as the
statements solely of the Issuer and the Guarantor, and the
Trustee assumes no responsibility for the correctness thereof.
ARTICLE FOUR
Miscellaneous Provisions
SECTION 4.01 Ratification of Original Indenture.
This Fifth Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture,
and as supplemented and modified hereby, the Original Indenture
is in all respects ratified and confirmed, and the Original
Indenture and this Fifth Supplemental Indenture shall be read,
taken and construed as one and the same instrument.
SECTION 4.02 Effect of Headings. The Article and
Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 4.03 Successors and Assigns. All covenants
and agreements in this Fifth Supplemental Indenture by the Issuer
and Guarantor shall bind their successors and assigns, whether so
expressed or not.
SECTION 4.04 Separability Clause. In case any one or
more of the provisions contained in this Fifth Supplemental
Indenture shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 4.05 Governing Law. This Fifth Supplemental
Indenture shall be governed by and construed in accordance with
the laws of the State of New York. This Fifth Supplemental
Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of this Fifth Supplemental Indenture
and shall, to the extent applicable, be governed by such
provisions.
SECTION 4.06 Counterparts. This Fifth Supplemental
Indenture may be executed in any number of counterparts, and each
of such counterparts shall for all purposes be deemed to be an
original, but all such counterparts shall together constitute one
and the same instrument.
<PAGE>
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Fifth Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested,
all as of the date first above written.
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
its managing general partner
By: _________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: _________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
<PAGE>
Exhibit A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A
NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [__________] PRINCIPAL AMOUNT
CUSIP NO. __________ $150,000,000
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6 7/8% Note due October 27, 2005
Simon DeBartolo Group, L.P., a Delaware limited
partnership (the "Issuer," which term includes any successor
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co. or its registered assigns,
the principal sum of 150,000,000 Dollars on October 27, 2005 (the
"Maturity Date"), and to pay interest thereon from October
27, 1997, semi-annually in arrears on October 15 and April 15 of
each year (each, an "Interest Payment Date"), commencing on April
15, 1998, and on the Maturity Date, at the rate of 6 7/8% per
annum, until payment of said principal sum has been made or duly
provided for.
<PAGE>
The interest so payable and punctually paid or duly
provided for on any Interest Payment Date and on the Maturity
Date will be paid to the Holder in whose name this Note (or one
or more predecessor Notes) is registered in the Security Register
applicable to the Note at the close of business on the "Record
Date" for such payment, which will be 15 calendar days prior to
such payment date or the Maturity Date, as the case may be,
regardless of whether such day is a Business Day (as defined
below). Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the
close of business on a subsequent record date for the payment of
such defaulted interest (which shall be not less than 10 calendar
days prior to the date of the payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer
to the Holders of the Notes not less than 10 calendar days
preceding such subsequent record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in the Indenture (as defined below). Interest on
this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
The principal of each Note payable on the Maturity Date
will be paid against presentation and surrender of this Note at
the office or agency of the Issuer maintained for that purpose in
The Borough of Manhattan, The City of New York. The Issuer
hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by
it where Notes may be presented for payment, registration of
transfer or exchange, and where notices to or demands upon the
Issuer or the Guarantor in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
Interest payable on this Note on any Interest Payment
Date and on the Maturity Date, as the case may be, will be the
amount of interest accrued from and including the immediately
preceding Interest Payment Date (or from and including October
27, 1997, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the
Maturity Date, as the case may be. If any date for the payment
of principal, premium, if any, interest on, or any other amount
with respect to, this Note (each a "Payment Date") falls on a day
that is not a Business Day, the principal, premium, if any, or
interest payable with respect to such Payment Date will be made
on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, and no interest shall
accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday,
that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required
by law, regulation or executive order to close.
Payments of principal and interest in respect of this
Note will be made by wire transfer of immediately available funds
in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and
private debts.
Reference is made to the further provisions of this
Note set forth on the reverse hereof after the Trustee's
Certificate of Authentication. Such further provisions shall for
all purposes have the same effect as though fully set forth at
this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by
the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be signed manually or by facsimile by its
authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6 7/8 % Note due October 27, 2005
This security is one of a duly authorized issue of debt
securities of the Issuer (hereinafter called the "Securities"),
all issued or to be issued under and pursuant to an Indenture
dated as of November 26, 1996 (herein called the "Indenture"),
duly executed and delivered by the Issuer and the Guarantor to
The Chase Manhattan Bank, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture with respect to the series of Securities of which this
Note is a part), to which Indenture and all indentures
supplemental thereto relating to this Note (including, without
limitation, the Fifth Supplemental Indenture, dated October
27, 1997, among the Issuer, the Guarantor and the Trustee)
reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer, the Guarantor and the
Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This security is
one of a series designated as the Simon DeBartolo Group, L.P. 6
7/8% Notes due October 27, 2005, limited in aggregate principal
amount to $150,000,000 (the "Notes").
In case an Event of Default with respect to the Notes
shall have occurred and be continuing, the principal amount of
the Notes and the Make-Whole Amount may be declared accelerated
and thereupon become due and payable, in the manner, with the
effect, and subject to the conditions provided in the Indenture.
The Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a
redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make- Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be
given to Holders at their addresses, as shown in the Security
Register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the redemption price and the
principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the
Issuer, the Guarantor and the Trustee, with the consent of the
Holders of not less than a majority of the aggregate principal
amount of the Securities at the time Outstanding of all series to
be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security so affected, (i) change the Stated
Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate or amount of
interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment
at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, the principal
of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof, or
(ii) reduce the aforesaid percentage of Securities the Holders of
which are required to consent to any such supplemental indenture,
or (iii) reduce the percentage of Securities the Holders of which
are required to consent to any waiver of compliance with certain
provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or
in the rights of Holders of the Securities. The Indenture also
permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain
defaults or Events of Defaults, all series of Securities), on
behalf of the Holders of all the Securities of such series (or
all of the Securities, as the case may be), to waive compliance
by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture
and their consequences, prior to any declaration accelerating the
maturity of such Securities, or subject to certain conditions,
rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note that may be issued in
exchange or substitution hereof, irrespective of whether or not
any notation thereof is made upon this Note or such other Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Issuer or the Guarantor, as the case may be,
which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note in the manner, at the
respective times, at the rate and in the coin or currency herein
prescribed.
Notwithstanding any other provision of the Indenture to
the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under the
Securities, including, without limitation, the principal of,
premium, if any, or interest payable under the Securities, or for
the payment or performance of any obligation under, or for any
claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general,
including SD Property Group, Inc., or such partner's assets or
against any principal, shareholder, officer, director, trustee or
employee of such partner. It is expressly understood that the
sole remedies under the Securities and the Indenture or under any
other document with respect to the Securities, against such
parties with respect to such amounts, obligations or claims shall
be against the Issuer.
This Note is issuable only in registered form without
Coupons in denominations of $1,000 and integral multiples
thereof. This Note may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations at
the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of
any service charge, except for any tax or other governmental
charge imposed in connection therewith.
Upon due presentment for registration of transfer of
this Note at the office or agency of the Issuer in The Borough of
Manhattan, The City of New York, one or more new Notes of
authorized denominations in an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge, except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Guarantor, the Trustee and any
authorized agent of the Issuer, the Guarantor or the Trustee may
deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note
shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment of,
or on account of, the principal and any premium hereof or hereon,
and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the
Guarantor nor the Trustee nor any authorized agent of the Issuer,
the Guarantor or the Trustee shall be affected by any notice to
the contrary.
This Note, including the validity hereof, and the
Indenture shall be governed by and construed in accordance with
the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such state, except as
may otherwise by required by mandatory provisions of law.
Capitalized terms used herein which are not otherwise
defined shall have the respective meanings assigned to them in
the Indenture and all indentures supplemental thereto relating to
this Note.
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under
the Indenture, dated as of November 26, 1996, duly executed and
delivered by Simon DeBartolo Group, L.P. (the "Issuer") and the
Guarantor, to The Chase Manhattan Bank, as Trustee (as the same
may be amended or supplemented from time to time, the
"Indenture"), and referred to in the Security upon which this
notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the
"Guarantee") (a) the payment of principal of, premium, if any,
interest on (including post-petition interest in any proceeding
under any federal or state law or regulation relating to any
Bankruptcy Law whether or not an allowed claim in such
proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the
Issuer under the Indenture and the Security; when and as the same
shall become due and payable, whether at Maturity, on redemption,
by declaration of acceleration or otherwise (all of the foregoing
being hereinafter collectively called the "Guaranteed
Obligations"), in accordance with the terms of the Security and
the Indenture and (ii) has agreed to pay all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the
Security pursuant to this Guarantee and the Indenture are
expressly set forth in Article 17 of the Indenture and reference
is hereby made to such Indenture for the precise terms of this
Guarantee.
This is a continuing Guarantee and shall remain in full
force and effect until the termination thereof under Section 1706
or until the principal of and interest on the Security and all
other Guaranteed Obligations shall have been paid in full. If at
any time any payment of the principal of, or interest on, the
Security or any other payment in respect of any Guaranteed
Obligation is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Issuer
or otherwise, the Guarantor's obligations hereunder and under the
Guarantee with respect to such payment shall be reinstated as
though such payment had been due but not made at such time, and
Article 17 of the Indenture, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the
obligations of the Guarantor under the Indenture shall terminate
at such time the Guarantor merges or consolidates with the Issuer
or at such other time as the Issuer acquires all of the assets
and partnership interests of the Guarantor in accordance with the
Indenture.
Notwithstanding any other provision of the Indenture to
the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under the
Security, including, without limitation, the principal of,
premium, if any, or interest payable under the Security, or for
the payment or performance of any obligation under, or for any
claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Guarantor, whether limited or general,
including Simon DeBartolo Group, Inc. (the "Company"), or such
partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly
understood that the sole remedies under the Guarantee and the
Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such
amounts, obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory
for any purpose with respect to the Security until the
certificate of authentication on such Security shall have been
signed by or on behalf of the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
<PAGE>
Exhibit 4.2
DRAFT
10/23/97
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A
NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. __________ PRINCIPAL AMOUNT
CUSIP NO. 828783 AF 7 $150,000,000
----------- ------------
GLOBAL SECURITY
SIMON DEBARTOLO GROUP, L.P.
6 7/8% Note due October 27, 2005
Simon DeBartolo Group, L.P., a Delaware limited
partnership (the "Issuer," which term includes any successor
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co. or its registered assigns,
the principal sum of 150,000,000 Dollars on October 27, 2005 (the
"Maturity Date"), and to pay interest thereon from October
27, 1997, semi-annually in arrears on October 15 and April 15 of
each year (each, an "Interest Payment Date"), commencing on April
15, 1998, and on the Maturity Date, at the rate of 6 7/8% per
annum, until payment of said principal sum has been made or duly
provided for.
The interest so payable and punctually paid or duly
provided for on any Interest Payment Date and on the Maturity
Date will be paid to the Holder in whose name this Note (or one
or more predecessor Notes) is registered in the Security Register
applicable to the Note at the close of business on the "Record
Date" for such payment, which will be 15 calendar days prior to
such payment date or the Maturity Date, as the case may be,
regardless of whether such day is a Business Day (as defined
below). Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the
close of business on a subsequent record date for the payment of
such defaulted interest (which shall be not less than 10 calendar
days prior to the date of the payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer
to the Holders of the Notes not less than 10 calendar days
preceding such subsequent record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in the Indenture (as defined below). Interest on
this Note will be computed on the basis of a 360-day year of
twelve 30-day months.
The principal of each Note payable on the Maturity Date
will be paid against presentation and surrender of this Note at
the office or agency of the Issuer maintained for that purpose in
The Borough of Manhattan, The City of New York. The Issuer
hereby initially designates the Corporate Trust Office of the
Trustee in The City of New York as the office to be maintained by
it where Notes may be presented for payment, registration of
transfer or exchange, and where notices to or demands upon the
Issuer or the Guarantor in respect of the Notes or the Indenture
referred to on the reverse hereof may be served.
Interest payable on this Note on any Interest Payment
Date and on the Maturity Date, as the case may be, will be the
amount of interest accrued from and including the immediately
preceding Interest Payment Date (or from and including October
27, 1997, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the
Maturity Date, as the case may be. If any date for the payment
of principal, premium, if any, interest on, or any other amount
with respect to, this Note (each a "Payment Date") falls on a day
that is not a Business Day, the principal, premium, if any, or
interest payable with respect to such Payment Date will be made
on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, and no interest shall
accrue on the amount so payable for the period from and after
such Payment Date to such next succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday,
that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required
by law, regulation or executive order to close.
Payments of principal and interest in respect of this
Note will be made by wire transfer of immediately available funds
in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and
private debts.
Reference is made to the further provisions of this
Note set forth on the reverse hereof after the Trustee's
Certificate of Authentication. Such further provisions shall for
all purposes have the same effect as though fully set forth at
this place.
This Note shall not be entitled to the benefits of the
Indenture or be valid or obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by
the Trustee under such Indenture.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be signed manually or by facsimile by its
authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
6 7/8% Note due October 27, 2005
This security is one of a duly authorized issue of debt
securities of the Issuer (hereinafter called the "Securities"),
all issued or to be issued under and pursuant to an Indenture
dated as of November 26, 1996 (herein called the "Indenture"),
duly executed and delivered by the Issuer and the Guarantor to
The Chase Manhattan Bank, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture with respect to the series of Securities of which this
Note is a part), to which Indenture and all indentures
supplemental thereto relating to this Note (including, without
limitation, the Fifth Supplemental Indenture, dated October
27, 1997, among the Issuer, the Guarantor and the Trustee)
reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer, the Guarantor and the
Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the
Indenture or any indenture supplemental thereto. This security is
one of a series designated as the Simon DeBartolo Group, L.P. 6
7/8% Notes due October 27, 2005, limited in aggregate principal
amount to $150,000,000 (the "Notes").
In case an Event of Default with respect to the Notes
shall have occurred and be continuing, the principal amount of
the Notes and the Make-Whole Amount may be declared accelerated
and thereupon become due and payable, in the manner, with the
effect, and subject to the conditions provided in the Indenture.
The Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a
redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make- Whole Amount, if any, with
respect to such Notes. Notice of any optional redemption will be
given to Holders at their addresses, as shown in the Security
Register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the redemption price and the
principal amount of the Notes to be redeemed.
The Indenture contains provisions permitting the
Issuer, the Guarantor and the Trustee, with the consent of the
Holders of not less than a majority of the aggregate principal
amount of the Securities at the time Outstanding of all series to
be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security so affected, (i) change the Stated
Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate or amount of
interest thereon or any premium payable upon the redemption or
acceleration thereof, or adversely affect any right of repayment
at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, the principal
of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof, or
(ii) reduce the aforesaid percentage of Securities the Holders of
which are required to consent to any such supplemental indenture,
or (iii) reduce the percentage of Securities the Holders of which
are required to consent to any waiver of compliance with certain
provisions of the Indenture or any waiver of certain defaults and
consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or
in the rights of Holders of the Securities. The Indenture also
permits the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in the case of certain
defaults or Events of Defaults, all series of Securities), on
behalf of the Holders of all the Securities of such series (or
all of the Securities, as the case may be), to waive compliance
by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture
and their consequences, prior to any declaration accelerating the
maturity of such Securities, or subject to certain conditions,
rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note that may be issued in
exchange or substitution hereof, irrespective of whether or not
any notation thereof is made upon this Note or such other Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Issuer or the Guarantor, as the case may be,
which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note in the manner, at the
respective times, at the rate and in the coin or currency herein
prescribed.
Notwithstanding any other provision of the Indenture to
the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under the
Securities, including, without limitation, the principal of,
premium, if any, or interest payable under the Securities, or for
the payment or performance of any obligation under, or for any
claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general,
including SD Property Group, Inc., or such partner's assets or
against any principal, shareholder, officer, director, trustee or
employee of such partner. It is expressly understood that the
sole remedies under the Securities and the Indenture or under any
other document with respect to the Securities, against such
parties with respect to such amounts, obligations or claims shall
be against the Issuer.
This Note is issuable only in registered form without
Coupons in denominations of $1,000 and integral multiples
thereof. This Note may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations at
the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of
any service charge, except for any tax or other governmental
charge imposed in connection therewith.
Upon due presentment for registration of transfer of
this Note at the office or agency of the Issuer in The Borough of
Manhattan, The City of New York, one or more new Notes of
authorized denominations in an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge, except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Guarantor, the Trustee and any
authorized agent of the Issuer, the Guarantor or the Trustee may
deem and treat the Person in whose name this Note is registered
as the absolute owner of this Note (whether or not this Note
shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment of,
or on account of, the principal and any premium hereof or hereon,
and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the
Guarantor nor the Trustee nor any authorized agent of the Issuer,
the Guarantor or the Trustee shall be affected by any notice to
the contrary.
This Note, including the validity hereof, and the
Indenture shall be governed by and construed in accordance with
the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such state, except as
may otherwise by required by mandatory provisions of law.
Capitalized terms used herein which are not otherwise
defined shall have the respective meanings assigned to them in
the Indenture and all indentures supplemental thereto relating to
this Note.
<PAGE>
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under
the Indenture, dated as of November 26, 1996, duly executed and
delivered by Simon DeBartolo Group, L.P. (the "Issuer") and the
Guarantor, to The Chase Manhattan Bank, as Trustee (as the same
may be amended or supplemented from time to time, the
"Indenture"), and referred to in the Security upon which this
notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the
"Guarantee") (a) the payment of principal of, premium, if any,
interest on (including post-petition interest in any proceeding
under any federal or state law or regulation relating to any
Bankruptcy Law whether or not an allowed claim in such
proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the
Issuer under the Indenture and the Security; when and as the same
shall become due and payable, whether at Maturity, on redemption,
by declaration of acceleration or otherwise (all of the foregoing
being hereinafter collectively called the "Guaranteed
Obligations"), in accordance with the terms of the Security and
the Indenture and (ii) has agreed to pay all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the
Security pursuant to this Guarantee and the Indenture are
expressly set forth in Article 17 of the Indenture and reference
is hereby made to such Indenture for the precise terms of this
Guarantee.
This is a continuing Guarantee and shall remain in full
force and effect until the termination thereof under Section 1706
or until the principal of and interest on the Security and all
other Guaranteed Obligations shall have been paid in full. If at
any time any payment of the principal of, or interest on, the
Security or any other payment in respect of any Guaranteed
Obligation is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Issuer
or otherwise, the Guarantor's obligations hereunder and under the
Guarantee with respect to such payment shall be reinstated as
though such payment had been due but not made at such time, and
Article 17 of the Indenture, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the
obligations of the Guarantor under the Indenture shall terminate
at such time the Guarantor merges or consolidates with the Issuer
or at such other time as the Issuer acquires all of the assets
and partnership interests of the Guarantor in accordance with the
Indenture.
Notwithstanding any other provision of the Indenture to
the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under the
Security, including, without limitation, the principal of,
premium, if any, or interest payable under the Security, or for
the payment or performance of any obligation under, or for any
claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Guarantor, whether limited or general,
including Simon DeBartolo Group, Inc. (the "Company"), or such
partner's assets or against any principal, shareholder, officer,
director, trustee or employee of such partner. It is expressly
understood that the sole remedies under the Guarantee and the
Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such
amounts, obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory
for any purpose with respect to the Security until the
certificate of authentication on such Security shall have been
signed by or on behalf of the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.
<PAGE>
Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
<PAGE>
EXHIBIT 5
October 22, 1997
Simon DeBartolo Group, L.P.
Simon Property Group, L.P
115 West Washington Street
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, L.P., a
Delaware limited partnership (the "Issuer"), and Simon Property
Group, L.P., a Delaware limited partnership (the "Guarantor"), in
connection with the issuance and sale by the Issuer of
$150,000,000 aggregate principal amount of its 6-7/8% Notes due
October 27, 2005 (the "Notes") including the preparation and/or
review of:
(a) The joint Registration Statement on Form S-3,
Registration No. 333-33545-01, of the Issuer and the
Guarantor (the "Registration Statement"), and the
Prospectus constituting a part thereof, dated October
15, 1997, relating to the issuance from time to time of
up to $1 billion aggregate principal amount of debt
securities of the Issuer and the guarantee of the debt
securities by the Guarantor (the "Guarantee") pursuant
to Rule 415 promulgated under the Securities Act of
1933, as amended (the "1933 Act");
(b) The Prospectus Supplement, dated October 22,
1997, to the above-mentioned Prospectus relating to the
Notes and filed with the Securities and Exchange
Commission (the "Commission") pursuant to Rule 424
promulgated under the 1933 Act (the "Prospectus
Supplement");
(c) The Indenture, dated as of November 26, 1996
(the "Indenture"), among the Issuer, the Guarantor and
The Chase Manhattan Bank, as trustee (the "Trustee");
and
(d) The form of the Fifth Supplemental Indenture
with respect to the Notes to be entered into among the
Issuer, the Guarantor and the Trustee (the
"Supplemental Indenture").
For purposes of this opinion letter, we have examined
originals or copies, identified to our satisfaction, of such
documents, corporate records, instruments and other relevant
materials as we deemed advisable and have made such examination
of statutes and decisions and reviewed such questions of law as
we have considered necessary or appropriate. 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 documents of all documents submitted to us as copies and
the authenticity of the originals of such copies. As to facts
material to this opinion letter, we have relied upon
certificates, statements or representations of public officials,
of officers and representatives of the Issuer, the Guarantor and
of others, without any independent verification thereof.
On the basis of and subject to the foregoing, we are of
the opinion that:
1. The Supplemental Indenture, when duly executed and
delivered by the parties thereto, will represent a valid and
binding obligation of each of the Issuer and the Guarantor
enforceable against the Issuer and the Guarantor in accordance
with its terms, except as such enforceability may be subject to
(a) bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally, (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and (c) the enforceability of forum selection
clauses in the federal courts.
2. When issued, authenticated and delivered pursuant
to the Supplemental Indenture, each series of the Notes will
represent valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their respective terms,
except as such enforceability may be subject to (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally,
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and (c) the enforceability of forum selection clauses in the
federal courts.
3. The Guarantee, when duly executed and delivered by
the Guarantor pursuant to the Supplemental Indenture, and when
the Notes being guaranteed have been duly issued, authenticated
and delivered pursuant to the Supplemental Indenture, will
represent a valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms,
except as such enforceability may be subject to (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally,
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), (c) the enforceability of forum selection clauses in the
federal courts and (d) any provision in the Guarantee purporting
to preserve and maintain the liability of any party thereto
despite the fact that the guaranteed debt is unenforceable due to
illegality.
We express no opinion as to the enforceability of any
provisions contained in the Supplemental Indenture, the Notes or
the Guarantee that constitute waivers which are prohibited by law
prior to default.
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 Supplement. 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 1933 Act or the rules or regulations of the Commission
thereunder.
Yours very truly,
/s/ BAKER & DANIELS
