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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): FEBRUARY 8, 1999 (February 4,
1999)
SIMON PROPERTY 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)
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ITEM 5. OTHER EVENTS
Simon Property Group, L.P. (the "Operating Partnership") is
filing this Current Report on Form 8-K in connection with the offering and sale
of $300,000,000 aggregate principal amount of its 6-3/4% Notes due February 9,
2004 and $300,000,000 aggregate principal amount of its 7-1/8% Notes due
February 9, 2009 (collectively, the "Notes") pursuant to the registration
statement on Form S-3 (Registration No. 333-33545) (the "Registration
Statement"), the prospectus dated October 15, 1997, and the related prospectus
supplement dated February 4, 1999.
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.
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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: February 8, 1999
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
Managing General Partner
By: /s/ James M. Barkley
---------------------------
James M. Barkley, Secretary
and General Counsel
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Amended and Restated Underwriting Agreement, dated February 4,
1999
1.2 Terms Agreement, dated February 4, 1999, relating to the Notes
4.1 Form of Seventh Supplemental Indenture relating to the Notes
4.2 Form of 6-3/4% Notes due February 9, 2004
4.3 Form of 7-1/8% Notes due February 9, 2009
5 Opinion of Baker & Daniels, special counsel to the Registrant,
as to the legality of the Notes
12 Computation of ratio of earnings to fixed charges
23 Consent of Baker & Daniels (contained in the opinion filed as
Exhibit 5 hereto)
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Exhibit 1.1
SIMON PROPERTY GROUP, L.P.
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
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TABLE OF CONTENTS
<TABLE>
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UNDERWRITING AGREEMENT...................................................... 1
SECTION 1. Representations and Warranties............................ 4
(a) Representations and Warranties by the Operating
Partnership .............................................. 4
(1) Compliance with Registration Requirements........... 4
(2) Incorporated Documents.............................. 5
(3) Independent Accountants............................. 5
(4) Financial Statements................................ 5
(5) No Material Adverse Change in Business.............. 6
(6) Good Standing of the Company........................ 6
(7) Good Standing of the Operating Partnership.......... 6
(8) [Intentionally Omitted]............................. 7
(9) Good Standing of Simon DeBartolo Entities........... 7
(10) Good Standing of Property Partnerships.............. 7
(11) Capitalization...................................... 7
(12) [Intentionally Omitted]............................. 8
(13) Authorization of Debt Securities.................... 8
(14) [Intentionally Omitted]............................. 8
(15) Authorization of the Indenture...................... 8
(16) Descriptions of the Underwritten Securities......... 9
(17) Authorization of this Underwriting Agreement and
Terms Agreement..................................... 9
(18) Absence of Defaults and Conflicts................... 9
(19) Absence of Labor Dispute............................ 10
(20) Absence of Proceedings.............................. 10
(21) Accuracy of Exhibits................................ 10
(22) REIT Qualification.................................. 10
(23) Investment Company Act.............................. 10
(24) Intellectual Property............................... 10
(25) Absence of Further Requirements..................... 11
(26) Possession of Licenses and Permits.................. 11
(27) Title to Property................................... 11
(28) Environmental Laws.................................. 12
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i
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TABLE OF CONTENTS
(continued)
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(29) Tax Returns......................................... 12
(30) Environmental Consultants........................... 12
(31) Investment Grade Rating............................. 13
(b) Officers' Certificates.................................... 13
SECTION 2. Sale and Delivery to Underwriters; Closing................ 13
(a) Underwritten Securities................................... 13
(b) Option Underwritten Securities............................ 13
(c) Payment................................................... 13
(d) Denominations; Registration............................... 14
SECTION 3. Covenants of the Operating Partnership.................... 14
(a) Compliance with Securities Regulations and Commission
Requests.................................................. 14
(b) Filing of Amendments...................................... 15
(c) Delivery of Registration Statements....................... 15
(d) Delivery of Prospectuses.................................. 15
(e) Continued Compliance with Securities Laws................. 15
(f) Blue Sky Qualifications................................... 16
(g) Earnings Statement........................................ 16
(h) Reporting Requirements.................................... 16
(i) REIT Qualification........................................ 16
(j) Use of Proceeds........................................... 16
(k) Exchange Act Filings...................................... 16
(l) Supplemental Indentures................................... 16
(m) Ratings................................................... 16
SECTION 4. Payment of Expenses....................................... 17
(a) Expenses.................................................. 17
(b) Termination of Agreement.................................. 17
SECTION 5. Conditions of Underwriters' Obligations................... 17
(a) Effectiveness of Registration Statement................... 17
(b) Opinion of Counsel for Partnerships....................... 18
(c) Opinion of Counsel for Underwriters....................... 18
(d) Officers' Certificate..................................... 18
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ii
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TABLE OF CONTENTS
(continued)
<TABLE>
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(e) Accountant's Comfort Letter............................... 18
(f) Bring-down Comfort Letter................................. 19
(g) Ratings................................................... 19
(h) No Objection.............................................. 19
(i) Over-Allotment Option..................................... 19
(j) Additional Documents...................................... 20
(k) Termination of Terms Agreement............................ 20
SECTION 6. Indemnification........................................... 20
(a) Indemnification of Underwriters........................... 20
(b) Indemnification of the Operating Partnership, General
Partners, Directors and Officers.......................... 21
(c) Actions against Parties; Notification..................... 21
(d) Settlement without Consent if Failure to Reimburse........ 22
SECTION 7. Contribution.............................................. 22
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................. 23
SECTION 9. Termination............................................... 23
(a) Underwriting Agreement.................................... 23
(b) Terms Agreement........................................... 23
(c) Liabilities............................................... 24
SECTION 10. Default by One or More of the Underwriters................ 24
SECTION 11. Notices................................................... 25
SECTION 12. Parties................................................... 25
SECTION 13. GOVERNING LAW AND TIME.................................... 25
SECTION 14. Effect of Headings........................................ 25
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iii
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SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
AMENDED AND RESTATED
UNDERWRITING AGREEMENT
February 4, 1999
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
On October 22, 1997 Simon DeBartolo Group, L.P., a Delaware limited
partnership (the "Operating Partnership") and Simon Property Group, L.P., a
Delaware limited partnership ("SPG, L.P.") entered into that certain letter
agreement confirmed and accepted by Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") entitled "Debt Securities -- together with the
Guarantee -- UNDERWRITING AGREEMENT" (the "Original Underwriting Agreement")
providing for the sale of up to $1,000,000,000 aggregate principal amount of the
Operating Partnership's unsecured, unsubordinated debt securities (the "Debt
Securities") guaranteed by SPG, L.P. to, and the purchase and offering thereof
by, Merrill Lynch and such other underwriters, if any, selected by Merrill
Lynch, from time to time. On December 31, 1997, SPG, LP was merged into the
Operating Partnership with the Operating Partnership being the surviving entity.
On September 24, 1998 the Operating Partnership changed its name from "Simon
DeBartolo Group, L.P" to "Simon Property Group, L.P." In order to account for
the foregoing events and certain other events including changes to the partners
of the Operating Partnership, the Original Underwriting Agreement is amended and
restated as set forth herein.
The Operating Partnership proposes to issue and sell the Debt Securities
from time to time, in or pursuant to one or more offerings on terms to be
determined at the time of sale. The Debt Securities will be issued in one or
more series under an indenture, dated as of November 26, 1996, (the "Initial
Indenture"), between the Operating Partnership, SPG, L.P. and The Chase
Manhattan Bank, as trustee (the "Trustee"). Each series of Debt Securities may
vary, as applicable, as to title, aggregate principal amount, rank, interest
rate or formula and timing of payments thereof, stated maturity date, redemption
and/or repayment provisions, sinking fund requirements and any other variable
terms established by or pursuant to the Initial Indenture, as the same may be
amended or supplemented from time to time (the "Indenture"). The merger of SPG,
L.P. into the Operating Partnership terminated the guarantee of SPG, L.P. under
the Indenture. As used herein, "Securities" shall mean the Debt Securities.
Whenever the Operating Partnership determines to make an offering of
Securities through, Merrill Lynch or through an underwriting syndicate managed
by Merrill Lynch, Merrill Lynch and the Operating Partnership will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such Securities
to, and the purchase and offering thereof by, 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 Operating Partnership is not obligated,
and shall have complete and absolute discretion to determine if and when, to
make any offering, to make any
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offering through 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
Operating Partnership has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
aggregate principal amount of Securities subject to such option (the "Option
Underwritten Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any portion of any
Option Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between the Operating
Partnership and 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 Operating Partnership has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-33545-01) and pre-effective amendment no. 1 thereto for the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Operating Partnership has filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement. Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus constituting a part thereof
and the applicable prospectus supplement relating to the offering of the
Underwritten Securities, in the form first furnished to the Underwriters by the
Operating Partnership for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Operating Partnership files a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462 Registration Statement"), then, after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462 Registration Statement; provided, however, a prospectus supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Underwritten Securities which it relates, and provided, further,
that if the Operating Partnership elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall be deemed to include the
final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the form first furnished
to the Underwriters by the Operating Partnership in reliance upon Rule 434 of
the 1933 Act Regulations, and all references in this Underwriting Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used
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before the registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("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.
3
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Operating Partnership. The
Operating Partnership represents and warrants 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 Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Operating Partnership, are contemplated by the
Commission or the state securities authority of any jurisdiction, and any
request on the part of the Commission for additional information has been
complied with. No order preventing or suspending the use of the Prospectus
has been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Operating Partnership, threatened by the
Commission or the state securities authority of any jurisdiction. In
addition, the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the most recent Annual Report on Form 10-K of the
Operating Partnership with the Commission (the "Form 10-K")) became
effective and at each Representation Date, the Registration Statement, any
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at each Representation Date,
the Prospectus and any amendments and supplements thereto did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If
the Operating Partnership elects to rely upon Rule 434 of the 1933 Act
Regulations, the Operating Partnership will comply with the requirements
of Rule 434. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Operating Partnership in writing by or on behalf of any Underwriter
through 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.
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If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Operating Partnership
has complied or will comply with the requirements of Rule 111 under the
1933 Act Regulations relating to the payment of filing fees therefor.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, and at each Representation Date, or during the period in which
a prospectus is required to be delivered in connection with sales of
Securities, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Operating Partnership in writing by or on behalf of any Underwriter
through 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.
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(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of the
Operating Partnership, M.S. Management Associates, Inc., a Delaware
corporation ("SPG Management Company"), M.S. Management Associates
(Indiana), Inc., an Indiana corporation ("Management (Indiana)"), Simon
MOA, Inc., an Indiana corporation ("MOA"), 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 Operating
Partnership, 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 Operating
Partnership (anything which would be material to the Operating Partnership
being hereinafter referred to as "Material;" and such a material adverse
change, a "Material Adverse Effect"), (B) no casualty loss or condemnation
or other adverse event with respect to the Portfolio Properties has
occurred which would be Material, (C) there have been no transactions or
acquisitions entered into by the 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 the Operating Partnership on any of its
respective general, limited and/or preferred partnership interests and (E)
there has been no change in the capital stock of the corporate Simon
DeBartolo Entities or in the partnership interests of the Operating
Partnership 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 Property Group, Inc., a
Delaware corporation (the "Company"), has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware, with
the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the applicable Terms Agreement. The
Operating Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. SD Property Group, Inc., an Ohio corporation ("SD Property") is a
non-managing general partner of the Operating Partnership, SPG Properties,
Inc., a Maryland corporation ("SPG Properties"), is a
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<PAGE> 11
non-managing general partner and the Company is the sole managing general
partner of the Operating Partnership. The amended and restated agreement
of limited partnership of the Operating Partnership (the "OP Partnership
Agreement") is in full force and effect in the form in which it was filed
as an exhibit to the Operating Partnership's Current Report on Form 8-K
filed November 2, 1998 except for subsequent amendments relating to the
admission of new partners to the Operating Partnership and the issuance of
preferred units to the Company.
(8) [Intentionally Omitted]
(9) Good Standing of Simon DeBartolo Entities. Each of the Simon
DeBartolo Entities other than the Operating Partnership has been duly
organized and is validly existing as a corporation, limited partnership,
limited liability company or other entity, as the case may be, in good
standing under the laws of the state of its jurisdiction of incorporation
or organization, as the case may be, with the requisite power and
authority to own, lease and operate its properties, and to conduct the
business in which it is engaged or proposes to engage as described in the
Prospectus. Each such entity is duly qualified or registered as a foreign
corporation, limited partnership or limited liability company or other
entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect. Except as otherwise stated in
the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each such entity
has been duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state securities
laws) and are owned by the Company, the Management Companies or the
Operating Partnership, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any capital
stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of such
entities, except as disclosed in the Prospectus. No such shares of capital
stock or other equity interests of such entities were issued in violation
of preemptive or other similar rights arising by operation of law, under
the charter or bylaws of such entity or under any agreement to which any
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
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<PAGE> 12
plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
(12) [Intentionally Omitted]
(13) Authorization of Debt Securities. The Debt Securities being
sold pursuant to the applicable Terms Agreement have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Operating Partnership for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities, when
issued and authenticated in the manner provided for in the applicable
Indenture and delivered by the Operating Partnership pursuant to the
Underwriting Agreement and the applicable Terms Agreement against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding, unsecured obligations of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
applicable Indenture. Such Underwritten Securities rank and will rank
equally with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or
that may be incurred thereafter, except that such Underwritten Securities
will be effectively subordinate to the prior claims of each secured
mortgage lender to any specific Portfolio Property which secures such
lender's mortgage and any claims of creditors of entities wholly or partly
owned, directly or indirectly, by the Operating Partnership.
(14) [Intentionally Omitted]
(15) Authorization of the Indenture. For the Underwritten Securities
being sold pursuant to the applicable Terms Agreement, the Indenture has
been, or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by the Operating Partnership
and, upon such authorization, execution and delivery, will constitute a
valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership, as applicable, in
accordance with its terms, except as the enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), (iii) requirements that a
claim with respect to any Securities issued under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law, or (iv) governmental authority to limit, delay or prohibit
the making of payments outside the United States. The Indenture has been
duly qualified under the 1939 Act and conforms, in all material respects,
to the descriptions thereof contained in the Prospectus.
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(16) Descriptions of the Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and the
Indenture, as of the date of the Prospectus, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement and will comply with all applicable legal
requirements.
(17) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Operating Partnership and assuming due authorization,
execution and delivery by Merrill Lynch, is enforceable against the
Operating Partnership 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 the Operating Partnership in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Securities and the use of the
proceeds from the sale of the Underwritten Securities as described under
the caption "Use of Proceeds") and compliance by the Operating Partnership
with its obligations hereunder and thereunder have been duly authorized by
all necessary partnership action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Operating
Partnership or any other 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
Operating Partnership 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.
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<PAGE> 14
(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 Operating
Partnership, is imminent, and the Operating Partnership is not aware of
any existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which dispute or disturbance, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership threatened against or affecting the Operating
Partnership, any other 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, 1971 the
Company (as Corporate Property Investors, a Massachusetts business trust)
has been, at all times since January 1, 1994 SD Property (as DeBartolo
Realty Corporation) has been, and at all times since January 1, 1994 SPG
Properties (as Simon Property Group, Inc.) has been and upon the sale of
the applicable Underwritten Securities, the Company, SD Property and SPG
Properties will continue to be, organized and operated in conformity with
the requirements for qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code"), and their
respective proposed methods of operation will enable each of them to
continue to meet the requirements for taxation as a real estate investment
trust under the Code.
(23) Investment Company Act. Each of the Operating Partnership, the
other 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 Operating
Partnership, 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
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<PAGE> 15
lawfully owned, possessed or licensed in order to conduct the business now
operated by such entity.
(25) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the performance
by the Operating Partnership of its obligations under this Underwriting
Agreement, the applicable Terms Agreement or the Indenture or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or the Indenture, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD").
(26) Possession of Licenses and Permits. The Operating Partnership
and the other 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
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<PAGE> 16
mortgages or other security documents or other agreements encumbering or
otherwise recorded against, the Portfolio Properties, and the Operating
Partnership knows of no event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such
documents or agreements, in each case, other than such defaults that would
not have a Material Adverse Effect. No tenant under any of the leases,
pursuant to which the Operating Partnership or any Property Partnership,
as lessor, leases its Portfolio Property, has an option or right of first
refusal to purchase the premises demised under such lease, the exercise of
which would have a Material Adverse Effect. Each of the Portfolio
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Portfolio Properties),
except for such failures to comply that would not in the aggregate have a
Material Adverse Effect. The Operating Partnership has no knowledge of any
pending or threatened condemnation proceeding, zoning change, or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on or access to, the Portfolio Properties,
except such proceedings or actions that would not have a Material Adverse
Effect.
(28) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Operating Partnership, any of the other 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
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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 the Company and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions set forth therein, the Operating Partnership may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal amount of
the Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any interest or redemption payments payable by the Operating
Partnership on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days after the
date of such Terms Agreement, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by Merrill Lynch to the Operating Partnership setting
forth the aggregate principal amount of Option Underwritten Securities as to
which the several Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall be
determined by 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 Operating
Partnership. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities, subject to such
adjustments as 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
LLP, or at such other place as shall be agreed upon by Merrill Lynch and the
Operating Partnership, at 10:00 A.M. (Eastern time) on the third (fourth, if
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<PAGE> 18
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
Operating Partnership (such time and date of payment and delivery being herein
called "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Rogers & Wells LLP, 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 Operating Partnership.
Payment shall be made to the Operating Partnership by wire transfer of
same day funds payable to the order of the Operating Partnership, against
delivery to 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 Operating Partnership.
The Operating Partnership 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
Operating Partnership, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations, if and as applicable, and will notify Merrill Lynch
immediately, and confirm the notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments from
the Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Operating Partnership will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Operating Partnership will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Filing of Amendments. The Operating Partnership will give 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 Operating Partnership has
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 Operating Partnership will deliver to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Operating Partnership hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Operating Partnership will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Operating Partnership
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Underwritten Securities as contemplated in this Underwriting Agreement and
the applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriter or for the Operating Partnership,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Operating Partnership will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Operating Partnership will furnish to the Underwriters and counsel for the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
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(f) Blue Sky Qualifications. The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as 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 the Operating Partnership shall not be
obligated to file any general consent to service of process or to qualify or
register as a foreign partnership or as a dealer in securities in any
jurisdiction in which it is not so qualified or registered, or provide any
undertaking or make any change in its charter or bylaws that the Board of
Directors of the Company, reasonably determines to be contrary to the best
interests of the Operating Partnership, and its unitholders or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Underwritten Securities
or any related Underlying Securities have been so qualified or registered, the
Operating Partnership will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings statement
(in form complying with Rule 158 of the 1933 Act Regulations) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reporting Requirements. The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(i) REIT Qualification. The Company, SD Property and SPG Properties will
use their best efforts to continue to meet the requirement to qualify as a "real
estate investment trust" under the Code for the taxable year in which in which
sales of the Underwritten Securities are to occur.
(j) Use of Proceeds. The Operating Partnership will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(k) Exchange Act Filings. During the period from each Closing Time until
one year after such Closing Time, the Operating Partnership will deliver to
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 Operating
Partnership will execute a supplemental indenture designating the series of debt
securities to be offered and its related terms and provisions in accordance with
the provisions of the Indenture.
(m) Ratings. The Operating Partnership will take all reasonable action
necessary to enable Standard & Poor's Ratings Services ("S&P"), Moody's
Investors Service, Inc. ("Moody's") or any other nationally recognized
statistical rating organization to provide their respective credit ratings of
any Underwritten Securities, if applicable.
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SECTION 4. Payment of Expenses.
(a) Expenses. The Operating Partnership will pay all expenses incident to
the performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any agreement among Underwriters, any Indenture and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities, (iii) the preparation, issuance and
delivery of the Underwritten Securities, or any certificates for the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Operating Partnership's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the reasonable fees and
disbursements of any Trustee, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities and real
estate syndication laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, the Registration Statement (including financial statements and exhibits)
as originally filed and of each amendment thereto and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, if applicable, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the
Underwritten Securities, and (ix) any transfer taxes imposed on the sale of the
Underwritten Securities to the several Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by 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 Operating
Partnership contained in Section 1 hereof or in certificates of any officer or
authorized representative of the Operating Partnership or any other Simon
DeBartolo Entity delivered pursuant to the provisions hereof, to the performance
by the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission or the state securities authority of
any jurisdiction, and any request on the part of the Commission or the state
securities authority of any jurisdiction for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the description of
the Underwritten Securities and any related Underlying Securities, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Operating
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<PAGE> 22
Partnership has elected to rely upon Rule 434 of the 1933 Act Regulations, a
Term Sheet including the Rule 434 Information shall have been filed with the
Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Partnerships. At Closing Time, Merrill Lynch
shall have received the favorable opinions, dated as of Closing Time, of Baker &
Daniels, counsel for the Operating Partnership, and James M. Barkley, the
General Counsel of the Operating Partnership or such other counsel as is
designated by the Operating Partnership in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, such opinion shall address such of
the items set forth in Exhibits B-1 and B-2 hereto as may be relevant to the
particular offering contemplated or to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, Merrill Lynch
shall have received the favorable opinion, dated as of Closing Time, of Rogers &
Wells LLP, 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 (2) (with respect to the first clause only) and (5) of Exhibit B-1 hereto,
and (1), (2) (with respect to the first clause only), (6), (7) and the last
three paragraphs of Exhibit B-2 hereto. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to 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
Operating Partnership 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 Operating Partnership 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 the
Chief Executive Officer, President or a Vice President and of the chief
financial officer or chief accounting officer of the Company, as the sole
managing general partner of the Operating Partnership dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Operating Partnership has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission or by the state
securities authority of any jurisdiction and (v) the Registration Statement and
the Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1993 Act and the 1993
Act Regulations; the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, 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
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<PAGE> 23
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 Operating Partnership 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 the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Underwritten
Securities or any of the Operating Partnership's other securities.
(h) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Operating Partnership in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Operating Partnership contained herein and the statements in
any certificates furnished by the Operating Partnership hereunder shall be true
and correct as of each Date of Delivery, and, at the relevant Date of Delivery,
Merrill Lynch shall have received:
(1) A certificate dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the chief financial
officer or chief accounting officer of the Company, as the sole managing
general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinions of Baker & Daniels counsel for the
Operating Partnership, and James M. Barkley, General Counsel to the
Operating Partnership, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(3) The favorable opinion of Rogers & Wells LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from 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
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<PAGE> 24
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 Operating Partnership 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 Operating Partnership agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any
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governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through 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 Operating Partnership, General Partners,
Directors and Officers. Each Underwriter severally agrees to indemnify and hold
harmless the Operating Partnership, each general partner of the Operating
Partnership (the "General Partners"), each of the General Partners' directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Operating Partnership or the General Partners within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part thereof,
if applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Operating Partnership by such Underwriter through
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.
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(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(2) effected without
its written consent if (i) such settlement is entered into in good faith by the
indemnified party more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Operating Partnership, on the one hand, and
the Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Operating Partnership, on the one
hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership, on the one
hand, and the Underwriter, on the other hand, in connection with the offering of
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Operating Partnership and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Operating Partnership or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriter were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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<PAGE> 27
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
Operating Partnership or the General Partners within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Operating Partnership. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Operating Partnership or the General Partners or authorized
representatives of each of the Operating Partnership or the General Partners
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless or any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Operating
Partnership or the General Partners, and shall survive delivery of and payment
for the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Operating Partnership or by 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 Operating Partnership, at any time at or prior to
the Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of such Terms Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and the other 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
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Exchange or the American Stock Exchange or in the over-the-counter market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, (iv) a banking moratorium has been declared by either
Federal, New York or Delaware authorities or (v) if the rating assigned by any
nationally recognized statistical rating organization to any Debt Securities of
the Operating Partnership as of the date of the applicable Terms Agreement shall
have been downgraded since such date or if any such rating organization shall
have publicly announced that it has placed any series of Debt Securities of the
Operating Partnership under surveillance or review, with possible negative
implications, as to the rating of such Debt Securities or any of the Operating
Partnership's other securities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7, 8, 10 and 13 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then 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 Operating Partnership with respect to the related Option
Underwritten Securities, as the case may be, either Merrill Lynch or the
Operating Partnership shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not
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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 Operating Partnership, the
General Partners and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, the General Partners and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
25
<PAGE> 30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Merrill Lynch and the Operating Partnership
in accordance with its terms.
Very truly yours,
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
Managing General Partner
By: /s/ Stephen E. Sterrett
------------------------
Name: Stephen E. Sterrett
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Alexander Rubin
----------------------------
Name: Alexander Rubin
Title: Authorized Signatory
26
<PAGE> 31
Exhibit A
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
__________ __, 199__
To: Simon Property Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon Property Group, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell
$__________ aggregate principal amount of debt securities (hereinafter the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
principal amounts of Underwritten Securities set forth below opposite their
names at the purchase price set forth below, to the extent any are purchased.
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Initial Underwritten Securities
- ----------- -------------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $
-----------------------
Total $
</TABLE>
1
<PAGE> 32
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price
Offering:
If Fixed Price Offering,
initial public offering price % of the principal amount, plus
per share: accrued interest [amortized original issue
discount], if any,
from
Purchase price per share: % of principal amount, plus accrued
interest [amortized original issue discount],
if any, from (payable
in next day funds).
Form:
Lock-Up Provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "SIMON PROPERTY GROUP, L.P. -- Debt Securities -- AMENDED AND RESTATED
UNDERWRITING AGREEMENT" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York City time)
on by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________________
Name:
Title: Authorized Signatory
-2
<PAGE> 33
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.
Managing General Partner
By:_________________________________
Name:
Title:
3
<PAGE> 34
Exhibit B-1
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is duly qualified or registered as a foreign corporation
to transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or register or be in good standing would not result in a Material
Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement, the applicable Terms Agreement and
the Indenture and is duly qualified or registered as a foreign limited
partnership to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect. The OP Partnership Agreement has been duly and validly
authorized, executed and delivered by the parties thereto and is a valid and
binding agreement, enforceable against the parties thereto in accordance with
its terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and except as rights to indemnity thereunder may be
limited by applicable law.
(3) Each Simon DeBartolo Entity other than the Operating Partnership has
been duly incorporated or organized and is validly existing as a corporation,
limited partnership or other legal entity, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or organization, as the
case may be, and has the requisite power and authority to own, lease and operate
its properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and is duly qualified or registered as a
foreign corporation, limited partnership or other legal entity, as the case may
be, to transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or register or to be in good standing would not result in
a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital stock or
other equity interests of each Simon DeBartolo Entity other than the Operating
Partnership has been duly authorized and is validly issued, fully paid and
non-assessable and has been offered and sold in compliance with all applicable
laws of the United States and the organizational laws of the jurisdictions of
organization of such entity, and is owned by the Company, the Management
Companies or the Operating Partnership, directly or through subsidiaries, in
each case, free and clear of any Liens. There are no outstanding securities
convertible into or exchangeable for any capital stock or other equity interests
of such entities and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such capital stock or any
other securities of such entities. None of the outstanding shares of capital
stock or other equity interests of such entity was issued in violation of
preemptive or other similar rights of any securityholder of such entity.
B 1-1
<PAGE> 35
(4) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the Prospectus. Each Property Partnership is duly qualified or registered as
a foreign partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect. The general or
limited partnership agreement of each of the Property Partnerships has been duly
and validly authorized, executed and delivered by the parties thereto and is a
valid and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except as rights to indemnity thereunder
may be limited by applicable law.
(5) The Indenture has been duly qualified under the 1939 Act and has been
duly authorized, executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. Dollars (or a
foreign currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(6) The Debt Securities being sold pursuant to the applicable Terms
Agreement and the Indenture each conform, in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form contemplated by the Indenture.
(7) Neither the Operating Partnership nor any of the other 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 Form 10-K, except in each case for violations or
defaults which in the aggregate are not reasonably expected to result in a
Material Adverse Effect.
(8) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and the consummation of the
transactions contemplated thereby did not and do not, conflict with or
constitute a breach or violation of, or default or Repayment Event under, or
result in the creation or imposition of any Lien upon any Portfolio Property,
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, to which the
Operating Partnership or any Property Partnership is a party or by which it of
any of them may be bound, or to which any of the assets, properties or
operations of the Operating Partnership or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the charter,
by-laws, partnership agreement or other organizational document of the Operating
Partnership, any other Simon DeBartolo Entity or any Property Partnership or any
applicable
B 1-2
<PAGE> 36
laws, statutes, rules or regulations of the United States or any jurisdiction of
incorporation or formation of any of the Operating Partnership or any Property
Partnership or any judgment, order, writ or decree binding upon the Operating
Partnership, any other 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.
(9) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is required in connection with the offering, issuance or sale of the
Underwritten Securities to the Underwriters under the Underwriting Agreement,
the applicable Terms Agreement and the Indenture, except as may be required
under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, or the by-laws and rules of the NASD (as to which such counsel
expresses no opinion) or state securities laws (as to which such counsel
expresses no opinion), or such as have been obtained.
(10) There is no action, suit, proceeding, inquiry or investigation before
or by any court or governmental agency or body, domestic or foreign, now pending
or threatened, against or affecting the Operating Partnership or any other 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.
(11) 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.
(12) To the best of such counsel's knowledge and information, there are no
statutes or regulations that are required to be described in the Prospectus that
are not described as required.
If the Prospectus Supplement to which the applicable Terms Agreement
relates is the first Prospectus Supplement (the "First Prospectus Supplement")
distributed under this Agreement, the opinions set forth in this Exhibit B-2
above with respect to the Property Partnerships shall only be required for those
Property Partnerships that have acquired or developed Properties since July 22,
1997. For each Prospectus Supplement, distributed after the First Prospectus
Supplement, such Property Partnership opinions shall only be required for those
Property Partnerships that have acquired or developed Properties since the date
of the Prospectus Supplement last preceding the Prospectus Supplement as to
which the Opinions are being delivered.
B 1-3
<PAGE> 37
Exhibit B-2
FORM OF OPINION OF THE OPERATING PARTNERSHIP'S
COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) At the time the Registration Statement became effective, and at each
of the Representation Dates, the Registration Statement and the Prospectus,
excluding (a) the documents incorporated by reference therein, (b) the financial
statements and supporting schedules included and other financial data that are
therein and (c) the Form T-1, and each amendment or supplement to the
Registration Statement and Prospectus complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations. In
passing upon the compliance as to form of such documents, such counsel may
assume that the statements made or incorporated by reference therein are
complete and correct.
(2) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and supporting
schedules therein and other financial data, as to which no opinion need be
rendered), when they were filed with the Commission, complied as to form in all
material respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder. In
passing upon compliance as to the form of such documents, such counsel may have
assumed that the statements made or incorporated by reference therein are
complete and correct.
(3) The information in the Prospectus Supplement under "the Operating
Partnership," "Recent Developments" and "Description of the Notes" and in the
Prospectus under "The Operating Partnership," and "Description of Debt
Securities" and any description of the Underwritten Securities included therein,
and such other information in the Prospectus Supplement or in any Annual Report
on Form 10-K of the Operating Partnership agreed upon from time to time by the
Operating Partnership and Merrill Lynch, to the extent that it purports to
summarize matters of law, descriptions of statutes, rules or regulations,
summaries of legal matters, the Operating Partnership's organizational documents
or legal proceedings, or legal conclusions, has been reviewed by such counsel,
is correct and presents fairly the information required to be disclosed therein
in all material respects. confirmed.
(4) The Operating Partnership satisfies all conditions and requirements
for filing the Registration Statement on Form S-3 under the 1933 Act and 1933
Act Regulations.
(5) None of the Operating Partnership, the 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 on behalf of the Operating Partnership by
the Company as the managing general partner of the Operating Partnership for
issuance and sale to the Underwriters pursuant to the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and, when issued and
authenticated in the manner provided for in the Indenture and delivered by the
Operating Partnership pursuant to the Underwriting Agreement and the applicable
Terms Agreement against payment of the consideration set forth in the
applicable Terms Agreement, (i) the Debt Securities will constitute valid and
legally binding obligations of the Operating Partnership enforceable
B 2-1
<PAGE> 38
against the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Debt Securities denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States and (C) the
enforceability of forum selection clauses in the federal courts, and (ii) each
holder of the Debt Securities will be entitled to the benefits of the Indenture.
The Debt Securities are in the form contemplated by the Indenture.
(7) This Agreement, the applicable Terms Agreement, the Indenture and the
applicable Indenture Supplement were duly and validly authorized, executed and
delivered by, or on behalf of, the Operating Partnership.
(8) The Company has been organized in conformity with the requirements for
qualification and taxation as a "real estate investment trust" under the Code.
(9) The Company has been duly organized and is validly existing as a
corporation in good standing under the State of Delaware and has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(10) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus.
At the Underwriters' request, 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 Operating Partnership and the independent public
accountants for the Operating Partnership and the Company at which the contents
of the Registration Statement and the Prospectus and related matters were
discussed. On the basis of such participation and review, but without
independent verification by such counsel of, and without assuming any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto, no facts have come to the attention of such counsel that
would lead them to believe that the Registration Statement (except for financial
statements and schedules and other financial data included therein and for the
Form T-1, as to which such counsel need make no statement), at the time the
Registration Statement or any post-effective amendment thereto became effective
or at the date of the applicable Terms Agreement, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and the schedules and other financial data included therein and for
the Form T-1, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, contained or contains an untrue statement of
a material fact or omitted or omits to state a
B 2-2
<PAGE> 39
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinion of Piper &
Marbury, special Maryland counsel to the General Partners (which opinion shall
be dated and furnished to 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 Operating Partnership and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B 2-3
<PAGE> 40
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements of
the Operating Partnership for the [three month periods ended __________,
19__, and __________, 19__, the three and six month periods ended
__________, 19__, and __________, 19__, and the three and nine month
periods ended __________, 19__, and __________, 19__, included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")](1) [, a reading of the unaudited
interim [consolidated] financial statements of the Operating Partnership
for the _____-month periods ended __________, 19__, and __________, 19__,
included in the Registration Statement and the Prospectus (the
"_____-month financials")](2) [, a reading of the latest available
unaudited interim [consolidated] financial statements of the Operating
Partnership],(3) a reading of the minutes of all meetings of the
stockholders and directors of the Operating Partnership [and its
subsidiaries] and the Committees of the Operating Partnership's Board of
Directors [and any subsidiary committees] since [day after end of last
audited period], inquiries of certain officials of the Operating
Partnership [and its subsidiaries] responsible for financial and
accounting matters, a review of interim financial information in
accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
Interim Financial Information ("SAS 71"),(4) with respect to the
[description of relevant periods](5) and
- --------------
1 Include the appropriate dates of the 10-Q Financials.
2 Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
3 Include if the most recent unaudited financial statements are not included
in the Registration Statement and the Prospectus.
4 Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative assurance on
interim financial information. A review in accordance with SAS No. 71 will
only be performed at the request of the Underwriters. Many companies have
a SAS No. 71 review performed in connection with the preparation of their
10-Q financial statements. See Codification of Statements on Auditing
Standards, AU Section 722 for a description of the procedures that
constitute such a review. The comfort letter itself should recite that the
review was performed and a copy of the report, if any, should be attached
to the comfort
(contined...)
I-1
<PAGE> 41
such other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting
principles;](6)
[( ) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting
principles;](7)
( ) at [____________, 19__ and at](8) a specified date not
more than five days(9) prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Operating
Partnership [and its subsidiaries] or any decrease in the
- -----------------
(continued...)
letter. Any report issued pursuant to SAS No. 71 that is mentioned in the
Registration Statement should also be included in the Registration
Statement as an exhibit. If a review in accordance with SAS No. 71 has not
and will not be performed by the accountants, they should be prepared to
perform certain agreed-upon procedures on the interim financial
information and to report their findings thereon in the comfort letter.
See Codification of Statements on Auditing Standards, AU Section 622 for a
discussion of reports related to the accountant's performance of
agreed-upon procedures. Any question as to whether a review in accordance
with SAS No. 71 will be performed by the accountants should be resolved
early.
5 The relevant periods include all interim unaudited condensed consolidation
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus.
6 Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
7 Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
8 Include, and insert the date of most recent balance sheet of the Company,
if those statements are more recent than the unaudited financial
statements included in the Registration Statement and the Prospectus.
9 According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
I-2
<PAGE> 42
_________ of the Operating Partnership [and its subsidiaries] or any
increase in the ___________ of the Operating Partnership [and its
subsidiaries,](10) in each case as compared with amounts shown in
the latest balance sheet included in the Registration Statement and
the Prospectus, except in each case for changes, decreases or
increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
( ) [for the period from ___________, 19__ to ___________,
19__ and](11) for the period from _________, 19__ to a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there was any decrease in __________, ___________
or ___________,(12) in each case as compared with the comparable
period in the preceding year, except in each case for any decreases
that the Registration Statement and the Prospectus discloses have
occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the [Selected Financial Data] included in the Registration
Statement and the Prospectus [and a reading of the financial statements
from which such data were derived,](13) nothing came to our attention that
caused us to believe that the [Selected Financial Data] included in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
[Selected Financial Data] are not in agreement with the corresponding
amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles];(14)
- -----------------
10 The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain balance sheet items, including long-term debt, stockholders'
equity, capital stock and net current assets.
11 Include, and insert dates to describe the period from the date of the most
recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements
of the Company, if those dates are different. Regardless of whether this
language is inserted or not, the period including five days prior to the
date of the applicable Terms Agreement should run from the date of the
last financial statement included in the Registration Statement and the
Prospectus, not from the later one that is not included in the
Registration Statement and the Prospectus.
12 The blanks should be filled in with significant income statements items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
13 Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement and
the Prospectus.
14 In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and
(continued...)
I-3
<PAGE> 43
(iv) we have compared the information in the Registration Statement
and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of limited
procedures specified herein. Nothing came to our attention that caused us
to believe that this information does not comply as to form in all
material respects with the disclosure requirements of Items 302, 402 and
503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Operating Partnership
for [the most recent period] that have not been included in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 71, nothing came to our attention that
caused us to believe that the unaudited amounts for __________________ for
the [most recent period] do not agree with the amounts set forth in the
unaudited consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited [consolidated]
financial statements;](15)
[(vi)] we are unable to and do not express any opinion on the [Pro
Forma Combining Statement of Operations] (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Operating
Partnership who have responsibility for financial and accounting
matters about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statement complies as to form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statement; and
- -------------------
(continued...)
include in their report in the Registration Statement and the Prospectus
the paragraph contemplated by SAS No. 42.9. This situation may arise only
if the Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the Registration
Statement and the Prospectus includes the additional language prescribed
by SAS No. 42.9, the bracketed language may be eliminated.
15 This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of
the latest financial statements in the Registration Statement and the
Prospectus, but the unaudited interim financial statements from which the
earnings or other data is derived is not included in the Registration
Statement and the Prospectus. The blank should be filled in with a
description of the financial statement item(s) included.
I-4
<PAGE> 44
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe that
the Pro Forma Statement included in the Registration Statement does not comply
as to form in all material respects with the applicable requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements;(16)
and
[(vii)] in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement and the Prospectus,
which are specified herein, and have compared certain of such items with,
and have found such items to be in agreement with, the accounting and
financial records of the Operating Partnership;(17) and
- ------------------------
16 If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro
forma financial statements. See Example O of SAS No. 72.
17 This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus for
which comfort may be given, including (but not limited to) amounts
appearing in the Registration Statement and the Prospectus narrative and
other summary financial data appearing in tabular form (e.g., the
capitalization table).
I-5
<PAGE> 45
[(viii) in addition, we [comfort on a financial forecast that is
included in the Registration Statement and the Prospectus.18]
- ---------------------
18 Accountants' services with respect to a financial forecast may be in one
of three forms: an examination of the forecast, a compilation of the
forecast or the application of agreed-upon procedures to the forecast. If
the accountant is to perform an examination of the forecast included in
the Registration Statement and the Prospectus, delivery of the related
report should be treated separately in Section 5(f) as follows (remember
to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report,
dated such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus are presented in conformity with
guidelines for presentation of a forecast established by the AICPA, and
that the underlying assumptions provide a reasonable basis for
management's forecast.
If the accountant is to perform a compilation of the forecasted financial
statements included in the Registration Statement and the Prospectus,
delivery of the related report should be treated separately in Section
5(e) as follows:
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report,
dated such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus in accordance with the
guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus, SAS
No. 72 requires that the accountant first prepare a compilation report
with respect to the forecast and attach that report to the comfort letter.
The accountant may then report on specific procedures performed and
findings obtained.
I-6
<PAGE> 1
Exhibit 1.2
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
February 4, 1999
To: 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 Property Group, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell
$300,000,000 aggregate principal amount of its 6.750% Notes due February 9, 2004
and $300,000,000 aggregate principal amount of its 7.125% Notes due February 9,
2009 (together, the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters named
below (the "Underwriters") offer to purchase, severally and not jointly, the
respective principal amounts of Underwritten Securities set forth below opposite
their names at the purchase price set forth below.
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Underwriter 6.750% Notes due 2004 7.125% Notes due 2009
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .................................. $153,000,000 153,000,000
Chase Securities Inc. .............................. 21,000,000 21,000,000
Lehman Brothers Inc. ............................... 21,000,000 21,000,000
J.P. Morgan Securities Inc. ........................ 21,000,000 21,000,000
Morgan Stanley & Co. Incorporated .................. 21,000,000 21,000,000
NationsBanc Montgomery Securities LLC .............. 21,000,000 21,000,000
Salomon Smith Barney Inc. .......................... 21,000,000 21,000,000
Warburg Dillon Road LLC ............................ 21,000,000 21,000,000
------------ ------------
Total ......................................... $300,000,000 $300,000,000
</TABLE>
<PAGE> 2
The Underwritten Securities shall have the following terms:
Title:
6.750% Notes Due February 9, 2004 (the "2004 Notes")
7.125% Notes Due February 9, 2009 (the "2009 Notes")
Rank:
The Underwritten Securities will rank pari passu 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 partially owned, directly or indirectly, by the
Operating Partnership.
Ratings:
Baa1 by Moody's Investor Service
BBB+ by Standard & Poor's
Aggregate principal amount:
$300,000,000 of 2004 Notes
$300,000,000 of 2009 Notes
Currency of payment:
U.S. Dollars
Interest rate or formula:
2004 Notes: 6.750% payable semi-annually in arrears
2009 Notes: 7.125% payable semi-annually in arrears
Interest payment dates:
Each February 9 and August 9, commencing August 9, 1999
Regular Record Dates:
Each February 1 and August 1
Stated maturity date:
2004 Notes: February 9, 2004
2009 Notes: February 9, 2009
Redemption provisions:
The Underwritten Securities are redeemable at any 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:
None
Initial public offering price:
2004 Notes: 99.72800% of the principal amount
2009 Notes: 99.52100% of the principal amount
Purchase price:
2004 Notes: 99.12800% of the principal amount (payable in same day funds)
2009 Notes: 98.87100% of the principal amount (payable in same day funds)
Lock-Up Provisions:
None
Other terms and conditions:
The Underwritten Securities shall be in the form of Exhibits A and B to the
Seventh Supplemental Indenture, dated as of the closing date, between the
Operating Partnership and The Chase Manhattan Bank.
Closing date and location:
February 9, 1999 at the offices of Rogers & Wells LLP, 200 Park Avenue, New
York, New York 10166.
All of the provisions contained in the document attached as Annex I hereto
entitles "SIMON PROPERTY GROUP, L.P. Debt Securities -- AMENDED AND RESTATED
UNDERWRITING AGREEMENT" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined or as defined in the
Prospectus, dated October 15, 1997 of the Operating Partnership or the
Prospectus Supplement thereto dated the date first written above.
2
<PAGE> 3
Please accept this offer no later than 4:30 P.M. (New York City time) on
February 4, 1999 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/ Alexander Rubin
---------------------------
Name: Alexander Rubin
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.
Managing General Partner
By: /s/ Stephen E. Sterrett
-------------------------
Name: Stephen E. Sterrett
Title: Treasurer
3
<PAGE> 1
EXHIBIT 4.1
SIMON PROPERTY GROUP, L.P.
ISSUER
TO
THE CHASE MANHATTAN BANK
TRUSTEE
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY __, 1999
$300,000,000 6.750% NOTES DUE 2004
$300,000,000 7.125% NOTES DUE 2009
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
BETWEEN
SIMON PROPERTY GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
<PAGE> 2
SEVENTH SUPPLEMENTAL INDENTURE, dated as of February __, 1999 (the
"Seventh Supplemental Indenture"), between SIMON PROPERTY 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, 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 and Simon Property Group, L.P., a Delaware limited
partnership acting as a guarantor (the "Guarantor"), executed and delivered an
Indenture (the "Original Indenture"), dated as of November 26, 1996, to the
Trustee providing for the issuance from time to time of debt securities
evidencing unsecured and unsubordinated indebtedness of the Issuer; and
WHEREAS, on December 31, 1997 the Guarantor was merged into the Issuer
as contemplated under the Indenture; and
WHEREAS, the Issuer changed its name from "Simon DeBartolo Group, L.P." to
"Simon Property Group, L.P." effective as of September 24, 1998; and
WHEREAS, the Original Indenture provides that by means of a supplemental
indenture, the Issuer may create one or more series of its debt securities and
establish the form and terms and conditions thereof; and
WHEREAS, the Issuer intends by this Seventh Supplemental Indenture to
create and provide for the following series of debt securities (the "Notes"):
(i) Simon Property Group, L.P. 6.750% Notes due 2004 (the "2004
Notes") in an aggregate principal amount of $300,000,000;
(ii) Simon Property Group, L.P. 7.125% Notes due 2009 (the "2009
Notes") in an aggregate principal amount of $300,000,000; and
WHEREAS, the Board of Directors of Simon Property Group, Inc., the
managing general partner of the Issuer, has approved the creation of the Notes
and the forms, terms and conditions thereof pursuant to Section 301 of the
Original Indenture; and
WHEREAS, all actions required to be taken under the Original Indenture
with respect to this Seventh 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 Seventh
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 Seventh Supplemental Indenture, are defined in that Article.
<PAGE> 3
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:
"BUSINESS DAY" means any day, other than a Saturday or Sunday, on which
banking institutions in New York, New York are open for business.
"DTC" mean The Depository Trust Company, its nominees and their successors
and assigns.
"GLOBAL NOTE" means the 2004 Global Note and the 2009 Global Note.
"INDENTURE" means the Original Indenture as supplemented by this
Seventh 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 or accelerated payment is given) 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 2004 Notes and the 2009 Notes.
"REINVESTMENT RATE" means, in connection with any optional redemption or
accelerated payment of any Notes, 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") as stated in such Notes, 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 the 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 Operating Partnership.
"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 required determination, then such
other reasonably comparable index which shall be designated by the Operating
Partnership.
"2004 GLOBAL NOTE" means a single fully registered global note in
book-entry form, substantially in the form of Exhibit A attached hereto.
2
<PAGE> 4
"2009 GLOBAL NOTE" means a single fully registered global note in
book-entry form, substantially in the form of Exhibit B attached hereto.
SECTION 1.02 CREATION OF THE NOTES. In accordance with Section 301 of the
Original Indenture, the Issuer hereby creates the 2004 Notes as a separate
series of its Securities issued pursuant to the Indenture and the 2009 Notes as
a separate series of its Securities issued pursuant to the Indenture. The 2004
Notes shall be issued in an aggregate principal amount of $300,000,000. The 2009
Notes shall be issued in an aggregate principal amount of $300,000,000.
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 2004 Notes shall be
substantially in the form of Exhibit A attached hereto. The 2009 Notes shall be
substantially in the form of Exhibit B 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 Seventh 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 Seventh Supplemental Indenture,
except as permitted by Section 306 of the Original Indenture.
(b) Stated Maturity. The 2004 Notes shall mature, and the unpaid principal
thereon shall be payable, on February 9, 2004. The 2009 Notes shall mature, and
the unpaid principal thereon shall be payable, on February 9, 2009.
(c) Interest. The rate per annum at which interest shall be payable on the
2004 Notes shall be 6.750%. The rate per annum at which interest shall be
payable on the 2009 Notes shall be 7.125%. Interest on the Notes shall accrue
beginning February 9, 1999. Interest on the Notes shall be payable semi-annually
in arrears on each February 9, and August 9, commencing August 9, 1999 (each an
"Interest Payment Date"), and on the Stated Maturity as specified in Section
1.04(b) of this Seventh 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) 100% of 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.
3
<PAGE> 5
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 so long as the Notes are in book-entry form.
(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 Seventh 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) Other Terms and Conditions. The Notes shall have such other terms and
conditions as provided in the forms thereof attached as Exhibits A and B hereto.
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 Original 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
4
<PAGE> 6
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 SPG
Properties, Inc., a Maryland corporation ("SPG") issued in the initial public
offering of SPG (the "IPO") and the units of the Operating Partnership not held
by the SPG outstanding on the date of the IPO, by $22.25 (the "IPO Price"), (ii)
the principal amount of the outstanding consolidated debt of SPG 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 or SPG 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
5
<PAGE> 7
portion attributable to minority interests, including the Operating
Partnership's allocable share, 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 Property Group, Inc., a Delaware corporation and a
general partner of the Operating Partnership.
"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.
6
<PAGE> 8
"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 Seventh
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Seventh 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 Seventh 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
Seventh Supplemental Indenture by the Issuer shall bind its 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 Seventh 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 Seventh Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Seventh Supplemental Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Seventh Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
7
<PAGE> 9
SECTION 4.06 COUNTERPARTS. This Seventh 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.
8
<PAGE> 10
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
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 PROPERTY GROUP, L.P.
By: Simon Property Group, Inc.,
its managing general partner
By:_______________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By:_______________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
<PAGE> 11
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. 828807 AA5 $300,000,000
GLOBAL SECURITY
SIMON PROPERTY GROUP, L.P.
6.750% NOTE DUE 2004
Simon Property 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 300,000,000 Dollars on February 9, 2004 (the
"Maturity Date"), and to pay interest thereon from February 9, 1999,
semi-annually in arrears on February 9 and August 9 of each year (each, an
"Interest Payment Date"), commencing on August 9, 1999, and on the Maturity
Date, at the rate of 6.750% 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
A-1
<PAGE> 12
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 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 February , 1999, 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, on which banking institutions in New
York, New York are open for business.
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.
A-2
<PAGE> 13
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON PROPERTY GROUP, L.P.
as Issuer
By: SIMON PROPERTY GROUP, INC.,
as Managing General Partner
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
A-3
<PAGE> 14
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
A-4
<PAGE> 15
[REVERSE OF NOTE]
SIMON PROPERTY GROUP, L.P.
6.750% NOTE DUE 2004
This security is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), 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 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 Seventh Supplemental
Indenture, dated as of February , 1999, between the Issuer 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 and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered and for the definition of capitalized
terms used hereby and not otherwise defined. 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 Property
Group, L.P. 6.750% Notes due 2004, limited in aggregate principal amount to
$300,000,000 (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) 100% of 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 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,
A-5
<PAGE> 16
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 Default, 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 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 Simon Property Group, Inc., SPG
Properties, Inc. and 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 Trustee and any authorized agent of the Issuer 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 neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
A-6
<PAGE> 17
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 be 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.
A-7
<PAGE> 18
EXHIBIT B
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. 828807 AB3 $300,000,000
GLOBAL SECURITY
SIMON PROPERTY GROUP, L.P.
7.125% NOTE DUE 2009
Simon Property 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 300,000,000 Dollars on February 9, 2009 (the
"Maturity Date"), and to pay interest thereon from February , 1999,
semi-annually in arrears on February 9 and August 9 of each year (each, an
"Interest Payment Date"), commencing on August 9, 1999, and on the Maturity
Date, at the rate of 7.125% 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
B-1
<PAGE> 19
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 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 February , 1999, 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, on which banking institutions in New
York, New York are open for business.
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.
B-2
<PAGE> 20
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON PROPERTY GROUP, L.P.
as Issuer
By: SIMON PROPERTY GROUP, INC.,
its Managing General Partner
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
B-3
<PAGE> 21
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
B-4
<PAGE> 22
[REVERSE OF NOTE]
SIMON PROPERTY GROUP, L.P.
7.125% NOTE DUE 2009
This security is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), 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 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 Seventh Supplemental
Indenture, dated as of February, 1999, between the Issuer 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 and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered and for the definition of capitalized
terms used herein and not otherwise defined. 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 Property
Group, L.P. 7.125% Notes due 2009, limited in aggregate principal amount to
$300,000,000 (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) 100% of 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 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,
B-5
<PAGE> 23
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 Default, 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 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 Simon Property Group, Inc., SPG
Properties, Inc. and 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 Trustee and any authorized agent of the Issuer 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 neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
B-6
<PAGE> 24
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 be 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.
B-7
<PAGE> 1
EXHIBIT 4.2
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. 828807 AA5 $300,000,000
GLOBAL SECURITY
SIMON PROPERTY GROUP, L.P.
6.750% NOTE DUE 2004
Simon Property 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 300,000,000 Dollars on February 9, 2004 (the
"Maturity Date"), and to pay interest thereon from February 9, 1999,
semi-annually in arrears on February 9 and August 9 of each year (each, an
"Interest Payment Date"), commencing on August 9, 1999, and on the Maturity
Date, at the rate of 6.750% 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.
<PAGE> 2
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 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 February , 1999, 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, on which banking institutions in New
York, New York are open for business.
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.
2
<PAGE> 3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON PROPERTY GROUP, L.P.
as Issuer
By: SIMON PROPERTY GROUP, INC.,
as Managing General Partner
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
3
<PAGE> 4
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
4
<PAGE> 5
[REVERSE OF NOTE]
SIMON PROPERTY GROUP, L.P.
6.750% NOTE DUE 2004
This security is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), 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 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 Seventh Supplemental
Indenture, dated as of February, 1999, between the Issuer 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 and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered and for the definition of capitalized
terms used hereby and not otherwise defined. 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 Property
Group, L.P. 6.750% Notes due 2004, limited in aggregate principal amount to
$300,000,000 (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) 100% of 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 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,
5
<PAGE> 6
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 Default, 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 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 Simon Property Group, Inc., SPG
Properties, Inc. and 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 Trustee and any authorized agent of the Issuer 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 neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
6
<PAGE> 7
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 be 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.
7
<PAGE> 1
EXHIBIT 4.3
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. 828807 AB3 $300,000,000
GLOBAL SECURITY
SIMON PROPERTY GROUP, L.P.
7.125% NOTE DUE 2009
Simon Property 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 300,000,000 Dollars on February 9, 2009 (the
"Maturity Date"), and to pay interest thereon from February , 1999,
semi-annually in arrears on February 9 and August 9 of each year (each, an
"Interest Payment Date"), commencing on August 9, 1999, and on the Maturity
Date, at the rate of 7.125% 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.
<PAGE> 2
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 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 February, 1999, 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, on which banking institutions in New
York, New York are open for business.
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.
2
<PAGE> 3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated:
SIMON PROPERTY GROUP, L.P.
as Issuer
By: SIMON PROPERTY GROUP, INC.,
its Managing General Partner
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
3
<PAGE> 4
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
4
<PAGE> 5
[REVERSE OF NOTE]
SIMON PROPERTY GROUP, L.P.
7.125% NOTE DUE 2009
This security is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), 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 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 Seventh Supplemental
Indenture, dated as of February, 1999, between the Issuer 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 and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered and for the definition of capitalized
terms used herein and not otherwise defined. 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 Property
Group, L.P. 7.125% Notes due 2009, limited in aggregate principal amount to
$300,000,000 (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) 100% of 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 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
5
<PAGE> 6
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 Default, 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 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 Simon Property Group, Inc., SPG
Properties, Inc. and 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 Trustee and any authorized agent of the Issuer 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 neither the
6
<PAGE> 7
Issuer nor the Trustee nor any authorized agent of the Issuer 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 be 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.
7
<PAGE> 1
EXHIBIT 5
February 4, 1999
Simon Property Group, L.P
115 West Washington Street
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We have acted as counsel for Simon Property Group, L.P., a Delaware
limited partnership (the "Issuer"), in connection with the issuance and sale by
the Issuer of $300,000,000 aggregate principal amount of its 6-3/4% Notes due
February 9, 2004 and $300,000,000 aggregate principal amount of its 7-1/8% Notes
due February 9, 2009 (collectively, the "Notes") including the preparation
and/or review of:
(a) The joint Registration Statement on Form S-3, Registration
No. 333-33545 (the "Registration Statement"), of the Issuer and a
former subsidiary (the "Predecessor Subsidiary") that has merged with
and into the Issuer, 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 pursuant to Rule 415 promulgated under the Securities Act of
1933, as amended (the "1933 Act");
(b) The Prospectus Supplement, dated February 4, 1999, 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 Predecessor Subsidiary and The
Chase Manhattan Bank, as trustee (the "Trustee"); and
<PAGE> 2
(d) The form of the Seventh Supplemental Indenture with
respect to the Notes to be entered into between the Issuer 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 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 the Issuer enforceable against the Issuer 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.
We express no opinion as to the enforceability of any
provisions contained in the Supplemental Indenture for the Notes that constitute
waivers which are prohibited by law prior to default.
<PAGE> 3
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
<PAGE> 1
Exhibit 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands of dollars)
<TABLE>
SIMON
PROPERTY
SIMON PROPERTY GROUP
GROUP, L.P. SIMON DeBARTOLO GROUP, L.P. SIMON PROPERTY GROUP, L.P. (the Predecessor)
--------------- --------------------------- -------------------------- ----------------
For the nine months For the period For the period
ended September 30, For the year ended December 31, December 20 January 1 to
------------------- ------------------------------- to December December
<CAPTION> 1998 1997 1997 1996 1995 1994 31, 1993 19, 1993
------------------- --------------------------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before
extraordinary items
and preferred
distributions .......... $141,273 $145,761 $220,434 $134,663 $101,505 $ 60,308 $ 8,707 $ 6,912
Add:
Minority interest in
income of majority
owned subsidiaries ... 4,704 3,648 5,270 4,300 2,681 3,759 58 3,558
Distributed income
from unconsolidated
entities ............. 21,737 7,980 15,619 5,538 6,214 5,795 -- 6,076
Fixed charges .......... 330,563 227,784 322,685 210,913 154,159 154,580 3,690 161,856
Less:
Loss (income) from
unconsolidated
entities .............. 4,142 7,039 (8,690) (4,060) (5,140) (1,034) (43) 1,091
Interest capitalized .. (11,985) (8,538) (11,932) (5,831) (1,515) (1,586) -- (86)
-------- -------- -------- -------- -------- -------- ------- --------
Earnings ................. $490,434 $383,674 $543,386 $345,523 $257,904 $221,822 $12,412 $179,407
======== ======== ======== ======== ======== ======== ======= ========
Fixed Charges:
Portion of rents repre-
sentative of the
interest factor ....... 3,282 2,760 3,732 2,900 2,420 2,087 37 1,491
Interest on indebtedness
(including amortization
of debt expense) ...... 315,296 216,486 307,021 202,182 150,224 150,907 3,653 160,279
Interest capitalized .. 11,985 8,538 11,932 5,831 1,515 1,586 -- 86
-------- -------- -------- -------- -------- -------- ------- --------
Fixed Charges ......... $330,563 $227,784 $322,685 $210,913 $154,159 $154,580 $ 3,690 $161,856
======== ======== ======== ======== ======== ======== ======= ========
Ratio of Earnings to
Fixed Charges ......... 1.48 1.68 1.68 1.64 1.67 1.43 3.36 1.11
======== ======== ======== ======== ======== ======== ======= ========
</TABLE>
