<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Simon DeBartolo Group, Inc.
- -----------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.0001 par value
- -----------------------------------------------------------------------------
(Title of Class of Securities)
828805101
(CUSIP Number)
Arthur D. Wolfcale, Esq.
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, OH 44513
(330) 758-7292
- -----------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
- with a copy to -
William N. Dye, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
August 9, 1996
- -----------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box.
Check the following box if a fee is being paid with the statement . (A fee is
not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
<PAGE>2
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo, Jr.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
836,042
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 19,283,497
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 836,042
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
19,283,497
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
20,119,539
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>3
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DeBartolo, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
131,535
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 15,759,842
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 131,535
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
15,759,842
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
15,891,377
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>4
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Edward J. DeBartolo Corporation
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO, WC
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
1,355,610
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 13,936,496
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,353,610
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
13,936,496
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
15,292,106
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.8%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>5
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Estate of Edward J. DeBartolo
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
2,728,745
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 587,156
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 2,728,745
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
587,156
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,315,901
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>6
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cynthia R. DeBartolo
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
9,829
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 9,829
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
9,829
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>7
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Marie Denise DeBartolo York
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
869,666
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,950,027
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 869,666
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
2,950,027
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,819,693
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>8
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lisa Marie DeBartolo Revocable Trust
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
122,135
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 58,385
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 122,135
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
58,385
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
180,520
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>9
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tiffanie Lynne DeBartolo Revocable Trust
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
122,315
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 58,385
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 122,315
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
58,385
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
180,520
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>10
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo Trust No. 7 fbo Nicole Anne DeBartolo
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
122,315
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 58,385
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 122,315
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
58,385
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
180,520
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>11
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo Trust No. 8 fbo John Edward York
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
103,005
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY 12,237
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 103,005
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
12,237
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
115,242
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>12
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo Trust No. 9 fbo Anthony John York
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
65,383
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 65,383
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
65,383
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>13
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo Trust No. 10 fbo Mara Denise York
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
35,937
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 35,937
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
35,937
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>14
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward J. DeBartolo Trust No. 11 fbo Jenna Marie York
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
35,937
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 35,937
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
35,937
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>15
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Coral Square Associates
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
611,861
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 611,861
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
611,861
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>16
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bay Park, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
223,767
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 223,767
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
223,767
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>17
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ward Plaza Associates
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
58,122
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 58,122
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
58,122
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>18
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rues Properties, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
582,336
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 582,336
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
582,336
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>19
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cheltenham Shopping Center Associates
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Pennsylvania
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
576,850
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 576,850
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
576,850
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>20
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Summit Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
1,106,957
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,106,957
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,106,957
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>21
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tyrone Square, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
1,252,714
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,252,714
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,252,714
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>22
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Upper Valley Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
630,844
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 630,844
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
630,844
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>23
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Washington Square Associates
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
1,187,483
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,187,483
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,187,483
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>24
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Columbia SC I, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
293,815
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 293,815
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
293,815
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>25
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Columbia SC II Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
293,815
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 293,815
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
293,815
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>26
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Mission Viejo Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
409,379
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 409,379
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
409,379
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>27
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Northgate I Real Estate Corporation
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
629,740
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 629,740
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
629,740
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>28
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Northgate II Real Estate Corporation
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
629,740
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 629,740
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
629,740
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>29
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Pinellas Square, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
92,737
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 92,737
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
92,737
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>30
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tacoma SC I, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
820,323
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 820,323
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
820,323
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>31
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tacoma SC II, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
820,323
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 820,323
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
820,323
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>32
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
H-Castleton
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Indiana
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
1,432,114
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,432,114
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,432,114
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.9%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>33
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Great Lakes Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
701,445
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 701,445
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
701,445
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>34
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Palm Beach Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
283,735
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 283,735
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
283,735
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>35
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lafayette Square, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Indiana
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
278,948
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 278,948
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
278,948
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>36
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lima Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
135,585
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 135,585
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
135,585
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>37
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richmond Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
19,145
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 19,145
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
19,145
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>38
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Woodville Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
56,931
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 56,931
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
56,931
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>39
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DeBartolo Aventura, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
646,999
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 646,999
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
646,999
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>40
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Boynton Beach, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
116,716
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 116,716
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
116,716
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>41
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Florida Mall Corporation
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
718,980
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 718,980
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
718,980
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>42
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
D.L. Grove, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
26,558
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 26,558
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
26,558
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>43
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TC Mall II, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
60,475
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 60,475
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
60,475
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>44
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paddock Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
214,746
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 214,746
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
214,746
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>45
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
National Industrial Development Corporation
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
38,431
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 38,431
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
38,431
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>46
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -------------------------------------------------------------------------------
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Great Northeast Mall, Inc.
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Pennsylvania
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
73,914
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 73,914
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
73,914
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>47
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SCHEDULE 13D
- -----------------------------------------------
CUSIP No. 828805101
---------
- -----------------------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
South Bend Associates
- ----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ----------- -------------------------------------------------------------------
3 SEC USE ONLY
- ----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
- --------------------- --------- -----------------------------------------------
7 SOLE VOTING POWER
670,350
--------- -----------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY None
--------- -----------------------------------------------
OWNED BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 670,350
--------- -----------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
None
- ----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
670,350
- ----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [X]
- ----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>48
This statement constitutes a joint statement on Schedule 13D filed on
behalf of the Reporting Persons (as defined below) pursuant to Section 13(d) of
the Securities Exchange Act of 1934 (the "Act").
Item 1. Security and Issuer.
This Statement relates to the common stock, par value $.0001 per share
(the "Common Stock"), of Simon DeBartolo Group, Inc., a Maryland corporation
(the "Company"). The principal executive offices of the Company are located at
115 West Washington Street, Indianapolis, IN 46204.
Item 2. Identity and Background.
The primary corporate Reporting Person (as defined below) for the
purposes of this statement on Schedule 13D is DeBartolo, Inc., an Ohio
corporation ("DI"), and the other corporate and partnership Reporting Persons,
except as provided below, are subsidiaries of DI held directly or indirectly
through The Edward J. DeBartolo Corporation, an Ohio corporation ("EJDC"), all
of which directly or indirectly beneficially own shares of the Common Stock or
other securities that are convertible under certain circumstances into Common
Stock. All other reporting persons are either the estate of the late Edward J.
DeBartolo, who founded DI and EJDC, or members of the DeBartolo family or trusts
established for the benefit of members of the DeBartolo family or partnerships
in which such Reporting Persons hold partnership interests.
The following sets forth the name of each Reporting Person and (1) such
person's citizenship, in the case of an individual, or (2) such person's
jurisdiction of organization, in all other cases. The business address of each
Reporting Person who is a natural person, and the address of the principal
business and principal executive office of each other Reporting Person is 7620
Market Street, Youngstown, OH 44513. The Reporting Persons are:
DeBartolo, Inc., an Ohio corporation
The Edward J. DeBartolo Corporation, an Ohio corporation;
The Estate of Edward J. DeBartolo, a testamentary estate existing
under the laws of the State of Ohio;
Edward J. DeBartolo, Jr., a citizen of the United States of America;
Cynthia R. DeBartolo, a citizen of the United States of America;
Marie Denise DeBartolo York, a citizen of the United States of America;
Lisa Marie DeBartolo Revocable Trust, a revocable trust organized under
the laws of the State of Ohio;
Tiffanie Lynne DeBartolo Revocable Trust, a revocable trust organized
under the laws of the State of Ohio;
Edward J. DeBartolo Trust No. 7 fbo Nicole Anne DeBartolo, a trust
organized under the laws of the State of Ohio;
<PAGE>49
Edward J. DeBartolo Trust No. 8 fbo John Edward York, a trust
organized under the laws of the State of Ohio;
Edward J. DeBartolo Trust No. 9 fbo Anthony John York, a trust
organized under the laws of the State of Ohio;
Edward J. DeBartolo Trust No. 10 fbo Mara Denise York, a trust
organized under the laws of the State of Ohio;
Edward J. DeBartolo Trust No. 11 fbo Jenna Marie York, a trust
organized under the laws of the State of Ohio;
Coral Square Associates, an Ohio general partnership;
Bay Park, Inc., a Wisconsin corporation;
Ward Plaza Associates, an Ohio general partnership;
Rues Properties, Inc., a New Jersey corporation;
Cheltenham Shopping Center Associates, a Pennsylvania general
partnership;
Summit Mall, Inc., an Ohio corporation;
Tyrone Square, Inc., a Florida corporation;
Upper Valley, Inc., an Ohio corporation;
Washington Square Associates, an Ohio general partnership;
Columbia SC I, Inc., a Delaware corporation;
Columbia SC II, Inc., a California corporation;
Mission Viejo Mall, Inc., a California corporation;
Northgate I Real Estate Corporation, a Delaware corporation;
Northgate II Real Estate Corporation, a Delaware corporation;
Pinellas Square, Inc., a Florida corporation;
Tacoma SC I, Inc., a Delaware corporation;
Tacoma SC II, Inc., a Delaware corporation;
H-Castleton, an Indiana partnership;
Great Lakes Mall, Inc., an Ohio corporation;
Palm Beach Mall, Inc., a Florida corporation;
Lafayette Square, Inc., an Indiana corporation;
Lima Mall, Inc., an Ohio corporation;
Richmond Mall, Inc., an Ohio corporation;
Woodville Mall, Inc., an Ohio corporation;
DeBartolo Aventura, Inc., a Florida corporation;
Boynton Beach, Inc., a Florida corporation;
The Florida Mall Corporation, a Florida corporation;
<PAGE>50
D.L. Grove, Inc., a Florida corporation;
TC Mall II, Inc., a Texas corporation;
Paddock Mall, Inc., a Florida corporation;
National Industrial Development Corporation, an Ohio corporation;
Great Northeast Mall, Inc., a Pennsylvania corporation; and
South Bend Associates, an Ohio general partnership.
The foregoing are hereinafter individually referred to as a "Reporting
Person" and collectively referred to as the "Reporting
Persons."
DI's principal business is to act as a holding company for various
DeBartolo family interests. EJDC's principal business consists of managing its
interest in Simon-DeBartolo Group, L.P., a Delaware limited partnership (the
"Operating Partnership"), owning, managing and developing commercial real
estate, owning and managing its subsidiaries and investments, including real
estate investments and other assets such as horse racing tracks and other
entertainment properties.
Edward J. DeBartolo, Jr.'s present principal occupation is to serve as
President and CEO of DI and as President, Chief Executive Officer and Director
of EJDC, Chairman of the San Francisco '49ers professional football team,
Chairman and Chief Executive Officer of DeBartolo Entertainment, Inc. and as a
Director of the Company.
Cynthia R. DeBartolo is the spouse of Edward J. DeBartolo, Jr.
Marie Denise DeBartolo York's present principal occupation is to serve
as Chairman of the Boards of EJDC and DI and as a Director of the Company.
Each of Coral Square Associates, Bay Park, Inc., Ward Plaza Associates,
Rues Properties, Inc., Cheltenham Shopping Center Associates, Summit Mall, Inc.,
Tyrone Square, Inc., Upper Valley, Inc., Washington Square Associates, Columbia
SC I, Inc., Columbia SC II, Inc., Mission Viejo Mall, Inc., Northgate I Real
Estate Corporation, Northgate II Real Estate Corporation, Pinellas Square, Inc.,
Tacoma SC I, Inc., Tacoma SC II, Inc., H-Castleton, Great Lakes Mall, Inc., Palm
Beach Mall, Inc., Lafayette Square, Inc., Lima Mall, Inc., Richmond Mall, Inc.,
Woodville Mall, Inc., DeBartolo Aventura, Inc., Boynton Beach, Inc., The Florida
Mall Corporation, D.L. Grove, Inc., TC Mall II, Inc., Paddock Mall, Inc.,
National Industrial Development Corporation, Great Northeast Mall, Inc., and
South Bend Associates (collectively, the "DI Affiliated Entities") is engaged in
the business of holding and managing its interests in the Operating Partnership.
DI controls EJDC and each of the DI Affiliated Entities, except for Coral Square
Associates, which is controlled by Edward J. DeBartolo, Jr. Edward J. DeBartolo,
Jr. owns greater than 50% of the outstanding voting stock of, and is therefore
deemed to control, DI. Annex I through Annex IX hereto set forth certain
information with respect to the Directors and executive officers of DI, EJDC and
each of the DI Affiliated Entities, and each corporation ultimately in control
thereof (collectively, the "Affiliated Individuals").
<PAGE>51
Each of
the Lisa Marie DeBartolo Revocable Trust,
the Tiffanie Lynne DeBartolo Revocable Trust,
the Edward J. DeBartolo Trust No. 7 fbo Nicole Anne DeBartolo,
the Edward J. DeBartolo Trust No. 8 fbo John Edward York,
the Edward J. DeBartolo Trust No. 9 fbo Anthony John York,
the Edward J. DeBartolo Trust No. 10 fbo Mara Denise York, and
the Edward J. DeBartolo Trust No. 11 fbo Jenna Marie York
(collectively, the "Trusts")
is engaged in the business of holding assets and investing, holding and
distributing income in accordance with the documents defining such Trust.
Edward J. DeBartolo, Jr. is the trustee of the Lisa Marie DeBartolo
Revocable Trust the Edward J. DeBartolo Trust No. 7 for the benefit of
Nicole Ann DeBartolo, and the Tiffanie Lynn DeBartolo Revocable Trust.
Marie Denise DeBartolo York is the trustee of the Edward J. DeBartolo Trust
No. 8 for the benefit of John Edward York, the Edward J. DeBartolo Trust
No. 9 for the benefit of Anthony John York, the Edward J. DeBartolo Trust
No. 10 for the benefit of Mara Denise York and the Edward J. DeBartolo Trust
No. 11 for the benefit of Jenna Marie York. Each of Edward J. DeBartolo, Jr.
and Marie Denise DeBartolo York is a Reporting Person named in this Item 2.
None of the Reporting Persons has, during the last five years, been
(i) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
Prior to the consummation of the Merger (described in Item 4 below),
each of the Reporting Persons directly or indirectly beneficially owned shares
of common stock, par value $.01 per share (the "DRC Common Stock"), of DeBartolo
Realty Corporation, an Ohio corporation ("DRC"), or limited partnership
interests (the "DeBartolo Partnership Interests") in DeBartolo Realty
Partnership, L.P., a Delaware limited partnership (the "Operating Partnership").
Upon consummation of the Merger, all shares of the DRC Common Stock
were converted into 0.68 shares of the Company's Common Stock and the agreement
of limited partnership of the Operating Partnership was amended and restated by
the Fifth Amended and Restated Limited Partnership Agreement of the Operating
Partnership, dated as of August 9, 1996 (the "Amended Operating Partnership
Agreement"), the form of which is attached hereto as Exhibit 1 and incorporated
herein by reference. Pursuant to the terms of the Amended Operating Partnership
Agreement, the Operating Partnership was renamed as "Simon-DeBartolo Group,
L.P." and the DeBartolo Partnership Interests were redesignated as partnership
units ("Units"), which may be converted at the option of the holder into shares
of the Company's Common Stock on a one-for-one basis or, at the discretion of
the Company, cash equal to the value (based on the market price of the Common
Stock) of the same number of such shares. No additional consideration was paid
by the Reporting Persons for (x) the Company's Common Stock received upon
exchange of the DRC Common Stock, (y) the redesignation of the DeBartolo
Partnership Interests as Units or (z) the right to exchange such Units for the
Company's Common Stock upon the effectiveness of the Amended Operating
Partnership Agreement.
<PAGE>52
In addition, in connection with the consummation of the Merger, the
Company issued four thousand (4,000) shares of its Class C Common Stock, par
value $.0001 per share (the "Class C Common Stock"), to EJDC for a purchase
price of $100,000. Such funds were paid by EJDC from its working capital.
Item 4. Purpose of Transaction.
On March 28, 1996, the Company, DRC, and Day Acquisition Corp., an Ohio
corporation ("Day") and a wholly owned subsidiary of the Company, entered into
an Agreement and Plan of Merger, dated as of March 26, 1996, as amended (the
"Merger Agreement"). Pursuant to the Merger Agreement, Day Acquisition Corp. was
merged with and into DRC (the "Merger") and the outstanding DRC Common Stock was
exchanged for shares of the Common Stock as described in Item 3 above. Except as
described below in this Item 4, each of the Reporting Persons acquired and holds
the Common Stock, Class C Common Stock and Units reported herein as beneficially
owned by such Reporting Person primarily for investment purposes.
Item 4(a). Pursuant to the terms of the Amended Operating Partnership
Agreement, each Unit may be converted at the option of the holder into one share
of Common Stock or, at the Company's discretion, cash. In addition, each share
of the Class C Common Stock is convertible at the option of the holder into a
share of Common Stock and will be automatically converted into a share of Common
Stock if the aggregate amount of Common Stock, Class C Common Stock and Units
held by the Reporting Persons (together with their affiliates and families, the
"DeBartolo Family Group") is at any time reduced to less than 5% of the total
outstanding amount of equity securities of the Company and Units at such time or
if such share is held by anyone other than a member of the DeBartolo Family
Group. Accordingly, each Reporting Person has the right to acquire a number of
shares of the Common Stock equal to the number of shares of Class C Common Stock
and Units shown opposite such Reporting Person's name on Appendix A, which is
attached hereto and incorporated herein by reference.
Item 4(d). As the result of holding the Class C Common Stock, EJDC will
have the right to elect two directors (or one director under certain
circumstances) of the Company. The Company's Articles of Incorporation provide
that the holders of Class C Common Stock shall be entitled to one vote for each
share held of record on all matters submitted to a vote of the stockholders,
except that the holders of the Class C Common Stock shall have the right, voting
as a separate class, to elect two directors of the Company; provided that, if
the DeBartolo Family Group sells or otherwise transfers any Class C Common
Stock, Common Stock or Units such that the aggregate holdings of Class C Common
Stock, Common Stock and Units of the DeBartolo Family Group become less than 50%
of the aggregate amount of such securities initially held by the DeBartolo
Family Group upon consummation of the Merger, the holders of the Class C Common
Stock shall have the right, voting as a separate class, to elect only one
director of the Company.
Items 4(b), (c), (e), (f), (g), (h), (i) and (j). None of the Reporting
Persons or the Affiliated Individuals currently has any plans or proposals that
would result in any of the events specified in Items 4(b), (c), (e), (f), (g),
(h), (i) or (j) of Schedule 13D with respect to the Company.
<PAGE>53
Item 5. Interest in Securities of the Issuer.
The aggregate number of shares of Common Stock held by all Reporting
Persons (including those held pursuant to a right to acquire) is 22,233,972
shares, consisting of 22,207,889 Units, 22,083 shares of Common Stock and 4,000
shares of Class C Common Stock. Appendix A attached hereto and incorporated
herein by this reference sets forth, for each Reporting Person, the number of
shares of Common Stock, Class C Common Stock and Units directly owned by such
Reporting Person together with the percentage of the Company's outstanding
Common Stock represented by the equity securities held by such Reporting Person.
Such percentages are calculated (1) assuming all Units held by all partners in
the Operating Partnership (including the Reporting Persons) are converted into
shares of Common Stock and (2) including within the number of the Company's
outstanding shares of Common Stock all of the issued and outstanding shares of
the Company's Class B Common Stock and Class C Common Stock, which are
convertible on a 1-for-1 basis into Common Stock and which carry the right to
vote together with the holders of the Common Stock as a single class under most
circumstances.
Item 5 (a). For each Reporting Person, Appendix A hereto sets forth:
(i) The aggregate number of shares and percentage of
the Common Stock directly beneficially owned by such
Reporting Person; and
(ii) Those shares of Common Stock included in such aggregate
number in respect of which such Reporting Person holds a right to
acquire such Common Stock.
Item 5 (b). For each Reporting Person, Appendix A sets forth the number
of shares (including those as to which there is a right to acquire) in respect
of which such Reporting Person holds sole voting and dispositive power, except
as follows:
(i) DeBartolo, Inc. ultimately controls EJDC and each of the
DI Affiliated Entities (except for Coral Square Associates,
which is controlled by Edward J. DeBartolo, Jr.) and may
therefore be deemed to hold:
(A) Sole power to vote or to direct the vote of 131,535
shares of Common Stock;
(B) Shared power to vote or to direct the vote of
15,759,842 shares of Common Stock;
(C) Sole power to dispose of or to direct the
disposition of 131,535 shares of Common Stock; and
(D) Shared power to dispose of or to direct the
disposition of 15,759,842 shares of Common Stock.
(ii) Edward J. DeBartolo, Jr. is (w) the controlling
shareholder of DeBartolo, Inc., (x) the trustee of the Edward
J. DeBartolo Trust No. 7 for the benefit of Nicole Anne
DeBartolo, the trustee of the Lisa Marie DeBartolo Revocable
Trust and the Tiffanie Lynn DeBartolo Revocable Trust, (y) a
general partner in Cheltenhan Shopping Center Associates (26%
<PAGE>54
interest) and Coral Square Associates (30%) and (z) one of the
two executors of the estate of Edward J. DeBartolo (for which
purpose he is treated herein as having shared voting and shared
dispositive power over 50% of all securities held in the
estate and covered by this statement on Schedule 13D) and
therefore may be deemed to hold:
(A) Sole power to vote or to direct the vote of 836,042
shares of Common Stock;
(B) Shared power to vote or to direct the vote of
19,283,497 shares of Common Stock;
(C) Sole power to dispose of or to direct the
disposition of 836,042 shares of Common Stock; and
(D) Shared power to dispose of or to direct the
disposition of 19,283,497 shares of Common Stock.
(iii) Marie Denise DeBartolo York is (x) the trustee of the
Edward J. DeBartolo Trust No. 8 for the benefit of
John Edward York, the Edward J. DeBartolo Trust No. 9 for
the benefit of Anthony John York, the Edward J. DeBartolo
Trust No. 10 for the benefit of Mara Denise York and the Edward
J. DeBartolo Trust No. 11 for the benefit of Jenna Marie
York, (y) a general partner in Coral Square Associates (30%
interest) and (z) one of the two executors of the estate
of Edward J. DeBartolo (for which purpose she is treated
herein as having shared voting and dispositive power over 50%
of all securities held in the estate and covered by this
statement on Schedule 13D) and therefore may be deemed to
hold:
(A) Sole power to vote or to direct the vote of 869,666
shares of Common Stock;
(B) Shared power to vote or to direct the vote of
2,950,027 shares of Common Stock;
(C) Sole power to dispose of or to direct the
disposition of 869,666 shares of Common Stock; and
(D) Shared power to dispose of or to direct the
disposition of 2,950,027 shares of Common Stock.
(c) None of the Reporting Persons nor, to the best of their
knowledge, any of the Affiliated Individuals, has effected any transactions in
the Common Stock during the preceding 60 days.
(d) To the knowledge of the Reporting Persons, no other person is known
to have the right to receive dividends with respect to the Common Stock to which
this Schedule 13D relates, and the related Units, and the power to direct the
receipt of dividends from, or the proceeds from the sale of, such Shares and
Units held by each Reporting Person with respect to all shares of Common Stock
and Partnership Interests reflected as being held by such Reporting Person on
Appendix A hereto.
(e) Not applicable.
<PAGE>55
Each Reporting Person that is an individual (other than Edward J.
DeBartolo, Jr.), a Trust, or the estate of Edward J. DeBartolo hereby
expressly disclaims beneficial ownership of the Common Stock, Class C Common
Stock and Units beneficially owned by DI, EJDC and the DI Affiliated Entities.
Edward J. DeBartolo, Jr. hereby expressly disclaims beneficial ownership of the
Common Stock and Units beneficially owned by each other Reporting Person that is
an individual or beneficially owned by a Reporting Person that is a Trust and of
which he is not the trustee. DI, EJDC and the DI Affiliated Entities each
disclaim beneficial ownership of all the Common Stock and Units beneficially
owned by each Reporting Person that is an individual, a Trust or the estate of
Edward J. DeBartolo. Each Reporting Person that is a partner in any Reporting
Person that is a partnership hereby expressly disclaims beneficial ownership of
the Units beneficially owned by such partnership except to the extent of such
partner's percentage interest in such partnership. Pursuant to Rule 13d-4
promulgated under the Act, the filing of this statement on Schedule 13D shall
not be construed as an admission by any Reporting Person that such Reporting
Person is, for purposes of Section 13(d) or 13(g) of the Act, the beneficial
owner of the securities covered by this statement on Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The information set forth in Items 3 and 4 above is incorporated
herein by reference.
In addition to the information set forth in Items 3 and 4 above, the
Amended Operating Partnership Agreement provides that EJDC and its affiliates
have the right to dispose of Units solely for the purpose of satisfying
amortization requirements (aggregating $369.0 million) with regard to certain
indebtedness of EJDC. In 1996, 1997 and 1998, EJDC has the option (subject to
certain limitations) to dispose annually of up to 30% of the Units held by EJDC
and its affiliates as of the effective date of the Merger by one of the
following methods, as selected by the Company: (1) EJDC may exchange the Units
for Common Stock and then sell the Common Stock in a registered offering, (2)
the Company redeem the Units for cash or (3) EJDC may sell the Units to up to
three institutional investors. The proceeds from EJDC's disposition of the Units
may not be used for any purpose other than to satisfy transaction costs related
to such disposition and the amortization requirements for each year, as set
forth in the Amended Operating Partnership Agreement.
Joint Filing Agreement. Pursuant to Rule 13d-1(f) promulgated under the
Act, the Reporting Person have entered into an agreement with respect to the
joint filing of this statement, and any amendment or amendments hereto, which is
attached hereto as Exhibit 2 and is incorporated herein by reference.
Registration Rights Agreement. In connection with the Merger, the
Company, the Reporting Persons and certain other parties (together with the
Reporting Persons, the "Rights Holders") entered into a Registration Rights
Agreement, as dated as of August 9, 1996 (the "Registration Rights Agreement"),
to enable the Rights Holders to sell shares through a registered offering.
Pursuant to the Registration Rights Agreement, the Rights Holders together have
the right (subject to certain conditions and limitations) to cause the Company
to register and publicly sell shares of Common Stock held by the Rights Holders
provided that all such shares to be registered have an estimated market value of
at least $10 million. All expenses of the registration are to be borne by the
Company, other than the underwriting discounts or selling commissions, which
will be borne by the exercising Rights Holders. A copy of the Form of
Registration Rights Agreement is attached hereto as Exhibit 3 and is
incorporated herein by this reference.
<PAGE>56
The descriptions of the Amended Operating Partnership Agreement and the
Registration Rights Agreement set forth in this statement on Schedule 13D are
qualified in their entirety by reference to the forms of said documents, each of
which is attached hereto as an Exhibit and incorporated into this statement on
Schedule 13D by reference.
Except as described herein and in Items 3 and 4 above, there are no
contracts, arrangements, understandings or relationships among the persons named
in Item 2 or between such persons and any other person with respect to any
securities of the Company.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Form of the Fifth Amended and Restated
Limited Partnership Agreement of
Simon-DeBartolo Group, L.P., dated as of August
9, 1996, among the Company, SD Property Group,
Inc. (formerly DeBartolo Realty Corporation) and
the several other parties thereto.
Exhibit 2 Joint Filing Agreement, dated as of August 1, 1996,
among the Reporting Persons.
Exhibit 3 Form of the Registration Rights Agreement,
dated as of August 9, 1996, among the Company,
the Reporting Persons and the several other parties
thereto.
<PAGE>57
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DEBARTOLO, INC.
THE EDWARD J. DeBARTOLO
CORPORATION
Edward J. DeBartolo, Jr.
Edward J. DeBartolo, Jr. as Trustee under (i) the Lisa
Marie DeBartolo Revocable Trust, (ii) the
Tiffanie Lynne DeBartolo Revocable Trust and
(iii) Edward J. DeBartolo Trust No. 7 for the
Benefit of Nicole Anne DeBartolo
Cynthia R. DeBartolo
Marie Denise DeBartolo York
Marie Denise DeBartolo York as Trustee under (i) Edward
J. DeBartolo Trust No. 8 for the benefit of
John Edward York, (ii) Edward J. DeBartolo
Trust No. 9 for the benefit of Anthony John
York, (iii) Edward J. DeBartolo Trust No. 10
for the benefit of Mara Denise York and (iv)
Edward J. DeBartolo Trust No. 11 for the
benefit of Jenna Marie York
CORAL SQUARE ASSOCIATES
SOUTH BEND ASSOCIATES
WASHINGTON SQUARE ASSOCIATES
H-CASTLETON
BAY PARK, INC.
WARD PLAZA ASSOCIATES
CHELTENHAM SHOPPING CENTER
ASSOCIATES
SUMMIT MALL, INC.
TYRONE SQUARE, INC.
UPPER VALLEY, INC.
MISSION VIEJO MALL, INC.
PINELLAS SQUARE, INC.
GREAT LAKES MALL, INC.
PALM BEACH MALL, INC.
LAFAYETTE SQUARE, INC.
LIMA MALL, INC.
RICHMOND MALL, INC.
WOODVILLE MALL, INC.
DeBARTOLO AVENTURA, INC.
BOYNTON BEACH, INC.
THE FLORIDA MALL CORPORATION
D.L. GROVE, INC.
TC MALL II, INC.
PADDOCK MALL, INC.
<PAGE>58
NATIONAL INDUSTRIAL
DEVELOPMENT CORPORATION
GREAT NORTHEAST MALL, INC.
RUES PROPERTIES, INC.
COLUMBIA SC I, INC.
COLUMBIA SC II, INC.
NORTHGATE I REAL ESTATE
CORPORATION
NORTHGATE II REAL ESTATE
CORPORATION
TACOMA SC I, INC.
TACOMA SC II, INC.
THE ESTATE OF EDWARD J. DeBARTOLO
By: /s/ Larry Thrailkill
Name: Larry Thrailkill
Attorney-in-Fact
<PAGE>1
APPENDIX A
<TABLE>
<CAPTION>
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5
-------- -------- -------- -------- --------
PERCENTAGE OF
COMMON STOCK
TOTAL SHARES HELD DIRECTLY
SHARES OF SHARES HELD HELD DIRECTLY AND HELD UNDER
COMMON STOCK UNDER A RIGHT AND HELD UNDER A A RIGHT TO
REPORTING PERSON HELD DIRECTLY TO ACQUIRE RIGHT TO ACQUIRE ACQUIRE*
---------------- ------------- ------------- ---------------- --------------
<S> <C> <C> <C> <C>
THE EDWARD J. DeBARTOLO CORP. 4,000** 1,351,610 1,355,610 0.869441%
DEBARTOLO-AVENTURA, INC. - 646,999 646,999 0.414963%
BAY PARK, INC. - 223,767 223,767 0.143516%
BOYNTON BEACH, INC. - 116,716 116,716 0.074857%
RUES PROPERTIES, INC. - 582,336 582,336 0.373490%
H-CASLETON - 1,432,114 1,432,114 0.918508%
CHELTENHAM SQUARE ASSOCIATES - 576,850 576,850 0.369971%
CORAL SQUARE ASSOCIATES - 611,861 611,861 0.392426%
THE FLORIDA MALL CORPORATION - 718,980 718,980 0.461129%
GREAT LAKES MALL, INC. - 701,445 701,445 0.449882%
DL GROVE, INC. - 26,558 26,558 0.017034%
LAFAYETTE SQ., INC. - 278,948 278,948 0.178908%
LIMA MALL, INC. - 135,585 135,585 0.086960%
TC MALL II, INC. - 60,475 60,475 0.038787%
MISSION VIEJO MALL, INC. - 409,379 409,379 0.262562%
PADDOCK MALL, INC. - 214,746 214,746 0.137731%
PALM BEACH MALL, INC. - 283,735 283,735 0.181978%
GREAT NORTHEAST MALL, INC. - 73,914 73,914 0.047406%
DEBARTOLO, INC. - 131,535 131,535 0.084362%
SUMMIT MALL, INC. - 1,106,957 1,106,957 0.709964%
NATIONAL INDUSTRIAL
DEVELOPMENT CORPORATION - 38,431 38,431 0.024648%
TYRONE SQUARE, INC. - 1,252,714 1,252,714 0.803447%
SOUTH BEND ASSOCIATES - 670,350 670,350 0.429939%
UPPER VALLEY, INC. - 630,844 630,844 0.404602%
WASHINGTON SQ. ASSOC. - 1,187,483 1,187,483 0.761610%
PINELLAS SQUARE, INC. - 92,737 92,737 0.059478%
RICHMOND MALL, INC. - 19,145 19,145 0.012279%
WOODVILLE MALL, INC. - 56,931 56,931 0.036513%
WARD PLAZA ASSOCIATES - 58,122 58,122 0.037278%
COLUMBIA SC I, INC. - 293,815 293,815 0.188442%
COLUMBIA SC II, INC. - 293,815 293,815 0.188442%
NORTHGATE I REAL ESTATE
CORPORATION - 629,740 629,740 0.403893%
NORTHGATE II REAL ESTATE
CORPORATION - 629,740 629,740 0.403893%
TACOMA SCI I, INC. - 820,323 820,323 0.526127%
TACOMA SCI II, INC. - 820,323 820,323 0.526127%
ESTATE OF EDWARD J. DEBARTOLO - 2,728,745 2,728,745 1.750122%
EDWARD J. DEBARTOLO, JR. - 836,042 836,042 0.536208%
CYNTHIA DEBARTOLO 6,800 3,029 9,829 0.006304%
MARIE DENISE DEBARTOLO YORK 1,409 868,257 869,666 0.557774%
</TABLE>
<PAGE>2
<TABLE>
<CAPTION>
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4 COLUMN 5
-------- -------- -------- -------- --------
PERCENTAGE OF
COMMON STOCK
TOTAL SHARES HELD DIRECTLY
SHARES OF SHARES HELD HELD DIRECTLY AND HELD UNDER
COMMON STOCK UNDER A RIGHT AND HELD UNDER A A RIGHT TO
REPORTING PERSON HELD DIRECTLY TO ACQUIRE RIGHT TO ACQUIRE ACQUIRE*
---------------- ------------- ------------- ---------------- --------------
<S> <C> <C> <C> <C>
LISA MARIE DEBARTOLO REV. TRUST - 122,135 122,135 0.078333%
TIFFANIE LYNN DEBARTOLO REV. TRUST - 122,135 122,135 0.078333%
EDWARD J. DEBARTOLO TRUST 7 - 122,135 122,135 0.078333%
EDWARD J. DEBARTOLO TRUST 8 4,971 98,033 103,004 0.066064%
EDWARD J. DEBARTOLO TRUST 9 6,233 59,150 65,383 0.041934%
EDWARD J. DEBARTOLO TRUST 10 1,335 34,602 35,937 0.023048%
EDWARD J. DEBARTOLO TRUST 11 1,335 34,602 35,937 0.023048%
TOTALS 26,083 22,207,889 22,233,972 14.260094%
</TABLE>
- -------------------------------
* Calculated (1) assuming all Units held by partners in the Operating
Partnership were converted into shares of Common Stock and (2) including within
the number of outstanding shares of the Company's Common Stock all shares of
Class B Common Stock and Class C Common Stock.
**Class C Common Stock, $.0001 par value.
<PAGE>A-1
ANNEX I
The following table sets forth the name, and for those who are not
Reporting Persons as described in Item 2 of this Schedule 13D, the residence
or business address and present principal occupation or employment of each
director and executive officer of DeBartolo, Inc.:
<TABLE>
<CAPTION>
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
<S> <C>
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Marie Denise DeBartolo York See Item 2.
See Item 2.
Larry T. Thrailkill Executive Vice President, Chief Operating Officer and
The Edward J. DeBartolo Corporation Director of EJDC and DeBartolo, Inc. and a practicing lawyer
7620 Market Street in Nashville, TN.
Youngstown, OH 44513
and
Boalt, Cummings, Conners & Berry
414 Union Street
Suite 1600
NationsBank Plaza
Nashville, TN 37219
John C. York, II Senior Vice President, Racing of EJDC and DeBartolo, Inc.
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, OH 44513
Lynn E. Davenport Senior Vice President, Chief Financial Officer, Treasurer and
The Edward J. DeBartolo Corporation Director of EJDC and DeBartolo, Inc
7620 Market Street
Youngstown, OH 44513
A.D. Wolfcale Senior Vice President, General Counsel and Secretary of EJDC
The Edward J. DeBartolo Corporation and DeBartolo, Inc.
7620 Market Street
Youngstown, OH 44513
</TABLE>
<PAGE>A-2
All of the above named individuals are citizens of the United States.
None of the foregoing directors or executive officers of DeBartolo,
Inc. has, during the last five years, been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
<PAGE>A-3
ANNEX II
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address and present principal occupation or employment of each
director and executive officer of The Edward J. DeBartolo Corporation
("EJDC"):
<TABLE>
<CAPTION>
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
<S> <C>
Marie Denise DeBartolo York See Item 2.
See Item 2.
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Larry T. Thrailkill Executive Vice President, Chief Operating Officer and
The Edward J. DeBartolo Corporation Director of EJDC and a partner in a law firm practicing in
7620 Market Street Nashville, TN.
Youngstown, OH 44513
and
Boalt, Cummings, Conners & Berry
414 Union Street
Suite 1600
NationsBank Plaza
Nashville, TN 37219
John C. York, II Senior Vice President, Racing of EJDC.
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, OH 44513
Lynn E. Davenport Senior Vice President, Chief Financial Officer, Treasurer and
The Edward J. DeBartolo Corporation Director of EJDC.
7620 Market Street
Youngstown, OH 44513
A.D. Wolfcale Senior Vice President, General Counsel and Secretary of EJDC.
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, OH 44513
</TABLE>
<PAGE>A-4
All of the above named individuals are citizens of the United States.
None of the foregoing directors or executive officers of EJDC has,
during the last five years, been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result or which such individual was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
<PAGE>A-5
ANNEX III
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address and present principal occupation or employment of each
director and executive officer of each of the Corporate Reporting Persons(as
defined below):
<TABLE>
<CAPTION>
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
<S> <C>
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Marie Denise DeBartolo York See Item 2.
See Item 2.
Larry T. Thrailkill Executive Vice President, Chief Operating Officer and
The Edward J. DeBartolo Corporation Director of EJDC; Executive Vice President and
7620 Market Street Director of each of the Corporate Reporting
Youngstown, OH 44513 Persons and a practicing lawyer in Nashville, TN.
and
Boalt, Cummings, Conners & Berry
414 Union Street
Suite 1600
NationsBank Plaza
Nashville, TN 37219
Lynn E. Davenport Senior Vice President, Chief Financial Officer, Treasurer and
The Edward J. DeBartolo Corporation Director of EJDC; Vice President, Treasurer and Director of
7620 Market Street each of the Corporate Reporting Persons.
Youngstown, OH 44513
A.D. Wolfcale Senior Vice President, General Counsel and Secretary of EJDC;
The Edward J. DeBartolo Corporation Vice President and Secretary of each of the Corporate
7620 Market Street Reporting Persons.
Youngstown, OH 44513
</TABLE>
<PAGE>A-6
All of the above named individuals are citizens of the United States.
None of the foregoing directors or executive officers of any of the
Corporate Reporting Persons has, during the last five years, been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result or such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
As used in Annex III, "Corporate Reporting Persons" means the
following entities:
Bay Park, Inc.
Rues Properties, Inc.
Summit Mall, Inc.
Tyrone Square, Inc.
Upper Valley, Inc.
Columbia SC I, Inc.
Columbia SC II, Inc.
Mission Viejo Mall, Inc.
Northgate I Real Estate Corporation
Northgate II Real Estate Corporation
Pinellas Square, Inc.
Tacoma SC I, Inc.
Tacoma SC II, Inc.
Great Lakes Mall, Inc.
Palm Beach Mall, Inc.
Lafayette Square, Inc.
Richmond Mall, Inc.
Woodville Mall, Inc.
DeBartolo Aventura, Inc.
Boynton Beach, Inc.
The Florida Mall Corporation
D.L. Grove, Inc.
TC Mall II, Inc.
Paddock Mall, Inc.
National Industrial Development Corporation
Great Northeast Mall, Inc.
<PAGE>A-7
ANNEX IV
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address and present principal occupation or employment of each
director and executive officer of each of the Lima Mall, Inc. ("Lima"):
<TABLE>
<CAPTION>
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
<S> <C>
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Marie Denise DeBartolo York See Item 2.
See Item 2.
Lynn E. Davenport Senior Vice President, Chief Financial Officer, Treasurer and
The Edward J. DeBartolo Corporation Director of EJDC; Vice President, Treasurer and Director of
7620 Market Street Lima.
Youngstown, OH 44513
A.D. Wolfcale Senior Vice President, General Counsel and Secretary of EJDC;
The Edward J. DeBartolo Corporation Vice President and Secretary of Lima.
7620 Market Street
Youngstown, OH 44513
</TABLE>
All of the above named individuals are citizens of the United States.
None of the foregoing directors or executive officers Lima has,
during the last five years, been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
<PAGE>A-8
ANNEX V
The following table sets forth the name of each executor of the
Estate of Edward J. DeBartolo (the "Estate"):
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Marie Denise DeBartolo York See Item 2.
See Item 2.
All of the above named individuals are citizens of the United States.
Neither of the foregoing executors of the Estate has, during the last
five years, been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<PAGE>A-9
ANNEX VI
The following table sets forth the name of each partner of Coral
Square Associates ("CSA"):
<TABLE>
<CAPTION>
Name and Business or Present Principal
Residence Address Occupation or Employment
- -------------------- ------------------------
<S> <C>
Estate of Edward J. DeBartolo N/A
See Item 2.
(executors listed in Annex V)
Edward J. DeBartolo, Jr. See Item 2.
See Item 2.
Marie Denise DeBartolo York See Item 2.
See Item 2.
Lisa Marie DeBartolo Revocable Trust N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
Tiffanie Lynne DeBartolo Revocable Trust N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
Edward J. Bartolo Trust #7 fbo Nicole Anne DeBartolo N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
Edward J. Bartolo Trust #8 fbo John Edward York N/A
Marie Denise DeBartolo York as Trustee
See Item 2.
</TABLE>
All of the above named individuals are citizens of the United States.
None of the foregoing partners of CSA has, during the last five
years, been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<PAGE>A-10
ANNEX VII
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address, principal business or present principal occupation or
employment, as applicable, of each partner of Cheltenham Shopping Center
Associates ("CSCA"):
<TABLE>
<CAPTION>
Name and Business or Principal Business or
Residence Address Present Principal
Occupation or Employment
- -------------------- -------------------------
<S> <C>
Chelthenham-DeBartolo Properties, Inc., Development of commercial real estate.
7620 Market Street
Youngstown, OH 44512
(directors and executive officers are the same as those of each
of the Corporate Reporting Persons described in Annex II)
Estate of Edward J. DeBartolo N/A
See Item 2.
(executors listed in Annex V)
Lisa Marie DeBartolo Revocable Trust N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
Tiffanie Lynne DeBartolo Revocable Trust N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
Edward J. Bartolo Trust #7 fbo Nicole Anne DeBartolo N/A
Edward J. Bartolo, Jr. as Trustee
See Item 2.
</TABLE>
All of the above named individuals are citizens of the United States.
None of the foregoing partners of CSCA has, during the last five
years, been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<PAGE>A-11
ANNEX VIII
The following table sets forth the name of each partner of each of
the Reporting Partnerships (as defined below):
Name and Business or Principal Business or
Residence Address Present Principal
Occupation or Employment
- -------------------- ------------------------
Estate of Edward J. DeBartolo N/A
See Item 2.
(executors listed in Annex V)
DeBartolo, Inc. See Item 2.
See Item 2.
(directors and executive officers
listed in Annex IV)
All of the above named individuals are citizens of the United States.
Neither of the foregoing partners of any of the Reporting
Partnerships has, during the last five years, been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
As used in this Annex VIII, "Reporting Partnerships" means the
following entities:
Ward Plaza Associates
South Bend Associates
<PAGE>A-12
ANNEX IX
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address, principal business or present principal occupation or
employment, as applicable, of each partner of H-Castleton:
Name and Business or Principal Business or
Residence Address Present Principal
Occupation or Employment
- -------------------- -------------------------
Estate of Edward J. DeBartolo N/A
See Item 2.
(executors listed in Annex V)
Altamonte, Inc. Development of commercial real estate.
7620 Market Street
Youngstown, OH 44513
(directors and executive officers are
the same as those of each
of the Corporate Reporting
Persons described in Annex II)
All of the above named individuals are citizens of the United States.
Neither of the foregoing partners of H-Castleton, during the last
five years, been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<PAGE>A-13
ANNEX X
The following table sets forth the name, and for those who are not
Reporting Persons described in Item 2 of this Schedule 13D, the residence or
business address, principal business or present principal occupation or
employment, as applicable, of each partner of Washington Square Associates:
Name and Business or Principal Business or
Residence Address Present Principal
Occupation or Employment
- -------------------- ------------------------
The Edward J. DeBartolo Corporation See Item 2.
See Item 2.
(directors and executive officers
listed in Annex II)
DeBartolo, Inc. See Item 2.
See Item 2.
(director and officers
listed in Annex IV)
All of the above named individuals are citizens of the United States.
Neither of the foregoing partners of Washington Square Associates,
during the last five years, been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
<PAGE>A-14
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
1 Form of the Fifth Amended and Restated Limited
Partnership Agreement of Simon-DeBartolo Group,
L.P., dated as of August 9, 1996, among Simon
DeBartolo Group, Inc., SD Property Group, Inc.
(formerly DeBartolo Realty Corporation) and the
several other parties thereto.
2 Joint Filing Agreement, dated as of August 1, 1996,
among the Reporting Persons.
3 Form of the Registration Rights Agreement, dated as of
August 9, 1996, among the Company, the Reporting Persons
and the several other parties thereto.
<PAGE>
EXHIBIT 1
FIFTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
SIMON-DeBARTOLO GROUP, L.P.
<PAGE>
FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
SIMON-DeBARTOLO GROUP, L.P.
THIS FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, dated
as of August 9, 1996, is made by and among DeBARTOLO REALTY CORPORATION (which
has changed its name to SD Property Group, Inc.), an Ohio corporation having an
office at 7620 Market Street, Youngstown, Ohio 44513, as managing general
partner (the "Managing General Partner"), SIMON PROPERTY GROUP, INC.(which has
changed its name to Simon DeBartolo Group, Inc.), a Maryland corporation having
an office at Merchant s Plaza, 115 West Washington Street, Indianapolis, Indiana
46204, as non-managing general partner (the "Non-Managing General Partner"), and
those parties who have executed this Agreement as limited partners and whose
names and addresses are set forth on Exhibit A hereto as limited partners (the
"Limited Partners").
W I T N E S S E T H :
-------------------
WHEREAS, DeBartolo Realty Partnership, L.P., a Delaware limited
partnership (the "Partnership"), was organized on November 18, 1993, and a
Certificate of Limited Partnership in respect of the Partnership was filed in
the office of the Secretary of State of the State of Delaware. The Limited
Partnership Agreement of the Partnership was last amended and restated in its
entirety by instrument dated April 21, 1994; and
WHEREAS, concurrently with the execution hereof, Day Acquisition
Corp., an Ohio corporation which was formed as a
<PAGE>
wholly-owned subsidiary of the Non-Managing General Partner on March 25, 1996,
merged into the Managing General Partner pursuant to the Merger Agreement and
Plan of Merger among the Non-Managing General Partner, Day Acquisition Corp. and
the Managing General Partner dated as of March 26, 1996 (the "Merger
Agreement"); and
WHEREAS, the parties hereto wish to provide for the further amendment
and restatement of the Agreement of Limited Partnership of the Partnership, as
heretofore amended and restated, to allow for the admission of the Non-Managing
General Partner and certain Limited Partners and to make various other changes
provided for below; and
WHEREAS, prior to the execution of this Agreement, the interests of
the Partners were represented by percentage interests in the Partnership and
such interests shall henceforth be represented by Units in the amounts set forth
in Exhibit A; and
WHEREAS, the persons whose names appear on Exhibit A hereto as Limited
Partners consist of the existing limited partners in the Partnership and certain
of the existing limited partners of Simon Property Group, L.P., a Delaware
limited partnership ("Simon, L.P."), it being understood that such limited
partners of Simon, L.P. are concurrently herewith, in exchange for the
contribution to the Partnership of their interests in Simon, L.P., becoming
Limited Partners in the Partnership, each holding Units in the amount set forth
in Exhibit A; and
3
<PAGE>
WHEREAS, concurrently with the execution hereof, the Non-Managing
General Partner is contributing to the Partnership a portion of its interests in
Simon, L.P., in exchange for its interest as non-managing general partner of the
Partnership, as set forth in Exhibit A.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound, hereby agree that the Agreement of
Limited Partnership of the Partnership, as heretofore amended and restated, is
hereby further amended and restated in its entirety to read as follows:
ARTICLE I
Definitions; Etc.
1.1 Definitions1.1 Definitions. Except as otherwise herein expressly
provided, the following terms and phrases shall have the meanings set forth
below:
"Accountants" shall mean the firm or firms of independent certified
public accountants selected by the Managing General Partner from time to time on
behalf of the Partnership to audit the books and records of the Partnership and
to prepare and certify statements and reports in connection therewith.
"Act" shall mean the Revised Uniform Limited Partnership Act as
enacted in the State of Delaware, as the same may hereafter be amended from time
to time.
4
<PAGE>
"Additional Units" shall have the meaning set forth in Section 9.4
hereof.
"Adjustment Date" shall have the meaning set forth in Section 4.3(b)
hereof.
"Administrative Expenses" shall mean (i) all administrative and
operating costs and expenses incurred by the Partnership, and (ii) those
administrative costs and expenses and accounting and legal expenses incurred by
the Managing General Partner or the Non-Managing General Partner on behalf or
for the benefit of the Partnership.
"Affected Gain" shall have the meaning set forth in Section 6.1(g)
hereof.
"Affiliate" shall mean, with respect to any Partner (or as to any
other Person the affiliates of which are relevant for purposes of any of the
provisions of this Agreement) (i) any member of the Immediate Family of such
Partner or Person; (ii) any partner, trustee, beneficiary or shareholder of such
Partner or Person; (iii) any legal representative, successor or assignee of such
Partner or any Person referred to in the preceding clauses (i) and (ii); (iv)
any trustee or trust for the benefit of such Partner or any Person referred to
in the preceding clauses (i) through (iii); or (v) any Entity which, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is
under common Control with such Partner or any Person referred to in the
preceding clauses (i) through (iv).
5
<PAGE>
"Affiliate Financing" shall mean financing or refinancing obtained
from a Partner or an Affiliate of a Partner by the Partnership.
"Agreement" shall mean this Fifth Amended and Restated Limited
Partnership Agreement, as originally executed and as amended, modified,
supplemented or restated from time to time, as the context requires.
"Amortization Requirements" shall have the meaning set forth in
Section 12.1(d) hereof.
"Bankruptcy" shall mean, with respect to any Partner, (i) the
commencement by such Partner of any proceeding seeking relief under any
provision or chapter of the federal Bankruptcy Code or any other federal or
state law relating to insolvency, bankruptcy or reorganization, (ii) an
adjudication that such Partner is insolvent or bankrupt, (iii) the entry of an
order for relief under the federal Bankruptcy Code with respect to such Partner,
(iv) the filing of any petition or the commencement of any case or proceeding
against such Partner under the federal Bankruptcy Code unless such petition and
the case or proceeding initiated thereby are dismissed within ninety (90) days
from the date of such filing or commencement, (v) the filing of an answer by
such Partner admitting the allegations of any such petition, (vi) the
appointment of a trustee, receiver or custodian for all or substantially all of
the assets of such Partner unless such appointment is vacated or dismissed
within ninety (90) days from the date of such appointment but not less than five
(5) days before the proposed sale of any assets of such Partner, (vii) the
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execution by such Partner of a general assignment for the benefit of creditors,
(viii) the convening by such Partner of a meeting of its creditors, or any
class thereof, for purposes of effecting a moratorium upon or extension or
composition of its debts, (ix) the failure of such Partner to pay its debts
as they mature, (x) the levy, attachment, execution or other seizure of
substantially all of the assets of such Partner where such seizure is not
discharged within thirty (30) days thereafter, or (xi) the admission by such
Partner in writing of its inability to pay its debts as they mature or that it
is generally not paying its debts as they become due.
"Capital Account" shall have the meaning set forth in Section 4.8(a)
hereof.
"Capital Contribution" shall mean, with respect to any Partner, the
amount of money and the initial Gross Asset Value of any property other than
money contributed to the Partnership with respect to the Partnership Units held
by such Partner (net of liabilities secured by such property which the
Partnership assumes or takes subject to).
"Certificate" shall mean the Certificate of Limited Partnership
establishing the Partnership, as filed with the office of the Delaware Secretary
of State on November 18, 1993, as it has or may hereafter be amended from time
to time in accordance with the terms of this Agreement and the Act.
"Charter" shall mean the articles of incorporation of a General
Partner and all amendments, supplements and restatements thereof.
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"Closing Price" on any date shall mean the last sale price per share,
regular way, of the Shares or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, of the Shares in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Shares are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Shares are listed or admitted to trading or, if
the Shares are not listed or admitted to trading on any national securities
exchange, the last quoted price, or if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotations System for
the Shares or, if such system is no longer in use, the principal other automated
quotations system that may then be in use or, if the Shares are not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Shares selected
from time to time by the Board of Directors of the Non-Managing General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or
any corresponding provisions of succeeding law.
"Computation Date" shall have the meaning set forth in Section 11.3
hereof.
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"Consent of the DeBartolos" shall mean consent of those Limited
Partners who are "DeBartolos" as defined herein. EJDC (in such capacity the
"DeBartolo Designee") is hereby granted authority by those Limited Partners who
are DeBartolos to grant or withhold consent on behalf of the DeBartolos whenever
the Consent of the DeBartolos is required hereunder. The DeBartolos shall have
the right, from time to time, by written notice to the Partnership signed by
DeBartolos who hold in the aggregate more than fifty percent (50%) of the
Partnership Units then held by the DeBartolos, to substitute a new Person as the
DeBartolo Designee for the Person who is then acting as such. The Partnership,
the Partners and all Persons dealing with the Partnership shall be fully
protected in relying on any written consent of the DeBartolos which is executed
by the Person who is then acting as the DeBartolo Designee. In the event that at
any time there is no DeBartolo Designee, the consent of the DeBartolos shall be
given by those DeBartolos who hold in the aggregate more than fifty percent
(50%) of the Partnership Units then held by the DeBartolos.
"Consent of the Limited Partners" shall mean the written consent of a
Majority-In-Interest of the Limited Partners, which consent shall be obtained
prior to the taking of any action for which it is required by this Agreement and
may be given or withheld by a Majority-In-Interest of the Limited Partners,
unless otherwise expressly provided herein, in their sole and absolute
discretion. Whenever the Consent of the Limited Partners is sought by a General
Partner, the request for such
9
<PAGE>
consent, outlining in reasonable detail the matter or matters for which such
consent is being requested, shall be submitted to all of the Limited Partners,
and each Limited Partner shall have at least 15 days to act upon such request.
"Consent of the Simons" shall mean consent of those Limited Partners
who are "Simons" as defined herein. David Simon (the "Simon Designee") is hereby
granted authority by those Limited Partners who are Simons to grant or withhold
consent on behalf of the Simons whenever the Consent of the Simons is required
hereunder. The Simons shall have the right from time to time, by written notice
to the Partnership signed by Simons who hold in the aggregate more than fifty
percent (50%) of the Partnership Units then held by the Simons, to substitute a
new Person as the Simon Designee for the Person who is then acting as such. The
Partnership, the Partners and all Persons dealing with the Partnership shall be
fully protected in relying on any written consent of the Simons which is
executed by the Person who is then acting as the Simon Designee. In the event
that at any time there is no Simon Designee, the Consent of the Simons shall be
given by those Simons who hold in the aggregate more than fifty percent (50%) of
the Partnership Units then held by the Simons.
"Contributed Funds" shall have the meaning set forth in Section 4.3(b)
hereof.
"Contributed General Partner Interest" shall mean Partnership Units
and interests in the profits of Simon, L.P.
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<PAGE>
contributed by the Non-Managing General Partner pursuant to the Contribution
Agreement executed by it.
"Contributed Limited Partner Interests" shall mean Partnership Units
in Simon, L.P. contributed by the Limited Partners to the Partnership pursuant
to the Contribution Agreement.
"Contribution Agreement" shall mean the agreement or agreements
between the Partnership and the several partners of Simon, L.P. pursuant to
which such partners agree to contribute their partnership interests in Simon,
L.P., or portions thereof, to the Partnership in exchange for Units.
"Contribution Date" shall have the meaning set forth in Section 9.4
hereof.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership or otherwise to select, or have the power to remove and
then select, a majority of those Persons exercising governing authority over an
Entity. In the case of a limited partnership, the sole general partner, all of
the general partners to the extent each has equal management control and
authority, or the managing general partner or managing general partners thereof
shall be deemed to have control of such partnership and, in the case of
a trust, any trustee thereof or any Person having the right to select or remove
any such trustee shall be deemed to have control of such trust.
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<PAGE>
"Covered Sale" shall have the meaning set forth in Section 6.2(d)
hereof.
"Current Per Share Market Price" on any date shall mean the average of
the Closing Prices for the five consecutive Trading Days ending on such date.
"DeBartolos" shall mean (i) the Estate of Edward J. DeBartolo, (ii)
Edward J. DeBartolo, Jr., Marie Denise DeBartolo York, members of the Immediate
Family of either of the foregoing, any other members of the Immediate Family of
Edward J. DeBartolo, any other lineal descendants of any of the foregoing and
any trusts established for the benefit of any of the foregoing, and (iii) EJDC
and any other Entity Controlled by any one or more of the Persons listed or
specified in clauses (i) and (ii) above.
"Deemed Partnership Unit Value" as of any date shall mean the Current
Per Share Market Price as of the Trading Day immediately preceding such date;
provided, however, that Deemed Partnership Unit Value shall be adjusted as
described in Section 11.7(d) hereof in the event of any stock dividend, stock
split, stock distribution or similar transaction.
"Depreciation" shall mean for each Partnership Fiscal Year or other
period, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable under the Code with respect to a Partnership asset
for such year or other period, except that if the Gross Asset Value of a
Partnership asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same
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<PAGE>
ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such year or
other period bears to such beginning adjusted tax basis; provided, however, that
if the federal income tax depreciation, amortization or other cost recovery
deduction for such year is zero, Depreciation shall be determined with reference
to such beginning Gross Asset Value using any reasonable method selected by the
General Partner.
"Development Land" shall mean any vacant land suitable for development
as a Project.
"Directors" shall mean the Board of Directors of the Non-Managing
General Partner.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"EJDC" shall mean The Edward J. DeBartolo Corporation, an Ohio
corporation.
"EJDC Lender" shall mean the Persons described as lenders in Exhibit
F.
"EJDC Loan Transaction" shall mean the loans provided for in the
documents listed in Exhibit F, together with assignments and refinancings
thereof to the extent permitted by Exhibit F.
"EJDC Option" shall have the meaning set forth in Section 12.1 hereof.
"EJDC Option Termination Date" shall have the meaning set forth in
Section 12.1(e) hereof.
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"Entity" shall mean any general partnership, limited partnership,
limited liability company, limited liability partnership, corporation, joint
venture, trust, business trust, cooperative or association.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time (or any corresponding provisions of
succeeding laws).
"Excess Stock" shall mean the shares of Excess Stock, par value
$0.0001 per share, of the Non-Managing General Partner.
"Exercise Notice" shall have the meaning set forth in Section 11.1
hereof.
"GAAP" shall mean generally accepted accounting principles
consistently applied.
"General Partner" shall mean the Managing General Partner, the
Non-Managing General Partner and their respective duly admitted successors and
assigns and any other Person who is a general partner of the Partnership at the
time of reference thereto.
"Gross Asset Value" shall have the meaning set forth in Section 4.8(b)
hereof.
"Gross Income" shall mean the income of the Partnership determined
pursuant to Section 61 of the Code before deduction of items of expense or
deduction.
"Immediate Family" shall mean, with respect to any Person, such
Person's spouse, parents, parents-in-law, descendants by blood or adoption,
nephews, nieces, brothers,
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sisters, brothers-in-law, sisters-in-law and children-in-law (in each case by
whole or half-blood).
"Incurrence" shall have the meaning set forth in Section 10.5(a)
hereof.
"Independent Directors" shall mean members of the Board of Directors
of the Non-Managing General Partner, none of whom is either employed by the
Non-Managing General Partner or a member (or an Affiliate of a member) of the
Simons.1
"Initial EJDC Notice" shall have the meaning set forth in Section
12.1(a) hereof.
"Institutional Investors" shall have the meaning set forth in Rule
501(a)(1)-(3), (7) and (8) of Regulation D promulgated under the Securities Act.
"Institutional Lender" shall mean a commercial bank or trust company,
a savings and loan association or an insurance company.
"JCP" shall mean JCP Realty, Inc., a Delaware corporation, or
Brandywine Realty, Inc., a Delaware corporation, or any of its or their
Affiliates that becomes a Limited Partner hereunder and that is an "accredited
investor" as defined in Regulation D under the Securities Act, as amended.
"JCP Limited Partner" shall mean JCP, in its capacity as a
Limited Partner or Partners hereunder.
- -----------
1 In the event the requisite stockholder approval is obtained to amend
the Charter of Simon-DeBartolo Group, Inc. to provide for a 13-person
board,directors elected by the DeBartolo holders of Class C Common Stock
will also be excluded from the definition of Independent Directors.
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"JCP Property Liabilities" means any liabilities encumbering the
assets of Treasure Coast-JCP Associates, Ltd., Melbourne-JCP Associates, Ltd.,
Boynton-JCP Associates, Ltd., Chesapeake-JCP Associates, Ltd., Mall of the
Mainland Associates, L.P., Port Charlotte-JCP Associates and Northfield Center
Limited Partnership, and any liability of the Partnership, Simon, L.P. or any
Subsidiary Partnership with respect to which JCP has incurred the "economic risk
of loss" within the meaning of Treasury Regulation ss. 1.752-2.
"Lien" shall mean any liens, security interests, mortgages, deeds of
trust, charges, claims, encumbrances, restrictions, pledges, options, rights of
first offer or first refusal and any other rights or interests of others of any
kind or nature, actual or contingent, or other similar encumbrances of any
nature whatsoever.
"Limited Partner Liability" shall mean, with respect to each Limited
Partner, each liability (or portion thereof) included in the basis of such
Limited Partner (other than as an "excess nonrecourse liability" within the
meaning of Regulations Section 1.752-3(a)(3)) for federal income tax purposes.
"Limited Partners" shall mean those Persons whose names are set forth
on Exhibit A hereto as Limited Partners, their permitted successors or assigns
as limited partners hereof, and/or any Person who, at the time of reference
thereto, is a limited partner of the Partnership.
"Liquidating Agent" shall mean such Person as is selected as the
Liquidating Agent hereunder by the Managing
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General Partner, which Person may be the Managing General Partner or an
Affiliate of the Managing General Partner, provided such Liquidating Agent
agrees in writing to be bound by the terms of this Agreement. The Liquidating
Agent shall be empowered to give and receive notices, reports and payments in
connection with the dissolution, liquidation and/or winding-up of the
Partnership and shall hold and exercise such other rights and powers as are
necessary or required to permit all parties to deal with the Liquidating Agent
in connection with the dissolution, liquidation and/or winding-up of the
Partnership.
"Liquidation Transaction" shall mean any sale of assets of the
Partnership in contemplation of, or in connection with, the liquidation of the
Partnership.
"Losses" shall have the meaning set forth in Section 6.1(a) hereof.
"Major Decisions" shall have the meaning set forth in Section 7.3(b)
hereof.
"Majority-In-Interest of the Limited Partners" shall mean Limited
Partner(s) who hold in the aggregate more than fifty percent (50%) of the
Partnership Units then held by all the Limited Partners, as a class (excluding
any Partnership Units held by the Non-Managing General Partner or by the
Managing General Partner, any Person Controlled by either of such General
Partners or any Person holding as nominee for either of such General Partners).
"Managing General Partner" shall mean the DeBartolo Realty
Corporation, an Ohio corporation.
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"Merger Agreement" shall mean the Agreement and Plan of Merger among
the Non-Managing General Partner, Day Acquisition Corp. and the Managing General
Partner dated as of March 26, 1996, as amended.
"Minimum Gain" shall have the meaning set forth in Section 6.1(d)(1)
hereof.
"Minimum Gain Chargeback" shall have the meaning set forth in Section
6.1(d)(1) hereof.
"Net Financing Proceeds" shall mean the cash proceeds received by the
Partnership in connection with any borrowing by or on behalf of the Partnership
(whether or not secured), or distributed to the Partnership in respect of any
such borrowing by any Subsidiary Entity, after deduction of all costs and
expenses incurred by the Partnership in connection with such borrowing, and
after deduction of that portion of such proceeds used to repay any other
indebtedness of the Partnership, or any interest or premium thereon.
"Net Operating Cash Flow" shall mean, with respect to any fiscal
period of the Partnership, the aggregate amount of all cash received by the
Partnership from any source for such fiscal period (including Net Sale Proceeds
and Net Financing Proceeds but excluding Contributed Funds), less the aggregate
amount of all expenses or other amounts paid with respect to such period and
such additional cash reserves as of the last day of such period as the Managing
General Partner deems necessary for any capital or operating expenditure
permitted hereunder.
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<PAGE>
"Net Sale Proceeds" shall mean the cash proceeds received by
the Partnership in connection with a sale or other disposition of any asset by
or on behalf of the Partnership or a sale or other disposition of any asset by
or on behalf of any Subsidiary Entity, after deduction of any costs or expenses
incurred by the Partnership, or payable specifically out of the proceeds of such
sale or other disposition (including, without limitation, any repayment of any
indebtedness required to be repaid as a result of such sale or other disposition
or which the Managing General Partner elects to repay out of the proceeds of
such sale or other disposition, together with accrued interest and premium, if
any, thereon and any sales commissions or other costs and expenses due and
payable to any Person), in connection with such sale or other disposition.
"Non-Managing General Partner" shall mean the Simon Property Group,
Inc., a Maryland corporation.
"Nonrecourse Liabilities" shall have the meaning set forth in Section
6.1(d)(1) hereof.
"Offered Units" shall have the meaning set forth in Section 11.1
hereof.
"Ownership Limit" shall have the meaning set forth in Article Ninth of
the Charter of the Non-Managing General Partner.
"Partner Nonrecourse Debt" shall have the meaning set forth in Section
6.1(d)(2) hereof.
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<PAGE>
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set
forth in Section 6.1(d)(2) hereof.
"Partner Nonrecourse Deduction" shall have the meaning set forth in
Section 6.1(d)(2) hereof.
"Partners" shall mean the Managing General Partner, the Non-Managing
General Partner and the Limited Partners, their duly admitted successors or
assigns or any Person who is a partner of the Partnership at the time of
reference thereto.
"Partnership" shall mean Simon-DeBartolo Group, L.P. (formerly known
as DeBartolo Realty Partnership, L.P.), a Delaware limited partnership, as such
limited partnership may from time to time be constituted.
"Partnership Fiscal Year" shall mean the calendar year.
"Partnership Interest" shall mean the interest of a Partner in the
Partnership.
"Partnership Minimum Gain" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Partnership Record Date" shall mean the record date established by
the Managing General Partner for a distribution of Net Operating Cash Flow
pursuant to Section 6.2 hereof, which record date shall be the same as the
record date established by the Non-Managing General Partner for distribution to
its shareholders of some or all of its share of such distribution.
"Partnership Units" or "Units" shall mean the interest in the
Partnership of any Partner which entitles a Partner to the allocations (and each
item thereof) specified in Section 6.1(b) hereof and all distributions from the
Partnership, and its rights of management, consent, approval, or participation,
if any, as provided in this Agreement. Partnership Units do not include
20
<PAGE>
Preferred Units. Each Partner's percentage ownership interest in the Partnership
shall be determined by dividing the number of Partnership Units then owned by
each Partner by the total number of Partnership Units then outstanding. The
number of Partnership Units held by each Partner at the date hereof is as set
forth opposite its name on attached Exhibit A.
"Payment Period" shall have the meaning set forth in Section 12.1(a)
hereof.
"Person" shall mean any individual or Entity.
"Pledge" shall mean granting of a Lien on a Partnership Interest.
"Post-Exchange Distribution" shall have the meaning set forth in
Section 6.2(a) hereof.
"Preferred Contributed Funds" shall have the meaning set forth in
Section 4.3(c) hereof.
"Preferred Distribution Requirement" shall have the meaning set forth
in Section 4.3(c) hereof.
"Preferred Distribution Shortfall" shall have the meaning set forth in
Section 6.2(b)(i) hereof.
"Preferred Redemption Amount" shall mean, with respect to any class or
series of Preferred Units, the sum of (i) the amount of any accumulated
Preferred Distribution Shortfall with respect to such class or series of
Preferred Units, (ii) the Preferred Distribution Requirement with respect to
such class or series of Preferred Units to the date of redemption and (iii) the
Preferred Redemption Price indicated in the Preferred Unit
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<PAGE>
Designation with respect to such class or series of Preferred Units.
"Preferred Redemption Price" shall have the meaning set forth in
Section 4.3(c) hereof.
"Preferred Shares" shall mean any class of equity securities of the
Non-Managing General Partner now or hereafter authorized or reclassified, other
than the Shares or the Excess Stock, having dividend rights that are superior or
prior to dividends payable on the Shares.
"Preferred Unit Designation" shall have the meaning set forth in
Section 4.3(c) hereof.
"Preferred Unit Issue Price" shall mean the amount of the Required
Funds contributed or deemed to have been contributed by the Non-Managing General
Partner in exchange for a Preferred Unit.
"Preferred Units" shall mean interests in the Partnership issued to
the Non-Managing General Partner pursuant to Sections 4.1(c) and 4.3(c) hereof.
The holder of Preferred Units shall have such rights to the allocations of
Profits and Losses as specified in Section 6.1 hereof and to distributions
pursuant to Section 6.2 hereof, but shall not, by reason of its ownership of
such Preferred Units, be entitled to participate in the management of the
Partnership or to consent to or approve any action which is required by the Act
or this Agreement to be approved by any or all of the Partners.
"Profits" shall have the meaning set forth in Section 6.1(a) hereof.
22
<PAGE>
"Project" shall mean any property that is or is planned to be used
primarily for retail purposes, and shall include, but is not limited to, a
regional mall, a community shopping center, a specialty retail center and a
mixed-use property which contains a major retail component.
"Property or Properties" shall mean any Development Land or Project in
which the Partnership acquires ownership of (a) the fee or leasehold interest or
(b) an indirect fee or leasehold interest through an interest in any other
Entity.
"Purchase Price" shall have the meaning set forth in Section 11.3
hereof.
"Qualified REIT Subsidiaries" shall have the meaning set forth in ss.
856(i)(2) of the Code.
"Registration Rights Agreements" shall mean the agreements, in effect
as of the Effective Time, among the Non-Managing General Partner, certain of its
stockholders and certain holders of Units.
"Regulations" shall mean the final, temporary or proposed income tax
regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Section
6.1(d)(5) hereof.
"REIT" shall mean a real estate investment trust as defined in Section
856 of the Code.
"REIT Expenses" shall mean (i) costs and expenses relating to the
continuity of existence of the Managing General
23
<PAGE>
Partner and the Non-Managing General Partner and their respective subsidiaries,
including taxes, fees and assessments associated therewith, and any and all
costs, expenses or fees payable to any director or trustee of the Managing
General Partner, the Non-Managing General Partner or such subsidiaries, (ii)
costs and expenses relating to any offer or registration of securities by the
General Partner or the Non-Managing General Partner and all statements, reports,
fees and expenses incidental thereto, including underwriting discounts, selling
commissions and placement fees applicable to any such offer of securities
(provided, however, that in the case of any registration of securities
effectuated by the Managing General Partner or the Non-Managing General Partner
on behalf of one or more of its security holders, REIT Expenses shall not
include underwriting discounts or selling commissions), (iii) costs and expenses
associated with the preparation and filing of any periodic reports by the
Managing General Partner or the Non-Managing General Partner under federal,
state or local laws or regulations, including tax returns and filings with the
SEC and any stock exchanges on which the Shares are listed, (iv) costs and
expenses associated with compliance by the Managing General Partner or the
Non-Managing General Partner with laws, rules and regulations promulgated by any
regulatory body, including the SEC, (v) costs and expenses associated with any
401(k) Plan, incentive plan, bonus plan or other plan providing for compensation
for the employees of the Managing General Partner, the Non-Managing General
Partner or Simon Property Group
24
<PAGE>
(Delaware), Inc., and (vi) all operating, administrative and other costs
incurred by the Managing General Partner or the Non-Managing General Partner
(including attorney's and accountant's fees, income and franchise taxes and
salaries paid to officers of the Managing General Partner or the Non-Managing
General Partner, but excluding costs of any repurchase by the General Partners
of any of their securities); provided, however, that amounts described herein
shall be considered REIT Expenses hereunder only if and to the extent during the
fiscal year in question the aggregate amount of such expenses for such fiscal
year and all prior fiscal years exceeds the aggregate of (a) all amounts
theretofore distributed or distributable to the Managing General Partner or the
Non-Managing General Partner by any wholly-owned subsidiary thereof (including,
without limitation, in the case of the Non-Managing General Partner, by Simon
Property (Delaware), Inc.) and (b) all amounts theretofore paid to the Managing
General Partner or the Non-Managing General Partner pursuant to Section 7.1
hereof or Section 7.1 of the limited partnership agreement of Simon, L.P., as
amended.
"REIT Requirements" shall mean all actions or omissions as may be
necessary (including making appropriate distributions from time to time) to
permit each of the Managing General Partner and the Non-Managing General Partner
to qualify or continue to qualify as a real estate investment trust within the
meaning of Section 856 et seq. of the Code, as such provisions may be amended
from time to time, or the corresponding provisions of succeeding law.
25
<PAGE>
"Related Issue" shall mean, with respect to a class or series of
Preferred Units, the class or series of Preferred Shares the sale of which
provided the Non-Managing General Partner with the proceeds to contribute to the
Partnership in exchange for such Preferred Units. "Required Funds" shall have
the meaning set forth in Section 4.3(a) hereof.
"Response Notice" shall have the meaning set forth in Section 12.1(b).
"Rights" shall have the meaning set forth in Section 11.1 hereof.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall mean the shares of Common Stock, par value $.0001 per
share, of the Non-Managing General Partner.
"Simon, L.P." shall mean Simon Property Group, L.P., a Delaware
limited partnership.
"Simons" shall mean Melvin Simon, Herbert Simon and David Simon, other
members of the Immediate Family of any of the foregoing, any other lineal
descendants of any of the foregoing, any trusts established for the benefit of
any of the foregoing, and any Entity Controlled by any one or more of the
foregoing.
"Subsequent EJDC Notice" shall have the meaning set forth in Section
12.1(c) hereof.
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<PAGE>
"Subsidiary Entity" shall mean any Entity in which the Partnership (or
when used in respect of Simon, L.P., in which Simon, L.P.) owns a direct or
indirect equity interest.
"Subsidiary Partnership" shall mean any partnership in which the
Partnership owns a direct or indirect equity interest.
"Substituted Limited Partner" shall have the meaning set forth in the
Act.
"Tax Matters Partner" shall have the meaning set forth in Section 6.7
hereof.
"Third Party" or "Third Parties" shall mean a Person or Persons who is
or are neither a Partner or Partners nor an Affiliate or Affiliates of a Partner
or Partners.
"Third Party Financing" shall mean financing or refinancing obtained
from a Third Party by the Partnership.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Shares are listed or admitted to trading is
open for the transaction of business or, if the Shares are not listed or
admitted to trading on any national securities exchange, shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
"Transfer" shall mean any assignment, sale, transfer, conveyance or
other disposition or act of alienation (other than a Pledge), whether voluntary
or involuntary or by operation of law.
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<PAGE>
1.2 Exhibit, Etc. References in this Agreement to an "Exhibit"
are, unless otherwise specified, to one of the Exhibits attached to this
Agreement, and references in this Agreement to an "Article" or a "Section" are,
unless otherwise specified, to one of the Articles or Sections of this
Agreement. Each Exhibit attached hereto and referred to herein is hereby
incorporated herein by reference.
ARTICLE II
Continuation of Partnership
2.1 Continuation. The parties hereto do hereby agree to continue
the Partnership as a limited partnership pursuant to the provisions of the Act,
and all other pertinent laws of the State of Delaware, for the purposes and upon
the terms and conditions hereinafter set forth. The Partners agree that the
rights and liabilities of the Partners shall be as provided in the Act except as
otherwise herein expressly provided. Promptly upon the execution and delivery of
this Agreement, the Managing General Partner shall cause each notice,
instrument, document or certificate as may be required by applicable law, and
which may be necessary to enable the Partnership to continue to conduct its
business, and to own its properties, under the Partnership name to be filed or
recorded in all appropriate public offices. Upon request of the Managing General
Partner, the Partners shall execute any assumed or fictitious name certificate
or certificates required by law to be filed in connection with the Partnership.
The Managing General Partner shall properly cause
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the execution and delivery of such additional documents and shall perform such
additional acts consistent with the terms of this Agreement as may be necessary
to comply with the requirements of law for the continued operation of a limited
partnership under the laws of the State of Delaware (it being understood that
the Managing General Partner shall be required to provide the Non-Managing
General Partner and Limited Partners with copies of any amended Certificates of
Limited Partnership required to be filed under such laws only upon request) and
for the continued operation of a limited partnership in each other jurisdiction
in which the Partnership shall conduct business.
2.2 Name. The name of the Partnership is hereby changed to
Simon-DeBartolo Group, L.P., and henceforth all business of the Partnership
shall be conducted under the name of Simon-DeBartolo Group, L.P. or such other
name as the Managing General Partner may select; provided, however, that the
Managing General Partner may not choose the name (or any derivative thereof) of
any Limited Partner (other than the names "DeBartolo" or "Simon") without the
prior written consent of such Limited Partner. All transactions of the
Partnership, to the extent permitted by applicable law, shall be carried on and
completed in such name (it being understood that the Partnership may adopt
assumed or fictitious names in certain jurisdictions).
2.3 Character of the Business. The purpose of the Partnership is
and shall be to acquire, hold, own, develop, redevelop, construct, reconstruct,
alter, improve, maintain, operate, sell, lease, Transfer, encumber, convey,
exchange and
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otherwise dispose of or deal with the Properties and any other real and personal
property of all kinds; to undertake such other activities as may be necessary,
advisable, desirable or convenient to the business of the Partnership; and to
engage in such other ancillary activities as shall be necessary or desirable to
effectuate the foregoing purposes. The Partnership shall have all powers
necessary or desirable to accomplish the purposes enumerated. In connection with
the foregoing, but subject to all of the terms, covenants, conditions and
limitations contained in this Agreement and any other agreement entered into by
the Partnership, the Partnership shall have full power and authority to enter
into, perform and carry out contracts of any kind, to borrow or lend money and
to issue evidences of indebtedness, whether or not secured by mortgage, trust
deed, pledge or other Lien and, directly or indirectly, to acquire and construct
additional Properties necessary or useful in connection with its business.
2.4 Location of the Principal Place of Business. The location of
the principal place of business of the Partnership shall be at 115 West
Washington Street, Indianapolis, IN 46204 or such other location as shall be
selected from time to time by the Managing General Partner in its sole
discretion; provided, however, that the Managing General Partner shall promptly
notify the Partners of any change in the location of the principal place of
business of the Partnership.
2.5 Registered Agent and Registered Office. The Registered Agent
of the Partnership shall be The Prentice-Hall Corporation System, Inc. or such
other Person as the Managing General Partner may select in its sole discretion.
The Registered Office of the Partnership in the State of Delaware shall be c/o
Prentice-Hall Corporation System,
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Inc., 32 Loockerman Square, Suite L-100, Dover, DE 19901, or such other location
as the Managing General Partner may select in its sole and absolute discretion.
The Managing General Partner shall promptly notify the Partners of any change in
the Registered Agent or Registered Office of the Partnership.
ARTICLE III
Term
3.1 Commencement. The Partnership commenced business as a limited
partnership on November 18, 1993 upon the filing of the Certificate with the
Secretary of State of the State of Delaware.
3.2 Dissolution. The Partnership shall continue until dissolved
and terminated upon the earlier of (i) December 31, 2096, or (ii) the earliest
to occur of the following events:
(a) the dissolution, termination, withdrawal, retirement or
Bankruptcy of a General Partner unless the Partnership is continued as provided
in Section 9.1 hereof;
(b) the election to dissolve the Partnership made in writing by
the Managing General Partner, but only if the consent required by Section 7.3
and the consent of the Non-Managing General Partner are obtained;
(c) the sale or other disposition of all or substantially all the
assets of the Partnership; or
(d) dissolution required by operation of law.
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ARTICLE IV
Contributions to Capital
4.1 General Partner Capital Contributions.
(a) Simultaneously with the execution and delivery hereof, the
Non-Managing General Partner is contributing to the Partnership Simon, L.P.
units representing 10.5% of the outstanding Simon, L.P. units (excluding
preferred units) and a 49.5% interest in the profits of Simon, L.P., both in
exchange for a non-managing general partnership interest in the Partnership with
the number of Units set forth on Exhibit A.
(b) The Non-Managing General Partner shall hereafter contribute
to the capital of the Partnership, in exchange for Units as provided in Section
4.3(b) hereof, the proceeds of the sale of any Shares.
(c) The Non-Managing General Partner may contribute to the
Partnership, in exchange for Preferred Units having the same terms as the Simon,
L.P. preferred units being exchanged, any Simon, L.P. preferred units on a
one-for-one basis. Upon such contribution, any such Preferred Units shall be
subject in all respects to the provisions of Section 4.3(c) and the Related
Issue for any such Preferred Units issued under this section shall be the class
or series of Preferred Stock of the Non-Managing General Partner related to the
Simon, L.P. preferred units so contributed.
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(d) All transfer, stamp or similar taxes payable upon any
contribution provided for in this Section 4.1 shall be paid by the Partnership.
4.2 Limited Partner Capital Contributions. Concurrently herewith,
the Limited Partners identified on Exhibit A as limited partners of Simon, L.P.
are contributing or causing to be contributed, to the capital of the
Partnership, in exchange for Partnership Units, their limited partnership
interests in Simon, L.P. All transfer, stamp or similar taxes payable upon such
contribution, if any, shall be paid by the Partnership. Except as expressly
provided in Sections 4.3, 4.4, 4.5 and 4.8 below, no Partner may make, and no
Partner shall have the obligation to make, additional contributions to the
capital of the Partnership without the consent of the General Partners. 4.3
Additional Funds.4.3 Additional Funds.
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4.3 Additional Funds.
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(a) The Partnership may obtain funds ("Required Funds") which it
considers necessary to meet the needs, obligations and requirements of the
Partnership, or to maintain adequate working capital or to repay Partnership
indebtedness, and to carry out the Partnership's purposes, from the proceeds of
Third Party Financing or Affiliate Financing, in each case pursuant to such
terms, provisions and conditions and in such manner (including the engagement of
brokers and/or investment bankers to assist in providing such financing) and
amounts as the Managing General Partner and as the Non-Managing General Partner
shall determine to be in the best interests of the Partnership, subject to the
terms and conditions of this Agreement. Any and all funds required or expended,
directly or indirectly, by the Partnership for capital expenditures may be
obtained or replenished through Partnership borrowings. Any Third Party
Financing or Affiliate Financing obtained by the General Partners for and on
behalf of the Partnership may be convertible in whole or in part into Additional
Units (to be issued in accordance with Section 9.4 hereof), may be unsecured,
may be secured by mortgage(s) or deed(s) of trust and/or assignments on or in
respect of all or any portion of the assets of the Partnership or any other
security made available by the Partnership, may include or be obtained through
the public or private placement of debt and/or other instruments, domestic and
foreign, may include provision for the option to acquire Additional Units (to be
issued in accordance with Section 9.4 hereof), and may include the acquisition
of or provision for interest rate swaps, credit
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enhancers and/or other transactions or items in respect of such Third Party
Financing or Affiliate Financing; provided, however, that in no event may the
Partnership obtain any Affiliate Financing or Third Party Financing that is
recourse to any Partner or any Affiliate, partner, shareholder, beneficiary,
principal, officer or director of any Partner without the consent of the
affected Partner and any other Person or Persons to whom such recourse may be
had.
(b) To the extent the Partnership does not borrow all of the
Required Funds (and whether or not the Partnership is able to borrow all or part
of the Required Funds), the Managing General Partner or the Non-Managing General
Partner (or an Affiliate thereof) (i) may itself borrow such Required Funds, in
which case the Managing General Partner or the Non-Managing General Partner
shall lend such Required Funds to the Partnership on the same economic terms and
otherwise on substantially identical terms, or (ii) may raise such Required
Funds in any other manner, in which case, unless such Required Funds are raised
by the Non-Managing General Partner through the sale of Preferred Shares, the
Managing General Partner or the Non-Managing General Partner shall contribute to
the Partnership as an additional Capital Contribution the amount of the Required
Funds so raised ("Contributed Funds") (hereinafter, each date on which the
Managing General Partner or the Non-Managing General Partner so contributes
Contributed Funds pursuant to this Section 4.3(b) is referred to as an
"Adjustment Date"). Any Required Funds raised from the sale of Preferred Shares
shall either be
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contributed to the Partnership as Contributed Funds or loaned to the Partnership
pursuant to Section 4.3(c) below. In the event the Managing General Partner or
the Non-Managing General Partner advances Required Funds to the Partnership
pursuant to this Section 4.3(b) as Contributed Funds, then the Partnership shall
assume and pay (or reflect on its books as additional Contributed Funds) the
expenses (including any applicable underwriting discounts) incurred by the
Managing General Partner or the Non-Managing General Partner (or such Affiliate)
in connection with raising such Required Funds through a public offering of its
securities or otherwise. If the Managing General Partner or the Non-Managing
General Partner advances Required Funds to the Partnership as Contributed Funds
pursuant to this Section 4.3(b), additional Partnership Units shall be issued to
the Managing General Partner or the Non-Managing General Partner to reflect its
contribution of the Contributed Funds. The number of Partnership Units so issued
shall be determined by dividing the amount of Contributed Funds by the Deemed
Partnership Unit Value, computed as of the Trading Day immediately preceding the
Adjustment Date. The Managing General Partner or the Non-Managing General
Partner shall promptly give each Limited Partner written notice of the number of
Partnership Units so issued.
(c) In the event the Non-Managing General Partner contributes to
the Partnership any Required Funds obtained from the sale of Preferred Shares
("Preferred Contributed Funds"), then the Partnership shall assume and pay the
expenses (including any applicable underwriter discounts) incurred by the Non-
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Managing General Partner in connection with raising such Required Funds. In
addition, the Non-Managing General Partner shall be issued Preferred Units of a
designated class or series to reflect its contribution of such funds. Each class
or series of Preferred Units so issued shall be designated by the Non-Managing
General Partner to identify such class or series with the class or series of
Preferred Shares which constitutes the Related Issue. Each class or series of
Preferred Units shall be described in a written document (the "Preferred Unit
Designation") attached as Exhibit B that shall set forth, in sufficient detail,
the economic rights, including dividend, redemption and conversion rights and
sinking fund provisions, of the class or series of Preferred Units and the
Related Issue. The number of Preferred Units of a class or series shall be equal
to the number of shares of the Related Issue sold. The Preferred Unit
Designation shall provide for such terms for the class or series of Preferred
Units that shall entitle the Non-Managing General Partner to substantially the
same economic rights as the holders of the Related Issue. Specifically, the
Non-Managing General Partner shall receive distributions on the class or series
of Preferred Units pursuant to Section 6.2 equal to the aggregate dividends
payable on the Related Issue at the times such dividends are paid (the Preferred
Distribution Requirement ). The Partnership shall redeem the class or series of
Preferred Units for a redemption price per Preferred Unit equal to the
redemption price per share of the Related Issue, exclusive of any accrued unpaid
dividends (the Preferred Redemption Price ) upon
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the redemption of any shares of the Related Issue. Each class or series of
Preferred Units shall also be converted into additional Partnership Units at the
time and on such economic terms and conditions as the Related Issue is converted
into Shares. Upon the issuance of any class or series of Preferred Units
pursuant to this Section 4.3(c), the Non-Managing General Partner shall provide
the Limited Partners with a copy of the Preferred Unit Designation relating to
such class or series. The Non-Managing General Partner shall have the right, in
lieu of contributing to the Partnership proceeds from the sale of Preferred
Shares as Preferred Contributed Funds, to lend such proceeds to the Partnership.
Any such loan shall be on the same terms and conditions as the Related Issue
except that dividends payable on the Related Issue shall be payable by the
Partnership to the Non-Managing General Partner as interest, any mandatory
redemptions shall take the form of principal payments and no Preferred Units
shall be issued to the Non-Managing General Partner. If any such loan is made,
the Partnership shall promptly reimburse the Non-Managing General Partner for
all expenses (including any applicable underwriter discounts) incurred by the
Non-Managing General Partner in connection with raising the Required Funds. Any
such loan made by the Non-Managing General Partner to the Partnership may at any
time be contributed to the Partnership as Preferred Contributed Funds in
exchange for Preferred Units as above provided; and if the Related Issue is by
its terms convertible into Shares, such loan shall be so contributed to the
Partnership prior to the effectuation of such conversion.
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4.4 Stock Option Plan. The stock option plan of Simon, L.P. and all
obligations thereunder have been assumed by the Partnership. If at any time a
stock option granted by Simon, L.P. in connection with such plan or a stock
option granted by the Partnership in connection with the Stock Option Plan is
exercised in accordance with its terms, and the Partnership chooses not to
acquire any or all of the stock required to satisfy such option through open
market purchases, the Non-Managing General Partner shall, as soon as practicable
after such exercise, sell to the Partnership for use in satisfying such stock
option, at a purchase price equal to the Current Per Share Market Price on the
date such stock option is exercised, the number of newly issued Shares for which
such option is exercised (or, if such stock option is to be satisfied in part
through open market purchases, the remaining number of newly issued Shares) and
the Non-Managing General Partner shall contribute to the capital of the
Partnership, in exchange for additional Partnership Units, an amount equal to
the price paid to the Non-Managing General Partner by the Partnership in
connection with the Partnership's purchase of newly issued Shares upon exercise
of such stock option. The number of Partnership Units to be so issued shall be
determined by dividing the amount of such capital contribution by the Deemed
Partnership Unit Value, computed as of the Trading Day immediately preceding the
date of such capital contribution. The Non-Managing General Partner shall
promptly give each Limited Partner written notice of the number of Partnership
Units so issued. The Partnership shall retain the
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exercise or purchase price paid by the holder of such option for the Shares such
holder is entitled to receive upon such exercise.
4.5 Dividend Reinvestment Plan. All amounts received by the
Non-Managing General Partner in respect of its dividend reinvestment plan, if
any, either (a) shall be utilized by the Non-Managing General Partner to effect
open market purchases of its stock, or (b) if the Non-Managing General Partner
elects instead to issue new shares with respect to such amounts, shall be
contributed by the Non-Managing General Partner to the Partnership in exchange
for additional Partnership Units. The number of Partnership Units so issued
shall be determined by dividing the amount of funds so contributed by the Deemed
Partnership Unit Value, computed as of the Trading Day immediately preceding the
date such funds are contributed. The Non-Managing General Partner shall promptly
give each Limited Partner written notice of the number of Partnership Units so
issued.
4.6 No Third Party Beneficiary. No creditor or other Third Party
having dealings with the Partnership shall have the right to enforce the right
or obligation of any Partner to make Capital Contributions or to pursue any
other right or remedy hereunder or at law or in equity, it being understood and
agreed that the provisions of this Agreement shall be solely for the benefit of,
and may be enforced solely by, the parties hereto and their respective
successors and assigns. None of the rights or obligations of the Partners herein
set forth to make Capital Contributions to the Partnership shall be deemed an
asset of the
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Partnership for any purpose by any creditor or other third party, nor may such
rights or obligations be sold, transferred or assigned by the Partnership or
pledged or encumbered by the Partnership to secure any debt or other obligation
of the Partnership or of any of the Partners.
4.7 No Interest; No Return. Partner shall be entitled to interest
on its Capital Contribution or on such Partner's Capital Account. Except as
provided herein or by law, no Partner shall have any right to withdraw any part
of its Capital Account or to demand or receive the return of its Capital
Contribution from the Partnership.
4.8 Capital Accounts.
(a) The Partnership shall establish and maintain a separate
capital account ("Capital Account") for each Partner, including a Partner who
shall pursuant to the provisions hereof acquire a Partnership Interest, which
Capital Account shall be:
(1) credited with the amount of cash contributed by such
Partner to the capital of the Partnership; the initial Gross Asset
Value (net of liabilities secured by such contributed property that
the Partnership assumes or takes subject to) of any other property
contributed by such Partner to the capital of the Partnership; such
Partner's distributive share of Profits; and any other items in the
nature of income or gain that are allocated to such Partner pursuant
to Section 6.1 hereof, but excluding tax items described in
Regulations Section 1.704-1(b)(4)(i); and
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(2) debited with the amount of cash distributed to such
Partner pursuant to the provisions of this Agreement; the Gross Asset
Value (net of liabilities secured by such distributed property that
such Partner assumes or takes subject to) of any Partnership property
distributed to such Partner pursuant to any provision of this
Agreement; the amount of unsecured liabilities of such Partner assumed
by the Partnership; such Partner's distributive share of Losses; in
the case of the General Partners, payments of REIT Expenses by the
Partnership; and any other items in the nature of expenses or losses
that are allocated to such Partner pursuant to Section 6.1 hereof, but
excluding tax items described in Regulations Section 1.704-1(b)(4)(i).
In the event that any or all of a Partner's Partnership Units or
Preferred Units are transferred within the meaning of Regulations Section
1.704-1(b)(2)(iv)(l), the transferee shall succeed to the Capital Account of the
transferor to the extent that it relates to the Units so transferred.
In the event that the Gross Asset Values of Partnership assets are
adjusted pursuant to Section 4.8(b)(ii) hereof, the Capital Accounts of the
Partners shall be adjusted to reflect the aggregate net adjustments as if the
Partnership sold all of its properties for their fair market values and
recognized gain or loss for federal income tax purposes equal to the amount of
such aggregate net adjustment.
A Limited Partner shall be liable unconditionally to the Partnership
for all or a portion of any deficit in its Capital
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Account if it so elects to be liable for such deficit or portion thereof. Such
election may be for either a limited or unlimited amount and may be amended or
withdrawn at any time. The election, and any amendment thereof, shall be made by
written notice to the Managing General Partner (and the Managing General Partner
shall promptly upon receipt deliver copies thereof to the other Partners)
stating that the Limited Partner elects to be liable, and specifying the
limitations, if any, on the maximum amount or duration of such liability. Said
election, or amendment thereof, shall be effective only from the date 25 days
after written notice thereof is received by the Managing General Partner, and
shall terminate upon the date, if any, specified therein as a termination date
or upon delivery to the Managing General Partner of a subsequent written notice
terminating such election. A termination of any such election, or an amendment
reducing the Limited Partner's maximum liability thereunder or the duration
thereof, shall not be effective to avoid responsibility for any loss incurred
prior to such termination or the effective date of such amendment. Except as
provided in this Section 4.8 or as required by law, no Limited Partner shall be
liable for any deficit in its Capital Account or be obligated to return any
distributions of any kind received from the Partnership.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-1(b) of the
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Regulations, and shall be interpreted and applied as provided in the
Regulations.
(b) The term "Gross Asset Value" or "Gross Asset Values" means,
with respect to any asset of the Partnership, such asset's adjusted basis for
federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed
by a Partner to the Partnership shall be the gross fair market value
of such asset as reasonably determined by the Managing General
Partner;
(ii) the Gross Asset Values of all Partnership assets shall
be adjusted to equal their respective gross fair market values, as
reasonably determined by the General Partner, immediately prior to the
following events:
(A) a Capital Contribution (other than a de
minimis Capital Contribution, within the meaning of Section
1.704-1(b)(2)(iv)(f)(5)(i) of the Regulations) to the
Partnership by a new or existing Partner as consideration
for Partnership Units;
(B) the distribution by the Partnership to a
Partner of more than a de minimis amount (within the meaning
of Section 1.704-1(b)(2)(iv)(f)(5)(ii) of the Regulations)
of Partnership property as consideration for the redemption
of Partnership Units; and
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(C) the liquidation of the Partnership within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations;
and
(iii) the Gross Asset Values of Partnership assets
distributed to any Partner shall be the gross fair market values of
such assets as reasonably determined by the Managing General Partner
as of the date of distribution.
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Profits and Losses. Any adjustment to the Gross Asset Values of Partnership
property shall require an adjustment to the Partners' Capital Accounts as
described in Section 4.8(a) above.
ARTICLE V
Representations, Warranties and Acknowedgement
5.1 Representations and Warranties by Managing General Partner.
The Managing General Partner represents and warrants to the Limited Partners,
the Non-Managing General Partner and to the Partnership that (i) it is a
corporation duly formed, validly existing and in good standing under the laws of
the State of Ohio, with full right, corporate power and authority to fulfill all
of its obligations hereunder or as contemplated herein; (ii) all transactions
contemplated by this Agreement to be performed by it have been duly authorized
by all necessary action; (iii) this Agreement has been duly executed and
delivered by and is the legal, valid and binding obligation of the Managing
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General Partner and is enforceable against it in accordance with its terms,
except as such enforcement may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other laws of
general application affecting the rights and remedies of creditors and (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law); (iv) no authorization,
approval, consent or order of any court or governmental authority or agency or
any other Entity is required in connection with the execution and delivery of
this Agreement by the Managing General Partner, except as may have been received
prior to the date of this Agreement; (v) the execution and delivery of this
Agreement by the Managing General Partner and the consummation of the
transactions contemplated hereby will not conflict with or constitute a breach
or violation of, or a default under, any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which either the Managing General Partner or the
Partnership is a party; and (vi) the Partnership Units, upon payment of the
consideration therefore pursuant to this Agreement, will be validly issued,
fully paid and, except as otherwise provided in accordance with applicable law,
non-assessable.
5.2 Representations and Warranties by Non-Managing General
Partner. The Non-Managing General Partner represents and warrants to the Limited
Partners, the Managing General Partner and to the Partnership that (i) it is a
corporation duly formed,
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validly existing and in good standing under the laws of the State of Maryland,
with full right, corporate power and authority to fulfill all of its
obligations hereunder or as contemplated herein; (ii) all transactions
contemplated by this Agreement to be performed by it have been duly authorized
by all necessary action; (iii) this Agreement has been duly executed and
delivered by and is the legal, valid and binding obligation of the Non-Managing
General Partner and is enforceable against it in accordance with its terms,
except as such enforcement may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other laws of
general application affecting the rights and remedies of creditors and (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law); (iv) no authorization,
approval, consent or order of any court or governmental authority or agency or
any other Entity is required in connection with the execution and delivery of
this Agreement by the Non-Managing General Partner, except as may have been
received prior to the date of this Agreement; and (v) the execution and
delivery of this Agreement by the Non-Managing General Partner and the
consummation of the transactions contemplated hereby will not conflict with or
constitute a breach or violation of, or default under, any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership agreement
or other instrument or agreement to which either the Non-Managing General
Partner or Simon, L.P. is a party.
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5.3 Representations and Warranties by the Limited Partners. Each
Limited Partner, for itself only, represents and warrants to the General
Partners, the other Limited Partners and the Partnership that (i) all
transactions contemplated by this Agreement to be performed by such Limited
Partner have been duly authorized by all necessary action; and (ii) this
Agreement is binding upon, and enforceable against, such Limited Partner in
accordance with its terms, except as such enforcement may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other laws of general application affecting the rights and remedies
of creditors and (b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
5.4 Acknowledgment by Each Partner5.4 Acknowledgment by Each
Partner. Each Partner hereby acknowledges that no representations as to
potential profit, cash flows or yield, if any, in respect of the Partnership,
Simon, L.P., or any one or more or all of the Projects owned, directly or
indirectly, by the Partnership or Simon, L.P., have been made to it by any other
Partner or its Affiliates or any employee or representative of any other Partner
or its Affiliates, and that projections and any other information, including,
without limitation, financial and descriptive information and documentation,
which may have been in any manner submitted to such Partner shall not constitute
a representation or warranty, express or implied.
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ARTICLE VI
Allocations, Distributions and Other
Tax and Accounting Matters
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6.1 Allocations.
(a) For the purpose of this Agreement, the terms "Profits" and
"Losses" mean, respectively, for each Partnership Fiscal Year or other period,
the Partnership's taxable income or loss for such Partnership Fiscal Year or
other period, determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss), adjusted as follows:
(1) any income of the Partnership that is exempt
from federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this Section 6.1(a) shall
be added to such taxable income or loss;
(2) in lieu of the depreciation, amortization and
other cost recovery deductions taken into account in computing
such taxable income or loss, there shall be taken into account
Depreciation for such Partnership Fiscal Year or other period;
(3) any items that are specially allocated
pursuant to Section 6.1(d) hereof shall not be taken into account
in computing Profits or Losses; and
(4) any expenditures of the Partnership described
in Section 705(a)(2)(B) of the Code (or treated as
such under Regulation Section 1.704-1(b)(2)(iv)(i)) and not
otherwise taken into account in computing Profits or Losses
pursuant to this Section 6.1(a) shall be deducted in calculating
such taxable income or loss.
(b) Except as otherwise provided in Section 6.1(d) hereof and this
Section 6.1(b), the Profits and Losses of the Partnership (and each item
thereof) for each Partnership Fiscal Year shall be allocated among the Partners
in the following order of priority:
(1) First, Profits shall be allocated to the
holder of Preferred Units in an amount equal to the excess of (A)
the amount of Net Operating Cash Flow distributed to such holder
pursuant to Sections 6.2(b)(i) and (ii) and Section 6.2(c)(but
only to the extent of the Preferred Distribution Requirement and
Preferred Distribution Shortfalls) for the current and all prior
Partnership Fiscal Years over (B) the amount of Profits
previously allocated to such holder pursuant to this subparagraph
(1).
(2) Second, for any Partnership Fiscal Year ending
on or after a date on which Preferred Units are redeemed, Profits
(or Losses) shall be allocated to the holder of such Preferred
Units in an amount equal to the excess (or deficit) of the sum of
the applicable Preferred Redemption Amounts for the Preferred
Units that have been or are being redeemed during such
Partnership Fiscal Year over the Preferred Unit Issue Price of
such Preferred Units. In addition, in the event that the
Partnership is liquidated
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pursuant to Article VIII, the allocation described above shall be
made to the holder of Preferred Units with respect to all
Preferred Units then outstanding.
(3) Third, any remaining Profits and Losses shall
be allocated among the Partners in accordance with their
proportionate ownership of Partnership Units except as otherwise
required by the Regulations.
(4) Notwithstanding subparagraphs (1), (2) and
(3), Profits and Losses from a Liquidation Transaction shall be
allocated as follows:
First, Profits (or Losses) shall be allocated to
the holder of Preferred Units in an amount equal to the
excess (or deficit) of the sum of the applicable Preferred
Redemption Amounts of the Preferred Units which have been or
will be redeemed with the proceeds of the Liquidation
Transaction over the Preferred Unit Issue Price of such
Preferred Units;
Second, Profits or Losses shall be allocated among
the Partners so that the Capital Accounts of the Partners
(excluding from the Capital Account of any Partner the
amount attributable to its Preferred Units) are proportional
to the number of Partnership Units held by each Partner; and
Third, any remaining Profits and Losses shall be
allocated among the Partners in accordance with their
proportionate ownership of Partnership Units.
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(c) For the purpose of Section 6.1(b) hereof, gain or loss resulting
from any disposition of Partnership property shall be computed by reference to
the Gross Asset Value of the property disposed of, notwithstanding that the
adjusted tax basis of such property for federal income tax purposes differs from
its Gross Asset Value.
(d) Notwithstanding the foregoing provisions of this Section 6.1, the
following provisions shall apply:
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(1) A Partner shall not receive an allocation of any
Partnership deduction that would result in total loss allocations
attributable to "Nonrecourse Liabilities" (as defined in Regulations
Section 1.704-2(b)(3)) in excess of such Partner's share of Minimum
Gain (as determined under Regulations Section 1.704-2(g)). The term
"Minimum Gain" means an amount determined in accordance with
Regulations Section 1.704-2(d) by computing, with respect to each
Nonrecourse Liability of the Partnership, the amount of gain, if any,
that the Partnership would realize if it disposed of the property
subject to such liability for no consideration other than full
satisfaction thereof, and by then aggregating the amounts so computed.
If the Partnership makes a distribution allocable to the proceeds of a
Nonrecourse Liability, in accordance with Regulation Section
1.704-2(h) the distribution will be treated as allocable to an
increase in Partnership Minimum Gain to the extent the increase
results from encumbering Partnership property with aggregate
Nonrecourse Liabilities that exceeds the property's adjusted tax
basis. If there is a net decrease in Partnership Minimum Gain for a
Partnership Fiscal Year, in accordance with Regulations Section
1.704-2(f) and the exceptions contained therein, the Partners shall be
allocated items of Partnership income and gain for such Partnership
Fiscal Year (and, if necessary, for subsequent Partnership Fiscal
Years) equal to the Partners' respective shares of the net decrease in
Minimum Gain within
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the meaning of Regulations Section 1.704-2(g)(2) (the "Minimum Gain
Chargeback"). The items to be allocated pursuant to this Section
6.1(d)(1) shall be determined in accordance with Regulations Section
1.704-2(f) and (j).
(2) Any item of "Partner Nonrecourse Deduction" (as defined
in Regulations Section 1.704-2(i)) with respect to a "Partner
Nonrecourse Debt" (as defined in Regulations Section 1.704-2(b)(4))
shall be allocated to the Partner or Partners who bear the economic
risk of loss for such Partner Nonrecourse Debt in accordance with
Regulations Section 1.704-2(i)(1). If the Partnership makes a
distribution allocable to the proceeds of a Partner Nonrecourse Debt,
in accordance with Regulation Section 1.704-2(i)(6) the distribution
will be treated as allocable to an increase in Partner Minimum Gain to
the extent the increase results from encumbering Partnership property
with aggregate Partner Nonrecourse Debt that exceeds the property's
adjusted tax basis. Subject to Section 6.1(d)(1) hereof, but
notwithstanding any other provision of this Agreement, in the event
that there is a net decrease in Minimum Gain attributable to a Partner
Nonrecourse Debt (such Minimum Gain being hereinafter referred to as
"Partner Nonrecourse Debt Minimum Gain") for a Partnership Fiscal
Year, then after taking into account allocations pursuant to Section
6.1(d)(1) hereof, but before any other allocations are made for such
taxable year, and subject to the exceptions set forth in Regulations
<PAGE>
Section 1.704-2(i)(4), each Partner with a share of Partner
Nonrecourse Debt Minimum Gain at the beginning of such Partnership
Fiscal Year shall be allocated items of income and gain for such
Partnership Fiscal Year (and, if necessary, for subsequent Partnership
Fiscal Years) equal to such Partner's share of the net decrease in
Partner Nonrecourse Debt Minimum Gain as determined in a manner
consistent with the provisions of Regulations Section 1.704-2(g)(2).
The items to be allocated pursuant to this Section 6.1(d)(2) shall be
determined in accordance with Regulations Section 1.704-2(i)(4) and
(j).
(3) Pursuant to Regulations Section 1.752-3(a)(3), for the
purpose of determining each Partner's share of excess nonrecourse
liabilities of the Partnership, and solely for such purpose, each
Partner's interest in Partnership profits is hereby specified to be
the quotient of (i) the number of Partnership Units then held by such
Partner, and (ii) the aggregate amount of Partnership Units then
outstanding.
(4) No Limited Partner shall be allocated any item of
deduction or loss of the Partnership if such allocation would cause
such Limited Partner's Capital Account to become negative by more than
the sum of (i) any amount such Limited Partner is obligated to restore
upon liquidation of the Partnership, plus (ii) such Limited Partner's
share of the Partnership's Minimum Gain and Partner Nonrecourse Debt
Minimum Gain. An item of deduction
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or loss that cannot be allocated to a Limited Partner pursuant to this
Section 6.1(d)(4) shall be allocated to the General Partners in
accordance with the number of Partnership Units held by each General
Partner. For this purpose, in determining the Capital Account balance
of such Limited Partner, the items described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6) shall be taken into account. In
the event that (A) any Limited Partner unexpectedly receives any
adjustment, allocation, or distribution described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and (B) such
adjustment, allocation, or distribution causes or increases a deficit
balance (net of amounts which such Limited Partner is obligated to
restore or deemed obligated to restore under Regulations Section
1.704-2(g)(1) and 1.704-2(i)(5) and determined after taking into
account any adjustments, allocations, or distributions described in
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) that, as of
the end of the Partnership Fiscal Year, reasonably are expected to be
made to such Limited Partner) in such Limited Partner's Capital
Account as of the end of the Partnership Fiscal Year to which such
adjustment, allocation, or distribution relates, then items of Gross
Income (consisting of a pro rata portion of each item of Gross Income)
for such Partnership Fiscal Year and each subsequent Partnership
Fiscal Year shall be allocated to such Limited Partner until such
deficit balance or increase in such deficit balance, as
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the case may be, has been eliminated. In the event that this Section
6.1(d)(4) and Section 6.1(d)(1) and/or (2) hereof apply, Section
6.1(d)(1) and/or (2) hereof shall be applied prior to this Section
6.1(d)(4).
(5) The Regulatory Allocations shall be taken into account
in allocating other items of income, gain, loss, and deduction among
the Partners so that, to the extent possible, the cumulative net
amount of allocations of Partnership items under this Section 6.1
shall be equal to the net amount that would have been allocated to
each Partner if the Regulatory Allocations had not been made. This
Section 6.1(d)(5) is intended to minimize to the extent possible and
to the extent necessary any economic distortions which may result from
application of the Regulatory Allocations and shall be interpreted in
a manner consistent therewith. For purposes hereof, "Regulatory
Allocations" shall mean the allocations provided under this Section
6.1(d)(other than this Section 6.1(d)(5)).
(e) In accordance with Sections 704(b) and 704(c) of the Code and the
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for federal
income tax purposes, be allocated among the Partners on a property by property
basis so as to take account of any variation between the adjusted basis of such
property to the Partnership for federal income tax purposes and the initial
Gross Asset Value of such property. If the Gross Asset Value of any Partnership
property
55
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is adjusted as described in the definition of Gross Asset Value, subsequent
allocations of income, gains or losses from taxable sales or other dispositions
and deductions with respect to such asset shall take account of any variation
between the adjusted basis of such asset for federal income tax purposes and
the Gross Asset Value of such asset in the manner prescribed under Sections
704(b) and 704(c) of the Code and the Regulations thereunder. In furtherance of
the foregoing, the Partnership shall employ the method prescribed in Regulation
ss. 1.704-3(b) (the "traditional method") or the equivalent successor
provision(s) of proposed, temporary or final Regulations. The Partnership shall
allocate items of income, gain, loss and deduction allocated to it by a
Subsidiary Entity to the Partner or Partners contributing the interest or
interests in such Subsidiary Entity, so that, to the greatest extent possible
and consistent with the foregoing, such contributing Partner or Partners are
allocated the same amount and character of items of income, gain, loss and
deduction with respect to such Subsidiary Entity that they would have been
allocated had they contributed undivided interests in the assets owned by such
Subsidiary Entity to the Partnership in lieu of contributing the interest or
interests in the Subsidiary Entity to the Partnership.
(f) Notwithstanding anything to the contrary contained in this Section
6.1, the allocation of Profits and Losses for any Partnership Fiscal Year during
which a Person acquires a Partnership Interest (other than upon formation of the
Partnership) pursuant to Section 4.3(b) or otherwise, shall take
<PAGE>
into account the Partners' varying interests for such Partnership Fiscal Year
pursuant to any method permissible under Section 706 of the Code that is
selected by the Managing General Partner (notwithstanding any agreement between
the assignor and assignee of such Partnership Interest although the Managing
General Partner may recognize any such agreement), which method may take into
account the date on which the Transfer or an agreement to Transfer becomes
irrevocable pursuant to its terms, as determined by the Managing General
Partner.
(g) If any portion of gain from the sale of property is treated as
gain which is ordinary income by virtue of the application of Code Sections 1245
or 1250 ("Affected Gain"), then (A) such Affected Gain shall be allocated among
the Partners in the same proportion that the depreciation and amortization
deductions giving rise to the Affected Gain were allocated and (B) other tax
items of gain of the same character that would have been recognized, but for the
application of Code Sections 1245 and/or 1250, shall be allocated away from
those Partners who are allocated Affected Gain pursuant to clause (A) so that,
to the extent possible, the other Partners are allocated the same amount, and
type, of capital gain that would have been allocated to them had Code Sections
1245 and/or 1250 not applied. For purposes hereof, in order to determine the
proportionate allocations of depreciation and amortization deductions for each
Fiscal Year or other applicable period, such deductions shall be deemed
allocated on the same basis as Profits or Losses for such respective period.
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(h) The Profits, Losses, gains, deductions and credits of the
Partnership (and all items thereof) for each Partnership Fiscal Year shall be
determined in accordance with the accounting method followed by the Partnership
for federal income tax purposes.
(i) Except as provided in Sections 6.1(e) and 6.1(g) hereof, for
federal income tax purposes, each item of income, gain, loss, or deduction shall
be allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction has been allocated pursuant to this
Section 6.1.
(j) To the extent permitted by Regulations Sections 1.704-2(h)(3) and
1.704-2(i)(6), the Managing General Partner shall endeavor to treat
distributions as having been made from the proceeds of Nonrecourse Liabilities
or Partner Nonrecourse Debt only to the extent that such distributions would
cause or increase a deficit balance in any Partner's Capital Account that
exceeds the amount such Partner is otherwise obligated to restore (within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(c)) as of the end of the
Partnership's taxable year in which the distribution occurs.
(k) If any Partner sells or otherwise disposes of any property,
directly or indirectly, to the Partnership, and as a result thereof, gain on a
subsequent disposition of such property by the Partnership is reduced pursuant
to Section 267(d) of the Code, then, to the extent permitted by applicable law,
gain for federal income tax purposes attributable to such
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<PAGE>
subsequent disposition shall first be allocated among the Partners other than
the selling Partner in an amount equal to such Partners' allocations of "book"
gain on the property pursuant to this Section 6.1, and any remaining gain for
federal income tax purposes shall be allocated to the selling Partner.
6.2 Distributions. (a) Except with respect to the liquidation of
the Partnership and subject to the priority set forth in Sections 6.2(b) and
(c), the Managing General Partner shall cause the Partnership to distribute all
or a portion of Net Operating Cash Flow to the Partners who are such on the
relevant Partnership Record Date from time to time as determined by the Managing
General Partner, but in any event not less frequently than quarterly, in such
amounts as the Managing General Partner shall determine in its sole discretion;
provided, however, that, except as provided in Sections 6.2(b) and (c) below,
all such distributions shall be made pro rata in accordance with the outstanding
Partnership Units on the relevant Partnership Record Date. In no event may a
Limited Partner receive a distribution of Net Operating Cash Flow with respect
to a Partnership Unit that such Partner has exchanged on or prior to the
relevant Partnership Record Date for a Share, pursuant to the Rights granted
under Section 11.1 or the EJDC Option granted under Section 12.1 (a
"Post-Exchange Distribution"); rather, all such Post-Exchange Distributions
shall be distributed to the Non-Managing General Partner. (b) Except to the
extent Net Operating Cash Flow is distributed pursuant to Section 6.2(c), and
except with
<PAGE>
respect to the liquidation of the Partnership, distributions of Net Operating
Cash Flow shall be made in the following order of priority:
(i) First, to the extent that the amount of Net Operating
Cash Flow distributed to the holder of Preferred Units for any prior
quarter was less than the Preferred Distribution Requirement for such
quarter, and has not been subsequently distributed pursuant to this
Section 6.2(b)(i) (a "Preferred Distribution Shortfall"), Net
Operating Cash Flow shall be distributed to the holder of Preferred
Units in an amount necessary to satisfy such Preferred Distribution
Shortfall for the current and all prior Partnership Fiscal Years. In
the event that the Net Operating Cash Flow distributed for a
particular quarter is less than the Preferred Distribution Shortfall,
then all Net Operating Cash Flow for the current quarter shall be
distributed to the holder of Preferred Units.
(ii) Second, Net Operating Cash Flow shall be distributed to
the holder of Preferred Units in an amount equal to the Preferred
Distribution Requirement for the then current quarter for each
outstanding Preferred Unit. In the event that the amount of Net
Operating Cash Flow distributed for a particular quarter pursuant to
this subparagraph (b)(ii) is less than the Preferred Distribution
Requirement for such quarter, then all such Net Operating Cash Flow
for such quarter shall be distributed to the holder of Preferred
Units.
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(iii) The balance of the Net Operating Cash Flow to be
distributed, if any, shall be distributed to holders of Partnership
Units, in proportion to their ownership of Partnership Units.
(c) If in any quarter the Partnership redeems any outstanding
Preferred Units, unless and except to the extent that such redemption is
effected out of borrowed funds, Capital Contributions or other sources, Net
Operating Cash Flow shall be distributed to the Non-Managing General Partner in
an amount equal to the applicable Preferred Redemption Amount for the Preferred
Units being redeemed before being distributed pursuant to Section 6.2(b).
(d) Notwithstanding the provision of the first sentence of
Section 6.2(a), (i) the Managing General Partner shall use its best efforts to
cause the Partnership to distribute sufficient amounts, in accordance with
Section 6.2(a) above, to enable the Managing General Partner and the
Non-Managing General Partner to pay shareholder dividends that will (A) satisfy
the REIT Requirements, and (B) avoid any federal income or excise tax liability
of the Managing General Partner or the Non-Managing General Partner; and (ii) in
the event of a Covered Sale which occurs on a date on or after the Effective
Time, and before but not including the fifth anniversary of the Effective Time,
and which gives rise to a special allocation of taxable income or gain to one or
more Limited Partners pursuant to Section 6.1(e), (A) the Managing General
Partner shall cause the Partnership to distribute to all of the Partners, pro
rata in accordance with
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ownership of Partnership Units, the Net Sale Proceeds therefrom up to an amount
sufficient to enable each such Limited Partner, from the share of such
distribution made to it, to pay in full any income tax liability, computed at
the maximum applicable federal and state statutory rates, with respect to the
income or gain so specially allocated and on the distribution required by this
Section 6.2(d) (or, if any such Limited Partner is a partnership or Subchapter S
corporation, to enable such Limited Partner to distribute sufficient amounts to
its equity owners to enable such owners to pay in full any income tax liability,
computed at the maximum applicable federal and state statutory rates, with
respect to their share of such taxable income or gain and such distributions)
and (B) if the amounts distributed to each such Limited Partner in accordance
with the preceding clause (A) are insufficient to enable it to pay in full such
income tax liabilities, the Managing General Partner shall cause the Partnership
to distribute sufficient funds from other sources to all of the Partners, pro
rata in accordance with ownership of Partnership Units, in an amount sufficient
to enable each such Limited Partner to pay in full such income tax liabilities
and any income tax liabilities of such Limited Partner(s) with respect to such
additional distribution. As used in this Section 6.2, the term "Covered Sale"
means a sale or other taxable disposition of any Property described on Exhibit
C.
6.3 Books of Account; Segregation of Funds.
(a) At all times during the continuance of the Partnership, the
Managing General Partner shall maintain or cause
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to be maintained full, true, complete and correct books of account in accordance
with GAAP wherein shall be entered particulars of all monies, goods or effects
belonging to or owing to or by the Partnership, or paid, received, sold or
purchased in the course of the Partnership's business, and all of such other
transactions, matters and things relating to the business of the Partnership as
are usually entered in books of account kept by Persons engaged in a business of
a like kind and character. In addition, the Partnership shall keep all records
as required to be kept pursuant to the Act. The books and records of account
shall be kept at the principal office of the Partnership, and each Partner and
its representatives shall at all reasonable times have access to such books and
records and the right to inspect and copy the same.
(b) The Partnership shall not commingle its funds with those of
any other Person or Entity; funds and other assets of the Partnership shall be
separately identified and segregated; all of the Partnership s assets shall at
all times be held by or on behalf of the Partnership and, if held on behalf of
the Partnership by another Entity, shall at all times be kept identifiable (in
accordance with customary usages) as assets owned by the Partnership; and the
Partnership shall maintain its own separate bank accounts, payroll and books of
account. The foregoing provisions of this Section 6.3(b) shall not apply with
respect to funds or assets of Simon, L.P. or any other Subsidiary Entities of
the Partnership.
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6.4 Reports. Within ninety (90) days after the end of each
Partnership Fiscal Year, the Partnership shall cause to be prepared and
transmitted to each Partner an annual report of the Partnership relating to the
previous Partnership Fiscal Year containing a balance sheet as of the year then
ended, a statement of financial condition as of the year then ended, and
statements of operations, cash flow and Partnership equity for the year then
ended, which annual statements shall be prepared in accordance with GAAP and
shall be audited by the Accountants. The Partnership shall also cause to be
prepared and transmitted to each Partner within forty-five (45) days after the
end of each of the first three (3) quarters of each Partnership Fiscal Year a
quarterly unaudited report containing a balance sheet, a statement of the
Partnership's financial condition and statements of operations, cash flow and
Partnership equity, in each case relating to the fiscal quarter then just ended,
and prepared in accordance with GAAP. The Partnership shall further cause to be
prepared and transmitted to the Managing General Partner and the Non-Managing
General Partner (i) such reports and/or information as are necessary for each to
fulfill its obligations under the Securities Act of 1933, the Securities and
Exchange Act of 1934 and the applicable stock exchange rules, and under any
other regulations to which such Partners or the Partnership may be subject, and
(ii) such other reports and/or information as are necessary for each of the
Managing General Partner and the Non-Managing General Partner to determine and
maintain its qualification as a REIT under the REIT Requirements, its earnings
<PAGE>
and profits derived from the Partnership, its liability for a tax as a
consequence of its Partnership Interest and distributive share of taxable income
or loss and items thereof, in each case in a manner that will permit the
Managing General Partner and the Non-Managing General Partner to comply with
their respective obligations to file federal, state and local tax returns and
information returns and to provide their shareholders with tax information. The
Non-Managing General Partner shall provide to each Partner copies of all reports
it provides to its stockholders at the same time such reports are distributed to
such stockholders. The Managing General Partner shall also promptly notify the
Partners of all actions taken by the Managing General Partner for which it has
obtained the Consent of the Limited Partners.
6.5 Audits. Not less frequently than annually, the books and
records of the Partnership shall be audited by the Accountants.
6.6 Tax Returns.
(a) Consistent with all other provisions of this Agreement, the
Managing General Partner shall determine the methods to be used in the
preparation of federal, state, and local income and other tax returns for the
Partnership in connection with all items of income and expense, including, but
not limited to, valuation of assets, the methods of Depreciation and cost
recovery, credits and tax accounting methods and procedures and, with the
consent of the Non-Managing General Partner, all tax elections.
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(b) The Managing General Partner shall, at least 30 days prior to
the due dates (as extended) for such returns, but in no event later than July 15
of each year, cause the Accountants to prepare and submit to the DeBartolo
Designee, the Simon Designee and the JCP Limited Partner for their review,
drafts of all federal and state income tax returns of the Partnership and Simon,
L.P. for the preceding year, and the Managing General Partner shall consult in
good faith with the DeBartolo Designee, the Simon Designee and the JCP Limited
Partner regarding any proposed modifications to such tax returns of the
Partnership.
(c) The Partnership shall timely cause to be prepared and
transmitted to the Partners federal and appropriate state and local Partnership
Income Tax Schedules "K-1," or any substitute therefor, with respect to each
Partnership Fiscal Year on appropriate forms prescribed. The Partnership shall
make reasonable efforts to prepare and submit such forms before the due date for
filing federal income tax returns for the fiscal year in question (determined
without extensions), and shall in any event prepare and submit such forms on or
before July 15 of the year following the fiscal year in question.
6.7 Tax Matters Partner.
(a) The Managing General Partner is hereby designated as the Tax
Matters Partner within the meaning of Section 6231(a)(7) of the Code for the
Partnership; provided, however, that (i) in exercising its authority as Tax
Matters Partner it shall be limited by the provisions of this Agreement
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affecting tax aspects of the Partnership; (ii) the Managing General Partner
shall give prompt notice to the Partners of the receipt of any written notice
that the Internal Revenue Service or any state or local taxing authority intends
to examine Partnership or Simon, L.P. income tax returns for any year, receipt
of written notice of the beginning of an administrative proceeding at the
Partnership or Simon, L.P. level relating to the Partnership under Section 6223
of the Code, receipt of written notice of the final Partnership administrative
adjustment relating to the Partnership pursuant to Section 6223 of the Code, and
receipt of any request from the Internal Revenue Service for waiver of any
applicable statute of limitations with respect to the filing of any tax return
by the Partnership; (iii) the Managing General Partner shall promptly notify the
Partners if it does not intend to file for judicial review with respect to the
Partnership or Simon, L.P.; and (iv) as Tax Matters Partner, the Managing
General Partner shall not be entitled to bind a Partner by any settlement
agreement (within the meaning of Section 6224 of the Code) unless such Partner
consents thereto in writing and shall notify the Partners in a manner and at
such time as is sufficient to allow the Partners to exercise their rights
pursuant to Section 6224(c)(3) of the Code; (v) the Managing General Partner
shall consult in good faith with the Simon Designee, the DeBartolo Designee and
the JCP Limited Partner regarding the filing of a Code Section 6227(b)
administrative adjustment request with respect to the Partnership or a Property
before filing such request, it being understood, however, that
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<PAGE>
the provisions hereof shall not be construed to limit the ability of any
Partner, including the Managing General Partner, to file an administrative
adjustment request on its own behalf pursuant to Section 6227(a) of the Code;
and (vi) the Managing General Partner shall consult in good faith with the Simon
Designee, the DeBartolo Designee and the JCP Limited Partner regarding the
filing of a petition for judicial review of an administrative adjustment request
under Section 6228 of the Code, or a petition for judicial review of a final
partnership administrative judgment under Section 6226 of the Code relating to
the Partnership before filing such petition.
(b) Under the terms of the agreement of limited partnership of
Simon, L.P., as amended, the Non-Managing General Partner acts as the tax
matters partner for such partnership. The Non-Managing General Partner agrees to
comply with all of the obligations imposed on the Managing General Partner in
Section 6.7(a) (including notification and consultation obligations) insofar as
the matters or events giving rise to such obligations occur with respect to
Simon, L.P.
6.8 Withholding. Each Partner hereby authorizes the Partnership to
withhold or pay on behalf of or with respect to such Partner any amount of
federal, state, local or foreign taxes that the Managing General Partner
determines the Partnership is required to withhold or pay with respect to any
amount distributable or allocable to such Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Code ss. 1441,
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1442, 1445, or 1446. Any amount paid on behalf of or with respect to a Partner
shall constitute a loan by the Partnership to such Partner, which loan shall be
due within fifteen (15) days after repayment is demanded of the Partner in
question, and shall be repaid through withholding of subsequent distributions to
such Partner. Nothing in this Section 6.8 shall create any obligation on the
Managing General Partner to advance funds to the Partnership or to borrow funds
from Third Parties in order to make payments on account of any liability of the
Partnership under a withholding tax act. Any amounts payable by a Limited
Partner hereunder shall bear interest at the lesser of (i) the base rate on
corporate loans at large United States money center commercial banks, as
published from time to time in The Wall Street Journal, or (ii) the maximum
lawful rate of interest on such obligation, such interest to accrue from the
date such amount is due (i.e., fifteen (15) days after demand) until such amount
is paid in full. To the extent the payment or accrual of withholding tax results
in a federal, state or local tax credit to the Partnership, such credit shall be
allocated to the Partner to whose distribution the tax is attributable.
ARTICLE VII
Rights, Duties and Restrictions of the
General Partners
7.1 Expenditures by Partnership. The Managing General Partner is
hereby authorized to pay compensation for accounting, administrative, legal,
technical, management and other services
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rendered to the Partnership. All of the aforesaid expenditures shall be made on
behalf of the Partnership and the Managing General Partner shall be entitled to
reimbursement by the Partnership for any expenditures incurred by it on behalf
of the Partnership which shall have been made other than out of the funds of the
Partnership. The Partnership shall also assume, and pay when due, the
Administrative Expenses and such portion of the Managing General Partner s and
the Non-Managing General Partner s REIT Expenses as shall be appropriately
allocated to the Partnership by the Managing General Partner in the exercise of
its reasonable business judgment, it being understood that the portion of such
Expenses not so allocated to the Partnership shall be assumed and paid when due
by Simon, L.P.
7.2 Powers and Duties of the General Partners. The Managing
General Partner shall be responsible for the management of the Partnership's
business and affairs. Except as otherwise herein expressly provided, and subject
to the limitations contained in Section 7.3 hereof with respect to Major
Decisions, the Managing General Partner shall have, and is hereby granted, full
and complete power, authority and discretion to take such action for and on
behalf of the Partnership and in its name as the Managing General Partner shall,
in its sole and absolute discretion, deem necessary or appropriate to carry out
the purposes for which the Partnership was organized. Any action by the Managing
General Partner relating to (i) transactions between the Partnership or a
Subsidiary Entity and M.S. Management Associates, Inc., Simon MOA Management
Company, Inc. and/or M.S.
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Management Associates (Indiana), Inc., (ii) transactions between the Partnership
or a Subsidiary Entity and DeBartolo Properties Management, Inc. or (iii)
transactions involving the Partnership or a Subsidiary Entity in which the
Simons, the DeBartolos or any Affiliate of the Simons or the DeBartolos has an
interest (other than a non-controlling minority equity interest, which has no
management or veto powers, in a Person, other than the Partnership or a
Subsidiary Entity, which is engaged in such transaction) other than through
ownership of Partnership Units, shall require the prior approval of a majority
of the Independent Directors. Except as otherwise expressly provided herein and
subject to Section 7.3 hereof, the Managing General Partner shall have, for and
on behalf of the Partnership, the right, power and authority:
(a) To manage, control, hold, invest, lend, reinvest,
acquire by purchase, lease, sell, contract to purchase or sell, grant, obtain,
or exercise options to purchase, options to sell or conversion rights, assign,
transfer, convey, deliver, endorse, exchange, pledge, mortgage or otherwise
encumber, abandon, improve, repair, construct, maintain, operate, insure, lease
for any term and otherwise deal with any and all property of whatsoever kind and
nature, and wheresoever situated, in furtherance of the purposes of the
Partnership, and in addition, without limiting the foregoing, upon the
affirmative vote of no fewer than three (3) of the Independent Directors of the
Non-Managing General Partner who are not Affiliates of the DeBartolos, the
Managing General Partner shall authorize and
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require the sale of any property owned by the Partnership or a Subsidiary Entity
and upon the affirmative vote of at least four (4)2 of the Independent Directors
of the Non-Managing General Partner (at least three (3) of whom are not
Affiliates of the DeBartolos), the Managing General Partner shall authorize and
require the Partnership, as special limited partner, to consent to the sale of
any property owned by the Simon, L.P. or a Subsidiary Entity of Simon, L.P.;
(b) To acquire, directly or indirectly, interests in real or
personal property (collectively, "property") of any kind and of any type, and
any and all kinds of interests therein, and to determine the manner in which
title thereto is to be held; to manage, insure against loss, protect and
subdivide any property, interests therein or parts thereof; to improve, develop
or redevelop any property; to participate in the ownership and development of
any property; to dedicate for public use, to vacate any subdivisions or parts
thereof, to resubdivide, to contract to sell, to grant options to purchase or
lease and to sell on any terms; to convey, to mortgage, pledge or otherwise
encumber any property, or any part thereof; to lease any property or any part
thereof from time to time, upon any terms and for any period of time, and to
renew or extend leases, to amend, change or modify the terms and provisions of
any leases and to grant options to lease and options to renew leases and options
to
- ------------------
2 In the event that the requisite stockholder approval is obtained to amend
the charter of the Simon-DeBartolo Group to provide for a 13 person
Board of Directors, these provisions will require four out of six and five
Independent Directors, respectively.
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purchase; to partition or to exchange any property, or any part thereof, for
other property; to grant easements or charges of any kind; to release, convey or
assign any right, title or interest in or about or easement appurtenant to any
property or any part thereof; to construct and reconstruct, remodel, alter,
repair, add to or take from buildings on any property; to insure any Person
having an interest in or responsibility for the care, management or repair of
any property; to direct the trustee of any land trust to mortgage, lease, convey
or contract to convey any property held in such land trust or to execute and
deliver deeds, mortgages, notes and any and all documents pertaining to the
property subject to such land trust or in any matter regarding such trust; and
to execute assignments of all or any part of the beneficial interest in such
land trust;
(c) To employ, engage or contract with or dismiss from employment
or engagement Persons to the extent deemed necessary by the Managing General
Partner for the operation and management of the Partnership business, including
but not limited to, employees, contractors, subcontractors, engineers,
architects, surveyors, mechanics, consultants, accountants, attorneys, insurance
brokers, real estate brokers and others;
(d) To enter into contracts on behalf of the Partnership;
(e) To borrow or lend money, procure loans and advances from any
Person for Partnership purposes, and to apply for and secure from any Person
credit or accommodations; to contract liabilities and obligations, direct or
contingent and of
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every kind and nature with or without security; and to repay, discharge, settle,
adjust, compromise or liquidate any such loan, advance, credit, obligation or
liability (including by deeding property to a lender in lieu of foreclosure);
(f) To Pledge, hypothecate, mortgage, assign, deposit, deliver,
enter into sale and leaseback arrangements or otherwise give as security or as
additional or substitute security or for sale or other disposition any and all
Partnership property, tangible or intangible, including, but not limited to,
real estate and beneficial interests in land trusts, and to make substitutions
thereof, and to receive any proceeds thereof upon the release or surrender
thereof; to sign, execute and deliver any and all assignments, deeds and other
contracts and instruments in writing; to authorize, give, make, procure, accept
and receive moneys, payments, property, notices, demands, vouchers, receipts,
releases, compromises and adjustments; to waive notices, demands, protests and
authorize and execute waivers of every kind and nature; to enter into, make,
execute, deliver and receive written agreements, undertakings and instruments of
every kind and nature; to give oral instructions and make oral agreements; and
generally to do any and all other acts and things incidental to any of the
foregoing or with reference to any dealings or transactions which any attorney
for the Partnership may deem necessary, proper or advisable;
(g) To acquire and enter into any contract of insurance which the
Managing General Partner deems necessary or appropriate for the protection of
the Partnership or any
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Affiliate thereof, for the conservation of the Partnership's assets (or the
assets of any Affiliate thereof) or for any purpose convenient or beneficial to
the Partnership or any Affiliate thereof;
(h) To conduct any and all banking transactions on behalf of the
Partnership; to adjust and settle checking, savings and other accounts with such
institutions as the Managing General Partner shall deem appropriate; to draw,
sign, execute, accept, endorse, guarantee, deliver, receive and pay any checks,
drafts, bills of exchange, acceptances, notes, obligations, undertakings and
other instruments for or relating to the payment of money in, into or from any
account in the Partnership's name; to execute, procure, consent to and authorize
extensions and renewals of the same; to make deposits and withdraw the same and
to negotiate or discount commercial paper, acceptances, negotiable instruments,
bills of exchange and dollar drafts;
(i) To demand, sue for, receive, and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends, goods,
chattels, income from property, damages and all other property to which the
Partnership may be entitled or which are or may become due the Partnership from
any Person; to commence, prosecute or enforce, or to defend, answer or oppose,
contest and abandon all legal proceedings in which the Partnership is or may
hereafter be interested; and to settle, compromise or submit to arbitration any
accounts, debts, claims, disputes and matters which may arise between the
Partnership and any other Person and to grant an extension of time for the
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payment or satisfaction thereof on any terms, with or without security;
(j) To make arrangements for financing, including the taking of
all action deemed necessary or appropriate by the Managing General Partner to
cause any approved loans to be closed;
(k) To take all reasonable measures necessary to insure
compliance by the Partnership with contractual obligations and other
arrangements entered into by the Partnership from time to time in accordance
with the provisions of this Agreement, including periodic reports as required to
lenders and using all due diligence to insure that the Partnership is in
compliance with its contractual obligations;
(l) To maintain the Partnership's books and records;
(m) To create or maintain Affiliates engaged in activities that
the Partnership could itself undertake; and
(n) To prepare and deliver, or cause to be prepared and delivered
by the Accountants, all financial and other reports with respect to the
operations of the Partnership, and preparation and filing of all federal, state
and local tax returns and reports.
Except as otherwise provided herein, to the extent the duties of the
Managing General Partner require expenditures of funds to be paid to Third
Parties, the Managing General Partner shall not have any obligations hereunder
except to the extent that Partnership funds are reasonably available to it for
the
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performance of such duties, and nothing herein contained shall be deemed to
authorize or require the Managing General Partner, in its capacity as such, to
expend its individual funds for payment to Third Parties or to undertake any
individual liability or obligation on behalf of the Partnership.
Notwithstanding any other provisions of this Agreement or the Act, any
action of the Managing General Partner on behalf of the Partnership or any
decision of the Managing General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or omission is
necessary or advisable in order (i) to protect or further the ability of the
Managing General Partner and the Non-Managing General Partner to continue to
qualify as REITs or (ii) to avoid the Managing General Partner s or the
Non-Managing General Partner s incurring any taxes under Section 857 or Section
4981 of the Code, is expressly authorized under this Agreement and is deemed
approved by all of the Limited Partners. Nothing, however, in this Agreement
shall be deemed to give rise to any liability on the part of a Limited Partner
for the Managing General Partner s or the Non-Managing General Partner s failure
to qualify or continue to qualify as a REIT or a failure to avoid incurring any
taxes under the foregoing sections of the Code, unless such failure or failures
result from an act of the Limited Partner which constitutes a breach of this
Agreement (including, without limitation, Section 10.4(b)).
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7.3 Major Decisions.
(a) The Managing General Partner shall not, without the Consent
of the Limited Partners, and the consent of the Non-Managing General Partner,
(y) on behalf of the Partnership, amend, modify or terminate this Agreement
other than to reflect (A) the admission of Additional Limited Partners pursuant
to Section 9.4 hereof, (B) the making of additional Capital Contributions and
the issuance of additional Partnership Units by reason thereof, all in
accordance with the terms of this Agreement, (C) the withdrawal or assignment of
the interest of any Partner in accordance with the terms of this Agreement, or
(D) any changes necessary to satisfy the REIT Requirements, or (z) permit the
Partnership, on behalf of any Subsidiary Partnership, to amend, modify or
terminate the organizing agreement pursuant to which such Subsidiary Partnership
operates other than to reflect (A) the admission of additional limited partners
therein pursuant to the terms thereof, (B) the making of additional capital
contributions thereto pursuant to the terms thereof, (C) the withdrawal or
assignment of the interest of any partner thereof pursuant to the terms thereof,
or (D) any changes necessary to satisfy the REIT Requirements. Notwithstanding
the foregoing, this Agreement shall not be modified or amended without the prior
written consent of each Partner adversely affected if such modification or
acquisition would (i) convert a Limited Partner s interest in the Partnership to
a general partnership interest, (ii) modify the limited liability of a Limited
Partner, (iii) reduce the interest of any Partner in the Partnership, (iv)
reduce any Partner's share of distributions
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made by the Partnership, (v) amend this Section 7.3 or Section 7.5, or (vi)
create any obligations for any Limited Partner or deprive any Limited Partner of
(or otherwise impair) any other rights it may have under this Agreement
(including in respect of tax allocations, rights to indemnification under
Section 7.8, rights of the Limited Partner or a Secured Creditor of a Limited
Partner under Section 9.3 (which rights are subject to the restrictions set
forth in Section 9.5), rights of a Limited Partner under Section 9.6 or Article
XI, rights of EJDC under Article XII or the rights of a Limited Partner under
Section 10.4(a) or 10.5); provided, however, that an amendment that reduces the
percentage ownership interest of any Partner in the Partnership or reduces any
Partner's share of distributions made by the Partnership (including tax
allocations in respect of such distributions) shall not require the consent of
any Partner if such change is made on a uniform or pro-rata basis with respect
to all Partners.
(b) The Managing General Partner shall not, without the consent
of the Non-Managing General Partner, and for all periods during which the Simons
hold at least ten percent of the Partnership Units then outstanding, the
Managing General Partner shall not, without the prior Consent of the Simons, and
for all periods during which the DeBartolos hold at least ten percent of the
Partnership Units then outstanding, the Managing General Partner shall not,
without the prior Consent of the DeBartolos, on behalf of the Partnership,
undertake any of the
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following actions (together with any act described in paragraph (a) hereof,
the "Major Decisions"):
(i) make a general assignment for the benefit of
creditors (or cause or permit (if permission of the Partnership or any
Subsidiary Partnership is required) such an assignment to be made on behalf
of a Subsidiary Partnership) or appoint or acquiesce in the appointment
of a custodian, receiver or trustee for all or any part of the assets of the
Partnership (or any Subsidiary Partnership);
(ii) take title to any personal or real property, other
than in the name of the Partnership or a Subsidiary Entity or pursuant to
Section 7.7 hereof;
(iii) institute any proceeding for Bankruptcy on behalf of
the Partnership, or cause or permit (if permission of the Partnership
or any Subsidiary Partnership is required) the institution of any such
proceeding on behalf of any Subsidiary Partnership;
(iv) act or cause the taking or refraining of any action
with respect to the dissolution and winding up of the Partnership (or any
Subsidiary Partnership) or an election to continue the Partnership (or
any Subsidiary Partnership) or to continue the business of the Partnership
(or any Subsidiary Partnership); or
(v) sell, exchange, Transfer or otherwise
dispose of all or substantially all of the Partnership's assets.
(c) The Managing General Partner shall not, without the
prior Consent of the Limited Partners,
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(i) after the Effective Time, amend Article NINTH of
the Charter of Simon Property Group, Inc. to increase or decrease the
Ownership Limit or alter any other provision of said Article NINTH or of any
of the definitions of defined terms contained in such article which would have
the effect of changing the Ownership Limit in any way;
(ii) except in connection with the dissolution and
winding-up of the Partnership by the liquidating agent, agree to or
consummate the merger or consolidation of the Partnership or the voluntary
sale or other Transfer of all or substantially all of the Partnership s assets
in a single transaction or related series of transactions (without limiting
the transactions which will not be deemed to be a voluntary sale or Transfer,
the foreclosure of a mortgage lien on any Property or the grant by the
Partnership of a deed in lieu of foreclosure for such Property shall not be
deemed to be such a voluntary sale or other Transfer );
(iii) dissolve the Partnership; or
(iv) issue additional shares other than to the
Non-Managing General Partner or as may be necessary or
desirable in order for the Managing General Partner to comply with
REIT Requirements.
Without the consent of all the Limited Partners, the
Managing General Partner shall have no power to do any act in
contravention of this Agreement or applicable law.
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7.4 Managing General Partner and Non-Managing General
Partner Participation. The Managing General Partner and the
Non-Managing General Partner agree that (a) all activities and business
operations of the Managing General Partner and the Non-Managing General
Partner, including but not limited to, activities pertaining to the
acquisition, development, redevelopment and ownership of properties, shall
be conducted directly or indirectly through the Partnership or Simon, L.P. or
any Subsidiary Partnership, (b) any property acquisitions shall henceforth
be made through the Partnership or any Subsidiary Partnership and not through
Simon, L.P. or any subsidiary of such partnership, and (c) except as
provided below any funds raised by the Managing General Partner or
the Non-Managing General Partner, whether by issuance of stock,
borrowing or otherwise, will be made available to the Partnership
whether as capital contributions, loans or otherwise, as appropriate.
Notwithstanding the provisions of the preceding sentence, (i) each of the
Managing General Partner and the Non-Managing General Partner shall have the
right to form Qualified REIT subsidiaries to act as general partners of
Subsidiary Partnerships of the Partnership or Simon, L.P.; (ii) the
Non-Managing General Partner shall have the right to borrow money or issue
Preferred Shares and lend the proceeds of such borrowing or lend or
contribute in exchange for preferred units the proceeds of such Preferred
Shares issue to Simon, L.P. for the purpose of enabling Simon, L.P. or any
of its Subsidiary Entities to maintain, renovate or expand any Property
or to refinance any of its indebtedness; provided, however, that if such
Preferred Shares are convertible
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into Shares, the Non-Managing General Partner shall comply with its
obligations under Section 4.1(c) of the Third Amended and Restated
Agreement of Limited Partnership of Simon, L.P., as the same may be
amended, which are applicable if such conversion is effectuated; and (iii)
the Managing General Partner and the Non-Managing General Partner shall
together have the right to make capital contributions to Simon, L.P. for
any purpose, provided that such capital contributions are made in the
ratio of 99% by the Managing General Partner and 1% by the Non-Managing
General Partner. Without the Consent of the Limited Partners neither
the Managing General Partner nor the Non-Managing General Partner shall,
directly or indirectly, participate in or otherwise acquire any interest in
any real or personal property other than in accordance with this Section
7.4. In addition, the Managing General Partner and the Non-Managing General
Partner agree to conduct their respective affairs, to the extent they are
so able to do, in a manner which will preserve the equivalence in value
between a Share and a Partnership Unit.
7.5 Proscriptions. The Managing General Partner shall not
have the authority to:
(a) Do any act in contravention of this
Agreement;
(b) Possess any Partnership property or assign
rights in specific Partnership property for other than Partnership
purposes; or
(c) Do any act in contravention of applicable
law.
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Nothing herein contained shall impose any obligation on any Person
doing business with the Partnership to inquire as to whether or not the
Managing General Partner has properly exercised its authority in executing
any contract, lease, mortgage, deed or any other instrument or document
on behalf of the Partnership, and any such Person shall be fully protected in
relying upon such authority.
7.6 Additional Partners. Additional Partners may be
admitted to the Partnership only as provided in Section 9.4 hereof.
7.7 Title Holder. To the extent allowable under
applicable law, title to all or any part of the Properties of the
Partnership may be held in the name of the Partnership or any other
individual, corporation, partnership, trust or otherwise, the beneficial
interest in which shall at all times be vested in the Partnership. Any such
title holder shall perform any and all of its respective functions to
the extent and upon such terms and conditions as may be determined from
time to time by the Managing General Partner.
7.8 Waiver and Indemnification. Neither the Managing
General Partner, the Non-Managing General Partner nor any of their
Affiliates, directors, trust managers, officers, shareholders, nor any Person
acting on their behalf pursuant hereto, shall be liable, responsible or
accountable in damages or otherwise to the Partnership or to any Partner for
any acts or omissions performed or omitted to be performed by them within the
scope of the
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authority conferred upon the Managing General Partner or the Non-Managing
General Partner by this Agreement and the Act, provided that the Managing
General Partner's, the Non-Managing General Partner s or such other
Person's conduct or omission to act was taken in good faith and in the
belief that such conduct or omission was in the best interests of the
Partnership and, provided further, that the Managing General Partner, the
Non-Managing General Partner or such other Person shall not be guilty of
fraud, willful misconduct or gross negligence. The Non-Managing General
Partner acknowledges that it owes fiduciary duties both to its shareholders
and to the Limited Partners and it shall use its reasonable efforts to
discharge such duties to each; provided, however, that in the event of
a conflict between the interests of the shareholders of the
Non-Managing General Partner and the interests of the Limited Partners,
the Limited Partners agree that the Non-Managing General Partner shall
discharge its fiduciary duties to the Limited Partners by acting in the
best interests of the Non-Managing General Partner's shareholders.
Nothing contained in the preceding sentence shall be construed as
entitling either the Managing General Partner or the Non-Managing General
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Partner to realize any profit or gain from any transaction between such
Partner and the Partnership (except as may be required by law upon a
distribution to the Managing General Partner or the Non-Managing General
Partner), including from the lending of money by the Managing General Partner
or the Non-Managing General Partner to the Partnership or the contribution
of property by the Managing General Partner or the Non-Managing General
Partner to the Partnership, it being understood that in any such transaction
the Managing General Partner or the Non-Managing General Partner, as the
case may be, shall be entitled to cost recovery only. The Partnership
shall, and hereby does, indemnify and hold harmless each of the Managing
General Partner and the Non-Managing General Partner and its Affiliates,
their respective directors, officers, shareholders and any other individual
acting on its or their behalf to the extent such Persons would be
indemnified by the Non-Managing General Partner pursuant to Article
Eighth of the Charter of the Non-Managing General Partner if such
persons were directors, officers, agents or employees of the
Non-Managing General Partner (or Article V of the Amended and Restated
Regulations of the Managing General Partner, if such Persons were directors,
officers, agents or employees of the Managing General Partner); provided,
however, that no Partner shall have any personal liability with respect to the
foregoing indemnification, any such indemnification to be satisfied solely out
of the
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assets of the Partnership. The Partnership shall, and hereby does,
indemnify each Limited Partner and its Affiliates, their respective
directors, officers, shareholders and any other individual acting on its or
their behalf, from and against any costs (including costs of defense)
incurred by it as a result of any litigation or other proceeding in which
any Limited Partner is named as a defendant or any claim threatened or
asserted against any Limited Partner, in either case which relates to the
operations of the Partnership or any obligation assumed by the Partnership or
Simon, L.P., unless such costs are the result of misconduct on the part of,
or a breach of this Agreement by, such Limited Partner; provided,
however, no Partner shall have any personal liability with respect to the
foregoing indemnification, any such indemnification to be satisfied
solely out of the assets of the Partnership.
7.9 Limitation of Liability of Directors, Shareholders and
Officers of the Managing General Partner and the Non-Managing General
Partner. Any obligation or liability whatsoever of either of the
Managing General Partner or the Non-Managing General Partner which may
arise at any time under this Agreement or any other instrument, transaction,
or undertaking contemplated hereby shall be satisfied, if at all, out of the
assets of the Managing General Partner, the Non-Managing General Partner
or the Partnership only. No such obligation or liability shall be
personally binding upon, nor shall resort for the
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enforcement thereof be had to, any of either of the Managing General
Partner's or the Non-Managing General Partner's directors, shareholders,
officers, employees, or agents, regardless of whether such obligation
or liability is in the nature of contract, tort or otherwise.
Dissolution, Liquidation and Winding-Up
ARTICLE VIII
8.1 Accounting. In the event of the dissolution, liquidation
and winding-up of the Partnership, a proper accounting (which shall be
certified by the Accountants) shall be made of the Capital Account of each
Partner and of the Profits or Losses of the Partnership from the date of
the last previous accounting to the date of dissolution. Financial
statements presenting such accounting shall include a report of the
Accountants.
8.2 Distribution on Dissolution. In the event of the
dissolution and liquidation of the Partnership for any reason, the assets of
the Partnership shall be liquidated for distribution in the following rank and
order:
(a) Payment of creditors of the Partnership (other than
Partners) in the order of priority as provided by law;
(b) Establishment of reserves as determined by the Managing
General Partner to provide for contingent liabilities, if any;
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(c) Payment of debts of the Partnership to Partners, if
any, in the order of priority provided by law;
(d) To the Partners in accordance with the positive
balances in their Capital Accounts after giving effect to all
contributions, distributions and allocations for all periods, including the
period in which such distribution occurs (other than those distributions
made pursuant to this Section 8.2(d), Section 8.3 or Section 8.4 hereof). If
upon dissolution and termination of the Partnership the Capital Account of
any Partner is less than zero, then such Partner shall have no obligation
to restore the negative balance in its Capital Account unless and except
to the extent that such Partner has so elected under Section 4.8.
Whenever the Liquidating Agent reasonably determines that any reserves
established pursuant to paragraph (b) above are in excess of the
reasonable requirements of the Partnership, the amount determined to be
excess shall be distributed to the Partners in accordance with the above
provisions.
8.3 Sale of Partnership Assets. In the event of the
liquidation of the Partnership in accordance with the terms of this
Agreement, the Liquidating Agent may sell Partnership property;
provided, however, that all sales, leases, encumbrances or transfers
of Partnership assets shall be made by the Liquidating Agent solely
on an "arm's-length" basis, at the best price and on the best terms and
conditions as the Liquidating Agent in good faith believes are reasonably
available at the time and under the
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circumstances and on a non-recourse basis to the Limited Partners. The
liquidation of the Partnership shall not be deemed finally terminated
until the Partnership shall have received cash payments in full with respect
to obligations such as notes, purchase money mortgages, installment sale
contracts or other similar receivables received by the Partnership in
connection with the sale of Partnership assets and all obligations of the
Partnership have been satisfied or assumed by the Managing General Partner or
the Non-Managing General Partner. The Liquidating Agent shall continue to
act to enforce all of the rights of the Partnership pursuant to any such
obligations until paid in full or otherwise discharged or settled.
8.4 Distributions in Kind. In the event that it becomes
necessary to make a distribution of Partnership property in kind in
connection with the liquidation of the Partnership, the Managing General
Partner may, if it determines that to do so would be in the best
interest of the Partners and obtains the Consent of the Limited Partners
and consent of the Non-Managing General Partner, transfer and convey such
property to the distributees as tenants in common, subject to any
liabilities attached thereto, so as to vest in them undivided interests in
the whole of such property in proportion to their respective rights to share
in the proceeds of the sale of such property (other than as a creditor) in
accordance with the provisions of Section 8.2 hereof. Immediately prior
to the distribution of Partnership property in kind, the Capital Account
of each Partner shall be increased or decreased, as the
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case may be, to reflect the manner in which the unrealized income, gain,
loss and deduction inherent in such property (to the extent not previously
reflected in the Capital Accounts) would be allocated among the Partners
if there were a taxable disposition of such property for its fair market
value as of the date of the distribution.
8.5 Documentation of Liquidation. Upon the completion of
the dissolution and liquidation of the Partnership, the Partnership
shall terminate and the Liquidating Agent shall have the authority to
execute and record any and all documents or instruments required to effect
the dissolution, liquidation and termination of the Partnership.
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8.6 Liability of the Liquidating Agent. The Liquidating
Agent shall be indemnified and held harmless by the Partnership from and
against any and all claims, demands, liabilities, costs, damages and causes
of action of any nature whatsoever arising out of or incidental to the
Liquidating Agent's taking of any action authorized under or within the
scope of this Agreement; and provided, however, that no Partner shall have any
personal liability with respect to the foregoing indemnification, any such
indemnification to be satisfied solely out of the assets of the
Partnership; and provided further, however, that the Liquidating Agent shall
not be entitled to indemnification, and shall not be held harmless, where the
claim, demand, liability, cost, damage or cause of action at issue arose out
of:
(a) A matter entirely unrelated to the Liquidating
Agent's action or conduct pursuant to the provisions of this Agreement; or
(b) The proven misconduct or gross negligence of the
Liquidating Agent.
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ARTICLE IX
Transfer of Partnership Interests and Related MattersARTICLE IX
9.1 Managing General Partner Transfers and Deemed
Transfers. The Managing General Partner shall not (i) withdraw from the
Partnership, (ii) merge, consolidate or engage in any combination with
another Person, (iii) sell all or substantially all of its assets or (iv)
sell, assign, pledge, encumber or otherwise dispose of all or any portion
of its Partnership Units except where such merger, consolidation, sale,
assignment, pledge or other disposal is to the Non-Managing General Partner,
as its sole successor. In the event of the withdrawal by a General Partner
from the Partnership, in violation of this Agreement or otherwise, or
the dissolution, termination or Bankruptcy of a General Partner, within 90
days after the occurrence of any such event, the remaining General
Partners or a majority in interest of the remaining Partners may elect
in writing to continue the Partnership business and may, or if there is
then no General Partner other than one that has withdrawn or as to which
dissolution, termination or Bankruptcy has occurred shall, select a
substitute general partner effective as of the date of the occurrence of any
such event.
9.2 Non-Managing General Partner Transfers and Deemed
Transfers. The Non-Managing General Partner shall
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not (i) withdraw from the Partnership, (ii) merge, consolidate or engage in
any combination with another Person other than the Managing General Partner,
(iii) sell all or substantially all of its assets or (iv) sell, assign,
pledge, encumber or otherwise dispose of all or any portion of its
Partnership Units or Preferred Units or its partnership units or preferred
units in Simon, L.P. except to the Partnership, in each case without the
Consent of the Limited Partners. Upon any transfer of any Partnership Units
(not Preferred Units) in accordance with the provisions of this Section 9.2,
the transferee Non-Managing General Partner shall become vested with the
powers and rights of the transferor Non-Managing General Partner with respect
to the Partnership Units transferred, and shall be liable for all obligations
and responsible for all duties of the Transferor Non-Managing General
Partner, once such transferee has executed such instruments as may be
necessary to effectuate such admission and to confirm the agreement of such
transferee to be bound by all the terms and provisions of this Agreement with
respect to the Partnership Units so acquired. It is a condition to any
transfer otherwise permitted hereunder that the transferee assumes by
operation of law or express agreement all of the obligations of the
transferor Non-Managing General Partner under this Agreement with
respect to such transferred Partnership Units and no such transfer (other
than pursuant to a statutory merger or consolidation wherein all obligations
and liabilities of the transferor Non-Managing General Partner are assumed by
a successor corporation by operation of law) shall relieve the
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transferor Non-Managing General Partner of its obligations under this
Agreement accruing prior to the date of such transfer.
9.3 Transfers by Limited Partners. Except as otherwise
provided in this Section 9.3, the Limited Partners shall not Transfer all
or any portion of their Partnership Units to any transferee without
the consent of the Managing General Partner and the Non-Managing
General Partner, which consent may be withheld in their sole and absolute
discretion; provided, however, that the foregoing shall not be
considered a limitation on the ability of the Limited Partners to exercise
their Rights pursuant to Article XI hereof or their EJDC Options pursuant to
Article XII hereof.
(a) Notwithstanding the foregoing, but subject
to the provisions of Section 9.5 hereof, any Limited Partner may at any time,
without the consent of the Managing General Partner or the Non-Managing
General Partner, (i) Transfer all or a portion of its Partnership Units
to an Affiliate of such Limited Partner, or (ii) Pledge some or all of its
Partnership Units to any Institutional Lender (and, in the case of EJDC and
its Affiliates, any EJDC Lender). Any Transfer to an Affiliate pursuant to
clause (i) and any Transfer to a pledgee of Partnership Units Pledged
pursuant to clause (ii) may be made without the consent of the Managing
General Partner or the Non-Managing General Partner but, except as
provided in Article XII or in subsequent provisions of this Section 9.3,
such transferee or such pledgee shall hold the Units so transferred to it
(and shall be admitted to the Partnership as a Substitute Limited
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Partner) subject to all the restrictions set forth in this Section 9.3. It is
a condition to any Transfer otherwise permitted under any provision of
this Section 9.3 that the transferee assumes by operation of law or express
agreement all of the obligations of the transferor Limited Partner under
this Agreement with respect to such transferred Partnership Units arising
after the effective date of the Transfer and no such Transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations
and liabilities of the transferor Partner are assumed by a successor
corporation by operation of law, and other than pursuant to an exercise of
the Rights pursuant to Article XI wherein all obligations and liabilities of
the transferor Partner arising from and after the date of such Transfer shall
be assumed by the Non-Managing General Partner) shall relieve the transferor
Partner of its obligations under this Agreement prior to the effective date
of such Transfer. Upon any such Transfer or Pledge permitted under this
Section 9.3, the transferee or, upon foreclosure on the Pledged Partnership
Units, each Institutional Lender which is the pledgee shall be admitted as a
Substituted Limited Partner as such term is defined in the Act and shall
succeed to all of the rights, including rights with respect to the Rights, of
the transferor Limited Partner under this Agreement in the place and stead
of such transferor Limited Partner; provided, however, that
notwithstanding the foregoing, any transferee of any transferred
Partnership Unit shall, unless the Ownership Limit is waived in writing by the
Non-Managing General Partner, be subject to the
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Ownership Limit applicable to Persons other than the Limited Partners and/or
their Affiliates which may limit or restrict such transferee's ability to
exercise the Limited Partner's Rights, if any. Any transferee, whether or
not admitted as a Substituted Limited Partner, shall take subject to the
obligations of the transferor hereunder. No transferee pursuant to a
Transfer which is not expressly permitted under this Section 9.3 and is
not consented to by the General Partners, whether by a voluntary
Transfer, by operation of law or otherwise, shall have any rights
hereunder, other than the right to receive such portion of the distributions
and allocations of Profits and Losses made by the Partnership as are allocable
to the Partnership Units so transferred.
(b) Any exercise of the EJDC Option by any
DeBartolo other than EJDC must be consented to in writing by EJDC (or,
following written notice to the Managing General Partner from the EJDC
Lenders or their designated administrative agent (a "Secured Creditor")
that there exists an uncured Monetary Event of Default under the EJDC Loan
Transaction or that such Secured Creditor has acquired Partnership Units
from the DeBartolos in connection with the EJDC Loan Transaction,
such Secured Creditor). Upon any such notice to the Managing General
Partner from such Secured Creditor that it is authorized to consent, no
further written instrument shall be required under this Agreement to
evidence such authority and the Managing General Partner shall not be
required to determine the validity or sufficiency, whether in form or in
substance, of any notice from any EJDC Lender that
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it is authorized to provide such notice and shall be fully protected in
relying upon such authority in acting or not acting upon any consent or
refusal to consent by any EJDC Lender. Any such exercise not so consented to
shall be void ab initio. Any EJDC Lender to which Partnership Units have been
transferred by a DeBartolo in connection with a Pledge given in connection
with the EJDC Loan Transaction shall have the right freely to transfer such
Partnership Units (and any EJDC Lender to which the Partnership Units have
been Pledged in connection with the EJDC Loan Transaction shall have the
right to cause a Transfer of such Partnership Units owned by DeBartolos
pursuant to such Pledge in accordance with the terms thereof), subject to
the provisions of Section 9.5 hereof, to third parties without the consent of
the Managing General Partner or the Non-Managing General Partner, and any
transferee of an EJDC Lender shall be admitted as Substitute Limited
Partner, subject to all rights and obligations of this Agreement. Any such
transferee so admitted as a Substitute Limited Partner shall be subject to all
of the restrictions set forth in Section 9.3(a) above.
(c) In addition to the Rights granted to the
JCP Limited Partner and any other Transfers permitted under this Article IX,
the JCP Limited Partner shall have the right to transfer all of its
Partnership Units to a single accredited investor, as defined in Rule 501
promulgated under the Securities Act, subject to the provisions of Section
9.5, and such transferee shall be admitted to the Partnership as a
Substitute Limited Partner. Any transferee of the Partnership Units owned
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by the JCP Limited Partner shall be subject to all of the restrictions set
forth in Section 9.3(a) above; provided, however, that if the JCP
Limited Partner hereafter Pledges its Partnership Units pursuant to
Section 9.3(a), then provided that the JCP Limited Partner has not
previously exercised the right provided for above in this Section 9.3(c),
the Institutional Lender or Lenders which are the pledgee(s) may exercise
such right, whether by taking title to the JCP Limited Partner s Partnership
Units and then transferring the same or by effecting such transfer upon
foreclosure of the Pledge.
(d) The Limited Partners acknowledge that the
Partnership Units have not been registered under any federal or state
securities laws and, as a result thereof, they may not be sold or otherwise
transferred, except in accordance with Article XI or otherwise in compliance
with such laws. Notwithstanding anything to the contrary contained in this
Agreement, no Partnership Units may be sold or otherwise transferred
except pursuant to Article XI unless such Transfer is exempt from
registration under any applicable securities laws or such Transfer is
registered under such laws, it being acknowledged that the Partnership has no
obligation to take any action which would cause any such interests to
be registered.
9.4 Issuance of Additional Partnership Units and Preferred
Units. At any time after the date hereof, subject to the provisions of
Section 9.5 hereof, the Managing General Partner may, with the consent of the
Non-Managing General
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Partner, upon its determination that the issuance of additional
Partnership Units ("Additional Units") is in the best interests of the
Partnership, cause the Partnership to issue Additional Units to any existing
Partner or issue Additional Units to and admit as a partner in the
Partnership any Person (i) in exchange for units in Simon, L.P. outstanding
at the Effective Time on a basis not more favorable to the holder of such
units than on a unit for unit basis or (ii) in exchange for the contribution
by such Person of cash and/or property which the Managing General Partner
determines is desirable to further the purposes of the Partnership under
Section 2.3 hereof and which the Managing General Partner determines has a
value that justifies the issuance of such Additional Units. In the event
that Additional Units are issued by the Partnership pursuant to clause
(ii) of this Section 9.4, the number of Partnership Units issued shall
be determined by dividing the Gross Asset Value of the property contributed
(reduced by the amount of any indebtedness assumed by the Partnership or to
which such property is subject) as of the date of contribution to the
Partnership (the "Contribution Date") by the Deemed Partnership Unit
Value, computed as of the Trading Day immediately preceding the Contribution
Date.
In addition, the Managing General Partner may, upon
its determination that the issuance of Preferred Units is in the best
interests of the Partnership, issue Preferred Units in accordance with
Sections 4.1(c) and 4.3(c) hereof.
The Managing General Partner shall be authorized on behalf
of each of the Partners to amend this Agreement to reflect
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the admission of any Partner or any increase in the Partnership
Units or Preferred Units of any Partner in accordance with the provisions
of this Section 9.4, and the Managing General Partner shall promptly deliver
a copy of such amendment to the Non-Managing General Partner and each
Limited Partner. The Limited Partners hereby irrevocably appoint the
Managing General Partner as their attorney-in-fact, coupled with an interest,
solely for the purpose of executing and delivering such documents, and taking
such actions, as shall be reasonably necessary in connection with the
provisions of this Section 9.4 or making any modification to this Agreement
permitted by Section 7.3 (including, without limitation, any modification
which, under Section 7.3 hereof, requires the Consent of the Limited Partners
where such consent has been obtained). Nothing contained in this Section
9.4 shall be construed as authorizing the Managing General Partner to
grant any consent on behalf of the Limited Partners, or any of them.
9.5 Restrictions on Transfer (a) In addition to any
other restrictions on Transfer herein contained, in no event may any Transfer
or assignment of a Partnership Unit or Preferred Unit by any Partner be made
nor may any new Partnership Unit or Preferred Unit be issued by the
Partnership (i) to any Person which lacks the legal right, power or
capacity to own a Partnership Unit or Preferred Unit; (ii) in violation
of applicable law; (iii) if such Transfer would immediately or with the
passage of time cause either the
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Managing General Partner or the Non-Managing General Partner to fail to comply
with the REIT Requirements, such determination to be made assuming that such
Partners do comply with the REIT Requirements immediately prior to the
proposed Transfer; (iv) if such Transfer would cause the Partnership to
become, with respect to any employee benefit plan subject to Title I of
ERISA, a "party-in-interest" (as defined in Section 3(14) of ERISA) or a
"disqualified person" (as defined in Section 4975(e) of the Code); (v) if
such Transfer would, in the opinion of counsel to the Partnership, cause
any portion of the underlying assets of the Partnership to constitute
assets of any employee benefit plan pursuant to Department of Labor
Regulations Section 2510.3-101; (vi) if such Transfer would result in a
deemed distribution to any Partner attributable to a failure to meet the
requirements of Regulations Section 1.752-2(d)(1), unless such Partner
consents thereto, (vii) if such Transfer would cause any lender to
the Partnership (except the EJDC Lenders) to hold in excess of ten (10)
percent of the Partnership Interest that would, pursuant to the regulations
under Section 752 of the Code or any successor provision, cause a loan by
such a lender to constitute Partner Nonrecourse Debt, (viii) if such
Transfer, other than to an Affiliate, is of a Partnership Interest the value
of which would have been less than $20,000 when issued,(ix) if such Transfer
would, in the opinion of counsel to the Partnership, cause the Partnership
to cease to be classified as a Partnership for federal income tax
purposes or (x) if such Transfer is effectuated through an "established
securities market" or a
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"secondary market (or the substantial equivalent thereof)" within the meaning
of Section 7704(b) of the Code. Nothing contained in this Section 9.5 is
intended to nullify or impair any Pledges of Units under the EJDC Loan
Transaction (it being understood, however, that Transfers or assignments of
Units made after the Effective Time in connection with the EJDC Loan
Transaction must satisfy the requirements of this Section 9.5).
(b) No Preferred Unit may be transferred by
the Non-Managing General Partner to any Person who is not a General Partner of
the Partnership.
9.6 Shelf Registration Rights. The Non-Managing General
Partner agrees that, upon the request of any Limited Partner that has not
entered into a Registration Rights Agreement with the Non-Managing
General Partner substantially in the form of Exhibit D hereto (each, a
"Shelf Rights Holder"), made at any time, the Non-Managing General Partner
will, if it has not already done so, within 60 days thereafter file a
"shelf" registration statement (the "Shelf Registration"), on an
appropriate form pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), or any similar rule that may be adopted
by the SEC, with respect to the sale of Registrable Securities (as defined
below) by the Shelf Rights Holders in ordinary course brokerage or dealer
transactions not involving an underwritten public offering. The Non-Managing
General Partner shall use all reasonable efforts to have the Shelf
Registration declared effective as soon as practicable after such filing and
to keep
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such Shelf Registration continuously effective following the date on which
such Shelf Registration is declared effective for so long as any Units are
outstanding. The Non-Managing General Partner further agrees, if
necessary, to supplement or make amendments to the Shelf Registration,
if required by the registration form used by the Non-Managing General Partner
for the Shelf Registration or by the instructions applicable to such
registration form or by the Securities Act or the rules and regulations
thereunder, and the Non-Managing General Partner agrees to furnish to each
Shelf Rights Holder copies of any such supplement or amendment at least
three days prior to its being used and/or filed with the SEC.
Notwithstanding the foregoing, if the Non-Managing General Partner shall
furnish to the Unit holder a certificate signed by the Chief Executive
Officer of the Non-Managing General Partner stating that in the good
faith judgment of the Directors it would be significantly
disadvantageous to the Non-Managing General Partner and its stockholders
for any such Shelf Registration to be amended or supplemented, the
Non-Managing General Partner may defer such amending or supplementing of
such Shelf Registration for not more than 45 days and in such event the Unit
holder shall be required to discontinue disposition of any Registrable
Securities covered by such Shelf Registration during such period.
Notwithstanding the foregoing, if the Non-Managing General Partner
irrevocably elects, or the Partnership is so required under Section 11.3,
prior to the filing of any Shelf Registration to issue all cash in lieu of
Shares upon the exchange of Units by the holder
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requesting the filing of such Shelf Registration, the Non-Managing
General Partner shall not be obligated to file such Shelf Registration
Statement. The Non-Managing General Partner shall make available to its
security holders, as soon as reasonably practicable, a statement of
operations covering a period of twelve (12) months, commencing on the first
day of the fiscal quarter next succeeding each sale of any Registrable
Securities pursuant to the Shelf Registration, in a manner which shall
satisfy the provisions of Section 11(a) of the Securities Act.
(a) Securities Subject to this Section 9.6.
The securities entitled to the benefits of this Section 9.6 are the Shares
that have been or may be issued from time to time upon the exchange of Units
pursuant to Article XI hereof and any other securities issued by the
Non-Managing General Partner in accordance with the terms of this Agreement
in exchange for any of the Shares (collectively, the "Registrable
Securities") but, with respect to any particular Registrable Security,
only so long as it continues to be a Registrable Security. Registrable
Securities shall include any securities issued in accordance with the terms
of this Agreement as a dividend or distribution on account of
Registrable Securities or resulting from a subdivision of the
outstanding Shares of Registrable Securities into a greater number of
shares (by reclassification, stock split or otherwise). For the purposes of
this Agreement, a security that was at one time a Registrable Security shall
cease to be a Registrable Security when (i) such security has been effectively
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registered under the Securities Act, and either (A) the registration statement
with respect thereto has remained continuously effective for 150 days or
(B) such security has been disposed of pursuant to such registration
statement, (ii) such security is or can be immediately sold to the public in
reliance on Rule 144 (or any similar provision then in force) under the
Securities Act, (iii) such security has been otherwise transferred (except
in connection with the exercise of the EJDC Option) and (a) the Non-Managing
General Partner has delivered a new certificate or other evidence of
ownership not bearing the legend set forth on the Shares upon the initial
issuance thereof (or other legend of similar import) and (b) in the opinion of
counsel to the Non-Managing General Partner, the subsequent disposition of
such security would not require the registration or qualification under the
Securities Act or any similar state law then in force, or (iv) such security
has ceased to be outstanding.
(b) Registration Expenses. The Non-Managing
General Partner shall pay, as REIT Expenses, all expenses incident to the
Shelf Registration, including, without limitation, (i) all SEC, stock
exchange and National Association of Securities Dealers, Inc. registration,
filing and listing fees, (ii) all fees and expenses incurred in complying with
securities or "blue sky" laws (including reasonable fees and disbursements
of counsel in connection with "blue sky" qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv)
all fees and disbursements of the Non-Managing General Partner's independent
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public accountants and counsel and (v) all fees and expenses of any special
experts retained by the Non-Managing General Partner in connection with
the Shelf Registration pursuant to the terms of this Section 9.6, regardless
of whether such Shelf Registration becomes effective, unless such Shelf
Registration fails to become effective as a result of the fault of the
Shelf Rights Holders; provided, however, that the Non-Managing General
Partner shall not pay the costs and expenses of any Shelf Rights Holder
relating to brokerage or dealer fees, transfer taxes or the fees or expenses
of any counsel, accountants or other representatives retained by the Shelf
Rights Holders, individually or in the aggregate.
ARTICLE X
Rights and Obligations of the Limited Partners
10.1 No Participation in Management. Except as expressly
permitted hereunder, the Limited Partners shall not take part in the
management of the Partnership's business, transact any business in the
Partnership's name or have the power to sign documents for or otherwise bind
the Partnership; provided, that the foregoing shall not be deemed to limit the
ability of a Limited Partner (or any officer or director thereof) who is an
officer, director or employee of the Partnership, either the Managing General
Partner or Non-Managing General Partner, or any Affiliate thereof, to act
in such capacity.
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10.2 Bankruptcy of a Limited Partner. The Bankruptcy
of any Limited Partner shall not cause a dissolution of the Partnership,
but the rights of such Limited Partner to share in the Profits or Losses of
the Partnership and to receive distributions of Partnership funds shall,
on the happening of such event, devolve to its successors or assigns,
subject to the terms and conditions of this Agreement, and the Partnership
shall continue as a limited partnership. However, in no event shall such
assignee(s) become a Substituted Limited Partner except in accordance with
Article IX.
10.3 No Withdrawal. No Limited Partner may withdraw from
the Partnership without the prior written consent of the Managing General
Partner and of the Non-Managing General Partner, other than as expressly
provided in this Agreement.
10.4 Duties and Conflicts. (a) The Partners recognize
that each of the other Partners and their Affiliates have or may have other
business interests, activities and investments, some of which may be in
conflict or competition with the business of the Partnership, and that
such Persons are entitled to carry on such other business interests,
activities and investments. In addition, the Partners recognize that certain
of the Limited Partners and their Affiliates are and may in the future be
tenants of the Partnership, Simon, L.P., Subsidiary Entities or other
Persons or own anchor or other stores in the Properties of
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the Partnership, Simon, L.P. or Subsidiary Entities or other properties and
in connection therewith may have interests that conflict with those of the
Partnership, Simon, L.P. or Subsidiary Entities. In deciding whether to
take any actions in such capacity, such Limited Partners and their
Affiliates shall be under no obligation to consider the separate interests
of the Partnership, Simon, L.P. or Subsidiary Entities and shall have no
fiduciary obligations to the Partnership, Simon, L.P. or Subsidiary Entities
and shall not be liable for monetary damages for losses sustained,
liabilities incurred or benefits not derived by the other Partners in
connection with such acts; nor shall the Partnership, the Non-Managing
General Partner, the Managing General Partner, Simon, L.P. or any
Subsidiary Entities be under any obligation to consider the separate
interests of the Limited Partners and their Affiliates in such Limited
Partners independent capacities or have any fiduciary obligations to the
Limited Partners and their Affiliates in such capacity or be liable for
monetary damages for losses sustained, liabilities incurred or benefits not
derived by the Limited Partners and their Affiliates in such independent
capacities arising from actions or omissions taken by the Partnership,
Simon, L.P. or Subsidiary Entities. The Limited Partners and their
Affiliates may engage in or possess an interest in any other business or
venture of any kind, independently or with others, on their own behalf or on
behalf of other Entities with which they are affiliated or associated, and
such Persons may engage in any activities, whether or not competitive with the
Partnership,
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Simon, L.P. or Subsidiary Entities, without any obligation to offer any
interest in such activities to the Partnership, Simon, L.P. or
Subsidiary Entities or to any Partner or otherwise. Neither the Partnership
nor any Partner shall have any right, by virtue of this Agreement, in or to
such activities, or the income or profits derived therefrom, and the pursuit
of such activities, even if competitive with the business of the
Partnership, Simon, L.P. or Subsidiary Entities, shall not be deemed wrongful
or improper.
(b) Notwithstanding the foregoing, without the
prior consents of the Managing General Partner and the Non-Managing General
Partner, no Limited Partner shall knowingly take any action, including
acquiring, directly or indirectly, an interest in any tenant of a Property
which would have, through the actual or constructive ownership of any
tenant of any Property, the effect of causing the percentage of the gross
income of either of the Managing General Partner or the Non-Managing General
Partner that fails to be treated as "rents from real property" within
the meaning of Section 856(d) of the Code to exceed such percentage on
the date hereof. Each Limited Partner shall have a duty to notify the
Managing General Partner and the Non-Managing General Partner on a timely
basis of any potential acquisition or change in ownership that could
reasonably be expected to have such effect.
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10.5 Guaranty and Indemnification Agreements.
(a) The Partnership shall notify the Limited
Partners no less than 45 days (or, if the Partnership itself has less than
45 days' prior notice, as promptly as practicable) prior to the
occurrence of any event that the Partnership reasonably expects will
reduce the amount of Partnership liabilities (including liabilities of
Simon, L.P. and any other Subsidiary Partnership) that the Limited
Partners may include in their individual tax bases of their respective
Partnership Interests pursuant to Treasury Regulation ss. 1.752-2 and
Treasury Regulations ss.ss. 1.752-3(a)(2) and (3). Upon receipt of such
notice, each Limited Partner shall inform the Partnership of any action it
desires to take in its sole and absolute discretion in order to increase
the "economic risk of loss" (within the meaning of Treasury Regulation ss.
1.752-2) (the "Incurrence") that it has with respect to liabilities of the
Partnership, Simon, L.P. or any other Subsidiary Partnerships. The
Partnership shall cooperate with each Limited Partner to facilitate the
Incurrence by such Limited Partner with respect to Partnership Liabilities
or liabilities of Simon, L.P. or any other Subsidiary Partnerships in such
a way that the Incurrence has the least amount of real economic risk to
such Limited Partner and provided that the Incurrence does not have a
material adverse impact on any other Partner in the Partnership or any such
Partner's Affiliates.
No direct or indirect Partner in the Partnership or
any partnership which is the obligor on a JCP Property Liability shall
incur the "economic risk of loss" (within the meaning of
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Treasury Regulation ss. 752-2) with respect to any JCP Property
Liability without the prior written consent of the JCP Limited Partner.
(b) Notwithstanding the provisions of Section
10.5(a) above, no Limited Partners shall have any right to negotiate directly
with any lender of the Partnership, Simon, L.P. or any other Subsidiary
Partnership, any such negotiation to be undertaken in good faith by the
Managing General Partner or the Non-Managing General Partner on behalf
of, and at the request of, all affected Limited Partners.
ARTICLE XI
Grant of Rights to the Limited Partners
11.1 Grant of Rights. The Non-Managing General Partner
does hereby grant to each of the Limited Partners and each of the Limited
Partners does hereby accept the right, but not the obligation
(hereinafter such right sometimes referred to as the "Rights"), to convert
all or a portion of such Limited Partner's Partnership Units into Shares or
cash, as selected by the Non-Managing General Partner, at any time or from
time to time, on the terms and subject to the conditions and restrictions
contained in this Article XI. The Rights granted hereunder may be exercised
by a Limited Partner, on the terms and subject to the conditions and
restrictions contained in this Article XI, upon delivery to the Non-Managing
General Partner of a notice in the form of Exhibit E (an
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"Exercise Notice"), which notice shall specify the number of such Limited
Partner s Partnership Units to be converted by such Limited Partner (the
"Offered Units"). Once delivered, the Exercise Notice shall be irrevocable,
subject to payment by the Non-Managing General Partner or the Partnership of
the Purchase Price for the Offered Units in accordance with the terms
hereof and subject to Section 1 of the Registration Rights Agreements. In
the event the Non-Managing General Partner elects to cause the Offered Units
to be converted into cash, the Non-Managing General Partner shall effect
such conversion by causing the Partnership to redeem the Offered Units for
cash.
11.2 Limitation on Exercise of Rights. If an Exercise
Notice is delivered to the Non-Managing General Partner but, as a result
of the Ownership Limit or as a result of other restrictions contained in the
Charter of the Non-Managing General Partner, the Rights cannot be exercised
in full for Shares, the Exercise Notice, if the Purchase Price is to be
payable in Shares, shall be deemed to be modified such that the Rights
shall be exercised only to the extent permitted under the Ownership Limit
or under other restrictions in the Charter of the Non-Managing General
Partner. Notwithstanding the foregoing, any Person shall be permitted to
exercise its Rights hereunder during the first half of a taxable year of
the Non-Managing General Partner even if upon conversion of the Offered
Units into Shares, the Shares held by such Person will exceed the Ownership
Limit, so long as such Person shall immediately following such conversion sell
so many
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of such Shares as shall cause the Ownership Limit not to be exceeded upon
consummation of such sale. The Non-Managing General Partner hereby agrees to
exercise its right pursuant to Article Ninth of its Charter to permit the
Ownership Limit to be exceeded in the circumstances described in the
preceding sentence.
11.3 Computation of Purchase Price/Form of Payment. The
purchase price ("Purchase Price") payable to a tendering Limited Partner
shall be equal to the Deemed Partnership Unit Value multiplied by the number
of Offered Units computed as of the date on which the Exercise Notice was
delivered to the Non-Managing General Partner (the "Computation Date").
Subject to the following paragraph, the Purchase Price for the Offered
Units shall be payable, at the option of the Non-Managing General Partner,
by causing the Partnership to redeem the Offered Units for cash in the amount
of the Purchase Price, or by the issuance by the Non-Managing General
Partner of the number of Shares equal to the number of Offered Units
(adjusted as appropriate to account for stock splits, stock dividends or
other similar transactions between the Computation Date and the closing of
the purchase and sale of the Offered Units in the manner specified in Section
11.7(d) below).
Where a Limited Partner exercising its rights pursuant to
this Section on or after the fifth anniversary of the Effective Time, up to,
but not including, the eighth anniversary of the Effective Time, is a
DeBartolo, and such Limited Partner
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has received a special allocation of taxable income or gain from a Covered
Sale pursuant to Section 6.1(e) within 90 days prior to the date of such
exercise, then to the extent of any tax due on such allocation and on the
redemption of such Limited Partner s Units, the Managing General Partner
shall, if such Limited Partner so requests in the Exercise Notice, cause
the Partnership to redeem its Units for cash in accordance with this Section
11.3.
11.4 Closing. The closing of the acquisition or redemption
of Offered Units shall, unless otherwise mutually agreed, be held at the
principal offices of the Non-Managing General Partner, on the date agreed to
by the Non-Managing General Partner and the relevant Limited Partner, which
date (the "Settlement Date") shall in no event be on a date which is later
than the later of (i) ten (10) days after the date of the Exercise Notice
and (ii) five (5) days after the expiration or termination of the waiting
period applicable to the Limited Partner, if any, under the
Hart-Scott-Rodino Act (the "HSR Act"). The Non-Managing General Partner
agrees to use its best efforts to obtain an early termination of the waiting
period applicable to any such acquisition, if any, under the HSR Act. Until
the Settlement Date, each tendering Partner shall continue to own his Offered
Units, and will continue to be treated as the holder of such Offered Units
for all purposes of this Agreement, including, without limitation, for
purposes of voting, consent, allocations and distributions. Offered Units
will be transferred
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to the Non-Managing General Partner only upon receipt by the tendering
Partner of Shares or cash in payment in full therefor.
11.5 Closing Deliveries. At the closing of the purchase and
sale or redemption of Offered Units, payment of the Purchase Price shall be
accompanied by proper instruments of transfer and assignment and by the
delivery of (i) representations and warranties of (A) the tendering
Limited Partner with respect to its due authority to sell all of the
right, title and interest in and to such Offered Units to the Non-Managing
General Partner or the Partnership, as applicable, and with respect to the
ownership by of the Limited Partner of such Units, free and clear of all
Liens, and (B) the Non-Managing General Partner with respect to its due
authority to acquire such Units for Shares or to cause the Partnership to
redeem such Units for cash and, in the case of payment by Shares, (ii)(A)
an opinion of counsel for the Non-Managing General Partner, reasonably
satisfactory to such Limited Partner, to the effect that such Shares have been
duly authorized, are validly issued, fully-paid and non-assessable, and
(B) a stock certificate or certificates evidencing the Shares to be issued
and registered in the name of the Limited Partner or its designee.
11.6 Term of Rights. The rights of the parties with
respect to the Rights shall remain in effect, subject to the terms hereof,
throughout the existence of the Partnership.
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11.7 Covenants of the Non-Managing General Partner. To
facilitate the Non-Managing General Partner's ability fully to perform its
obligations hereunder, the Non-Managing General Partner covenants and agrees
as follows:
(a) At all times while the Rights are in
existence, the Non-Managing General Partner shall reserve for issuance such
number of Shares as may be necessary to enable the Non-Managing General
Partner to issue such Shares in full payment of the Purchase Price in regard
to all Partnership Units which are from time to time outstanding and held by
the Limited Partners.
(b) As long as the Non-Managing General
Partner shall be obligated to file periodic reports under the Exchange Act,
the Non-Managing General Partner will timely file such reports in such
manner as shall enable any recipient of Shares issued to a Limited Partner
hereunder in reliance upon an exemption from registration under the
Securities Act to continue to be eligible to utilize Rule 144 promulgated by
the SEC pursuant to the Securities Act, or any successor rule or regulation or
statute thereunder, for the resale thereof.
(c) During the pendency of the Rights, the
relevant Limited Partners shall receive in a timely manner all reports filed
by the Non-Managing General Partner with the SEC and all other
communications transmitted from time to time by the Non-Managing General
Partner to the owners of its Shares.
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(d) Under no circumstances shall the
Non-Managing General Partner declare any stock dividend, stock split, stock
distribution or the like, unless fair and equitable arrangements are
provided, to the extent necessary, fully to adjust, and to avoid any
dilution in, the Rights of any Limited Partner under this Agreement.
11.8 Limited Partners' Covenant. Each of the
Limited Partners covenants and agrees with the Non-Managing General
Partner that all Offered Units tendered to the Non-Managing General Partner or
the Partnership, as the case may be, in accordance with the exercise of
Rights herein provided shall be delivered free and clear of all Liens and
should any Liens exist or arise with respect to such Offered Units, the
Non-Managing General Partner or the Partnership, as the case may be, shall
be under no obligation to acquire the same unless, in connection with
such acquisition, the Non-Managing General Partner has elected to
cause the Partnership to pay such portion of the Purchase Price in the
form of cash consideration in circumstances where such consideration will
be sufficient to cause such existing Lien to be discharged in full upon
application of all or a part of such consideration and the Partnership is
expressly authorized to apply such portion of the Purchase Price as may
be necessary to satisfy any indebtedness in full and to discharge such
Lien in full. In the event any transfer tax is payable by the Limited
Partner as a result of a transfer of Partnership Units pursuant
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to the exercise by a Limited Partner of the Rights, the Limited Partner shall
pay such transfer tax.
11.9 Dividends. If a Limited Partner shall exchange
any Partnership Units for Shares pursuant to this Article XI on or prior
to the Partnership Record Date for any distribution to be made on such
Partnership Units, in accordance with the Charter of the Non-Managing
General Partner such Limited Partner will be entitled to receive the
corresponding distribution to be paid on such Shares and shall not be
entitled to receive the distribution made by the Partnership in respect of
the exchanged Partnership Units.
ARTICLE XII
EJDC Option
12.1 Grant and Terms of Option. In addition to the
rights granted in Article XI, the Non-Managing General Partner does hereby
grant to EJDC and its Affiliates (which for purposes of this Article XII shall
include the DeBartolos), and EJDC and its Affiliates do hereby accept the
right, but not the obligation (the "EJDC Option"), to dispose of a certain
number of Partnership Units held by EJDC and its Affiliates, in certain
circumstances and at certain times, subject to the terms and conditions
set forth below:
(a) If, prior to the EJDC Option Termination
Date (as defined in Section 12.1(e) below), EJDC elects to dispose of
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Partnership Units (other than by exchanging them for Shares or cash pursuant
to Article XI) to satisfy any Amortization Requirements (as defined in
Section 12.1(d) below), EJDC shall provide a written Notice (an "Initial
EJDC Notice") to the Non-Managing General Partner with respect to the
period (a "Payment Period"), commencing upon the Non-Managing General
Partner's receipt of an Initial EJDC Notice and ending on the earlier of (x)
the first anniversary of the date of such receipt and (y) the date on
which the next Amortization Requirement is satisfied specifying:
(i) the number of Partnership Units (which
number shall not, in any event, exceed 30% of the number of Partnership
Units owned by EJDC and its Affiliates at the Effective Time) that are
required to be disposed of solely to pay taxes and expenses payable on or
in connection with such disposition and to satisfy the Amortization
Requirement for the Payment Period in respect of which the Initial EJDC Notice
is being given; and
(ii) the date on which such Amortization
Requirement is required to be satisfied.
(b) Within 10 days of its receipt of an Initial EJDC
Notice, the Non-Managing General Partner shall provide written notice (a
"Response Notice") to EJDC specifying the Non-Managing General Partner's
election to take one (but not more than one) of the following actions in the
Non-Managing General Partner's sole discretion:
(i) agree not to exercise any "blackout" or
"carveback" rights or other Non-Managing General Partner imposed
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limitations on the availability or exercise of registration rights of EJDC and
its Affiliates under the Registration Rights Agreement so as to permit EJDC
and its Affiliates to exchange up to the number of Partnership Units
specified in the Initial EJDC Notice with the Non-Managing General Partner
for Shares and sell the Shares in a registered offering in time for EJDC to
satisfy the Amortization Requirement specified in the Initial EJDC Notice and
pay the taxes and expenses payable on or in connection with such exchange;
provided, that the Non-Managing General Partner shall not have the right to
elect the option specified in this paragraph (i) in any Payment Period
commencing in 1996;
(ii) pay on a date specified by EJDC cash to
EJDC and its Affiliates upon tender by EJDC and its Affiliates of up to the
number of Partnership Units specified in the Initial EJDC Notice at a
Purchase Price per Partnership Unit and in accordance with the closing
procedures that would be applicable upon the exercise of Rights as
specified in Sections 11.3, 11.4 and 11.5 above; or
(iii) permit EJDC and its Affiliates to sell up to
the number of Partnership Units specified in the Initial EJDC Notice to up to
three Institutional Investors in the then current Payment Period. Failure
by the Non-Managing Partner to provide a timely notice shall be deemed to
constitute an election of the option set forth in paragraph (iii) above.
(c) If the sale of Partnership Units permitted to be
sold under paragraph (iii) of Section 12.1(b) above does not
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<PAGE>
occur or is not completed within 120 days of receipt by EJDC of the Response
Notice, then EJDC and its Affiliates may not sell Partnership Units after the
expiration of such 120-day period except as hereinafter provided in this
Section 12.1(c). In order for EJDC and its Affiliates to dispose of
Partnership Units in such Payment Period after the expiration of such
120-day period, a new written notice (a "Subsequent EJDC Notice") shall be
delivered by EJDC to the Non-Managing General Partner, which Subsequent
EJDC Notice shall specify the same information as shall have been specified
in the Initial EJDC Notice for the then current Payment Period, except
that the number of Partnership Units specified for disposition shall not
exceed 30% of the number of Partnership Units held by EJDC and its Affiliates
at the Effective Time minus the number of Partnership Units previously
disposed of by EJDC and its Affiliates in such Payment Period. Upon
receipt of a Subsequent EJDC Notice the Non-Managing General Partner shall
within 10 days of receipt thereof deliver to EJDC a Response Notice (a new
Subsequent EJDC Notice being required at each 120 day interval in order for
Partnership Units to continue to be disposed of by EJDC and its Affiliates
during the then current Payment Period). In any event, upon the end of a
Payment Period, EJDC shall be required to deliver to the Non-Managing
General Partner a new Initial EJDC Notice with respect to the disposition
of Partnership Units in the new Payment Period, subject to the same
limitations as were set forth in the original Initial EJDC Notice as to such
new Payment Period.
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(d) EJDC covenants that the proceeds from the disposition
of Partnership Units pursuant to the exercise of the EJDC Option will be used
only to pay any taxes or expenses payable on or in connection with the sale,
tender or exchange of the Partnership Units in connection with any such
exercise and to satisfy amortization payments (the "Amortization
Requirements") to the EJDC Lenders in the EJDC Loan Transaction actually
due, but only to the extent of indebtedness to such Lenders as of the
Effective Time, which shall not exceed in the aggregate the following amounts
for each Payment Period:
(i) a Payment Period commencing in 1996 -
up to $180,000,000;
(ii) a Payment Period commencing in 1997
- up to $180,000,000 less the amount of
the Amortization Requirement actually
satisfied in a Payment Period commencing
in 1996 (such that, by way of example,
(x) if a $180,000,000 payment is made
by EJDC to satisfy the Amortization
Requirement for a Payment Period
commencing in 1996 then the Amortization
Requirement for any Payment Period
commencing in 1997 would be zero and no
EJDC Option would be exercisable by EJDC
in 1997 and (y) if a $90,000,000 payment
is made by EJDC to satisfy the
Amortization Requirement for a Payment
Period commencing in 1996 then the
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<PAGE>
Amortization Requirement for a Payment
Period commencing in 1997 would be
$90,000,000, etc.);
(iii) a Payment Period commencing in 1998
- up to $189,000,000.
No other use of such proceeds shall be
permitted.
(e) The EJDC Option shall terminate at the earlier to
occur of (i) the date on which the indebtedness outstanding under the
EJDC Loan Transaction having the Amortization Requirements is repaid and (ii)
December 31, 1998 (the "EJDC Option Termination Date"), and at such time the
disposition of Partnership Units by EJDC and its Affiliates pursuant to an
Initial EJDC Notice or a Subsequent EJDC Notice shall terminate.
ARTICLE XIII
General Provisions
13.1 Investment Representations.
(a) Each Limited Partner acknowledges that it (i)
has been given full and complete access to the Partnership and those person
who will manage the Partnership in connection with this Agreement and the
transactions contemplated hereby, (ii) has had the opportunity to review
all documents relevant to its decision to enter into this Agreement, and
(iii) has had the opportunity to ask questions of the Partnership and those
persons
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who will manage the Partnership concerning its investment in the Partnership
and the transactions contemplated hereby.
(b) Each Limited Partner acknowledges that it
understands that the Partnership Units to be purchased or otherwise
acquired by it hereunder will not be registered under the Securities
Act of 1933 in reliance upon the exemption afforded by Section 4(2) thereof
for transactions by an issuer not involving any public offering, and will
not be registered or qualified under any applicable state securities laws.
Each Limited Partner represents that (i) it is acquiring such Partnership
Units for investment only and without any view toward distribution
thereof, and it will not sell or otherwise dispose of such Partnership
Units except pursuant to the exercise of the Rights or otherwise in accordance
with the terms hereof and in compliance with the registration
requirements or exemption provisions of any applicable state securities
laws, (ii) its economic circumstances are such that it is able to bear all
risks of the investment in the Partnership Units for an indefinite
period of time including the risk of a complete loss of its investment in
the Units and (iii) it has knowledge and experience in financial and business
matters sufficient to evaluate the risks of investment in the Partnership
Units. Each Limited Partner further acknowledges and represents that it
has made its own independent investigation of the Partnership and the
business conducted and proposed to be conducted by the Partnership, and
that any information relating thereto furnished to the Limited Partner
was supplied by or on behalf of the Partnership.
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13.2 Notices. All notices, offers or other
communications required or permitted to be given pursuant to this
Agreement shall be in writing and may be personally delivered or sent by
United States mail or by reputable overnight delivery service and shall be
deemed to have been given when delivered in person, upon receipt when
delivered by overnight delivery service or three business days after
deposit in United States mail, registered or certified, postage prepaid, and
properly addressed, by or to the appropriate party. For purposes of this
Section 13.2, the addresses of the parties hereto shall be as set forth
on Exhibit A hereof. The address of any party hereto may be changed by a
notice in writing given in accordance with the provisions hereof.
13.3 Successors. This Agreement and all the terms and
provisions hereof shall be binding upon and shall inure to the benefit of all
Partners, and their legal representatives, heirs, successors and
permitted assigns, except as expressly herein otherwise provided.
13.4 Liability of Limited Partners. The liability of the
Limited Partners for their obligations, covenants, representations and
warranties under this Agreement shall be several and not joint.
13.5 Effect and Interpretation. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN CONFORMITY WITH THE LAWS OF THE STATE OF
DELAWARE.
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13.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
13.7 Partners Not Agents. Nothing contained herein
shall be construed to constitute any Partner the agent of another Partner,
except as specifically provided herein, or in any manner to limit the
Partners in the carrying on of their own respective businesses or
activities.
13.8 Entire Understanding This Agreement and the other
agreements referenced herein or therein or to which the signatories hereto
or thereto are parties constitute the entire agreement and understanding
among the Partners and supersede any prior understandings and/or written or
oral agreements among them respecting the subject matter within.
13.9 Severability. If any provision of this Agreement, or
the application of such provision to any Person or circumstance, shall be
held invalid by a court of competent jurisdiction, the remainder of this
Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid by such court, shall not
be affected thereby.
13.10 Trust Provision. This Agreement, to the extent
executed by the trustee of a trust, is executed by such trustee solely as
trustee and not in a
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separate capacity. Nothing herein contained shall create any liability on,
or require the performance of any covenant by, any such trustee
individually, nor shall anything contained herein subject the
individual property of any trustee to any liability.
13.11 Pronouns and Headings. As used herein, all pronouns
shall include the masculine, feminine and neuter, and all defined terms
shall include the singular and plural thereof wherever the context and
facts require such construction. The headings, titles and subtitles herein
are inserted for convenience of reference only and are to be ignored in any
construction of the provisions hereof. Any references in this Agreement to
"including" shall be deemed to mean "including without limitation."
13.12 Non-Effect on Certain Limited Partners. As to any
Limited Partner who was a Limited Partner of the Partnership prior to the
Effective Time and who does not execute this Agreement, the provisions of
the Fourth Amended and Restated Partnership Agreement of the Partnership
dated April 21, 1994, as heretofore amended, which, under the terms thereof,
cannot, in certain circumstances, be Amended without the consent of such
non-signing Limited Partner, shall continue in effect as to such Limited
Partner to the extent such provisions are inconsistent with this Agreement.
13.13 Assumption of Liabilities. Nothing contained
in this Agreement shall have the effect of terminating, negating or
modifying in any respect the assumption of liabilities by the Partnership set
forth in Section 10.8 of the Fourth Amended and Restated Limited Partnership
Agreement of the Partnership dated as of April 21, 1994 and the Partnership
reaffirms its obligations thereunder.
13.14 Assurances. Each of the Partners shall hereafter
execute and deliver such further instruments (provided such
instruments are in form and substance reasonably satisfactory to the
executing Partner) and do such further acts and things as may be reasonably
required or useful to carry out the intent and purpose of this Agreement and
as are not inconsistent with the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement or caused this Agreement to be executed as of the date and
year first above written, which Agreement shall be effective on the date it is
executed and delivered by the parties hereto.
GENERAL PARTNER:
DeBARTOLO REALTY CORPORATION,
an Ohio Corporation
7655 Market Street
P.O. Box 3287
Youngstown, OH 44513-3287
By:__________________________
Name:
Title:
SIMON PROPERTY GROUP, INC.,
a Maryland corporation
Merchants Plaza
115 West Washington Street
Suite 15 East
Indianapolis, IN 46204
By:__________________________
Name:
Title:
LIMITED PARTNERS:
By:__________________________
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<PAGE>
EXHIBIT "A"
PARTNERSHIP UNITS
GENERAL PARTNER(S) NUMBER OF UNITS
PERCENTAGE INTEREST
Simon Property Group, Inc., a
Maryland corporation
DeBartolo Realty Corporation, an
Ohio corporation
LIMITED PARTNER(S)
This exhibit will identify which Limited Partners were former
limited partners of Simon Property Group, L.P. and which Limited Partners
were former limited partners of DeBartolo Realty Partnership, L.P.
The number of Units and Percentage Interests for each Partner shall
be calculated in accordance with the Formula, attached hereto.
<PAGE>
EXHIBIT "B"
PREFERRED UNIT DESIGNATIONS
None.
<PAGE>
EXHIBIT "C"
COVERED SALES
Mission Viejo Mall
Aventura Mall
Boynton Beach Mall
Coral Square
Florida Mall
Grove at Lakeland Square
Gulf View Square
Highland Lakes Plaza
Lakeland Square
Melbourne Square
Miami International Mall
Paddock Mall
Palm Beach Mall
Port Charlotte Town Center
Terrace at Florida Mall
Treasure Coast Square
Northfield Square
Castleton Square
Lafayette Square
University Park Mall
Ward Plaza
Washington Plaza
Great Lakes Mall
Great Lakes Plaza
Lima Plaza
Lima Mall
Century III Mall
Randall Park Mall
Mainland Crossing
Philadelphia Center
Chesapeake Square
Chesapeake Center
Northgate Shopping Center
Columbia Center
Bay Park Tacoma Mall
Tyrone Square Summit Mall
Washington Square
Upper Valley Mall
Brunswick Square
Richardson Square
New Orleans Centre/CNG Tower*
Eastern Hills
Biltmore Square
Woodville Mall
<PAGE>
Cheltenham Square
Glen Burnie Mall
TC Peripheral
(Mainland Peripheral)
Richmond Mall
* If sold together, such properties will not constitute "Covered
Properties."
EXHIBIT "D"
REGISTRATION RIGHTS AGREEMENT
<PAGE>
EXHIBIT "E"
FORM OF EXERCISE NOTICE
[Limited Partner], as of [date of exercise],
hereby irrevocably (except as set forth in the Agreement referred to
below) elects, pursuant to the rights granted to it in Section 11.1 of the
Agreement of Limited Partnership of Simon-DeBartolo Group, L.P. (the
"Agreement") to convert ______ of its Partnership Units (as such term is
defined in the Agreement) into shares of common stock of Simon Property
Group, Inc. or cash, as selected by Simon Property Group, Inc.
[Limited Partner]
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT "F"
EJDC LENDERS AND EJDC LOAN DOCUMENTATION
The EJDC Lenders are each and every lender (and their
trustees or agents) party from time to time to:
1. the SECOND AMENDED AND RESTATED NEW FACILITY CREDIT
AGREEMENT, dated as of March 31, 1994 by and among DeBARTOLO, INC. and THE
EDWARD J. DeBARTOLO CORPORATION, as the borrowers, WELLS FARGO BANK, N.A., as
the issuing bank, and the co-lenders specified therein, and WELLS FARGO REALTY
ADVISORS FUNDING, INCORPORATED as the administrative agent, as the same may be
modified, supplemented or amended from time to time; or
2. the SECOND AMENDED AND RESTATED RESTRUCTURING
FACILITY CREDIT AGREEMENT, dated as of March 31, 1994 by and among DeBARTOLO,
INC. and THE EDWARD J. DeBARTOLO CORPORATION, as the borrowers, and the
co-lenders specified therein, and WELLS FARGO REALTY ADVISORS FUNDING,
INCORPORATED, as the administrative agent, as the same may be modified,
supplemented or amended from time to time.
The EJDC Loan Documentation are the aforementioned
credit agreements and the other loan and collateral documents delivered in
connection therewith.
The EJDC Loan Transaction includes assignments
and refinancings, provided, however, that the EJDC Loan Transaction
<PAGE>
shall not include the incurrence of new indebtedness (through refinancings or
by amendment of the aforementioned credit agreements) which would operate
to increase the aggregate principal amount of debt then outstanding
under the EJDC Loan Transaction other than increases (i) to reflect the
realization of contingent claims provided for under the EJDC Loan
Transaction as of the Effective Time or (ii) in amounts from time to
time outstanding under the revolving credit facility extended by the EJDC
Lenders for ordinary working capital purposes, provided that the aggregate
amount at any time outstanding under such revolving credit facility shall
not exceed the sum of $40 million.
<PAGE>1
EXHIBIT 2
JOINT FILING AGREEMENT
and
POWER OF ATTORNEY
This Joint Filing Agreement and Power of Attorney dated as of August 1,
1996 by and among the persons listed on attached Schedule A (collectively, the
"Reporting Persons").
W I T N E S S E T H
WHEREAS, the Reporting Persons may be required to file a statement, and
amendments thereto, pursuant to Section 13(d) of the Securities Exchange Act of
1934 (the "Exchange Act") and the rules promulgated thereunder, containing the
information required by Schedule 13D, in connection with the consummation of
that certain merger and other transactions to the Agreement and Plan of Merger,
dated as of March 26, 1996, as amended, among Simon Property Group Inc., a
Maryland corporation ("SPG"), Day Acquisition Corp., an Ohio corporation, and
DeBartolo Realty Corporation, an Ohio corporation ("DRC"), and the Stockholders
Agreement, dated as of March 26, 1996, as amended, among SPG, DRC, the Parent
Principals (as defined in such Stockholders Agreement) and the Company
Principals (as defined in such Stockholders Agreement); and
WHEREAS, pursuant to Paragraph (f) of Rule 13d-1, the undersigned desire
to satisfy any Schedule 13D filing obligation under Rule 13d-1 by a single joint
filing; and
WHEREAS, the Reporting Persons desire to constitute and appoint certain
attorneys-in-fact and agents to execute any original statements on Schedule 13D
and any amendments to any such statements on Schedule 13D, and other related
documents in connection therewith.
NOW, THEREFORE, in consideration of the premises, the undersigned hereto
agree as follows:
<PAGE>2
1. The undersigned agree that any Statement on Schedule 13D to which
this Agreement and Power of Attorney is attached, and any amendments to such
Statement, are filed on behalf of each one of them.
2. This Agreement and Power of Attorney may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
3. The undersigned hereby constitute and appoint Larry Thrailkill and
Lynn Davenport as the undersigned's true and lawful attorneys-in-fact and
agents, jointly and severally, with full power of substitution and
resubstitution, for and in the undersigned's stead, in any and all capacities,
to execute any original statement on Schedule 13D with respect to the interests
of the undersigned in securities of SPG and any amendments thereto or
certificates that may be required in connection therewith, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission and granting unto said attorneys-in-fact
and agents, jointly and severally, the full power and authority to do and
perform each and every act and thing necessary or advisable for all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, jointly and severally, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
<PAGE>3
IN WITNESS WHEREOF, the undersigned have caused this Agreement and
Power of Attorney to be duly executed and delivered on the above indicated
date.
DEBARTOLO, INC.
By:/s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
THE EDWARD J. DeBARTOLO CORPORATION
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
/s/ Edward J. DeBartolo, Jr.
Edward J. DeBartolo, Jr. individually, and in his
capacity as Trustee under (i) the Lisa Marie DeBartolo
Revocable Trust, (ii) the Tiffanie Lynne DeBartolo
Revocable Trust and (iii) Edward J. DeBartolo Trust No. 7
for the Benefit of Nicole Anne DeBartolo
/s/ Cynthia R. DeBartolo
Cynthia R. DeBartolo
/s/ Marie Denise DeBartolo York
Marie Denise DeBartolo York, individually, and in her
capacity as Trustee under (i) Edward J. DeBartolo Trust
No. 8 for the benefit of John Edward York, (ii) Edward J.
DeBartolo Trust No. 9 for the benefit of Anthony John
York, (iii) Edward J. DeBartolo Trust No. 10 for the
benefit of Mara Denise York and (iv) Edward J. Debartolo
Trust No. 11 for the benefit of Jenna Marie York
<PAGE>4
CORAL SQUARE ASSOCIATES
By: /s/ Edward J. DeBartolo, Jr.
Name: Edward J. DeBartolo, Jr.
Title: Partner
By: /s/ Edward J. DeBartolo, Jr.
Name: Edward J. DeBartolo, Jr.
Title: Partner
SOUTH BEND ASSOCIATES
By: DeBartolo, Inc.
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
By: The Estate of Edward J. DeBartolo
By: /s/ Edward J. DeBartolo, Jr.
Name: Edward J. DeBartolo, Jr.
Title: Co-Executor
By: /s/ Marie Denise DeBartolo York
Name: Marie Denise DeBartolo York
Title: Co-Executor
WASHINGTON SQUARE ASSOCIATES
By: The Edward J. DeBartolo
Corporation
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
H-CASTLETON
By: Altamonte, Inc.
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
<PAGE>5
BAY PARK, INC.
WARD PLAZA ASSOCIATES
CHELTENHAM SHOPPING CENTER
ASSOCIATES
SUMMIT MALL, INC.
TYRONE SQUARE, INC.
UPPER VALLEY, INC.
MISSION VIEJO MALL, INC.
PINELLAS SQUARE, INC.
GREAT LAKES MALL, INC.
PALM BEACH MALL, INC.
LAFAYETTE SQUARE, INC.
LIMA MALL, INC.
RICHMOND MALL, INC.
WOODVILLE MALL, INC.
DeBARTOLO AVENTURA, INC.
BOYNTON BEACH, INC.
THE FLORIDA MALL CORPORATION
D.L. GROVE, INC.
TC MALL II, INC.
PADDOCK MALL, INC.
NATIONAL INDUSTRIAL
DEVELOPMENT CORPORATION
GREAT NORTHEAST MALL, INC.
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
RUES PROPERTIES, INC.
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
COLUMBIA SC I, INC.
COLUMBIA SC II, INC.
NORTHGATE I REAL ESTATE
CORPORATION
NORTHGATE II REAL ESTATE
CORPORATION
TACOMA SC I, INC.
TACOMA SC II, INC.
By: /s/ A.D. Wolfcale
Name: A.D. Wolfcale
Title: Senior Vice President
<PAGE>6
THE ESTATE OF EDWARD J. DeBARTOLO
By: /s/ Edward J. DeBartolo, Jr.
Name: Edward J. DeBartolo, Jr.
Title: Co-Executor
By: /s/ Marie Denise DeBartolo York
Name: Marie Denise DeBartolo York
Title: Co-Executor
<PAGE>7
Schedule A
Estate of Edward J. DeBartolo
Edward J. DeBartolo, Jr.
Cynthia R. DeBartolo
Marie Denise DeBartolo York
Lisa Marie DeBartolo Revocable Trust
Tiffanie Lynne DeBartolo Revocable Trust
Edward J. DeBartolo Trust No. 7 fbo Nicole Anne DeBartolo
Edward J. DeBartolo Trust No. 8 fbo John Edward York
Edward J. DeBartolo Trust No. 9 fbo Anthony John York
Edward J. DeBartolo Trust No. 10 fbo Mara Denise York
Edward J. DeBartolo Trust No. 11 fbo Jenna Marie York
DeBartolo, Inc.
The Edward J. DeBartolo Corporation
Coral Square Associates
Bay Park, Inc.
Ward Plaza Associates
Rues Properties, Inc.
Cheltenham Shopping Center Associates
Summit Mall, Inc.
Tyrone Square, Inc.
Upper Valley, Inc.
Washington Square Associates
Columbia SC I, Inc.
Columbia SC II, Inc.
Mission Viejo Mall, Inc.
Northgate I Real Estate Corporation
Northgate II Real Estate Corporation
Pinellas Square, Inc.
Tacoma SC I, Inc.
Tacoma SC II, Inc.
H-Castleton
Great Lakes Mall, Inc.
Palm Beach Mall, Inc.
Lafayette Square, Inc.
Lima Mall, Inc.
Richmond Mall, Inc.
Woodville Mall, Inc.
DeBartolo Aventura, Inc.
Boynton Beach, Inc.
The Florida Mall Corporation
D.L. Grove, Inc.
TC Mall II, Inc.
Paddock Mall, Inc.
National Industrial Development Corporation
Great Northeast Mall, Inc.
South Bend Associates
<PAGE>1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 9, 1996
(the "Agreement"), by and among the persons set forth on Schedule 1 (the
"Simon Family Members"), SIMON PROPERTY GROUP, INC., a Maryland corporation
(the "Company"), MELVIN SIMON & ASSOCIATES, INC., an Indiana corporation
("MSA"), JCP REALTY, INC., a Delaware corporation ("JCP"), BRANDYWINE REALTY,
INC., a Delaware corporation ("Brandywine"), and the Estate of Edward J.
DeBartolo, Sr., Edward J. DeBartolo, Jr., Marie Denise DeBartolo York, and the
Trusts and other entities listed on Schedule 2 and (collectively, the
"DeBartolo Group"), and any of their respective successors-in-interest and
permitted assigns. MSA and the Simon Family Members are hereinafter referred
to as the "Simon Family Entities." The Simon Family Entities, JCP, Brandywine
and each member of the DeBartolo Group are hereinafter sometimes referred to
as the "Limited Partners." With respect to any request pursuant to Section 2.1
on behalf of any party hereto that is a member of the DeBartolo Group, The
Edward J. DeBartolo Corporation shall act as the sole representative (in such
capacity the "DeBartolo Representative") of all the members of the DeBartolo
Group for the purpose of making such request. The Limited Partners are
hereinafter sometimes referred to as the
<PAGE>2
"Rights Holders." The Rights Holders and their respective
successors-in-interest and permitted assigns are hereinafter sometimes
referred to as the "Holders."
Upon execution of the Fifth Amended and Restated Agreement
of Limited Partnership (the "Partnership Agreement") of DeBartolo Realty
Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership"), dated as of the date hereof, among DeBartolo Realty
Corporation, as its managing general partner (the "General Partner"), the
Company, as its non-managing general partner, and its limited partners, and
the consummation of the transactions contemplated thereby, each of the Limited
Partners will be a limited partner holding (individually or together with its
affiliates) in excess of 1.5% of the units of partnership interest (the
"Units") in the Operating Partnership. Pursuant to the Partnership Agreement,
the Limited Partners now have the right at any time to exchange all or any
portion of their Units for shares (the "Shares") of the Company's common
stock, par value $.0001 per share (the "Common Stock"), or cash, at the
election of the Company, and, except as provided herein, any Shares issued
upon such exchange will not be registered under the Securities Act of 1933, as
amended (the "Securities Act").
In order to induce the Limited Partners to enter into the
Partnership Agreement, the Company has agreed to provide certain registration
rights with respect to the Shares as set forth in this Agreement.
<PAGE>3
In consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are (a) the Shares issued by the
Company to the Holders upon exchange of Units, (b) the Shares issued by the
Company to the Holders upon conversion of the Class B Common Stock, par value
$.0001 per share, if any of the Company (c) the Shares issued by the Company
held by said Holders upon the conversion of Class C Common Stock, par value
$.0001 per share, if any, of the Company and (d) any other securities issued
by the Company in exchange for or upon conversion of any such Shares (it being
understood that Units do not constitute Registrable Securities) (collectively,
the "Registrable Securities") but, with respect to any particular Registrable
Security, only so long as it continues to be a Registrable Security.
Registrable Securities shall include any securities issued as a dividend or
distribution on account of Registrable Securities or resulting from a
subdivision of the outstanding shares of Registrable Securities into a greater
number of shares (by reclassification, stock split or otherwise). For the
purposes of this Agreement, a security that was at one time a Registrable
Security shall cease to be a Registrable Security when (a) such security has
been effectively registered under the Securities Act other than pursuant to
Section 4 of this Agreement, and either (i) the registration statement with
respect
<PAGE>4
thereto has remained continuously effective for 150 days or (ii) such security
has been disposed of pursuant to such registration statement, (b) such
security is sold to the public in reliance on Rule 144 (or any similar
provision then in force) under the Securities Act, (c) such security has been
otherwise transferred, except in connection with the exercise of the EJDC
Option (as defined in the Partnership Agreement), and (i) the Company has
delivered a new certificate or other evidence of ownership not bearing the
legend set forth on the Shares upon the initial issuance thereof (or other
legend of similar import) and (ii) in the opinion of counsel to the Company
reasonably acceptable to the Holders and addressed to the Company and the
holder of such security, the subsequent disposition of such security shall not
require the registration or qualification under the Securities Act, or (d)
such security has ceased to be outstanding.
Notwithstanding anything to the contrary herein, any Limited
Partner may exercise any of its rights hereunder prior to its receipt of
Shares, provided that such Limited Partner, simultaneously with the delivery
of any notice requesting registration hereunder, shall deliver an Exercise
Notice to the Company requesting exchange of Units exchangeable into such
number of Shares as such Limited Partner has requested to be registered. Any
such Exercise Notice so delivered shall be (a) conditioned on the
effectiveness of the requested registration in connection with which it was
delivered and (b) deemed to cover only such number of Units as are
exchangeable into the number of
<PAGE>5
Shares actually sold pursuant to the requested registration.
Any Shares to be issued in connection with any such Exercise Notice shall be
issued upon the closing of the requested registration. In the event that the
Company elects to issue all cash in lieu of Shares upon the exchange of the
Units covered by any such Exercise Notice, the registration requested by the
Limited Partner that delivered such Exercise Notice, if a Demand Registration,
shall not constitute a Demand Registration under Section 2.1 hereof.
Nothing contained herein shall create any obligation on the
part of the Company to issue Shares, rather than cash, upon the exchange of
any Units.
2. Demand Registration.
<PAGE>6
2.1 Request for Registration. At any time,
each Holder (or, with respect to each Holder that is a member of the DeBartolo
Group, the DeBartolo Representative) may make a written request per 12-month
period (specifying the intended method of disposition) for registration under
the Securities Act (each, a "Demand Registration") of all or part of such
Holder's Registrable Securities (but such part, together with the number of
securities requested by other Holders to be included in such Demand
Registration pursuant to this Section 2.1, shall have an estimated market
value at the time of such request (based upon the then market price of a share
of Common Stock of the Company) of at least $10,000,000). Notwithstanding the
foregoing, the Company shall not be required to file any registration
statement on behalf of any Holder within six months after the effective date
of any earlier registration statement so long as the Holder requesting the
Demand Registration was given a notice offering it the opportunity to sell
Registrable Securities under the earlier registration statement and such
Holder did not request that all of its Registrable Securities be included;
provided, however, that if a Holder requested that all of its Registrable
Securities be included in the earlier registration statement but not all were
so included through no fault of the Holder, such Holder may, but shall not be
obligated to, require the Company to file another registration statement
pursuant to a Demand Registration (subject, in the event of a Demand
Registration for less than all such remaining Registrable Securities, to the
same $10,000,000 limitation set forth above) exercised by such Holder within
six
<PAGE>7
months of the effective date of such earlier registration statement. Within
ten days after receipt of a request for a Demand Registration, the Company
shall give written notice (the "Notice") of such request to all other Holders
and shall include in such registration all Registrable Securities that the
Company has received written requests for inclusion therein within 15 days
after the Notice is given (the "Requested Securities"). Thereafter, the
Company may elect to include in such registration additional shares of Common
Stock to be issued by the Company. In such event for purposes only of Section
2.3 (other than the first sentence thereof) and not for purposes of any other
provision or Section hereof (including, without limitation, Section 3), (a)
such shares to be issued by the Company in connection with a Demand
Registration shall be deemed to be Registrable Securities and (b) the Company
shall be deemed to be a Holder thereof. All requests made pursuant to this
Section 2.1 shall specify the aggregate number of Registrable Securities to be
registered.
2.2 Effective Registration and Expenses. A
registration shall not constitute a Demand Registration under Section 2.1
hereof until it has become effective. In any registration initiated as a
Demand Registration, the Company shall pay all Registration Expenses (as
defined in Section 8) incurred in connection therewith, whether or not such
Demand Registration becomes effective, unless such Demand Registration fails
to become effective as a result of the fault of one or more Holders other than
the Company, in which case the Company will
<PAGE>8
not be required to pay the Registration Expenses incurred with respect to the
offering of such Holder or Holders' Registrable Securities. The Registration
Expenses incurred with respect to the offering of such Holder or Holders'
Registrable Securities shall be the product of (a) the aggregate amount of all
Registration Expenses incurred in connection with such registration and (b)
the ratio that the number of such Registrable Securities bears to the total
number of Registrable Securities included in the registration.
2.3 Priority on Demand Registrations. The
Holder making the Demand Registration may elect whether the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the
form of a firm commitment underwritten offering or otherwise; provided,
however, that such Holder may not elect that such offering be made on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act. In
any case in which an offering is in the form of a firm commitment underwritten
offering, if the managing underwriter or underwriters of such offering advise
the Company in writing that in its or their opinion the number of Registrable
Securities proposed to be sold in such offering exceeds the number of
Registrable Securities that can be sold in such offering without adversely
affecting the market for the Company's common stock, the Company will include
in such registration the number of Registrable Securities that in the opinion
of such managing underwriter or underwriters can be sold without adversely
affecting the market for the Company's common stock. In such
<PAGE>9
event, the number of Registrable Securities, if any, to be offered for the
accounts of Holders (including the Holder making the Demand Registration)
shall be reduced pro rata on the basis of the relative number of any
Registrable Securities requested by each such Holder to be included in such
registration to the extent necessary to reduce the total number of Registrable
Securities to be included in such offering to the number recommended by such
managing underwriter or underwriters. In the event the Holder making the
Demand shall receive notice pursuant to this Section 2.3 that the amount of
Registrable Securities to be offered for the account of such Holder shall be
reduced, such Holder shall be entitled to withdraw the Demand by written
notice to the Company within 7 days after receipt of such notice, with the
effect that such Demand shall be deemed not to have been made. In this
connection, it is understood that Teachers' Retirement System of the State of
Illinois ("Teachers'") and Homart San Antonio Investment Co. ("Homart") have
entered into a Registration Rights Agreement dated December 1, 1993, as
amended (the "First Agreement"), providing for rights to register certain
securities held by Teachers' and Homart on similar terms to the terms hereof.
The Company hereby agrees to use its commercially reasonable efforts to secure
the consent of Teachers' (a) to waive the provisions of the following two
sentences with respect to the securities held by it, and (b) to participate
pro rata with the Holders in any reduction of the Registrable Securities to be
offered hereunder as provided in the preceding sentence above in this Section
2.3. In the event Teachers' (if no such
<PAGE>10
consent is secured) or Homart have exercised their rights pursuant to the
First Agreement to have any of their shares of Common Stock included in such
registration statement and in the opinion of the managing underwriter the
number of Registrable Securities proposed to be sold in such offering plus the
number of shares of Common Stock to be sold by Teachers' and/or Homart exceeds
the total number of shares of Common Stock that can be sold in such offering
without adversely affecting the market for the Company's Common Stock, then
the number of Registrable Securities to be offered for the account of the
Holders shall be reduced pro rata as aforesaid to zero before any reduction in
the number of shares of Common Stock to be offered by Teachers' and/or Homart.
Each of the Holders agrees and acknowledges that Teachers' and Homart are
third party beneficiaries of this Agreement and that this Section 2.3 cannot
be amended in a manner adverse to Teachers' or Homart without the consent of
Teachers' and Homart.
2.4 Selection of Underwriters. If any of the
Registrable Securities covered by a Demand Registration are to be sold in an
underwritten offering, the Holders, in the aggregate, that own or will own a
majority of the Registrable Securities that the Company has been requested to
register (including the Requested Securities but excluding any securities to
be issued by the Company), shall have the right to select the investment
banker or investment bankers and manager or managers that will underwrite the
offering; provided, however, that such investment
<PAGE>11
bankers and managers must be reasonably satisfactory to the Company.
3. Piggyback Registration. Whenever the Company
proposes to file a registration statement under the Securities Act with
respect to an underwritten public offering of common stock by the Company for
its own account or for the account of any stockholders of the Company (other
than a registration statement filed pursuant to either Section 2 or 4 hereof),
the Company shall give written notice (the "Offering Notice") of such proposed
filing to each of the Holders at least 30 days before the anticipated filing
date. Such Offering Notice shall offer all such Holders the opportunity to
register such number of Registrable Securities as each such Holder may request
in writing, which request for registration (each, a "Piggyback Registration")
must be received by the Company within 15 days after the Offering Notice is
given. The Company shall use all reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering, if any, to
permit the holders of the Registrable Securities requested to be included in
the registration for such offering to include such Registrable Securities in
such offering on the same terms and conditions as the common stock of the
Company or, if such offering is for the account of other stockholders, the
common stock of such stockholders included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of a proposed
underwritten offering advise the Company in writing that in its or their
opinion the number of Registrable Securities
<PAGE>12
proposed to be sold in such offering exceeds the number of Registrable
Securities that can be sold in such offering without adversely affecting the
market for the Company's common stock, the Company will include in such
registration the number of Registrable Securities that in the opinion of such
managing underwriter or underwriters can be sold without adversely affecting
the market for the Company's common stock. In such event, the number of
Registrable Securities, if any, to be offered for the accounts of Holders
shall be reduced pro rata on the basis of the relative number of any
Registrable Securities requested by each such Holder to be included in such
registration to the extent necessary to reduce the total number of Registrable
Securities to be included in such offering to the number recommended by such
managing underwriter or underwriters. The Company shall pay all Registration
Expenses incurred in connection with any Piggyback Registration. In this
connection, it is understood that if Teachers' and/or Homart have exercised
their rights pursuant to the First Agreement to have any of their shares of
Common Stock included in such registration statement and in the opinion of the
managing underwriter the number of Registrable Securities proposed to be sold
in such offering plus the number of shares of Common Stock to be offered by
Teachers' and/or Homart exceeds the total number of shares of Common Stock
that can sold in such offering without adversely affecting the market for the
Company's Common Stock, then the number of Registrable Securities to be
offered for the account of the Holders shall be reduced pro rata as aforesaid
to zero before any
<PAGE>13
reduction in the number of shares of Common Stock to be offered by Teachers'
and/or Homart.
4. Shelf Registration. The Company agrees that, upon
the request of any Holder, the Company shall promptly after receipt of such
request notify each other Holder of receipt of such request and shall cause to
be filed on or as soon as practicable thereafter, but not sooner than 35 days
after the receipt of such notice from such Holder, a registration statement (a
"Shelf Registration Statement") on Form S-3 or any other appropriate form
under the Securities Act for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 thereunder or any similar rule that may be adopted
by the Securities and Exchange Commission (the "Commission") and permitting
sales in any manner not involving an underwritten public offering (and shall
register or qualify the shares to be sold in such offering under such other
securities or "blue sky" laws as would be required pursuant to Section 7(g)
hereof) covering up to the aggregate number of (a) Shares to be issued to such
Holder and all other Holders who request that the shares to be issued to them
upon the exchange of Units held by them be included in the shelf registration
statement upon the exchange of Units so that the Shares issuable upon the
exchange of such Units will be registered pursuant to the Securities Act and
(b) Registrable Securities held by such Holders. The Company shall use its
best efforts to cause the Shelf Registration Statement to be declared
effective by the Commission within three months after the filing thereof. The
Company shall use its reasonable efforts
<PAGE>14
to keep the Shelf Registration Statement continuously effective (and to
register or qualify the shares to be sold in such offering under such other
securities or "blue sky" laws as would be required pursuant to Section 7(g)
hereof) for so long as any Holder holds any Units that may be exchanged for
Shares under the Partnership Agreement or until the Company has caused to be
delivered to each Holder an opinion of counsel, which counsel must be
reasonably acceptable to such Holders, stating that the Shares issued upon
exchange of Units may be sold by the Holders pursuant to Rule 144 promulgated
under the Securities Act without regard to any volume limitations and that the
Company has satisfied the informational requirements of Rule 144. The Company
shall file any necessary listing applications or amendments to existing
applications to cause the Shares issuable upon exchange of Units to be listed
on the primary exchange on which the Common Stock is then listed, if any.
Notwithstanding the foregoing, if the Company determines that it is necessary
to amend or supplement such Shelf Registration Statement and if the Company
shall furnish to the Holders a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company it would be significantly disadvantageous to the
Company and its stockholders for any such Shelf Registration Statement to be
amended or supplemented, the Company may defer such amending or supplementing
of such Shelf Registration Statement for not more than 45 days and in such
event the Holders shall be required to discontinue disposition of any
Registrable Securities covered by
<PAGE>15
such Shelf Registration Statement during such period. Notwithstanding the
foregoing, if the Company irrevocably elects prior to the filing of any Shelf
Registration Statement to issue all cash in lieu of Shares upon the exchange
of Units by the Holder requesting the filing of such Shelf Registration
Statement, the Company shall not be obligated to file such Shelf Registration
Statement.
5. Rights of Other Stockholders. The Company shall not grant
any person, for so long as any securities convertible into or exchangeable for
Registrable Securities are outstanding, any rights to have their securities
included in any registration statement to be filed by the Company if such
rights are greater than the rights of the Holders granted herein without
extending such greater rights to the Holders. Subject to the penultimate
sentence of Section 2.3 and the last sentence of Section 3, to the extent the
securities of such other stockholders are entitled to be included in any such
registration statement and the managing underwriter or underwriters believe
that the number of securities proposed to be sold in such offering exceeds the
number of securities that can be sold in such offering without adversely
affecting the market for the Company's common stock, the number of securities
to be offered for the accounts of such other stockholders shall be reduced to
zero before the number of securities to be offered for the accounts of the
Holders is reduced. It is understood that the Company has heretofore granted
registration rights pursuant to the First Agreement to Teachers' and Homart
which rights will remain outstanding
<PAGE>16
following the execution of this Agreement and that under the terms of the
First Agreement, the Company is not permitted to grant to any person for so
long as any securities convertible into or exchangeable for shares of Common
Stock held by Teachers' and/or Homart are outstanding registration rights
which are greater than the rights granted to Teachers' and Homart in the First
Agreement. In this connection, the Simon Family Entities, JCP and Brandywine,
each of whom is also a signatory to the First Agreement, hereby irrevocably
waive all of their rights under such First Agreement, it being understood that
all of their rights to have their securities included in any registration
statement filed by the Company shall flow from this Agreement. Except as set
forth in this Agreement, the First Agreement (as to Teachers' and Homart only)
and the Operating Partnership Agreement, the Company has not granted to any
Person rights to have their securities included in any registration statement
to be filed by the Company following the date hereof. No Person who was a
partner of the Operating Partnership immediately preceding the date of this
Agreement has any rights to cause the Company to register any securities held
or to be acquired by that Person except for any such rights under this
Agreement or the Operating Partnership Agreement.
6. Holdback Agreements.
6.1 Restrictions on Public Sale by Holders of
Registrable Securities. Each Holder (a) participating in an underwritten
offering covered by any Demand Registration or Piggyback Registration or (b)
in the event the Company is issuing
<PAGE>17
shares of its capital stock to the public in an underwritten offering, agrees,
if requested by the managing underwriter or underwriters for such underwritten
offering, not to effect (except as part of such underwritten offering or
pursuant to Article XII of the Partnership Agreement) any public sale or
distribution of Registrable Securities or any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, during the period (a "Lock-Out Period") commencing 14 days
prior to and ending no more than 90 days subsequent to the date (an "Execution
Date") specified in the Lock-Out Notice (as defined below) as the anticipated
date of the execution and delivery of the underwriting agreement (or, if
later, a pricing or terms agreement signed pursuant to such underwriting
agreement) to be entered into in connection with such Demand Registration or
Piggyback Registration or other underwritten offering. The Execution Date
shall be no fewer than 21 days subsequent to the date of delivery of written
notice (a "Lock-Out Notice") by the Company to each Holder of the anticipated
execution of an underwriting agreement (or pricing or terms agreement), and
the Execution Date shall be specified in the Lock-Out Notice. The Company may
not deliver a Lock-Out Notice unless it is making a good faith effort to
effect the offering with respect to which such Lock-Out Notice has been
delivered. Notwithstanding the foregoing, the Company may not (a) establish
Lock-Out Periods in effect for more than 208 days in the aggregate within
either of
<PAGE>18
the two consecutive twelve-month periods commencing on August 7, 1995,(b)
establish Lock-Out Periods in effect for more than 208 days in the aggregate
within any of the consecutive fifteen-month periods commencing on August 7,
1997 and (c) cause any Lock-Out Period to commence (i) during the 45-day
period immediately following the expiration of any Lock-Out Period, such
45-day period to be extended by one day for each day of delay pursuant to
Section 7(a) provided, however, that in no event shall such extension exceed
90 days, provided, further, however, that such 90-day limit on extensions
shall terminate on December 31, 1998; or (ii) if the Company shall have been
requested to file a Registration Statement pursuant to Section 2 during such
45-day period (as extended), until the earlier of (x) the date on which all
Registrable Securities thereunder shall have been sold and (y) 45 days after
the effective date of such Registration Statement. Notwithstanding the
foregoing, any Lock-Out Period may be shortened at the Company's sole
discretion by written notice to the Holders, and the applicable Lock-Out
Period shall be deemed to have ended on the date such notice is received by
the Holders. For the purposes of this Section 6.1, a Lock-Out Period shall be
deemed to not have occurred, and a Lock-Out Notice shall be deemed to not have
been delivered, if, within 30 days of the delivery of a Lock-Out Notice, the
Company delivers a written notice (the "Revocation Notice") to the Holders
stating that the offering (the "Aborted Offering") with respect to which such
Lock-Out Notice was delivered has not been, or shall not be, consummated;
provided, however, that any Lock-Out Period that the
<PAGE>19
Company causes to commence within 45 days of the delivery of such Revocation
Notice shall be reduced by the number of days pursuant to which the Holders
were subject to restrictions on transfer pursuant to this Section 6.1 with
respect to such Aborted Offering.
6.2 Restrictions on Public Sale by the
Company. If, but only if, the managing underwriter or underwriters for any
underwritten offering of Registrable Securities made pursuant to a Demand
Registration so request, the Company agrees not to effect any public sale or
distribution of any of its securities similar to those being registered, or
any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any
successor or similar forms thereto) during the 14 days prior to, and during
the 180-day period beginning on, the effective date of such Demand
Registration.
7. Registration Procedures. Whenever the Holders have
requested that any Registrable Securities be registered pursuant to Section 2
or 3, the Company shall use its best efforts to effect the registration of
Registrable Securities in accordance with the intended method of disposition
thereof as expeditiously as practicable, and in connection with any such
request, the Company shall as expeditiously as possible:
(a) in connection with a request pursuant to
Section 2, prepare and file with the Commission, not later than 40 days (or
such longer period as may be required in order for the Company to comply with
the provisions of Regulation S-X under
<PAGE>20
the Securities Act) after receipt of a request to file a registration
statement with respect to Registrable Securities, a registration statement on
any form for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of such
Registrable Securities in accordance with the intended method of distribution
thereof and, if the offering is an underwritten offering, shall be reasonably
satisfactory to the managing underwriter or underwriters, and use its best
efforts to cause such registration statement to become effective; provided,
however, that if the Company shall within five (5) Business Days after receipt
of such request furnish to the Holders making such a request a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be
significantly disadvantageous to the Company and its stockholders for such a
registration statement to be filed on or before the date filing would be
required, the Company shall have an additional period of not more than 45 days
within which to file such registration statement (provided that only one such
notice may be given during any 12 month period); and provided, further, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall (a) furnish to the counsel selected by
the Holder making the demand, or if no demand, then, by the Holders, in the
aggregate, that own or will own a majority of the Registrable Securities
covered by such registration statement, copies of all such documents proposed
to be filed, which
<PAGE>21
documents will be subject to the review of such counsel, and (b) notify each
seller or prospective seller of Registrable Securities of any stop order
issued or threatened by the Commission or withdrawal of any state
qualification and take all reasonable actions required to prevent such
withdrawal or the entry of such stop order or to remove it if entered;
(b) in connection with a registration pursuant
to Section 2, prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than 150 days (or such shorter period that
will terminate when all Registrable Securities covered by such registration
statement have been sold, but not before the expiration of the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable), and comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended method of disposition by the sellers thereof set forth in such
registration statement;
(c) notify each seller of Registrable
Securities and the managing underwriter, if any, promptly, and (if requested
by any such Person) confirm such advice in writing,
(i) when the prospectus or any
supplement thereto or amendment or post-effective amendment to the
registration statement has been filed, and, with respect to
<PAGE>22
the registration statement or any post-effective amendment, when the
same has become effective,
(ii) of any request by the Commission for
amendments or post-effective amendments to the registration statement
or supplements to the prospectus or for additional information,
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or
the initiation or threatening of any proceedings for that purpose,
(iv) if at any time during the distribution of
securities by the managing underwriter the representations and
warranties of the Company to be contained in the underwriting
agreement cease to be true and correct in all material respects, and
(v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(d) use its best efforts to prevent the
issuance of any stop order suspending the effectiveness of the
registration statement or any state qualification or any order preventing or
suspending the use of any preliminary prospectus, and use its best efforts to
obtain the withdrawal of any order suspending the effectiveness of the
registration statement or any state qualification or of any order preventing
or suspending the
<PAGE>23
use of any preliminary prospectus at the earliest possible moment;
(e) if requested by the managing underwriter
or a seller of Registrable Securities, promptly incorporate in a prospectus
supplement or post-effective amendment to the registration statement such
information as the managing underwriter or a seller of Registrable Securities
reasonably request to have included therein relating to the plan of
distribution with respect to the Registrable Securities, including, without
limitation, information with respect to the amount of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus supplement or post-effective amendment
promptly after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(f) furnish to each seller of Registrable
Securities and the managing underwriter one signed copy of the registration
statement and each amendment thereto as filed with the Commission, and such
number of copies of such registration statement, each amendment (including
post-effective amendments) and supplement thereto (in each case including all
documents incorporated by reference and all exhibits thereto whether or not
incorporated by reference), the prospectus included in such registration
statement (including each preliminary prospectus)
<PAGE>24
and such other documents as each seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(g) use reasonable efforts to register or
qualify such Registrable Securities under such other securities or "blue sky"
laws of such jurisdictions as any seller or underwriter reasonably requests in
writing and to do any and all other acts and things that may be reasonably
necessary or advisable to register or qualify for sale in such jurisdictions
the Registrable Securities owned by such seller; provided, however, that the
Company shall not be required to (a) qualify generally to do business in any
jurisdiction where it is not then so qualified, (b) subject itself to taxation
in any such jurisdiction, (c) consent to general service of process in any
such jurisdiction or (d) provide any undertaking required by such other
securities or "blue sky" laws or make any change in its charter or bylaws that
the Board of Directors determines in good faith to be contrary to the best
interest of the Company and its stockholders;
(h) use reasonable efforts to cause the
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
<PAGE>25
(i) notify each seller of such Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result
of which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
prepare and file with the Commission a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(j) enter into customary agreements (including
an underwriting agreement in customary form, if the offering is an
underwritten offering) and take such other actions as are reasonably required
in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection:
(i) make such representations and
warranties to the underwriters in form, substance and scope, reasonably
satisfactory to the managing underwriter, as are customarily made by
issuers to underwriters in primary underwritten offerings on the form
of registration statement used in such offering;
<PAGE>26
(ii) obtain opinions and updates thereof of
counsel, which counsel and opinions to the Company (in form, scope
and substance) shall be reasonably satisfactory to the managing
underwriter, addressed to the managing underwriter, covering the
matters customarily covered in opinions requested in primary
underwritten offerings on the form of registration statement used in
such offering and such other matters as may be reasonably requested
by the managing underwriter;
(iii) obtain so-called "cold comfort" letters and
updates thereof from the Company's independent public accountants
addressed to the managing underwriter in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with primary underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter;
(iv) cause the underwriting agreements to set forth
in full the indemnification provisions and procedures of Section 9
(or such other substantially similar provisions and procedures as the
managing underwriter shall reasonably request) with respect to all
parties to be indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may
be reasonably requested by the Participating Holder or Holders to
evidence compliance with the provisions of this Section 7(j) and with
any customary conditions contained in
<PAGE>27
the underwriting agreement or other agreement entered into by the
Company.
The above shall be done at the effectiveness of such
registration statement (when consistent with customary industry
practice), each closing under any underwriting or similar agreement as and to
the extent required thereunder and from time to time as may reasonably be
requested by the sellers of Registrable Securities, all in a manner consistent
with customary industry practice.
(k) make available for inspection by any
seller of Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, the counsel referred to
in clause (a) of Section 7(a) and any attorney, accountant or other agent
retained by any such seller or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties
of the Company (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors, employees and agents to supply all information
reasonably requested by any such Inspector in connection with such
registration statement. Records that the Company determines, in good faith, to
be confidential and that it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (a) the disclosure of such Records is,
in the reasonable judgment of any Inspector, necessary to avoid or correct a
misstatement or omission of a material fact in the
<PAGE>28
registration statement or (b) the release of such Records is ordered pursuant
to a subpoena or other order from a court or governmental agency of competent
jurisdiction or required (in the written opinion of counsel to such seller or
underwriter, which counsel shall be reasonably acceptable to the Company)
pursuant to applicable state or federal law. Each seller of Registrable
Securities agrees that it will, upon learning that disclosure of such Records
are sought by a court or governmental agency, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
(l) if such sale is pursuant to an
underwritten offering, use reasonable efforts to obtain a "cold comfort"
letter and updates thereof from the Company's independent public accountants
in customary form and covering such matters of the type customarily covered by
"cold comfort" letters as the holders, in the aggregate, of a majority of the
Registrable Securities being sold and the managing underwriter or underwriters
reasonably request;
(m) otherwise use reasonable efforts to comply
with the Securities Act, the Exchange Act, all applicable rules and
regulations of the Commission and all applicable state securities and real
estate syndication laws, and make generally available to its security holders,
as soon as reasonably practicable, an earnings statement covering a period of
12 months, beginning within three months after the effective date
<PAGE>29
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(n) use reasonable efforts to cause all
Registrable Securities covered by the registration statement to be listed on
each securities exchange, if any, on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
satisfied;
(o) cooperate with the sellers of Registrable
Securities and the managing underwriter to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter may reasonably request at least 2 business days prior to
any sale of Registrable Securities to the underwriters;
(p) cooperate and assist in any filings
required to be made with the NASD and in the performance of any due diligence
investigation by any underwriter;
(q) prior to the filing of any document which
is to be incorporated by reference into the registration statement or the
prospectus (after the initial filing of the registration statement) provide
copies of such document to the sellers of Registrable Securities, the
underwriters and their respective counsel, make the Company representatives
available for discussion of such document with such persons and, to the extent
changes may be made to such document without the consent of a third party
(other than the Company's accountants or any
<PAGE>30
affiliate of the Company), make such changes in such document prior to the
filing thereof as any such persons may reasonably request to the extent and
only to the extent that such changes relate to a description of a DeBartolo
Group Holder or the Plan or Distribution being effected by a DeBartolo Group
Holder; and
(r) participate, if so requested, in a road
show in connection with the sale of the Registrable Securities but only to
the extent reasonably requested by the managing underwriter, if such sale is
pursuant to an underwritten offering.
The Company may require each seller or prospective seller of
Registrable Securities as to which any registration is being effected to
furnish to the Company such information regarding the distribution of such
securities and other matters as may be required to be included in the
registration statement.
Each holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Paragraph (i) of this Section 7, such holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Paragraph
(i) of this Section 7, and, if so directed by the Company, such holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of
<PAGE>31
receipt of such notice. If the Company shall give any such notice, the Company
shall extend the period during which such registration statement shall be
maintained effective pursuant to this Agreement (including the period referred
to in Paragraph (b) of this Section 7) by the number of days during the period
from and including the date of the giving of such notice pursuant to Paragraph
(i) of this Section 7 to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Paragraph (i) of this Section 7.
The Company shall keep the sellers of Registrable Securities
to be offered in a given registration advised of the status of any
registration in which they are participating. In addition, the Company and
each such seller of Registrable Securities may enter into understandings in
writing whereby such seller of Registrable Securities will agree in advance as
to the acceptability of the price or range of prices per share at which the
Registrable Securities included in such registration are to be offered to the
public. Furthermore, the Company shall establish pricing notification
procedures reasonably acceptable to each such seller of Registrable Securities
and shall, as promptly as practicable after learning the same from the
managing underwriter, use reasonable efforts to give oral notice to each such
seller of Registrable Securities of the anticipated date on which the Company
expects to receive a notification from the managing underwriter (and any
changes in such anticipated date)
<PAGE>32
of the price per share at which the Registrable Securities included in such
registration are to be offered to the public.
8. Registration Expenses. The Company shall pay all expenses
incident to its performance of or compliance with this Agreement, including,
without limitation, (a) all Commission, stock exchange and National
Association of Securities Dealers, Inc. registration, filing and listing fees,
(b) all fees and expenses incurred in complying with securities or "blue sky"
laws (including reasonable fees and disbursements of counsel in connection
with "blue sky" qualifications of the Registrable Securities), (c) all
printing, messenger and delivery expenses, (d) all fees and disbursements of
the Company's independent public accountants and counsel and (e) all fees and
expenses of any special experts retained by the Company in connection with any
Demand Registration or Piggyback Registration pursuant to the terms of this
Agreement, regardless of whether such registration becomes effective;
provided, however, that the Company shall not pay the costs and expenses of
any Holder relating to underwriters' commissions and discounts relating to
Registrable Securities to be sold by such Holder (but such costs and expenses
shall be paid by the Holders on a pro rata basis), brokerage fees, transfer
taxes, or the fees or expenses of any counsel, accountants or other
representatives retained by the Holders, individually or in the aggregate. All
of the expenses described in this Section 8 that are to be paid by the Company
are herein called "Registration Expenses."
9. Indemnification; Contribution.
<PAGE>33
9.1 Indemnification by the Company. The
Company agrees to indemnify, to the fullest extent permitted by law, each
Holder and each secured creditor referred to in Section 12.4(c)(ii) hereof (a
"Secured Creditor"), each of their respective officers, directors, agents,
advisors, employees and trustees, and each person, if any, who controls such
Holder or Secured Creditor (within the meaning of the Securities Act), against
any and all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by or contained in any information with respect to such Holder or
Secured Creditor furnished in writing to the Company by such Holder or Secured
Creditor expressly for use therein or by such Holder's or Secured Creditor's
failure to deliver a copy of the prospectus or any supplements thereto after
the Company has furnished such Holder or Secured Creditor with a sufficient
number of copies of the same or by the delivery of prospectuses by such Holder
or Secured Creditor after the Company notified such Holder or Secured Creditor
in writing to discontinue delivery of prospectuses. The Company also shall
indemnify any underwriters of the Registrable Securities, their officers and
directors and each person who
<PAGE>34
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
9.2 Indemnification by Holders. In connection with any
registration statement in which a Holder is participating, each such Holder
shall furnish to the Company in writing such information and affidavits with
respect to such Holder as the Company reasonably requests for use in
connection with any such registration statement or prospectus and agrees to
indemnify, severally and not jointly, to the fullest extent permitted by law,
the Company, its officers, directors and agents and each person, if any, who
controls the Company (within the meaning of the Securities Act) against any
and all losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading, to the extent, but only to the extent, that such untrue or alleged
untrue statement or omission is contained in or omitted from, as the case may
be, any information or affidavit with respect to such Holder so furnished in
writing by such Holder specifically for use in the Registration Statement.
Each Holder also shall indemnify any underwriters of the Registrable
Securities, their officers and directors and each person who controls such
<PAGE>35
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Company.
9.3 Conduct of Indemnification Proceedings. Any party that
proposes to assert the right to be indemnified under this Section 9 shall,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party
or parties under this Section 9, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 9 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that
it elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to the indemnified party
of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other
<PAGE>36
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. If the indemnifying party assumes the defense, the
indemnifying party shall have the right to settle such action without the
consent of the indemnified party; provided, however, that the indemnifying
party shall be required to obtain such consent (which consent shall not be
unreasonably withheld) if the settlement includes any admission of wrongdoing
on the part of the indemnified party or any decree or restriction on the
indemnified party or its officers or directors; provided, further, that no
indemnifying party, in the defense of any such action, shall, except with the
consent of the indemnified party (which consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability with
respect to such action. The indemnified party will have the right to employ
its own counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party unless (a)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (b) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available in the indemnifying party, (c) a conflict or
potential conflict exists (based on advice of counsel to the
<PAGE>37
indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (d) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time from all such indemnified party or parties unless
(a) the employment of more than one counsel has been authorized in writing by
the indemnifying party or parties, (b) an indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it that are different from or in addition to those available to
the other indemnified parties or (c) a conflict or potential conflict exists
(based on advice of counsel to an indemnified party) between such indemnified
party and the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees and expenses
of such additional counsel or counsels. An indemnifying party will not be
liable for any settlement of any action or claim effected
<PAGE>38
without its written consent (which consent shall not be unreasonably
withheld).
9.4 Contribution. If the indemnification provided for
in this Section 9 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the indemnifying party, to the extent such
indemnification is unavailable, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the actions that
resulted in such losses, claims, damages, liabilities or expenses. The
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such action. The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9.3, any legal or other fees or expenses
reasonably
<PAGE>39
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9.4 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 9.1 and 9.2 without regard to the relative fault of said
indemnifying parties or indemnified party.
10. Participation in Underwritten Registrations. No person
may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person's securities on the basis provided in any
underwriting agreements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
11. Rule 144. The Company covenants that it shall use
its best efforts to file the reports required to be filed by it under the
Securities Exchange Act of 1934, as amended, and the
<PAGE>40
rules and regulations of the Commission thereunder if and when the Company
becomes obligated to file such reports (or, if the Company ceases to be
required to file such reports, it shall, upon the request of any Holder, make
publicly available other information), and it shall, if feasible, take such
further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time or (ii) any similar rules or regulations
hereafter adopted by the Commission. Upon the written request of any Holder,
the Company shall deliver to such Holder a written statement as to whether it
has complied with such requirements.
12. Miscellaneous.
12.1 Remedies. Each Holder, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
12.2 Amendments and Waivers. Except as
otherwise provided herein, the provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
<PAGE>41
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of all Holders.
12.3 Notices. Any notice or other
communication required or permitted hereunder shall be in writing and shall be
delivered personally, or sent by certified or registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, or, if mailed, five days (or, in the case of express mail, one
day) after the date of deposit in the United States mail, as follows:
(i) if to the Company, to:
Simon Property Group, Inc. Merchants Plaza 115
West Washington Street Suite 15 East Indianapolis,
IN 46204 Attention: David Simon James M. Barkley,
Esq. Facsimile No.: (317) 685-7221
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison 1285
Avenue of the Americas New York, New York
10019-6064 Attention: Toby S. Myerson, Esq. Edwin
S. Maynard, Esq. Facsimile: (212) 757-3990
(ii) if to any Holder, to the most current
address of such Holder given by such Holder to
the Company in writing.
Any party may by notice given in accordance with this
Section 12.3 to the other parties designate another address or person for
receipt of notice hereunder.
<PAGE>42
12.4 Successors and Assigns.
(a) This Agreement shall inure to the benefit of
and be binding upon the Holders and their respective successors and assigns
and the successors and assigns of the Company; provided, however, that, except
as otherwise provided in Sections 12.4(b) and (c) hereof, no Holder may assign
its rights hereunder to any person who is not a permitted transferee of such
Holder pursuant to the terms of the Partnership Agreement; provided further,
that, except as otherwise provided in Section 12.4(b) or (c) hereof, no Holder
may assign its rights hereunder to any person who does not acquire all or
substantially all of such Holder's Registrable Securities or Units, as the
case may be, or, (i) in the case of the Simon Family Entities, to any person
who does not acquire at least $10,000,000 worth of the Simon Family Entities'
Registrable Securities or Units and (ii) in the case of the DeBartolo Group to
any person who does not acquire at least $10,000,000 worth of DeBartolo
Group's Registrable Securities or Units.
(b) Affiliates. It is understood that JCP and
Brandywine are affiliates and that under the terms of the Partnership
Agreement, Limited Partners have the right to assign their partnership
interests, in whole or in part, to their affiliates. The provisions of this
Agreement shall inure to the benefit of all such affiliates and, for all
purposes of this Agreement, a party to this Agreement (other than the Company)
and all of its affiliates which at the time in question are Limited Partners
of the Operating Partnership shall be deemed to be one
<PAGE>43
party, with the consequence that (i) they may aggregate their Units for the
purpose of exercising their rights under this Agreement and (ii) to assign the
benefits of this Agreement to a third party which is not an affiliate of them,
except as otherwise provided with respect to the Simon Family Entities in
Section 12.4(a) above, they must together assign to such third party all or
substantially all of the aggregate amount of Units held by all of them.
(c) Transfer of Exchange and Registration
Rights. (i) The rights of each DeBartolo Group Holder to make a request and
to cause the Company to register Registrable Securities owned by such Holder
under Section 2 hereof and the right to cause the Company to include
Registrable Securities in a registration for the account of the Company under
Section 3 hereof (the Rights ) may be assigned, from time to time and
reassigned, in whole or in part, to a transferee or assignee receiving (except
as provided in Section 12.4(c)(ii) below) at least three percent (3%) of the
outstanding shares of Common Stock or Units exchangeable into at least such
number of shares of Common Stock (the "Three Percent Requirement") in
connection with a transfer or assignment of shares of Common Stock received
upon exchange of Units in connection with a substantially contemporaneous
resale of all such Units or Units which is not prohibited under any other
agreement to which the transferor or assignor is a party or any pledge of
Units or Common Stock which is not prohibited under any other agreement to
which the transferor or assignor is a party, provided that (x) such transfer
may otherwise be effected in
<PAGE>44
accordance with applicable securities law, (y) the Company is given written
notice of such assignment prior to such assignment or promptly thereafter, and
(z) the transferee or assignee by written agreement acknowledges that he is
bound by the terms of this Agreement. From and after the occurrence of any
such transfer, the defined term Holder shall include such transferees or
assignees.
(ii) The Rights granted to each member of the
DeBartolo Group hereunder may be assigned pursuant to this Section 12.4(c) to
a secured creditor to whom such Holder has pledged Units (or other securities
exchangeable or convertible into Registrable Securities) or Registrable
Securities prior to the date hereof, which pledge shall be permitted
hereunder, and the Three Percent Requirement shall not apply to any such
assignment. Such rights may, to the extent provided in the pledge, security or
other agreement or instrument pursuant to which such rights have been assigned
and to the extent permitted by the Securities Act and the rules and
regulations thereunder, be exercised by any such secured creditor even though
it does not become an assignee of the pledged Units of such Holder pursuant to
Section 12.4(c)(i) hereof. Each of the Estate of Edward J. DeBartolo, Edward
J. DeBartolo, Jr., The Edward J. DeBartolo Corporation and each corporate or
other person or legal entity, other than Marie Denise DeBartolo York specified
on Schedule B to the Stockholders Agreement does hereby grant the rights, as
described in the two preceding sentences, to the institution from time to time
serving as the Administrative Agent under (A) the
<PAGE>45
Second Amended and Restated New Facility Credit Agreement, dated as of March
31, 1994, by and among DeBartolo, Inc. and The Edward J. DeBartolo
Corporation, as the Borrowers, Wells Fargo Bank, N.A., as the Issuing Bank,
the Co-Lenders from time to time party thereto, and Wells Fargo Realty
Advisors Funding, Incorporated, as the Administrative Agent (and its
successors and assigns), as such agreement may be modified, supplemented or
amended from time to time and (B) the Second Amended and Restated
Restructuring Facility Credit Agreement, dated as of March 31, 1994, by and
among DeBartolo, Inc. and The Edward J. DeBartolo Corporation, as the
Borrowers, the Co-Lenders from time to time party thereto, and Wells Fargo
Realty Advisors Funding, Incorporated, in its capacity as the Administrative
Agent (together with its successors and assigns), as such agreement may be
modified, supplemented or amended from time to time. Upon notice to the
Company by any such secured creditor that it has become authorized to exercise
such Rights, no further written instrument shall be required under this
Agreement; provided that such secured creditor provides the Company at the
time it exercises any rights with such indemnification and certifications as
are reasonably satisfactory to the Company in form and substance as to its
authorization to exercise such rights. It is further expressly understood and
agreed that (i) the Company shall not be required in any way to determine the
validity or sufficiency, whether in form or in substance, of any certification
from a secured creditor that it is authorized to exercise Rights so
transferred to it, (ii) the Company shall have no liability to
<PAGE>46
any Holder for acting in accordance with any such certification and (iii) no
further indemnification to the Company shall be required pursuant to this
Section 12.4(c). The Company shall not be required in any way to determine the
validity or sufficiency, whether in form or in substance, of any written
instrument referred to in the second sentence of this Section 12.4(c)(ii), and
it shall be sufficient if any writing purporting to be such an instrument is
delivered to the Company and purports on its face to be correct in form and
signed or otherwise executed by such Holder. The Company may continue to rely
on such written instrument until such time, if any, that it receives a written
instrument from the secured creditor named therein (or its successor)
revoking, or acknowledging the revocation or other termination of, the
authority granted by such written instrument.
(iii) The rights of each of JCP and Brandywine
to make a request and cause the Company to register Registrable Securities
owned by such Holder under Section 2 hereof and the right of such Holder to
cause the Company to include Registrable Securities in a registration for the
account of the Company under Section 3 hereof (the "JCP Rights") may be
assigned (i) to a secured creditor to whom such Holder has pledged Units or,
if such Holder has not previously exercised the right provided for in the
first sentence of Section 9.3(c) of the Operating Partnership Agreement, to
any Person to whom the secured creditor has transferred the pledged Units
pursuant to Section 9.3(c) of the Operating Partnership Agreement (such
secured creditor or such transferee being referred to as the "Assignee"), in
each case
<PAGE>47
subject to the further terms and provision of this Section 12.4(c)(iii). The
JCP Rights may be exercised by the Assignee after the Assignee has become a
substitute Limited Partner of the Operating Partnership and only if the
Assignee provides the Company at the time it exercises the JCP Rights with
such indemnification and certifications as are reasonably satisfactory to the
Company in form and substance as to its authorization to exercise such JCP
Rights. It is further expressly understood and agreed that (i) the Company
shall not be required in any way to determine the validity or sufficiency,
whether in form or in substance, of any certification from the Assignee that
it is authorized to exercise the JCP Rights so transferred to it, (ii) the
Company shall have no liability to such Holder for acting in accordance with
any such certification and (iii) except as set forth above in this paragraph,
no further indemnification to the Company shall be required pursuant to this
Section 12.4(c).
12.5 Mergers, Etc. In addition to any other restriction on
mergers, consolidations and reorganizations contained in the articles of
incorporation, by-laws, code of regulations or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall
not be the surviving corporation unless all the Registrable Securities and all
of the outstanding shares of Common Stock of the Company and Units are
exchanged or purchased upon substantially equivalent economic terms for cash
or freely
<PAGE>48
marketable securities of the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization,
agree in a writing to assume in full and without modification other than
conforming changes necessary to reflect the new issuer of the Registrable
Securities all of the obligations of the Company under this Agreement, and for
that purpose references hereunder to Registrable Securities shall be deemed to
include the securities which holders of Common Stock would be entitled to
receive in exchange for Registrable Securities pursuant to any such merger,
consolidation, sale of all or substantially all of its assets or business,
liquidation, dissolution or reorganization.
12.6 Consent of Teachers'. Notwithstanding anything to the
contrary contained herein, the Company hereby agrees to use its commercially
reasonable best efforts to cause Teachers' to execute this Agreement at the
Closing and to waive all of its rights under the First Agreement.
12.7 BJS Registration Rights Agreement. The parties hereto
agree that the provisions of Section 5 hereof shall not apply to the
Registration Rights Agreement, dated March 26, 1996, between the Company and
BJS Capital Partners L.P. ("BJS"), copies of which have been delivered to the
parties hereto.
12.8 Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
<PAGE>49
12.9 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.11 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights of the Holders shall be enforceable to the
full extent permitted by law.
12.12 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
<PAGE>50
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as of the date first written above.
SIMON PROPERTY GROUP, INC.
By:_____________________________
Name: Title:
MELVIN SIMON & ASSOCIATES, INC.
By:_____________________________
Name: Title:
JCP REALTY, INC.
By:_____________________________
Name:
Title: Executive Vice
President
BRANDYWINE REALTY, INC.
By:_____________________________
Name:
Title: Executive Vice
President
-------------------------------
MELVIN SIMON
------------------------------
<PAGE>51
HERBERT SIMON
------------------------------
DAVID SIMON
------------------------------
DEBORAH J. SIMON
------------------------------
CYNTHIA J. SIMON
------------------------------
IRWIN KATZ, as Successor Trustee
Under Declaration of Trust
and Trust Agreement Dated
August 4, 1970
------------------------------
IRWIN KATZ, as Trustee of the
Melvin Simon Trust No. 1, the
Melvin Simon Trust No. 6, the
Melvin Simon Trust No. 7 and the
Herbert Simon Trust No. 3
MELVIN SIMON & ASSOCIATES, INC.
By:
Name:
Title:
PENN SIMON CORPORATION
By: ________________________
Name:
Title:
<PAGE>52
NACO SIMON CORP.
By: ________________________
Name:
Title:
SANDY SPRINGS PROPERTIES, INC.
By: ________________________
Name:
Title:
SIMON ENTERPRISES, INC.
By: _______________________
Name:
Title:
S.F.G. COMPANY, L.L.C.
By: MELVIN SIMON & ASSOCIATES,
INC., its manager
By: __________________
Name:
Title:
<PAGE>
MELVIN SIMON, HERBERT SIMON AND
DAVID SIMON, NOT INDIVIDUALLY BUT
AS VOTING TRUSTEES UNDER THAT
CERTAIN VOTING TRUST AGREEMENT,
VOTING AGREEMENT AND PROXY DATED
AS OF DECEMBER 1, 1993, BETWEEN
MELVIN SIMON & ASSOCIATES, INC.,
AND MELVIN SIMON, HERBERT SIMON
AND DAVID SIMON:
----------------------------
Melvin Simon
----------------------------
Herbert Simon
----------------------------
David Simon
THE EDWARD J. DeBARTOLO
CORPORATION
By: ________________________
Name:
Title:
THE ESTATE OF EDWARD J. DeBARTOLO
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
--------------------------------
<PAGE>
Edward J. DeBartolo, Jr.,
individually, and in his capacity
as Trustee under (i) the Lisa
Marie DeBartolo Revocable Trust-
successor by assignment from
Edward J. DeBartolo Trust No. 5,
(ii) the Tiffanie Lynne DeBartolo
Revocable Trust-successor by
assignment from Edward J.
DeBartolo Trust No. 6 and (iii)
Edward J. DeBartolo Trust No. 7
for the Benefit of Nicole Anne
DeBartolo
--------------------------------
Cynthia R. DeBartolo
--------------------------------
Marie Denise DeBartolo York,
individually, and in her capacity
as Trustee under (i) Edward J.
DeBartolo Trust No. 8 for the
benefit of John Edward York, (ii)
Edward J. DeBartolo Trust No. 9
for the benefit of Anthony John
York, (iii) Edward J. DeBartolo
Trust No. 10 for the benefit of
Mara Denise York and (iv) Edward
J. DeBartolo Trust No. 11 for the
benefit of Jenna Marie York
CORAL SQUARE ASSOCIATES
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
<PAGE>
SOUTH BEND ASSOCIATES
By: DeBartolo, Inc.
By: _____________________
Name:
Title:
By: The Estate of Edward J.
DeBartolo
By: ______________________
Name:
Title:
By: ______________________
Name:
Title:
WASHINGTON SQUARE ASSOCIATES
By: The Edward J. DeBartolo
Corporation
By: ______________________
Name:
Title:
H-CASTLETON
By: Altamonte, Inc.
By: ______________________
Name:
Title:
<PAGE>
BAY PARK, INC. WARD PLAZA
ASSOCIATES CHELTENHAM SHOPPING
CENTER ASSOCIATES SUMMIT MALL,
INC. TYRONE SQUARE, INC. UPPER
VALLEY MALL, INC. MISSION VIEJO
MALL, INC. PINELLAS SQUARE, INC.
GREAT LAKES MALL, INC. PALM BEACH
MALL, INC. LAFAYETTE SQUARE, INC.
LIMA MALL, INC. RICHMOND MALL,
INC. WOODVILLE MALL, INC.
DeBARTOLO AVENTURA, INC. BOYNTON
BEACH, INC. THE FLORIDA MALL
CORPORATION DeBARTOLO, INC. D.L.
GROVE, INC. TC MALL II, INC.
PADDOCK MALL, INC. NATIONAL
INDUSTRIAL DEVELOPMENT
CORPORATION GREAT NORTHEAST MALL,
INC.
By: __________________________
Name:
Title:
RUES PROPERTIES, INC.
By: __________________________
Name:
Title:
COLUMBIA SC I, INC.
COLUMBIA SC II, INC.
NORTHGATE I REAL ESTATE CORPORATION
NORTHGATE II REAL ESTATE
CORPORATION
TACOMA SC I, INC.
TACOMA SC II, INC.
By: __________________________
Name:
Title:
