SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 27, 1996
SIMON DEBARTOLO GROUP, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 1-12618 35-1901999
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 West Washington Street
INDIANAPOLIS, INDIANA 46204
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (317) 636-1600
N/A
(Former name or former address, if changed since last report)
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits:
The exhibits listed below relate to the Registration Statement
(No. 333-11431) on Form S-3 of Simon DeBartolo Group, Inc. (the
"Registrant") and are filed herewith for incorporation by reference in
such Registration Statement.
Exhibit Number
(Referenced to
ITEM 601 OF REGULATION S-K) DESCRIPTION OF EXHIBIT
1.1 Underwriting Agreement together with
related Terms Agreement, dated
September 24, 1996
4.3 Articles Supplementary to the Amended and
Restated Articles of Incorporation of the
Registrant with respect to the Series B
Preferred Stock
4.4 Form of Stock Certificate for Series B
Preferred Stock
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Date: September 26, 1996
SIMON DeBARTOLO GROUP, INC.
By:/s/James M. Barkley
James M. Barkley
Secretary/General Counsel
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EXHIBIT INDEX
Exhibit number
(Referenced to
Item 601 of Sequentially
REGULATION S-K) DESCRIPTION OF EXHIBIT NUMBERED PAGE
1.1 Form of Underwriting Agreement
4.3 Form of Articles Supplementary with
respect to the Series B Preferred Stock of
the Company to the Amended and Restated
Articles of Incorporation
4.4 Form of Preferred Stock Certificate
SIMON DEBARTOLO GROUP, INC.
UNDERWRITING AGREEMENT
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TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT...................................................... 1
SECTION 1. Representations and Warranties................................ 4
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND EACH
OF THE PARTNERSHIPS....................................... 4
(1) Compliance with Registration Requirements..............4
(2) Incorporated Documents............................... 5
(3) Independent Accountants.............................. 5
(4) Financial Statements................................. 5
(5) No Material Adverse Change in Business............... 6
(6) Good Standing of the Company......................... 7
(7) Good Standing of the Partnerships.................... 7
(8) Good Standing of Simon DeBartolo Entities..............8
(9) Good Standing of Property Partnerships............... 8
(10) Capitalization....................................... 8
(11) Authorization of Units............................... 9
(12) Authorization of Common Stock........................ 9
(13) Authorization of Preferred Stock and/or
Depositary Shares.................................... 9
(14) Authorization of Deposit Agreement................... 10
(15) Authorization of Warrants............................ 10
(16) Authorization of Warrant Agreement................... 10
(17) Authorization of Underlying Securities............... 11
(18) Descriptions of the Underwritten Securities,
Underlying Securities, Deposit Agreement and
Warrant Agreement.................................... 11
(19) Authorization of this Underwriting Agreement and
Terms Agreement...................................... 11
(20) Absence of Defaults and Conflicts.................... 12
(21) Absence of Labor Dispute............................. 12
(22) Absence of Proceedings............................... 13
(23) Accuracy of Exhibits................................. 13
(24) REIT Qualification................................... 13
(25) Investment Company Act............................... 13
(26) Intellectual Property................................ 14
(27) Absence of Further Requirements...................... 14
(28) Possession of Licenses and Permits................... 14
(29) Registration Rights.................................. 14
(30) Title to Property.................................... 14
(31) Environmental Laws................................... 15
(32) Tax Returns.......................................... 16
(33) Environmental Consultants............................ 16
(34) Compliance with Cuba Act............................. 16
(35) Listing.............................................. 16
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(36) Investment Grade Rating.............................. 16
(b) OFFICERS' CERTIFICATES.................................... 17
SECTION 2. Sale and Delivery to Underwriters; Closing.................... 17
(a) UNDERWRITTEN SECURITIES................................... 17
(b) OPTION UNDERWRITTEN SECURITIES............................ 17
(c) PAYMENT................................................... 18
(d) DENOMINATIONS; REGISTRATION............................... 18
SECTION 3. Covenants of the Company and Each of the Partnerships......... 19
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS.................................................. 19
(b) FILING OF AMENDMENTS...................................... 19
(c) DELIVERY OF REGISTRATION STATEMENTS....................... 19
(d) DELIVERY OF PROSPECTUSES.................................. 20
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS................. 20
(f) BLUE SKY QUALIFICATIONS................................... 20
(g) EARNINGS STATEMENT........................................ 21
(h) REPORTING REQUIREMENTS.................................... 21
(i) LISTING................................................... 21
(j) RESTRICTION ON SALE OF SECURITIES......................... 21
(k) REIT QUALIFICATION........................................ 21
(l) RESERVATION OF SECURITIES................................. 21
(m) USE OF PROCEEDS........................................... 21
SECTION 4. Payment of Expenses........................................... 22
(a) EXPENSES.................................................. 22
(b) TERMINATION OF AGREEMENT.................................. 22
SECTION 5. Conditions of Underwriters' Obligations....................... 22
(a) EFFECTIVENESS OF REGISTRATION STATEMENT................... 23
(b) OPINION OF COUNSEL FOR COMPANY............................ 23
(c) OPINION OF COUNSEL FOR UNDERWRITERS....................... 23
(d) OFFICERS' CERTIFICATE..................................... 24
(e) ACCOUNTANT'S COMFORT LETTER............................... 24
(f) BRING-DOWN COMFORT LETTER................................. 24
(g) RATINGS................................................... 24
(h) APPROVAL OF LISTING....................................... 25
(i) NO OBJECTION.............................................. 25
(j) LOCK-UP AGREEMENTS........................................ 25
(k) OVER-ALLOTMENT OPTION..................................... 25
(l) ADDITIONAL DOCUMENTS...................................... 26
(m) TERMINATION OF TERMS AGREEMENT............................ 26
SECTION 6. Indemnification............................................... 26
(a) INDEMNIFICATION OF UNDERWRITERS........................... 26
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS ........27
(c) ACTIONS AGAINST PARTIES; NOTIFICATION..................... 27
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE........ 28
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SECTION 7. Contribution.................................................. 28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...................................................... 30
SECTION 9. Termination................................................... 30
(a) UNDERWRITING AGREEMENT.................................... 30
(b) TERMS AGREEMENT........................................... 30
(c) LIABILITIES............................................... 31
SECTION 10.Default by One or More of the Underwriters.................... 31
SECTION 11.Notices....................................................... 32
SECTION 12.Parties....................................................... 32
SECTION 13.GOVERNING LAW AND TIME........................................ 32
SECTION 14.Effect of Headings............................................ 32
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SIMON DEBARTOLO GROUP, INC.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
UNDERWRITING AGREEMENT
September 24, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Simon DeBartolo Group, Inc., a Maryland corporation (the "Company")
proposes to issue and sell up to $750,000,000 aggregate initial public
offering price of its (i) shares of common stock, par value $0.0001 per
share (the "Common Stock"), (ii) warrants to purchase shares of Common
Stock (the "Common Stock Warrants"), (iii) shares of preferred stock, par
value $0.0001 per share (the "Preferred Stock"), or (iv) warrants to
purchase shares of Preferred Stock (the "Preferred Stock Warrants"), or any
combination thereof, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title,
specific number of shares, rank, stated value, liquidation preference,
dividend rate or rates (or method of calculation), dividend payment dates,
redemption provisions, sinking fund requirements, conversion provisions
(and terms of the related Underlying Securities (as defined below)) and any
other variable terms as set forth in the applicable certificate of
designations (each, the "Certificate of Designations") relating to such
series of Preferred Stock. A series of Preferred Stock may be represented
by depositary shares (the "Depositary Shares") that are evidenced by
depositary receipts (the "Depositary Receipts") issued pursuant to a
deposit agreement (each, a "Deposit Agreement") among the Company, the
depositary identified therein (the "Depositary") and the registered holders
of the Depositary Receipts issued thereunder.
Each issue of Common Stock Warrants and Preferred Stock Warrants
(collectively, the "Warrants") will be issued pursuant to a separate
warrant agreement (each, a "Warrant Agreement") between the Company and the
warrant agent identified therein (each, a "Warrant A
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gent"). The Warrants may vary, as applicable, as to, among other
terms, title, type, specific number, exercise dates or periods, exercise
price(s), expiration date(s) and terms of the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants or Depositary Shares,
or any combination thereof, initially issuable by the Company and
"Underlying Securities" shall mean the Common Stock, Preferred Stock or
Depositary Shares, issuable upon exercise of the Warrants, as applicable,
or upon conversion of the Preferred Stock or Depositary Shares, as
applicable.
Whenever the Company determines to make an offering of Securities
through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), or through an underwriting syndicate
managed by Merrill Lynch, Merrill Lynch and the Company will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, Merrill Lynch and
such other underwriters, if any, selected by Merrill Lynch (the
"Underwriters", which term shall include Merrill Lynch, whether acting as
sole Underwriter or as a member of an underwriting syndicate, as well as
any Underwriter substituted pursuant to Section 10 hereof); PROVIDED, that,
the Company is not obligated, and shall have complete and absolute
discretion to determine if and when, to make any offering, to make any
offering through Merrill Lynch or any other person, or to enter into any
Terms Agreement. The Terms Agreement relating to the offering of
Securities shall specify the number of Securities to be initially issued
(the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in
Section 10 hereof), the name of any Underwriter other than Merrill Lynch
acting as co-manager in connection with such offering, the number of
Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price
basis and, if on a fixed price basis, the initial offering price, the price
at which the Initial Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of
the Initial Underwritten Securities, as well as the material variable terms
of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company has agreed to grant to
the Underwriters an option to purchase additional Securities to cover over-
allotments, if any, and the number of Securities subject to such option
(the "Option Underwritten Securities"). As used herein, the term
"Underwritten Securities" shall include the Initial Underwritten Securities
and all or any portion of any Option Underwritten Securities. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunication between the Company and Merrill Lynch, acting for itself
and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through Merrill Lynch as sole
Underwriter or through an underwriting syndicate managed by Merrill Lynch
will be governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-11431) for the
registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933
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Act"), and the offering thereof from time to time in accordance with Rule 415
of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such amendments thereto as may be
required prior to the execution of the applicable Terms Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission. Such registration statement (as so amended,
if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule
430A Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule
434 Information"), is referred to herein as the "Registration Statement";
and the final prospectus constituting a part thereof and the applicable
prospectus supplement relating to the offering of the Underwritten
Securities, in the form first furnished to the Underwriters by the Company
for use in connection with the offering of the Underwritten Securities, are
collectively referred to herein as the "Prospectus"; provided, however,
that all references to the "Registration Statement" and the "Prospectus"
shall be deemed to include all documents incorporated therein by reference
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the
Commission pursuant to Section 462(b) of the 1933 Act Regulations (the
"Rule 462 Registration Statement"), then, after such filing, all references
to "Registration Statement" shall be deemed to include the Rule 462
Registration Statement; provided, however, a prospectus supplement shall be
deemed to have supplemented the Prospectus only with respect to the
offering of the Underwritten Securities to which it relates, and provided,
further, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall be deemed to include
the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance upon Rule
434 of the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, that was used after such effectiveness and prior to the
execution and delivery of the applicable Terms Agreement. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR"). Capitalized terms used but not
otherwise defined herein shall have the meanings given to those terms in
the Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include all such financial statements and schedules and other information
which is or deemed to be incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and
all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is
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or deemed to be incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be.
SECTION 1.REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND EACH OF THE
PARTNERSHIPS. The Company, Simon-DeBartolo Group, L.P., a Delaware limited
partnership (the "Operating Partnership") and Simon Property Group, L.P., a
Delaware limited partnership ("SPG, LP" and together with the Operating
Partnership, the "Partnerships") represent and warrant, jointly and
severally, to Merrill Lynch, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as
follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each
of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission or the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional information
has been complied with. No order preventing or suspending the use of
the Prospectus has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission or the state securities authority of any jurisdiction.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at each Representation
Date, the Prospectus and any amendments and supplements thereto did
not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company elects to rely upon Rule
434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or the
Prospectus.
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Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
and the 1933 Act Regulations and, if applicable, each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of the Securities, the Company
has complied or will comply with the requirements of Rule 111 under
the 1933 Act Regulations relating to the payment of filing fees
therefor.
(2) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they become effective or at the time they
were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information
in the Prospectus, at the date of the Prospectus, and at each
Representation Date, or during the period specified in Section 3(e),
did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(3) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) FINANCIAL STATEMENTS. The financial statements included, or
incorporated by reference, in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the
respective entity or entities or group presented therein at the
respective dates indicated and the statement of operations,
stockholders' equity and cash flows of such entity, as the case may
be, for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly, in accordance with GAAP, the information required to be stated
therein. The selected financial data, the summary financial
information and other financial information and data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included, or incorporated by reference, in the Registration
Statement and the Prospectus. In addition, any pro forma financial
information and the related notes thereto included or incorporated
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by reference in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines and the guidelines of the
American Institute of Certified Public Accountants ("AICPA") with
respect to pro forma information and have been properly compiled on
the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. All historical financial statements and
information and all pro forma financial statements and information
required by the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations are included, or incorporated by reference,
in the Registration Statement and the Prospectus.
(5) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, the Partnerships, M.S. Management
Associates, Inc., a Delaware corporation ("SPG Management Company"),
M.S. Management Associates (Indiana), Inc., an Indiana corporation
("Management (Indiana)"), Simon MOA Management Company, Inc., an
Indiana corporation ("MOA"), DeBartolo Properties Management, Inc., an
Ohio corporation ("DRC Management Company," and together with SPG
Management Company, Management (Indiana) and MOA, the "Management
Companies") and SD Property Group, Inc. (formerly known as DeBartolo
Realty Corporation ("DeBartolo")), an Ohio corporation ("SD
Property"), Simon Property Group (Delaware), Inc. and Jefferson Simon
Property, Inc. (the "Reit Subs") or any subsidiary of the Company
(other than any Property Partnership (as defined below)) not listed
among the foregoing entities, (the Company, the Partnerships, the
Management Companies, and the Reit Subs and such subsidiaries being
sometimes hereinafter collectively referred to as the "Simon DeBartolo
Entities" and individually as a "Simon DeBartolo Entity"), or of any
entity which owns any Portfolio Property (as such term is defined in
the Prospectus) or any direct or indirect interest in any Portfolio
Property (the "Property Partnerships") whether or not arising in the
ordinary course of business, which would be material to the Company
and the Partnerships, taken as a whole (anything which would be
material to the Company and the Partnerships, taken as a whole, being
hereinafter referred to as "Material;" and such a material adverse
change, a "Material Adverse Effect"), (B) no casualty loss or
condemnation or other adverse event with respect to the Portfolio
Properties has occurred which would be Material, (C) there have been
no transactions or acquisitions entered into by the Simon DeBartolo
Entities or the Property Partnerships, other than those in the
ordinary course of business, which would be Material, (D) except for
regular quarterly distributions on Common Stock in amounts per share
that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock and (E) with the exception of transactions
in connection with (1) the Simon Property Group and Adopting Entities
Matching Savings Plan, the Simon Property Group, L.P. Employee Stock
Plan, the Simon Property Group Incentive Bonus Plan, the Simon
Property Group Stock Incentive Plan, the Simon Property Group, Inc.
Director Stock Option Plan and the Simon DeBartolo Group, Inc. Stock
Incentive Plan (the "Stock Option Plans"), (2)
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the Simon Property Group, Inc. Automatic Dividend Reinvestment and Stock
Purchase Plan (the "Distribution Reinvestment Plan"), and (3) the possible
issuance of shares of Common Stock upon the conversion of Series A
Preferred Shares, the exchange of partnership interests in (a) the
Operating Partnership ("OP Units") or (b) SPG, LP ("LP Units" and together
with the OP Units, the "Units"), or upon the exchange of shares of Class B
Common Stock, par value $0.0001 per share (the "Class B Common
Stock"), or upon the exchange of Class C Common Stock, par value
$0.0001 per share (the "Class C Common Stock"), there has been no
change in the capital stock of the corporate Simon DeBartolo Entities
or in the partnership interests of either of the Partnerships or any
Property Partnership, or any increase in the indebtedness of the Simon
DeBartolo Entities, the Property Partnerships or the Portfolio
Properties which would be Material.
(6) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) GOOD STANDING OF THE PARTNERSHIPS. Each of the Partnerships
is duly organized and validly existing as a limited partnership in
good standing under the laws of the State of Delaware, with
partnership power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and
proposes to engage as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the applicable
Terms Agreement. Each of the Partnerships is duly qualified or
registered as a foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. SD Property is the
managing general partner of the Operating Partnership and the Company
is the general partner of SPG, LP. The amended and restated agreement
of limited partnership of the Operating Partnership (the "Operating
Partnership Agreement") is in full force and effect in the form in
which it was incorporated by reference as an exhibit to the Company's
Registration Statement on Form S-4 (File No. 333-06933), as amended
and declared effective by the Commission on June 28, 1996 (the
"Registration Statement on Form S-4"), except for subsequent
amendments relating to the admission of new partners to the Operating
Partnership. The amended and restated agreement of limited
partnership of SPG, LP (the "SPG LP Agreement") is in full force and
effect in the form in which it was incorporated by reference as an
exhibit to the Registration Statement on Form S-4, except for
subsequent amendments relating to the admission of new partners to the
Operating Partnership.
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(8) GOOD STANDING OF SIMON DEBARTOLO ENTITIES. Each of the
Simon DeBartolo Entities other than the Company and the Partnerships
has been duly organized and is validly existing as a corporation,
limited partnership, limited liability company or other entity, as the
case may be, in good standing under the laws of the state of its
jurisdiction of incorporation or organization, as the case may be,
with the requisite power and authority to own, lease and operate its
properties, and to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus. Each such entity
is duly qualified or registered as a foreign corporation, limited
partnership or limited liability company or other entity, as the case
may be, to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each such entity has
been duly authorized and validly issued and is fully paid and non-
assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state
securities laws) and are owned by the Company, the Management
Companies or the Partnerships, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity (collectively, "Liens"). No shares of capital stock of such
entities are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of
such entities and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of such entities, except as
disclosed in the Prospectus.
(9) GOOD STANDING OF PROPERTY PARTNERSHIPS. Each of the
Property Partnerships is duly organized and validly existing as a
limited or general partnership, as the case may be, in good standing
under the laws of its respective jurisdiction of formation; each of
the Property Partnerships has the requisite power and authority to
own, lease and operate its properties, and to conduct the business in
which it is engaged. Each of the partnership agreements of the
Property Partnerships is in full force and effect. Each of the
Property Partnerships is duly qualified or registered as a foreign
partnership to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect.
(10) CAPITALIZATION. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding
shares of capital stock of the Company is as set forth in the column
entitled "Actual" under such section (except for subsequent issuances
thereof, if any, contemplated under this Underwriting Agreement,
pursuant to employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred
to in the Prospectus). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal and state securities laws), and none of such
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shares of capital stock were issued in violation of preemptive or other
similar rights arising by operation of law, under the charter and by-laws
of the Company or under any agreement to which the Company or any of the
other Simon DeBartolo Entities is a party or otherwise. Except for
shares of Common Stock issuable upon conversion of Series A Preferred
Shares, exchange of OP Units or LP Units or shares of Class B Common
Stock or Class C Common Stock or upon the exercise of options under
the Stock Option Plans or the Distribution Reinvestment Plan, there
are no shares of capital stock of the Company reserved for any purpose
and there are no outstanding securities convertible into or
exchangeable for any shares of capital stock of the Company and except
as granted in this Underwriting Agreement, any Terms Agreement and any
Warrant Agreement, there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
shares of such stock or any other securities of the Company.
(11) AUTHORIZATION OF UNITS. All the issued and outstanding OP
Units and LP Units have been duly authorized and are validly issued,
fully paid and non-assessable and have been offered and sold or
exchanged in compliance with all applicable laws (including, without
limitation, federal and state securities laws). There are no
outstanding securities convertible into or exchangeable for any Units
and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for Units.
(12) AUTHORIZATION OF COMMON STOCK. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities,
when issued and delivered by the Company pursuant to this Underwriting
Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights arising by operation of law,
under the charter and by-laws of the Company or under any agreement to
which the Company or any of the other Simon DeBartolo Entities is a
party, or otherwise. Upon payment of the purchase price and delivery
of such Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all Liens. No holder of
such Underwritten Securities will be subject to personal liability by
reason of being such a holder.
(13) AUTHORIZATION OF PREFERRED STOCK AND/OR DEPOSITARY SHARES.
If the Underwritten Securities being sold pursuant to the applicable
Terms Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms
Agreement. The applicable Preferred Stock, when issued and delivered
by the Company pursuant to this Underwriting Agreement and such Terms
Agreement against payment of the consideration therefor, or for the
related Depositary Shares, as the case may be,
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specified in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights arising by operation of law, under the charter and by-laws of the
Company or under any agreement to which the Company or any of the other
Simon DeBartolo Entities is a party, or otherwise. In addition, upon
deposit by the Company of any Preferred Stock represented by
Depositary Shares with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent legal and valid
interests in such Preferred Stock. Upon payment of the purchase price
and delivery of such Underwritten Securities in accordance herewith,
each of the Underwriters will receive good, valid and marketable title
to such Underwritten Securities, free and clear of all Liens. No
holder of Preferred Stock or Depositary Receipts evidencing Depositary
Shares will be subject to personal liability by reason of being such a
holder. The applicable Certificate of Designations will be in full
force and effect prior to the Closing Time and will comply with all
applicable legal requirements.
(14) AUTHORIZATION OF DEPOSIT AGREEMENT. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Depositary Shares, the applicable Deposit Agreement has been,
or prior to the issuance of such Depositary Shares will have been,
duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. Each registered holder
of a Depositary Receipt under the applicable Deposit Agreement will be
entitled to the proportional rights, preferences and limitations of
the Preferred Stock represented by the Depositary Shares evidenced by
such Depositary Receipt and to such other rights as are granted to
such registered holder in such Deposit Agreement.
(15) AUTHORIZATION OF WARRANTS. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include
Warrants, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Company
for issuance and sale pursuant to this Underwriting Agreement and such
Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for the applicable Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by such Warrant Agreement and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles.
(16) AUTHORIZATION OF WARRANT AGREEMENT. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, each applicable Warrant Agreement has been, or prior
to the issuance of such Underwritten Securities
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will have been, duly authorized, executed and delivered by the Company
and, upon such authorization, execution and delivery, will constitute a
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar law relating to or affecting creditors' rights
generally or by general equitable principles.
(17) AUTHORIZATION OF UNDERLYING SECURITIES. If the Underlying
Securities related to the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Common Stock, Preferred
Stock or Depositary Shares, such Underlying Securities have been, or
as of the date of such Terms Agreement will have been, duly authorized
and reserved for issuance by the Company upon exercise of the Common
Stock Warrants or Preferred Stock Warrants, as applicable, or upon
conversion of the related Preferred Stock or Depositary Shares, as
applicable. If the Underlying Securities include Common Stock or
Preferred Stock, such Underlying Securities, when issued upon such
exercise or conversion, as applicable, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other
similar rights arising by operation of law, under the charter and by-
laws of the Company or under any agreement to which the Company or any
of the other Simon DeBartolo Entities is a party, or otherwise. If
the Underlying Securities include Depositary Shares, such Underlying
Securities, upon deposit by the Company of the Preferred Stock
represented thereby with the applicable Depositary and the execution
and delivery by such Depositary of the Depositary Receipts evidencing
such Depositary Shares, in each case pursuant to the applicable
Deposit Agreement, will represent legal and valid interests in such
Preferred Stock. No holder of such Common Stock, Preferred Stock or
Depositary Receipts evidencing Depositary Shares will be subject to
personal liability by reason of being such a holder.
(18) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES, UNDERLYING
SECURITIES, DEPOSIT AGREEMENT AND WARRANT AGREEMENT. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and
each applicable Deposit Agreement and Warrant Agreement, as of the
date of the Prospectus, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement. The form of
stock certificate or warrant to be used to evidence the Underwritten
Securities or any Underlying Securities will be in due and proper form
and will comply with all applicable legal requirements.
(19) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS
AGREEMENT. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company and each of the
Partnerships, to the extent each is a party thereto and assuming due
authorization, execution and delivery by Merrill Lynch, is enforceable
against the
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Company and the Partnerships, to the extent each is a party thereto,
in accordance with its terms.
(20) ABSENCE OF DEFAULTS AND CONFLICTS. None of the Simon
DeBartolo Entities or any Property Partnership is in violation of its
charter, by-laws, certificate of limited partnership or partnership
agreement or other organizational document, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which each entity is a party or by which or
any of them may be bound, or to which any of its property or assets or
any Portfolio Property may be bound or subject (collectively,
"Agreements and Instruments"), except for such violations or defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement and each applicable Warrant Agreement and
Deposit Agreement and any other agreement or instrument entered into
or issued or to be entered into or issued by the Company or either of
the Partnerships in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus (including the issuance
and sale of the Underwritten Securities and the use of the proceeds
from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company and each of
the Partnerships with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate or partnership action,
as the case may be, and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any other Simon DeBartolo Entity or any Property
Partnership pursuant to, any Agreements and Instruments, except for
such conflicts, breaches, defaults, Repayment Events or liens, charges
or encumbrances that would not result in a Material Adverse Effect,
nor will such action result in any violation of the provisions of the
charter, by-laws of the Company or the organizational documents of any
other Simon DeBartolo Entity or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, any other Simon DeBartolo Entity or any
Property Partnership or any of their assets, properties or operations,
except for such violations that would not have a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a material portion of such indebtedness by the Company, any
other Simon DeBartolo Entity or any Property Partnership.
(21) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any other Simon DeBartolo Entity or any
Property Partnership exists or, to the knowledge of the Company and
each of the Partnerships, is imminent, and the Company and each of the
Partnerships is not aware of any existing or imminent labor
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disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which
dispute or disturbance, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(22) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company and each of the Partnerships threatened
against or affecting the Company, any other Simon DeBartolo Entity
thereof, or any Property Partnership or any officer or director of the
Company which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely
affect the assets, properties or operations thereof or the
consummation of this Underwriting Agreement, the applicable Terms
Agreement or any applicable Warrant Agreement or Deposit Agreement or
the transactions contemplated herein or therein. The aggregate of all
pending legal or governmental proceedings to which the Company or any
other Simon DeBartolo Entity, or any Property Partnership is a party
or of which any of their respective assets, properties or operations
is the subject which are not described in the Registration Statement
and the Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(23) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or
filed as required and the descriptions thereof or references thereto
are correct in all Material respects and no Material defaults exist in
the due performance or observance of any Material obligation,
agreement, covenant or condition contained in any such contract or
document.
(24) REIT QUALIFICATION. At all times since January 1, 1994 the
Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code. At all times since January 1, 1994,
DeBartolo had been organized and had operated in conformity with the
requirements for qualification as a real estate investment trust under
the Code.
(25) INVESTMENT COMPANY ACT. Each of the Company, the other
Simon DeBartolo Entities and the Property Partnerships is not, and
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
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(26) INTELLECTUAL PROPERTY. To the knowledge of the Company and
the Partnerships, none of the Simon DeBartolo Entities or the Property
Partnerships is required to own, possess or obtain the consent of any
holder of any trademarks, service marks, trade names or copyrights not
now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(27) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency or any other entity or person is necessary or required for the
performance by the Company and each of the Partnerships of its
obligations under this Underwriting Agreement or the applicable Terms
Agreement or in connection with the transactions contemplated under
this Underwriting Agreement, such Terms Agreement or any applicable
Warrant Agreement or Deposit Agreement, except such as have been
already obtained or as may be required under state securities laws or
under the by-laws and rules of the National Association of Securities
Dealers, Inc. (the "NASD").
(28) POSSESSION OF LICENSES AND PERMITS. The Company and the
other Simon DeBartolo Entities and each Property Partnership possess
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except for such
Governmental Licenses, the failure to obtain would not, singly or in
the aggregate, result in a Material Adverse Effect. The Company and
the other Simon DeBartolo Entities and each Property Partnership are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
result in a Material Adverse Effect. Neither the Company nor any of
the other Simon DeBartolo Entities nor any Property Partnership has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(29) REGISTRATION RIGHTS. Except as disclosed in the Prospectus,
there are no persons with registration or other similar rights to have
any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(30) TITLE TO PROPERTY. The Company, the other Simon DeBartolo
Entities and the Property Partnerships have good and marketable title
to the Portfolio Properties free and clear of Liens, except (A) as
otherwise stated in the Registration Statement and the Prospectus, or
referred to in any title policy for such Portfolio Property, or (B)
those which do not, singly or in the aggregate, Materially affect the
value of such property. All leases and subleases under which the
Company, any other Simon DeBartolo Entity or any Property Partnerships
hold properties are in full force and effect, except for such which
would not have a Material Adverse Effect. Neither the Company, the
other Simon DeBartolo Entities nor the Property Partnerships has
received any notice of any Material claim of any sort that has been
asserted by anyone adverse to the rights of the Company, any other
Simon DeBartolo Entity or the Property Partnerships under any material
leases or subleases, or affecting or questioning the rights of the
Company, such other Simon DeBartolo Entity or the Property
Partnerships of the continued possession of the leased or subleased
premises under any such lease or sublease, other than claims that
would not have a Material Adverse Effect. All liens, charges,
encumbrances, claims or restrictions on or affecting any of the
Portfolio Properties and the assets of any Simon DeBartolo Entity
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or any Property Partnership which are required to be disclosed in the
Prospectus are disclosed therein. None of the Simon DeBartolo
Entities, the Property Partnerships or any tenant of any of the
Portfolio Properties is in default under any of the ground leases (as
lessee) or space leases (as lessor or lessee, as the case may be)
relating to, or any of the mortgages or other security documents or
other agreements encumbering or otherwise recorded against, the
Portfolio Properties, and neither the Company nor either of the
Partnerships knows of any event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any of
such documents or agreements, in each case, other than such defaults
that would not have a Material Adverse Effect. No tenant under any of
the leases, pursuant to which the Company, either of the Partnership
or any Property Partnership, as lessor, leases its Portfolio Property,
has an option or right of first refusal to purchase the premises
demised under such lease, the exercise of which would have a Material
Adverse Effect. Each of the Portfolio Properties complies with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to
access to the Portfolio Properties), except for such failures to
comply that would not in the aggregate have a Material Adverse Effect.
Neither the Company nor either of the Partnerships has knowledge of
any pending or threatened condemnation proceeding, zoning change, or
other proceeding or action that will in any manner affect the size of,
use of, improvements on, construction on or access to, the Portfolio
Properties, except such proceedings or actions that would not have a
Material Adverse Effect.
(31) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations
as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company, any of the other Simon DeBartolo
Entities nor any Property Partnership is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance or
code, including any judicial or administrative order, consent, decree
of judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company, the other Simon DeBartolo Entities and the
Property Partnerships have all permits, authorizations
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and approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company, any of the other Simon DeBartolo Entities or
the Property Partnerships and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company, any of the other Simon DeBartolo Entities or any Property
Partnership relating to any Hazardous Materials or the violation of
any Environmental Laws.
(32) TAX RETURNS. Each of the Simon DeBartolo Entities and the
Property Partnerships has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which an extension has been granted or the failure to so file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith.
(33) ENVIRONMENTAL CONSULTANTS. None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to certain of the Portfolio Properties was
employed for such purpose on a contingent basis or has any substantial
interest in any Simon DeBartolo Entity or any Property Partnership and
none of them nor any of their directors, officers or employees is
connected with any Simon DeBartolo Entity or any Property Partnership
as a promoter, selling agent, voting trustee, director, officer or
employee.
(34) COMPLIANCE WITH CUBA ACT. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(35) LISTING. The Common Stock will be listed on the New York
Stock Exchange on each Representation Date. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Preferred Stock and/or Warrants, and if so stated in the
Prospectus as of each Representation Date, the Preferred Stock and/or
Warrants, as applicable, will have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(36) INVESTMENT GRADE RATING. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include
Preferred Stock and/or Depositary Shares and unless otherwise agreed
to by the Underwriters, the Preferred Stock will have an investment
grade rating from one or more nationally recognized statistical rating
organizations at each applicable Representation Date.
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(37) PROPERTY INFORMATION. Information in respect of the
Portfolio Properties presented in the Prospectus and any applicable
Prospectus Supplement on a combined basis shall be true and accurate
in all Material respects as of the date of applicable Prospectus
Supplement.
(38) BENEFICIAL OWNERS, DIRECTORS AND OFFICERS OF THE COMPANY.
No person who in the aggregate beneficially owns 5% of more of the
common stock of the Company (a "Beneficial Owner"), director of the
Company or officer of the Company is a member of the NASD, a
controlling stockholder of a member, or an affiliate of a member, or
of an underwriter or related person of a member or underwriter with
respect to any proposed offering under this Underwriting Agreement and
any applicable Terms Agreement. No beneficial owner of the Company's
unregistered securities acquired within the 12 months prior to the
filing of the Registration Statement, or any amendments thereto, or to
the filing of the Prospectus, or any amendment or supplement thereto,
has any direct or indirect affiliation or association with any NASD
member.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Company or any authorized representative of either of the Partnerships
and delivered to any Underwriter or to counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall be deemed
a representation and warranty by such entity or person, as the case may be,
to each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2.SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject
to the terms and conditions herein set forth.
(b) OPTION UNDERWRITTEN SECURITIES. In addition, subject to the
terms and conditions set forth therein, the Company may grant, if so
provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to the number of the Option
Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security,
less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted,
will expire 30 days after the date of such Terms Agreement, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering
and distribution of the Initial Underwritten Securities upon notice by
Merrill Lynch to the Company setting forth the number of Option
Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery
for such Option Underwritten Securities. Any such time and date of payment
and delivery (each, a "Date of Delivery") shall be determined by Merrill
Lynch, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by Merrill Lynch and the Company. If the option
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is exercised as to all or any portion of the Option Underwritten Securities,
each of the Underwriters, severally and not jointly, will purchase that
proportion of the total number of Option Underwritten Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities,
subject to such adjustments as Merrill Lynch in its discretion shall make
to eliminate any sales or purchases of a fractional number of Option
Underwritten Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Rogers &
Wells, or at such other place as shall be agreed upon by Merrill Lynch and
the Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time
not later than ten business days after such date as shall be agreed upon by
Merrill Lynch and the Company (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of
the Option Underwritten Securities, payment of the purchase price for, and
delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Rogers & Wells, or at such other place as shall
be agreed upon by Merrill Lynch and the Company, on the relevant Date of
Delivery as specified in the notice from Merrill Lynch to the Company.
Payment shall be made to the Company by certified or official
bank check or checks drawn in New York Clearing House funds or similar next
day funds payable to the order of the Company, against delivery to Merrill
Lynch for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter
has authorized Merrill Lynch, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has
not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. The Underwritten Securities,
certificates for the Underwritten Securities of Depositary Receipts
evidencing the Depositary Shares, as applicable, shall be in such
denominations and registered in such names as Merrill Lynch may request in
writing at least one full business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten
Securities, certificates for the Underwritten Securities or Depositary
Receipts evidencing the Depositary Shares, as applicable, will be made
available for examination and packaging by Merrill Lynch in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
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SECTION 3.COVENANTS OF THE COMPANY AND EACH OF THE PARTNERSHIPS.
The Company and each of the Partnerships covenants with Merrill Lynch
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act
Regulations, if and as applicable, and will notify the Representative(s)
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Underwritten Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424
and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received
for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. At any time when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Company and the Partnerships
will give Merrill Lynch notice of their intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish Merrill Lynch with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which Merrill Lynch or
counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to Merrill Lynch and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to Merrill Lynch and counsel
for the Underwriters, without charge, conformed copies of the Registration
Statement as originally filed and of each amendment thereto for each of the
Underwriters. If applicable, the copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(d) DELIVERY OF PROSPECTUSES. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration
Statement and the Prospectus. If at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriter or for the Company, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as Merrill Lynch may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of the applicable Terms Agreement; provided, however, that the Company
shall not be obligated to file any general consent to service of process or
to qualify or register as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or
registered, or provide any undertaking or make any change in its charter or
bylaws that the Board of Directors of the Company reasonably determines to
be contrary to the best interests of the Company and its stockholders or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Underwritten Securities or any related Underlying Securities have been so
qualified or registered, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
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qualification in effect for a period of not less than one year from the
date of such Terms Agreement.
(g) EARNINGS STATEMENT. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings
statement (in form complying with Rule 158 of the 1933 Act Regulations) for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(i) LISTING. The Company will use its best efforts to effect and
maintain the listing of the Underwritten Securities and any related
Underlying Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) RESTRICTION ON SALE OF SECURITIES. Between the date of the
applicable Terms Agreement and the Closing Time and/or such other date
specified in such Terms Agreement, the Company, each of the Partnerships
and any other entity or person named in the applicable Terms Agreement will
not, without the prior written consent of Merrill Lynch, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, the securities specified in such Terms Agreement
subject to any conditions listed therein.
(k) REIT QUALIFICATION. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment
trust" under the Code for the taxable year in which in which sales of the
Underwritten Securities are to occur.
(l) RESERVATION OF SECURITIES. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock,
Preferred Stock and/or Depositary Shares, the Company will reserve and keep
available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock and/or Preferred Stock, as
applicable, for the purpose of enabling the Company to satisfy any
obligations to issue such Underlying Securities upon exercise of the
related Warrants, as applicable, or upon conversion of the Preferred Stock
or Depositary Shares, as applicable.
(m) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Underwritten Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(n) EXCHANGE ACT FILINGS. During the period from each Closing Time
until five years after such Closing Time, the Company will deliver to
Merrill Lynch, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the Commission
or any
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governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company as
Merrill Lynch may reasonably request.
SECTION 4.PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement each
applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, any
Deposit Agreement, any Warrant Agreement and such other documents as may be
required in connection with the offering, purchase, sale and delivery of
the Underwritten Securities or any related Underlying Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities and any
related Underlying Securities, any certificates for the Underwritten
Securities or such Underlying Securities or Depositary Receipts evidencing
the Depositary Shares, as applicable, to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors
or agents (including transfer agents and registrars), as well as the
reasonable fees and disbursements of any Depositary and any Warrant Agent,
and their respective counsel, (v) the qualification of the Underwritten
Securities and any related Underlying Securities under state securities and
real estate syndication laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation, printing and delivery of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Term Sheet, the Registration Statement
(including financial statements and exhibits) as originally filed and of
each amendment thereto and the Prospectus and any amendments or supplements
thereto, (vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities and any related
Underlying Securities, if applicable, (ix) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the NASD of the terms of the sale
of the Underwritten Securities and any related Underlying Securities, (x)
the fees and expenses of any Underwriter acting in the capacity of a
"qualified independent underwriter" (as defined in Section 2(l) of Schedule
E of the bylaws of the NASD), if applicable, and (xi) any transfer taxes
imposed on the sale of the Underwritten Securities to the several
Underwriters.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5
or Section 9(b)(i) or Section 10 hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5.CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations
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and warranties of the Company and each of the Partnerships contained in
Section 1 hereof or in certificates of any officer or authorized representative
of the Company or any other Simon DeBartolo Entity delivered pursuant to the
provisions hereof, to the performance by the Company and each of the
Partnerships of its covenants and other obligations hereunder, and to the
following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1993 Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of
the Commission or the state securities authority of any jurisdiction for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities and
any related Underlying Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance
with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, Merrill Lynch
shall have received the favorable opinions, dated as of Closing Time, of
Paul, Weiss, Rifkind, Wharton, & Garrison, counsel for the Company, Piper &
Marbury, LLP, special Maryland counsel for the Company, and James Barkley,
the General Counsel of the Company or such other counsel as is designated
by the Company in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, such opinion shall address such of the
items set forth in Exhibits B-1, B-2 and B-3 hereto as may be relevant to
the particular offering contemplated or to such further effect as counsel
to the Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, Merrill
Lynch shall have received the favorable opinion, dated as of Closing Time,
of Rogers & Wells, counsel for the Underwriters, or such other counsel as
may be designated by Merrill Lynch together with signed or reproduced
copies of such letter for each of the other Underwriters, with respect to
the matters set forth in (1), (4) (with respect to the first sentence and
the last clause of the second sentence only) and (5) of Exhibit B-1 hereto
and (1) and the last two paragraphs of Exhibit B-3 hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to Merrill Lynch. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers or authorized representatives of the Company and
the other Simon DeBartolo Entities and certificates of public officials.
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(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
other Simon DeBartolo Entities considered as one enterprise, whether or not
arising in the ordinary course of business, and Merrill Lynch shall have
received a certificate of (x) the Chief Executive Officer, President or a
Vice President of the Company for itself and as general partner of SPG, LP
and of the chief financial officer or chief accounting officer of the
Company for itself and as general partner of SPG, LP, and (y) the Chief
Executive Officer, President or a Vice-President of and the chief financial
or accounting officer of SD Property, as managing general partner of the
Operating Partnership, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made
at and as of the Closing Time, (iii) the Company and each of the
Partnerships has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time,
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission or by the state securities
authority of any jurisdiction and (v) the Registration Statement and the
Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations and in
all material respects shall conform to the requirements of the 1993 Act and
the 1993 Act Regulations; the Registration Statement will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from Arthur
Andersen LLP a letter, dated such date, in form and substance satisfactory
to Merrill Lynch and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on
Auditing Standards 72 to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, Merrill Lynch shall
have received from Arthur Andersen LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical organization," as defined by the
Commission for purposes of Rule 436(g)(2) of the 1933 Act Regulations, if
and as specified in the applicable Terms Agreement, and the Company shall
have delivered to
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Merrill Lynch a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to Merrill Lynch,
confirming that the Underwritten Securities have such ratings. Since the
time of execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of
the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the Underwritten Securities or any of the Company's other securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten
Securities shall be listed or shall have been approved for listing, subject
only to official notice of issuance, if and as specified in the applicable
Terms Agreement.
(i) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) LOCK-UP AGREEMENTS. On the date of the applicable Terms
Agreement, Merrill Lynch shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed therein.
(k) OVER-ALLOTMENT OPTION. In the event that the Underwriters are
granted an over-allotment option by the Company and each of the
Partnerships in the applicable Terms Agreement and the Underwriters
exercise their option to purchase all or any portion of the Option
Underwritten Securities, the representations and warranties of the Company
and each of the Partnerships contained herein and the statements in any
certificates furnished by the Company or either of the Partnerships
hereunder shall be true and correct as of each Date of Delivery, and, at
the relevant Date of Delivery, Merrill Lynch shall have received:
(1) A certificate dated such Date of Delivery, of (x) the Chief
Executive Officer, President or a Vice President of the Company for
itself and as general partner of SPG, LP and the chief financial
officer or chief accounting officer of the Company for itself and as
general partner of SPG, LP and (y) the Chief Executive Officer,
President or a Vice-President and the chief financial or accounting
officer of SD Property, as general partner of the Operating
Partnership, confirming that the certificate delivered at the Closing
Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of Paul, Weiss, Rifkind, Wharton &
Garrison, counsel for the Company, Piper & Marbury, LLP, special
Maryland counsel to the Company and James Barkley, General Counsel to
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
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(3) The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from Arthur Andersen LLP, in form and substance
satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to Merrill Lynch pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to Merrill Lynch
and counsel for the Underwriters.
(m) TERMINATION OF TERMS AGREEMENT. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
Merrill Lynch by notice to the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4, and except that Sections 1, 6 and 7 shall
survive any such termination and remain in full force and effect.
SECTION 6.INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company and each of the
Partnerships agrees, jointly and severally, to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make
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the statements therein, in the light of the circumstances under
which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto), including the 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company and
each of the Partnerships, each of the Company's directors, each of its
officers who signed the Registration Statement, and each person, if any,
who controls the Company or either of the Partnerships within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed to
be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from
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any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 6 or Section 7 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel in
accordance with the provisions hereof, such indemnifying party agrees that
it shall be liable for any settlement of the nature contemplated by Section
6(a)(2) effected without its written consent if (i) such settlement is
entered into in good faith by the indemnified party more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
SECTION 7.CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
each of the Partnerships, on the one hand, and the Underwriters, on the
other hand, from the offering of the Underwritten Securities pursuant to
the applicable Terms Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and each of the
Partnerships, on the one hand, and of the Underwriters, on the other hand,
in connection with the
28
<PAGE>
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and each of the
Partnerships, on the one hand, and the Underwriter, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such
Underwritten Securities (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each
case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company and each of the Partnerships, on the
one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or either of
the Partnerships or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Partnerships and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriter were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who
controls the Company or either of the Partnerships within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Company. The
29
<PAGE>
Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement and not
joint.
SECTION 8.REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company or authorized representatives of each of the
Partnerships submitted pursuant hereto or thereto shall remain operative
and in full force and effect, regardless or any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company or either of the Partnerships, and shall survive delivery of and
payment for the Underwritten Securities.
SECTION 9.TERMINATION.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any
time by the Company or by Merrill Lynch upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. Merrill Lynch may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of such Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and the other Simon
DeBartolo Entities considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) there has occurred any material
adverse change in the financial markets in the United States or
internationally or any outbreak of hostilities or escalation thereof or
other calamity or crisis, or any change or development involving a
prospective change in national or international political, financial, or
economic conditions, in each case the effect of which is such as to make
it, in the judgment of Merrill Lynch, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company
has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market has been
suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, (iv) a banking moratorium has been declared
by either Federal, New York or Maryland authorities or (v) if Preferred
Stock is offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company as
of the date of the applicable Terms Agreement shall have been downgraded
since such date or if any such rating organization shall have publicly
announced that it has placed any series of Preferred Stock of the Company
under surveillance or review, with possible negative implications, as to
the rating of such Preferred Stock or any of the Company's other
securities.
30
<PAGE>
(c) LIABILITIES. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7,
8, 10 and 13 hereof shall survive such termination and remain in full force
and effect.
SECTION 10.DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the
Underwritten Securities which it or they are obligated to purchase under
the applicable Terms Agreement (the "Defaulted Securities"), then Merrill
Lynch shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities does not exceed 10% of the number of
Underwritten Securities to be purchased on such date pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters
to purchase, and the Company to sell, such Option Underwritten
Securities on such Date of Delivery) shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date
of Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option
Underwritten Securities, as the case may be, either Merrill Lynch or the
Company shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
31
<PAGE>
SECTION 11.NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to
Merrill Lynch at World Financial Center, North Tower, New York, New York
10281-1201, attention of Martin J. Cicco, Managing Director; and notices to
the Simon DeBartolo Entities shall be directed to any of them at National
City Center, 115 West Washington Street, Suite 15 East, Indianapolis,
Indiana 46204, attention of Mr. David Simon, with a copy to Paul, Weiss,
Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New
York 10019-6064, attention of Edwin S. Maynard, Esq.
SECTION 12.PARTIES.
This Underwriting Agreement and the applicable Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and,
upon execution of such Terms Agreement, any other Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and the
Company and each of the Partnerships and their respective successors and
the controlling persons and officers and directors referred to in Sections
6 and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Underwriting Agreement
or such Terms Agreement or any provision herein or therein contained. This
Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13.GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14.EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
32
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Merrill Lynch, the Company and each of
the Partnerships in accordance with its terms.
Very truly yours,
SIMON DEBARTOLO GROUP, INC.
By: /s/ David Simon
Name: David Simon
Title: Chief Executive Officer
SIMON-DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
General Partner
By: /s/ David Simon
Name: David Simon
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By: /s/ David Simon
Name: David Simon
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
Name: Martin J. Cicco
Title: Authorized Signatory
<PAGE>
Exhibit A
SIMON DEBARTOLO GROUP, INC.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
TERMS AGREEMENT
__________ __, 1996
To: Simon DeBartolo Group, Inc.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, Inc., a Maryland
corporation (the "Company"), proposes to issue and sell [ shares of
its common stock, par value $0.0001 per share (the "Common Stock")] [
shares of its preferred stock, par value $0.0001 per share (the "Preferred
Stock")] [in the form of depositary shares (the "Depositary Shares")
each representing of a share of Preferred Stock] [ warrants (the
"Common Stock Warrants") to purchase common stock, par value $0.0001 per
share] [ warrants (the "Preferred Stock Warrants") to purchase
preferred stock, par value $0.0001 per share] ([securities also being
hereinafter referred to as] the "Initial Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective number of Initial
Underwritten Securities set forth below opposite their names at the
purchase price set forth below, and a proportionate share of Option
Underwritten Securities (as defined in the Underwriting Agreement referred
to below) set forth below, to the extent any are purchased.
[Number] of [Initial
UNDERWRITER UNDERWRITTEN SECURITIES
Total [$]
A-1
<PAGE>
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Voting Provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if
any, from
Purchase price per share: $
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
A-2
<PAGE>
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if
any, from
Purchase price per share: $ plus accumulated dividends, if any, from
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Warrants]
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock]: [Yes] [No]
Number of [Common Stock] [Preferred Stock] Warrants issued with each [share
of Common Stock] [share of Preferred Stock]:
Date(s) from which or period(s) during which [Common Stock] [Preferred
Stock]
[Warrants] are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Warrants] expire:
Exercise price(s): $
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] purchasable upon exercise of one [Common Stock]
[Preferred Stock] [Warrant]:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DEBARTOLO GROUP, INC.--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred
Stock and Depositary Shares--Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Terms defined in such document are used
herein as therein defined.
A-3
<PAGE>
Please accept this offer no later than o'clock P.M. (New York
City time) on by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named
Underwriters.
Accepted:
SIMON DEBARTOLO GROUP, INC.
By: ___________________________
Name:
Title:
A-4
<PAGE>
Exhibit B-1
FORM OF OPINION OF COMPANY'S SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease
and operate its properties, to conduct its business in which it is engaged
or proposes to engage as described in the Prospectus and to enter into and
perform its obligations under, or as contemplated under, the Underwriting
Agreement and the applicable Terms Agreement.
(3) The authorized, issued and outstanding shares of capital stock of
the Company are as set forth in the Prospectus in the column entitled "As
Further Adjusted" under the caption "Capitalization" (except for subsequent
issuances thereof, if any, contemplated under the Underwriting Agreement,
or as described as reserved for issuance below). Such shares of capital
stock have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and have been offered and sold in compliance
with all applicable laws of the State of Maryland and, to such counsel's
knowledge, none of such shares of capital stock were issued in violation of
preemptive or other similar rights. To such counsel's knowledge, no shares
of capital stock of the Company are reserved for any purpose except in
connection with (i) the Stock Option Plans, (ii) the Distribution
Reinvestment Plan, and (iii) the possible issuance of shares of Common
Stock upon exchange of OP Units or upon the conversion of shares of Class B
Common Stock or Class C Common Stock. To the knowledge of such counsel,
except for OP Units, shares of Class B Common Stock and Class C Common
Stock, and stock options issued under the Stock Option Plans and except as
described in the Prospectus, there are no outstanding securities
convertible into or exchangeable for any shares of capital stock of the
Company, and except for options under the Stock Option Plans, there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such stock or any other securities
of the Company.
(4) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement have been duly authorized by the Company for issuance and
sale pursuant to the Underwriting Agreement and the applicable Terms
Agreement. The Underwritten Securities, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and will
not be subject to preemptive or other similar rights arising under Maryland
General Corporation Law (the "MGCL") or the Amended and Restated Articles
of Incorporation (the "Charter") and by-laws of the Company. The terms of
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement conform in substance to all statements and descriptions relevant
thereto
B-1-1
<PAGE>
contained in the Prospectus. The form of stock certificates
evidencing the Underwritten Securities are in due and proper form and
comply, in all material respects, with the applicable statutory
requirements, with any applicable requirements of the Charter or by-laws of
the Company.
(5) The Underwriting Agreement and the applicable Terms Agreement
were duly and validly authorized by the Company, the proper officers of the
Company have been duly authorized, to execute and deliver the Underwriting
Agreement and the applicable Terms Agreement, and, assuming they have been
executed and delivered by any of such officers, the Underwriting Agreement
and the Terms Agreement are duly and validly executed and delivered by the
Company.
(6) The execution, delivery and performance of the Underwriting
Agreement and the applicable Terms Agreement and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms
Agreement and compliance by the Company with their obligations thereunder
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under (i) any provisions of the Charter or by-laws of the Company;
any applicable law, statute, rule, regulation of Maryland; or (iii) to such
counsel's knowledge, any Maryland order or Maryland administrative or court
decree, binding upon the Company or to which the Company is subject, except
in each case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(7) The information in the Prospectus under "Description of the
Securities," "Restrictions On Transfer" and in Part II of the Registration
Statement under "Indemnification of Directors and Officers" and in the
annual Report on Form 10-K of the Company under "<circle>", and such other
information in the Prospectus Supplement as may be agreed upon from time to
time by the Company and Merrill Lynch to the extent that such information
constitutes matters of Maryland law, descriptions of Maryland statutes,
rules or regulations, summaries of Maryland legal matters, the Company's
Charter and bylaws or Maryland legal proceedings, or legal conclusions of
Maryland law, has been reviewed by them and is correct in all material
respects.
B-1-2
<PAGE>
Exhibit B-2
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register or be in good
standing would not result in a Material Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware, with partnership power and authority to own, lease and
operate its properties and to conduct the business in which it is engaged
or proposes to engage as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement and the applicable
Terms Agreement and is duly qualified or registered as a foreign limited
partnership to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise stated
in the Registration Statement and the Prospectus, all of the OP Units have
been duly authorized and are validly issued, fully paid and non-assessable
and have been offered and sold or exchanged in compliance with all
applicable laws of the United States and the Delaware Revised Uniform
Limited Partnership Act.
(3) SPG, LP has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of
Delaware, with partnership power and authority to own, lease and operate
its properties and to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement and the applicable
Terms Agreement and is duly qualified or registered as a foreign limited
partnership to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise stated
in the Registration Statement and the Prospectus, all of the LP Units have
been duly authorized and are validly issued, fully paid and non-assessable
and have been offered and sold or exchanged in compliance with all
applicable laws of the United States and the Delaware Revised Uniform
Limited Partnership Act.
(4) Each Simon DeBartolo Entity other than the Company and the
Partnerships has been duly incorporated or organized and is validly
existing as a corporation, limited partnership or other legal entity, as
the case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has the requisite
power and authority
B-2-1
<PAGE>
to own, lease and operate its properties and to conduct
the business in which it is engaged or proposes to engage as described in
the Prospectus and is duly qualified or registered as a foreign
corporation, limited partnership or other legal entity, as the case may be,
to transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register or to be in good standing would not
result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Simon DeBartolo Entity other than the
Company and the Partnerships has been duly authorized and is validly
issued, fully paid and non-assessable and has been offered and sold in
compliance with all applicable laws of the United States and the
organizational laws of the jurisdictions of organization of such entity,
and is owned by the Company, the Management Companies or the Partnerships,
in each case, free and clear of any Liens. There are no outstanding
securities convertible into or exchangeable for any capital stock of such
entities and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such capital stock or
any other securities of such entities.
(5) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with
the requisite power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged and proposes to engage
as described in the Prospectus. Each Property Partnership is duly
qualified or registered as a foreign partnership and is in good standing in
each jurisdiction in which such qualification or registration is required,
whether by reason of ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register would not have
a Material Adverse Effect. The general or limited partnership agreement of
each of the Property Partnerships has been duly and validly authorized,
executed and delivered by the parties thereto and is a valid and binding
agreement, enforceable against the parties thereto in accordance with its
terms, except as such enforceability may be subject to (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or transfer or similar laws affecting creditors' rights generally and (2)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law.
(6) Neither the Company nor any of the other Simon DeBartolo Entities
nor any Property Partnership is in violation of its charter, by-laws,
partnership agreement, or other organizational document, as the case may
be, and no default by the Company or any other Simon DeBartolo Entity or
any Property Partnership exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement or the 10-K, except
in each case for violations or defaults which in the aggregate are not
reasonably expected to result in a Material Adverse Effect.
B-2-2
<PAGE>
(7) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Partnerships.
(8) The execution, delivery and performance of the Underwriting
Agreement and the applicable Terms Agreement and the consummation of the
transactions contemplated thereby did not and do not, conflict with or
constitute a breach or violation of, or default or Repayment Event under,
or result in the creation or imposition of any Lien upon any Portfolio
Property, pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument,
to which the Company, the Partnerships or any Property Partnership is a
party or by which it of any of them may be bound, or to which any of the
assets, properties or operations of the Company, the Partnerships or any
Property Partnership is subject, nor will such action result in any
violation of the provisions of the charter, by-laws, partnership agreement
or other organizational document of the Company, any other Simon DeBartolo
Entity or any Property Partnership or any applicable laws, statutes, rules
or regulations of the United States or any jurisdiction of incorporation or
formation of any of the Company, the Partnerships or any Property
Partnership or any judgment, order, writ or decree binding upon the
Company, any Simon DeBartolo Entity or any Property Partnership, which
judgement, order, writ or decree, is known to such counsel, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any other Simon DeBartolo Entity or
any of their assets, properties or operations, except for such conflicts,
breaches, violations, defaults, events or liens, charges or encumbrances
that would not result in a Material Adverse Effect,.
(9) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any court or governmental
authority or agency is required in connection with the offering, issuance
or sale of the Underwritten Securities to the Underwriters under the
Underwriting Agreement, and the applicable Terms Agreement, except as may
be required under the 1933 Act, the 1933 Act Regulations, or the by-laws
and rules of the NASD (as to which such counsel expresses no opinion) or
state securities laws (as to which such counsel expresses no opinion), or
such as have been obtained.
(10) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending or threatened, against or affecting the Company or any other
Simon DeBartolo Entity or any Property Partnership thereof which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect.
(11) All descriptions in the Prospectus of contacts and other
documents to which the Company or any other Simon DeBartolo Entity are a
party are accurate in all material respects. To the best knowledge and
information of such counsel, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto by the 1933 Act
Regulations, and the descriptions thereof or references thereto are correct
in all material respects.
B-2-3
<PAGE>
(12) To the best of such counsel's knowledge and information, there
are no statutes or regulations that are required to be described in the
Prospectus that are not described as required.
(13) To the best knowledge of such counsel, except as described in a
schedule to this opinion or in the Prospectus, there are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
If the Prospectus Supplement to which the applicable Terms Agreement
relates is the first Prospectus Supplement (the "First Prospectus
Supplement") distributed under this Agreement, the opinions set forth in
this Exhibit B-2 above with respect to the Property Partnerships shall only
be required for those Property Partnerships that have acquired or developed
Properties since April 12, 1995. For each Prospectus Supplement,
distributed after the First Prospectus Supplement, such Property
Partnership opinions shall only be required for those Property Partnerships
that have acquired or developed Properties since the date of the Prospectus
Supplement last preceding the Prospectus Supplement as to which the
Opinions are being delivered.
B-2-4
<PAGE>
Exhibit B-3
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) At the time the Registration Statement became effective, and at
each of the Representation Dates, the Registration Statement, the
Prospectus, excluding the documents incorporated by reference therein and
excluding the financial statements and supporting schedules included and
other financial data that are therein, complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations. In passing upon compliance as to the form of such documents,
such counsel has assumed that the statements made or incorporated by
reference therein are complete and correct.
(2) The documents filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules therein and other financial data, as to which no
opinion need be rendered), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder. In passing upon compliance as to the form of
such documents, we have assumed that the statements made or incorporated by
reference therein are complete and correct.
(3) The information in the Prospectus under "Federal Income Tax
Considerations" and any description of the Underwritten Securities included
therein, and such other information in the Prospectus Supplement or in any
Annual Report on Firm 10-K of the Company as may be agreed upon from time
to time by the Company and Merrill Lynch, to the extent that it purports to
summarize matters of law, descriptions of statutes, rules or regulations,
summaries of legal matters, the Company's charter and by-laws, documents or
legal proceedings, or legal conclusions, has been reviewed by them, is
correct and presents fairly the information required to be disclosed
therein in all material respects; and such opinion set forth under "Federal
Income Tax Considerations", in the Prospectus, is confirmed.
(4) The Company satisfies all conditions and requirements for filing
the Registration Statement on Form S-3 under the 1933 Act and 1933 Act
Regulations.
(5) None of the Simon DeBartolo Entities or any Property Partnership
is required to be registered under the 1940 Act.
(6) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and the applicable
Terms Agreement and, when issued and delivered by the Company pursuant to
the Underwriting Agreement and the applicable Terms Agreement against
payment of the consideration set forth in the applicable Terms Agreement,
will be validly issued, fully paid and non-assessable. The issuance of the
Underwritten Securities being sold
B-3-1
<PAGE>
pursuant to the applicable Terms Agreement is not subject to any
preemptive or other similar rights arising under MGCL, the Charter or the
by-laws of the Company.
(7) This Agreement and the applicable Terms Agreement were duly and
validly authorized, executed and delivered by the Company and the
Partnerships.
(8) Commencing with the Company's taxable year beginning January 1,
1994, the Company has been organized in conformity with the requirements
for qualification and taxation as a "real estate investment trust" under
the Code.
At the Underwriters' request, Paul, Weiss, Rifkind, Wharton & Garrison
shall also confirm to the Underwriters that it has been informed by the
Staff of the Commission that the Registration Statement is effective under
the 1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
In connection with the preparation of the Registration Statement and
the Prospectus, such counsel has participated in conferences with officers
and other representatives of the Company and the independent public
accountants for the Company at which the contents of the Registration
Statement and the Prospectus and related matters were discussed. On the
basis of such participation and review, but without independent
verification by such counsel of, and without assuming any responsibility
for, the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus or any amendments or
supplements thereto, no facts have come to the attention of such counsel
that would lead them to believe that the Registration Statement (except for
financial statements and schedules and other financial data included
therein as to which we make no statement), at the time the Registration
Statement or any post-effective amendment thereto (including the filing of
the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement
thereto (except for financial statements and the schedules and other
financial data included therein as to which we make to statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinion of
Piper & Marbury, special counsel to the Company (which opinion shall be
dated and furnished to Merrill Lynch at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and
shall expressly state that the counsel for the Underwriters may rely on
such opinion as if it were addressed to them), and (B), as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
Such opinion shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any
B-3-2
<PAGE>
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-3-3
<PAGE>
ANNEX I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(i) in our opinion, the audited financial statements and
the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements
of the Company for the [three month periods ended __________, 19__,
and __________, 19__, the three and six month periods ended
__________, 19__, and __________, 19__, and the three and nine month
periods ended __________, 19__, and __________, 19__, included or
incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")]{1} [, a reading of
the unaudited interim [consolidated] financial statements of the
Company for the _____-month periods ended __________, 19__, and
__________, 19__, included in the Registration Statement and the
Prospectus (the "_____-month financials")]{2} [, a reading of the
latest available unaudited interim [consolidated] financial statements
of the Company],{3} a reading of the minutes of all meetings of the
stockholders and directors of the Company [and its subsidiaries] and
the Committees of the Company's Board of Directors [and any subsidiary
committees] since [day after end of last audited period], inquiries of
certain officials of the Company [and its subsidiaries] responsible
for financial and accounting matters, a review of interim financial
information in accordance with standards established by the American
Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"),{4}
_____________________________
{1} Include the appropriate dates of the 10-Q Financials.
{2} Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
{3} Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
{4} Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative
assurance on interim financial information. A review in accordance
with SAS No. 71 will only be performed at the request of the Company
and the accountant's report, if any, related to that review will be
addressed
Annex I-1
<PAGE>
with respect to the [description of relevant periods]{5} and such
other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form 10-
Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;]{6}
[( ) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements
or any material modifications should be made to the _____-month
financials included in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted
accounting principles;]{7}
_________________________
{4}(...continued)
only to the Company. Many companies have a SAS No. 71 review performed in
connection with the preparation of their 10-Q financial statements. See
CODIFICATION OF STATEMENTS ON AUDITING STANDARDS, AU section 722 for a
description of the procedures that constitute such a review. The comfort
letter itself should recite that the review was performed and a copy of the
report, if any, should be attached to the comfort letter. Any report
issued pursuant to SAS No. 71 that is mentioned in the Registration
Statement should also be included in the Registration Statement as an
exhibit. If a review in accordance with SAS No. 71 has not and will not be
performed by the accountants, they should be prepared to perform certain
agreed-upon procedures on the interim financial information and to report
their findings thereon in the comfort letter. See CODIFICATION OF
STATEMENTS ON AUDITING STANDARDS, AU section 622 for a discussion of
reports related to the accountant's performance of agreed-upon procedures.
Any question as to whether a review in accordance with SAS No. 71 will be
performed by the accountants should be resolved early.
{5} The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
{6} Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
{7} Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
Annex I-2
<PAGE>
( ) at [____________, 19__ and at]{8} a specified date not
more than five days{9} prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Company
[and its subsidiaries] or any decrease in the _________ of the
Company [and its subsidiaries] or any increase in the ___________
of the Company [and its subsidiaries,]{10} in each case as
compared with amounts shown in the latest balance sheet included
in the Registration Statement and the Prospectus, except in each
case for changes, decreases or increases that the Registration
Statement and the Prospectus disclose have occurred or may occur;
or
( ) [for the period from ___________, 19__ to ___________,
19__ and]{11} for the period from _________, 19__ to a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there was any decrease in __________,
___________ or ___________,{12} in each case as compared with the
comparable period in the preceding year, except in each case for
any decreases that the Registration Statement and the Prospectus
discloses have occurred or may occur;
__________________________
{8} Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and the
Prospectus.
{9} According to Example A of SAS No. 72, the specified date should be
five calendar days prior to the date of the applicable Terms
Agreement. However, in unusual circumstances, five business days may
be used.
{10} The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in
general and operations in particular. While the ultimate decision of
which items should be included rests with the banker, comfort is
routinely requested for certain balance sheet items, including long-
term debt, stockholders' equity, capital stock and net current assets.
{11} Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial
statements of the Company, if those dates are different. Regardless
of whether this language is inserted or not, the period including five
days prior to the date of the applicable Terms Agreement should run
from the date of the last financial statement included in the
Registration Statement and the Prospectus, not from the later one that
is not included in the Registration Statement and the Prospectus.
{12} The blanks should be filled in with significant income statements
items, selected by the banker and tailored to the issuer's industry in
general and operations in particular. While the ultimate decision of
which items should be included rests with the banker, comfort is
routinely requested for certain income statement items, including net
sales, total and per share amounts of income before extraordinary
items and of net income.
Annex I-3
<PAGE>
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the [Selected Financial Data] included in the
Registration Statement and the Prospectus [and a reading of the
financial statements from which such data were derived,]{13} nothing
came to our attention that caused us to believe that the [Selected
Financial Data] included in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the
disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the [Selected Financial Data] are not
in agreement with the corresponding amounts in the audited
[consolidated] financial statements for the respective periods or that
the financial statements not included in the Registration Statement
and the Prospectus from which certain of such data were derived are
not in conformity with generally accepted accounting principles];{14}
(iv) we have compared the information in the Registration
Statement and the Prospectus under selected captions with the
disclosure requirements of Regulation S-K of the 1933 Act and on the
basis of limited procedures specified herein. Nothing came to our
attention that caused us to believe that this information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii)
above, a reading of the unaudited financial statements of the Company
for [the most recent period] that have not been included in the
Registration Statement and the Prospectus and a review of such
financial statements in accordance with SAS 71, nothing came to our
attention that caused us to believe that the unaudited amounts for
__________________ for the [most recent period] do not agree with the
amounts set forth in the unaudited consolidated financial statements
for those periods or that such unaudited amounts were not determined
on a basis substantially consistent with that of the corresponding
amounts in the audited [consolidated] financial statements;]{15}
___________________________
{13} Include only if there are selected financial data that have been
derived from financial statements not included in the Registration
Statement and the Prospectus.
{14} In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, REPORTING ON CONDENSED
FINANCIAL STATEMENTS AND SELECTED FINANCIAL DATA, and include in their
report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the
Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No.
42 are followed and the accountant's report as included in the
Registration Statement and the Prospectus includes the additional
language prescribed by SAS No. 42.9, the bracketed language may be
eliminated.
{15} This language should be included when the Registration Statement and
the Prospectus
Annex I-4
<PAGE>
[(vi)] we are unable to and do not express any opinion on the
[Pro Forma Combining Statement of Operations] (the "Pro Forma
Statement") included in the Registration Statement and the Prospectus
or on the pro forma adjustments applied to the historical amounts
included in the Pro Forma Statement; however, for purposes of this
letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with
SAS 71] of the financial statements to which the pro forma
adjustments were applied;
(C) made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statement complies as
to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in
the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement included
in the Registration Statement does not comply as to form in all
material respects with the applicable requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;{16} and
[(vii)] in addition to the procedures referred to in clause
(ii) above, we have performed other procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the
____________________________
{15}(...continued)
include earnings or other data for a period after the date of the latest
financial statements in the Registration Statement and the Prospectus, but
the unaudited interim financial statements from which the earnings or other
data is derived is not included in the Registration Statement and the
Prospectus. The blank should be filled in with a description of the
financial statement item(s) included.
{16} If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro
forma financial statements is not otherwise available, the accountants
should be requested to perform certain other procedures with respect
to such pro forma financial statements. See Example O of SAS No. 72.
Annex I-5
<PAGE>
Registration Statement and the Prospectus, which are specified herein,
and have compared certain of such items with, and have found such items
to be in agreement with, the accounting and financial records of the
Company;{17} and
[(viii) in addition, we [comfort on a financial forecast that
is included in the Registration Statement and the Prospectus.{18}]
__________________________
{17} This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus
for which comfort may be given, including (but not limited to) amounts
appearing in the Registration Statement and the Prospectus narrative
and other summary financial data appearing in tabular form (e.g., the
capitalization table).
{18} Accountants' services with respect to a financial forecast may be in
one of three forms: an examination of the forecast, a compilation of
the forecast or the application of agreed-upon procedures to the
forecast. If the accountant is to perform an examination of the
forecast included in the Registration Statement and the Prospectus,
delivery of the related report should be treated separately in Section
5(f) as follows (remember to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or reproduced
copies of such report for each of the other Underwriters, stating
that, in their opinion, the forecasted financial statements for
the [relevant period or periods] included in the Registration
Statement and the Prospectus are presented in conformity with
guidelines for presentation of a forecast established by the
AICPA, and that the underlying assumptions provide a reasonable
basis for management's forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included in the Registration Statement and the
Prospectus, delivery of the related report should be treated
separately in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and
substance satisfactory to you, together with signed or reproduced
copies of such report of each of the other Underwriters, stating
that they have compiled the forecasted financial statements for
the [relevant period or periods] included in the Registration
Statement and the Prospectus in accordance with the guidelines
established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus,
SAS No. 72 requires that the
Annex I-6
<PAGE>
___________________________
{18}(...continued)
accountant first prepare a compilation report with respect to the forecast
and attach that report to the comfort letter. The accountant may then
report on specific procedures performed and findings obtained.
Annex I-7
<PAGE>
SIMON DEBARTOLO GROUP, INC.
(a Maryland corporation)
8,000,000 Shares
8 3/4% Series B Cumulative Redeemable Preferred Stock
TERMS AGREEMENT
September 24, 1996
To: Simon DeBartolo Group, Inc.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Ladies and Gentlemen:
We understand that Simon DeBartolo Group, Inc., a Maryland
corporation (the "Company"), proposes to issue and sell 8,000,000 shares of
its preferred stock, par value $0.0001 per share (the "Preferred Stock")
(Preferred Stock being hereinafter referred to as the "Initial Underwritten
Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the
respective number of Initial Underwritten Securities set forth below
opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below, to the extent
any are purchased.
<PAGE>
Number of
UNDERWRITER UNDERWRITTEN SECURITIES
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 1,460,000
Dean Witter Reynolds Inc. 1,460,000
PaineWebber Incorporated 1,460,000
Prudential Securities Incorporated 1,460,000
Smith Barney Inc. 1,460,000
Alex. Brown & Sons Incorporated 100,000
Donaldson, Lufkin & Jenrette Securities Corporation 100,000
A.G. Edwards & Sons, Inc. 100,000
Legg Mason Wood Walker, Incorporated 100,000
McDonald & Company Securities, Inc. 100,000
Piper Jaffray Inc. 100,000
__________
Total 8,000,000
2
<PAGE>
The Underwritten Securities shall have the following terms:
Title: 8 3/4% Series B Cumulative Redeemable
Preferred Stock (Par Value $.0001 per share)
(Liquidation Preference Equivalent to $25.00 per
share).
Rank: The Series B Preferred Shares will rank
PARI PASSU with any other preferred shares
and will rank senior to the Common Stock of
the Company and any other shares of the
Company ranking junior to the Series B
Preferred Shares.
Ratings:BBB by Standard & Poor's; Baa2 by Moody's.
Number of shares: 8,000,000 shares.
Number of Option Underwritten
Securities: 1,200,000 shares.
Dividend rate (or formula)
per share:8 3/4% of the liquidation preference
per annum.
Dividend payment dates:March 31, June 30, September
30, December 31, commencing on December 31, 1996.
Stated value:$25.00.
Liquidation preference
per share: $25.00.
Redemption provisions: The Series B Preferred Shares
are not redeemable prior to September 29, 2006.
On and after September 29, 2006, the Series B
Preferred Shares will be redeemable for cash at the
option of the Company, in whole or in part, at $25
per share, plus distributions accrued and unpaid to
the redemption date. The redemption price (other
than the portion thereof consisting to accrued and
unpaid distributions) is payable solely out of the
sale proceeds of other capital shares of the
Company which may include other series of preferred
shares, and from no other source.
Sinking fund requirements:N/A
Conversion provisions:The Series B Preferred Shares
are not convertible or exchangeable for any other
property or securities of the Company.
Voting rights: If distributions on the Series B
Preferred Shares are in arrears for six or more
quarterly periods, whether or not consecutive,
holders of the Underwritten Securities (voting
separately as a class with all other series of
preferred shares upon which like voting rights have
been conferred and are exercisable) will be
entitled to vote for the election of two additional
Directors to serve on the Board of Directors of the
Company until all distribution arrearage are paid.
Listing requirements: NYSE
Black-out provisions: N/A
Initial public offering
price per share: $25 plus accumulated dividends, if any,
from the date of original issue.
Purchase price per share: $24.2125
Other terms and conditions:N/A
Closing date and location:September 27, 1996 at the
offices of Rogers & Wells, 200 Park Avenue, New
York, New York 10166.
All of the provisions contained in the document attached as Annex I
hereto entitled "SIMON DEBARTOLO GROUP, INC.--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred
Stock and Depositary Shares--Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Terms defined in such document are used
herein as therein defined.
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<PAGE>
Please accept this offer no later than 5 o'clock P.M. (New York
City time) on the date hereof by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
For themselves and as Representatives
of the other named Underwriters.
By: MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ Martin J. Cicco
Name: Martin J. Cicco
Title: Authorized Signatory
Accepted:
SIMON DEBARTOLO GROUP, INC.
By: /s/ David Simon
Name: David Simon
Title: Chief Executive Officer
EXHIBIT 4.3
SIMON DEBARTOLO GROUP, INC.
ARTICLES SUPPLEMENTARY
SIMON DeBARTOLO GROUP, INC., a Maryland corporation, having its
principal office in Baltimore City, Maryland (the "Corporation"), hereby
certifies to the Maryland State Department of Assessment and Taxation that:
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article Sixth of the Charter of the
Corporation, the Board of Directors has duly reclassified 9,200,000 shares
of the Common Stock (par value $.0001 per share) ("Common Stock") of the
Corporation into 9,200,000 shares of a class designated as 8-3/4% Series B
Cumulative Redeemable Preferred Stock (par value $.0001 per share) of the
Corporation ("Series B Preferred Stock") and has provided for the issuance
of such shares.
SECOND: The reclassification increases the number of shares
classified as Series B Preferred Stock from no shares immediately prior to
the reclassification to 9,200,000 shares immediately after the
reclassification. The reclassification decreases the number of shares
classified as Common Stock from 383,996,000 shares immediately prior to the
reclassification to 374,796,000 shares immediately after the
reclassification.
THIRD: The following is a description of the Series B Preferred Stock
of the Corporation. The paragraphing cross references in the description
of the Series B Preferred Stock of the Corporation is consistent with it
becoming paragraph (c-3) of Article SIXTH of the Charter of the
Corporation.
(c-3) Subject in all cases to the provisions of Article NINTH of the
Charter of the Corporation with respect to Excess Stock, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of Series B Preferred Stock of the Corporation:
(1) The designation of 8-3/4% Series B Preferred Stock described
in Article FIRST of the related Articles Supplementary shall be "8-
3/4% Series B Cumulative Redeemable Preferred Stock (par value $.0001
per share)." The number of shares of Series B Preferred Stock to be
authorized shall be 9,200,000.
(2) All shares of Series B Preferred Stock redeemed, purchased,
exchanged, unissued or otherwise acquired by the Corporation shall be
retired and canceled and, upon the taking of any action required by
applicable law, shall be restored to the status of authorized but
unissued shares of capital stock and reclassified as Common Stock and
may thereafter be issued or reclassified, but not as Series B
Preferred Stock.
<PAGE>
(3) The Series B Preferred Stock shall, with respect to dividend
rights, rights upon liquidation, winding up or dissolution, and
redemption rights, rank (A) junior to any other class or series of
preferred stock hereafter duly established by the Board of Directors
of the Corporation, the terms of which shall specifically provide that
such series shall rank prior to the Series B Preferred Stock as to the
payment of dividends, distribution of assets upon liquidation and
redemption rights (the "Senior Preferred Stock"), (B) PARI PASSU with
the Series A Preferred Stock of the Corporation, par value $.0001 per
share, and any other class or series of preferred stock hereafter duly
established by the Board of Directors of the Corporation, the terms of
which shall specifically provide that such class or series shall rank
PARI PASSU with the Series B Preferred Stock as to the payment of
dividends, distribution of assets upon liquidation and redemption
rights (the "Parity Preferred Stock") and (C) prior to any other class
or series of preferred stock or other class or series of capital stock
of or other equity interests in the Corporation, including, without
limitation, all classes of the common stock of the Corporation,
whether now existing or hereafter created (all of such classes or
series of capital stock and other equity interests of the Corporation,
including, without limitation, the Common Stock, the Class B Common
Stock, $.0001 par value, of the Corporation (the "Class B Common
Stock"), the Class C Common Stock, $.0001 par value, of the
Corporation (the "Class C Common Stock") are collectively referred to
herein as the "Junior Stock").
(4) (A) Subject to the rights of series of Preferred Stock which
may from time to time come into existence, holders of the then
outstanding Series B Preferred Stock shall be entitled to receive,
when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, cumulative preferential cash
dividends at the rate of $2.1875 per annum per share. Such dividends
shall accrue and be cumulative from the date of original issue and
shall be payable in equal amounts quarterly in arrears on the last day
of March, June, September and December or, if not a business day, the
next succeeding business day (each, a "Distribution Payment Date").
The first dividend, which will be paid on December 31, 1996, will be
for more than a full quarter. Such first dividend and any dividend
distribution payable on Series B Preferred Stock for any partial
distribution period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Distributions will be payable to
holders of record as they appear in the share records of the
Corporation at the close of business on the applicable record date,
which shall be on the first day of the calendar month in which the
applicable Distribution Payment Date falls on or on such other date
designated by the Board of Directors of the Corporation for the
payment of distributions that is not more than 30 nor less than 10
days prior to such Distribution Payment Date (each, a "Distribution
Record Date").
2
<PAGE>
(B) Dividends on Series B Preferred Stock will accrue and
be cumulative whether or not the Corporation has earnings, whether or
not there are funds legally available for the payment of such
distributions and whether or not such distributions are earned,
declared or authorized. No interest, or sum of money in lieu of
interest, shall be payable in respect of any distribution payment or
payments on Series B Preferred Stock which may be in arrears.
Dividends paid on the Series B Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a per share basis among all
such shares at the time outstanding.
(C) If, for any taxable year, the Corporation elects to
designate as "capital gain distributions" (as defined in Section 857
of the Internal Revenue Code of 1986, as amended, or any successor
revenue code or section (the "Code")) any portion (the "Capital Gains
Amount") of the total distributions (as determined for federal income
tax purposes) paid or made available for the year to holders of all
classes of capital stock (the "Total Distributions"), then the portion
of the Capital Gains Amount that shall be allocable to holders of
Series B Preferred Stock shall be in the same percentage that the
total distributions paid or made available to the holders of Series B
Preferred Stock for the year bears to the Total Distributions.
(D) If any shares of Series B Preferred Stock are
outstanding, no distributions shall be declared or paid or set apart
for payment on any shares of any other series of Preferred Stock of
the Corporation ranking, as to distributions, on a parity with or
junior to Series B Preferred Stock for any period unless full
cumulative distributions have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set
apart for such payments on shares of Series B Preferred Stock for all
past distribution periods and the then current distribution period.
When distributions are not paid in full (or a sum sufficient for such
full payment is not set apart) upon the shares of Series B Preferred
Stock and the shares of any other series of Preferred Stock ranking on
parity as to distributions with shares of Series B Preferred Stock,
all distributions declared upon shares of Series B Preferred Stock and
any other series of Preferred Stock ranking on a parity as to
distributions with Series B Preferred Stock shall be declared pro rata
so that the amount of distributions declared per share on Series B
Preferred Stock and such other series of Preferred Stock shall in all
cases bear to each other the same ratio that accrued distributions per
share on Series B Preferred Stock and such other series of Preferred
Stock bear to each other.
(E) Except as provided in subparagraph (c-3)(4)(D) of
Article SIXTH, unless full cumulative distributions on
3
<PAGE>
shares of Series B Preferred Stock have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past distribution periods and the then
current distribution period, no distributions (other than in shares of
Common Stock or other capital stock ranking junior to Series B
Preferred Stock as to distributions and upon liquidation) shall be
declared or paid or set aside for payment or other distribution shall
be declared or made upon the shares of Common Stock or any other
capital stock of the Corporation ranking junior to or on a parity with
Series B Preferred Stock as to distributions or upon liquidation, nor
shall any shares of Common Stock or any other capital stock of the
Corporation ranking junior to or on a parity with Series B Preferred
Stock as to distributions or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such
capital stock) by the Corporation (except by conversion into or
exchange for other capital stock of the Corporation ranking junior to
Series B Preferred Stock as to distributions and amounts upon
liquidation).
(F) Any distribution payment made on shares of Series B
Preferred Stock shall first be credited against the earliest accrued
but unpaid distribution due with respect to shares of Series B
Preferred Stock which remain payable.
(G) No distributions on the Series B Preferred Stock shall
be authorized by the Board of Directors of the Corporation or be paid
or set apart for payment by the Corporation at such time as the terms
and provisions of any agreement of the Corporation, including any
agreement relating to its indebtedness, prohibits such authorization,
payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a
breach thereof or a default thereunder if such authorization or
payment shall be restricted or prohibited by law.
(H) Except as provided in this subparagraph (c-3)(4), the
Series B Preferred Stock shall not be entitled to participate in the
earnings or assets of the Corporation.
(5) (A) Subject to the rights of series of Preferred Stock
which may from time to time come into existence, upon any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, then, before any distribution or payment shall be
made to the holders of any Junior Stock, the holders of shares of
Series B Preferred Stock shall be entitled to receive out of assets of
the Corporation legally available for distribution to stockholders,
liquidation distributions in the amount of the liquidation preference
of $25.00 per share in cash or property having a fair market value as
determined by the Board of Directors valued at $25.00 per share, plus
an amount equal to
4
<PAGE>
all distributions accrued and unpaid at the date of
such liquidation, dissolution or winding up. After payment of the
full amount of the liquidating distributions to which they are
entitled, the holders of shares of Series B Preferred Stock will have
no right or claim to any of the remaining assets of the Corporation.
In the event that, upon any such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the
available assets of the Corporation are insufficient to pay the amount
of the liquidation distributions on all outstanding shares of Series B
Preferred Stock and the corresponding amounts payable on all shares of
Parity Preferred Stock, then the holders of shares of Series B
Preferred Stock and Parity Preferred Stock shall share ratably in any
such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
(B) A consolidation or merger of the Corporation with or
into any other entity or entities, or a sale, lease, transfer,
conveyance or disposition of all or substantially all of the assets of
the Corporation or a statutory share exchange in which stockholders of
the Corporation may participate, shall not be deemed to be a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this subparagraph (c-3)(5) of
Article SIXTH.
(6) (A) Shares of Series B Preferred Stock are not redeemable
prior to September 29, 2006. On and after September 29, 2006, the
Corporation at its option upon not less than 30 nor more than 60 days'
written notice, may redeem outstanding shares of Series B Preferred
Stock, in whole or in part, at any time or from time to time, for cash
at a redemption price of $25.00 per share, plus an amount equal to all
distributions accrued and unpaid thereon to the date fixed for
redemption, without interest to the extent the Corporation will have
funds legally available therefor. The redemption price of shares of
Series B Preferred Stock (other than the portion thereof consisting of
accrued and unpaid distributions) is payable solely out of proceeds
from the sale of other capital stock of the Corporation, which may
include Common Stock, Preferred Stock, depositary shares, interests,
participations or other ownership interests in the Corporation however
designated, and any rights (other than debt securities converted into
or exchangeable for capital stock), warrants or options to purchase
any thereof, and not from any other source. Holders of shares of
Series B Preferred Stock to be redeemed shall surrender such shares of
Series B Preferred Stock at the place designated in such notice and
shall be entitled to the redemption price and any accrued and unpaid
distributions payable upon such redemption following such surrender.
If fewer than all of the outstanding shares of Series B Preferred
Stock are to be redeemed, the number of shares to be redeemed will be
determined by the Corporation
5
<PAGE>
and such shares may be redeemed pro rata from the holders of record of
such shares in proportion to the number of such shares held by
such holders (with adjustments to avoid redemption of fractional
shares) or by lot in a manner determined by the Corporation.
(B) Unless full cumulative distributions on all shares of
Series B Preferred Stock and Parity Stock shall have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past
distribution periods and the then current distribution period, no
shares of Series B Preferred Stock or Parity Stock shall be redeemed
unless all outstanding shares of Series B Preferred Stock and Parity
Preferred Stock are simultaneously redeemed; PROVIDED, HOWEVER, that
the foregoing shall not prevent the purchase or acquisition of shares
of Series B Preferred Stock or Parity Stock pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding
shares of Series B Preferred Stock or Parity Preferred Stock, as the
case may be. Furthermore, unless full cumulative distributions on all
outstanding shares of Series B Preferred Stock and Parity Preferred
Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for
all past distribution periods and the then current distribution
period, the Corporation shall not purchase or otherwise acquire
directly or indirectly any shares of Series B Preferred Stock or
Parity Preferred Stock (except by conversion into or exchange for
shares of capital stock of the Corporation ranking junior to Series B
Preferred Stock and Parity Preferred Stock as to distributions and
upon liquidation).
(C) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the redemption date.
A similar notice will be mailed, postage prepaid, at least 30 days but
not more than 90 days before the redemption date, to each holder of
record of shares of Series B Preferred Stock at the address shown on
the share transfer books of the Corporation. Each notice shall state:
(i) the redemption date; (ii) the number of shares of Series B
Preferred Stock to be redeemed; (iii) the redemption price per share;
(iv) the place or places where certificates for shares of Series B
Preferred Stock are to be surrendered for payment of the redemption
price; and (v) that distributions on shares of Series B Preferred
Stock will cease to accrue on such redemption date. No failure to
give such notice or any defect thereto or in the mailing thereof shall
affect the validity of the proceeding for the redemption of any Series
B Preferred Stock except as to the holder to whom notice was defective
or not given. If fewer than all shares of Series B Preferred Stock
are to be redeemed, the notice
6
<PAGE>
mailed to each such holder thereof shall also specify the number of
shares of Series B Preferred Stock to be redeemed from each such
holder. If notice of redemption of any shares of Series B
Preferred Stock has been given and if the funds necessary for
such redemption have been set aside by the Corporation
in trust for the benefit of the holders of shares of Series B
Preferred Stock so called for redemption, then from and after the
redemption date, distributions will cease to accrue on such shares of
Series B Preferred Stock, such shares of Series B Preferred Stock
shall no longer be deemed outstanding and all rights of the holders of
such shares will terminate, except the right to receive the redemption
price.
(D) The holders of shares of Series B Preferred Stock at
the close of business on a Distribution Record Date will be entitled
to receive the distribution payable with respect to such shares of
Series B Preferred Stock on the corresponding Distribution Payment
Date notwithstanding the redemption thereof between such Distribution
Record Date and the corresponding Distribution Payment Date or the
Corporation's default in the payment of the distribution due. Except
as provided above, the Corporation will make no payment or allowance
for unpaid distributions, whether or not in arrears, on shares of
Series B Preferred Stock which have been called for redemption.
(E) Series B Preferred Stock have no stated maturity and
will not be subject to any sinking fund or mandatory redemption,
except as provided in Article NINTH of the Charter of the Corporation.
(7) (A) Except as indicated in this subparagraph (c-3)(7) of
Article SIXTH, except as may be required by applicable law, or, at any
time Series B Preferred Stock are listed on a securities exchange, as
may be required by the rules of such exchange, the holders of shares
of Series B Preferred Stock will have no voting rights.
(B) If six quarterly distributions (whether or not
consecutive) payable on shares of Series B Preferred Stock are in
arrears, whether or not earned or declared, the number of directors
then constituting the Board of Directors of the Corporation will be
increased by two (except as provided in the proviso to paragraph (c)
to Article SEVENTH of the Charter), and the holders of shares of
Series B Preferred Stock, voting together as a class with the holders
of shares of any other series of Preferred Stock upon which like
voting rights have been conferred and are exercisable (any such other
series, the "Voting Preferred Stock"), will have the right to elect
two directors to serve on the Corporation's Board of Directors at any
annual meeting of stockholders or a special meeting of the holders of
Series B Preferred Stock and such other Voting Preferred Stock called
by the holders of record of at least 10% of any series of Preferred
Stock so in arrears
7
<PAGE>
(unless such request is received less than 90 days before the date
fixed for the next annual or special meeting of the
stockholders), until all such distributions have been declared and
paid or set aside for payment. The term of office of all directors so
elected will terminate with the termination of such voting rights.
(C) The approval of two-thirds of the outstanding Series B
Preferred Stock voting as a single class is required in order to (i)
amend, alter or repeal any provision of the relevant Articles
Supplementary or Charter, whether by merger, consolidation or
otherwise (an "Event") so as to materially and adversely affect the
rights, preferences, privileges or voting power of the holders of
shares of Series B Preferred Stock, provided, however, an Event will
not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers of the Series B Preferred
Stock, in each such case, where each share of Series B Preferred Stock
remains outstanding without a material change to its terms and rights
or is converted into or exchanged for preferred stock of the surviving
entity having preferences, conversion and other rights, privileges,
voting powers, restrictions, limitations as to distributions,
qualifications and terms or conditions of redemption thereof identical
to that of a share of Series B Preferred Stock, or (ii) authorize,
reclassify, create, or increase the authorized or issued amount of any
class or series of stock having rights senior to Series B Preferred
Stock with respect to the payment of distributions or amounts upon
liquidation, dissolution or winding up of the affairs of the
Corporation or to create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase such
shares. However, the Corporation may create additional classes of
Parity Preferred Stock and Junior Stock, increase the authorized
number of shares of Parity Preferred Stock and Junior Stock and issue
additional series of Parity Preferred Stock and Junior Stock without
the consent of any holder of Series B Preferred Stock or Voting
Preferred Stock.
(D) Except as provided above and as required by law, or, at
any time Series B Preferred Stock are listed on a securities exchange,
as may be required by the rules of such exchange, the holders of
Series B Preferred Stock are not entitled to vote on any merger or
consolidation involving the Corporation, on any share exchange or on a
sale of all or substantially all of the assets of the Corporation.
(E) In any matter in which the Series B Preferred Stock are
entitled to vote (as provided in this subparagraph (c-3)(7), as may be
required by law or as required by the rules of any securities exchange
on which the Series B Preferred Stock are listed, including any action
by written consent, each share of Series B Preferred Stock shall be
entitled to one vote.
8
<PAGE>
(8) The shares of Series B Preferred Stock are not convertible
into or exchangeable for any other property or securities of the
Corporation, except that each share of Series B Preferred Stock is
convertible into Excess Stock as provided in Article NINTH of the
Charter of the Corporation.
IN WITNESS WHEREOF, SIMON DeBARTOLO GROUP, INC. has caused these
Articles Supplementary to be signed in its name and on its behalf by its
Chief Executive Officer and witnessed by its Secretary on September 26,
1996.
WITNESS: SIMON DEBARTOLO GROUP, INC.
/s/ James M. Barkley By: /s/ David Simon
James M. Barkley David Simon
Secretary Chief Executive Officer
9
<PAGE>
THE UNDERSIGNED, Chief Executive Officer of SIMON DeBARTOLO GROUP,
INC., who executed on behalf of the Corporation the Articles Supplementary
of which this certificate is made a part, hereby acknowledges in the name
and on behalf of said Corporation the foregoing Articles Supplementary to
be the corporate act of said Corporation and hereby certifies that the
matters and facts set forth herein with respect to the authorization and
approval thereof are true in all material respects under the penalties of
perjury.
/s/ David Simon
David Simon
10
Exhibit 4.4
SERIES B SERIES B
PREFERRED STOCK PREFERRED STOCK
NUMBER SHARES
B__________ __________
SIMON DEBARTOLO GROUP, INC.
SEE REVERSE FOR CERTAIN DEFINITIONS AND A
STATEMENT AS TO THE RIGHTS, PREFERENCES,
PRIVILEGES AND RESTRICTIONS OF SHARES
CUSIP NO. 828781 20 3
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NONASSESSABLE SHARES OF THE 8 3/4% SERIES B CUMULATIVE
REDEEMABLE PREFERRED STOCK, PAR VALUE $.0001 PER SHARE (THE SERIES B PREFERRED
STOCK") OF
SIMON DEBARTOLO GROUP, INC.
transferable only on the books of the Corporation by the holder hereof in
person or by Attorney upon surrender of this Certificate properly endorsed.
The Secretary of the Corporation will furnish without charge to any holder,
upon written request to its office at National City Center, 115 West
Washington Street, Suite 15 East, Indianapolis, IN 46204 (telephone number
(317) 636-1600), a full statement of the designations, relative rights,
preferences, liabilities, or variations thereof (and the authority of the
Board of Directors to determine such matters) applicable to each class or
series within a class of the Corporation's capital stock.
Transfer of this Certificate and the Shares represented hereby are
subject to the restrictions described on the reverse side hereof.
In Witness Whereof, the Corporation has caused this Certificate to be
signed by its duly authorized officers.
Dated:
Authorized Signature
/s/ James M. Barkley /s/ David Simon
SECRETARY CHIEF EXECUTIVE OFFICER
Countersigned and Registered:
First Chicago Trust Company of New York
Transfer Agent and Register
<PAGE>
The shares of Capital Stock represented by this certificate are subject
to restrictions on transfer for the purpose of the Corporation's maintenance
of its status as a real estate investment trust under the Internal Revenue
Code of 1986, as amended from time to time (the "Code"). Transfers in
contravention of such restrictions shall be void ab initio. Unless excepted
by the Board of Directors of the Corporation, no person may (1) Beneficially
Own or Constructively Own shares of Capital Stock in excess of 6% (other than
members of the Simon Family Group, whose relevant percentage is 24%) of the
value of any class of outstanding Capital Stock of the Corporation, or any
combination thereof, determined as provided in the Corporation's Charter, as
the same may be amended from time to time (the "Charter"), and computed with
regard to all outstanding shares of Capital Stock and, to the extent provided
by the Code, all shares of Capital Stock issuable under existing Options and
Exchange Rights that have not bee exercised; or (2) Beneficially Own Capital
Stock which would result in the holding of ownership constitutes a continuous
representation of compliance with the above limitations, and any Person who
attempts to Beneficially Own or Constructively Own shares of Capital Stock in
excess of the above limitations has an affirmative obligation to notify the
Corporation immediately upon such attempt. If the restrictions or transfer
are violated, the transfer will be void ab initio and the shares of Capital
Stock represented hereby will be automatically converted into shares of Excess
Stock and will be transferred to the Trustee to be held in trust for the
benefit of one or more Qualified Charitable Organizations, whereupon such
Person shall forfeit all rights and interests in such Excess Stock. In
addition, certain Beneficial Owners or Constructive Owners must give written
notice as to certain information on demand and on an annual basis. All
capitalized terms in this legend have the meanings defined in the Charter.
The Corporation will mail without charge to any requesting stockholder a copy
of the Charter, including the express terms of each class and series of the
authorized capital stock of the Corporation, within five days after receipt of
a written request therefor.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ___________Custodian ___________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with rights of under Uniform Gifts to Minors
survivorship and not as tenants Act__________________________
in common (State)
NIF TRF MIN ACT -- _______ Custodian (until age_____)
(Cust)
_______________ under Uniform Transfers
(Minor)
to Minors Act_____________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, __________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________________
____________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
____________________________________________________________________________
____________________________________________________________________________
______________________________________________________________________Shares
of the preferred stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
____________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_________________________
__________________________________________
__________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WIT THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER
Signature(s) Guaranteed
By_____________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
