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): MAY 15, 1997
SIMON DEBARTOLO GROUP, L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 333-11491 34-1755769
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 WEST WASHINGTON STREET
INDIANAPOLIS, INDIANA 46204
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: (317) 636-1600
NOT APPLICABLE
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
On May 15, 1997, Simon DeBartolo Group, L.P. (the "Issuer"),
established a program for the issuance from time to time of up to
$300,000,000 aggregate principal amount of the Issuer's Medium-Term Notes
Due Nine Months or More from Date of Issue (the "Notes"). The due and
punctual payment of the principal of, premium (if any) and interest on, and
any other amounts payable with respect to, the Notes is guaranteed by Simon
Property Group, L.P. (the "Guarantor"). Any issuance of the Notes will be
pursuant to the joint registration statement on Form S-3 of the Issuer and
the Guarantor (Registration No. 333-11491) (the "Registration Statement")
and the related Prospectus, dated November 21, 1996, and Prospectus
Supplement, dated May 15, 1997.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) The following exhibits are filed as part of this Report and as
part of the Registration Statement:
EXHIBIT NO. DESCRIPTION
1 Form of Distribution Agreement relating to the Notes
4 Form of Third Supplemental Indenture relating to the Notes
(including the forms of Fixed-Rate Note and Floating-Rate Note)
5 Opinion of Baker & Daniels, special counsel to the Issuer and
the Guarantor, as to the legality of the Notes
8 Opinion of Baker & Daniels, special counsel to the Issuer and
the Guarantor, as to certain federal tax matters
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Dated: May 15, 1997
SIMON DeBARTOLO GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By:
David Simon, Chief Executive Officer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
1 Form of Distribution Agreement relating to the Notes
4 Form of Third Supplemental Indenture relating to the Notes
(including the forms of Fixed-Rate Note and Floating-Rate Note)
5 Opinion of Baker & Daniels, special counsel to the Issuer and
the Guarantor, as to the legality of the Notes
8 Opinion of Baker & Daniels, special counsel to the Issuer and
the Guarantor, as to certain federal tax matters
EXECUTION COPY
SIMON DEBARTOLO GROUP, L.P.
(a Delaware limited partnership)
SIMON PROPERTY GROUP, L.P.
(a Delaware limited partnership)
Medium-Term Notes
Due Nine Months or More From Date of Issue
together with
the Guarantee
DISTRIBUTION AGREEMENT
May 15, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
SALOMON BROTHERS INC
UBS SECURITIES LLC
c/o Merrill Lynch & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
Simon DeBartolo Group, L.P., a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Chase Securities Inc.,
J.P. Morgan Securities Inc., Lehman Brothers Inc., Morgan Stanley & Co.
Incorporated, NationsBanc Capital Markets, Inc., Salomon Brothers Inc and UBS
Securities LLC (each, an "Agent", and collectively, the "Agents") with respect
to the issue and sale by the Operating Partnership of its Medium-Term Notes Due
Nine Months or More From Date of Issue (the "Notes"). The Notes are to be
issued pursuant to an indenture, dated as of November 26, 1996, as amended,
supplemented or modified from time to time, including the Third Supplemental
Indenture thereto dated as of May 15, 1997 (the "Indenture"), between the
Operating Partnership, the Guarantor (as defined below) and The Chase Manhattan
Bank, as trustee (the "Trustee"). As of the date hereof, the Operating
Partnership has authorized the issuance and sale of up to U.S.$300,000,000
aggregate initial offering price of Notes (or its equivalent, based upon the
exchange rate at the applicable trade date, in such foreign or composite
currencies as the Operating Partnership shall designate at the time of
issuance) to or through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Operating Partnership may from time to time
authorize the issuance of additional Notes and that such additional Notes may
be sold to or through the Agents pursuant to the terms of this Agreement, all
as though the issuance of such Notes were authorized as of the date hereof.
Simon Property Group, L.P., a Delaware limited partnership and a subsidiary of
the Operating Partnership (the "Guarantor", or "SPG, LP" and, together with the
Operating Partnership, the "Partnerships") will guarantee (the "Guarantee") the
due and punctual payment of the principal of, premium, if any, interest on, and
any other amounts with respect to, the Notes, when and as the same shall become
due and payable, whether at a maturity date, on redemption, by declaration of
acceleration or otherwise. As used herein, "Securities" shall mean the Notes
together with the Guarantee.
This Agreement provides both for the sale of Securities by the
Operating Partnership to one or more Agents as principal for resale to
investors and other purchasers and for the sale of Securities by the Operating
Partnership directly to investors (as may from time to time be agreed to by the
Operating Partnership and the applicable Agent), in which case such Agent will
act as an agent of the Operating Partnership in soliciting offers for the
purchase of the Securities.
The Partnerships have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No. 333-
11491) and pre-effective amendments Nos. 1, 2, 3 and 4 thereto for the
registration of debt securities of the Operating Partnership as guaranteed by
the Guarantor under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 430A or Rule
415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and the Partnerships have filed such post-effective
amendments thereto as may be required prior to any acceptance by the Operating
Partnership of an offer for the purchase of Securities. Such registration
statement (as so amended) has been declared effective by the Commission and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement, as so amended (and any
further registration statements which may be filed by the Partnerships for the
purpose of registering additional Securities and in connection with which this
Agreement is included or incorporated by reference as an exhibit) is referred
to herein as the "Registration Statement"; and the final prospectus, dated
November 21, 1996, constituting a part of the Registration Statement, and all
applicable amendments or supplements thereto (including the final prospectus
supplement and pricing supplement relating to the offering of Securities), in
the form first furnished to the applicable Agent(s), are collectively referred
to herein as the "Prospectus" (except that if any revised prospectus shall be
provided to the Agents by the Partnerships for use in connection with the
offering of the Notes, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents);
provided, however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"); provided, further, that if the Partnerships file a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the registration
statement became effective and any prospectus furnished by the Operating
Partnership after the registration statement became effective and before any
acceptance by the Operating Partnership of an offer for the purchase of
Securities which omitted 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. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated
herein and subject to the reservation by the Operating Partnership of the right
to sell Securities directly on its own behalf and through or to other dealers
or agents, the Operating Partnership hereby appoints each Agent as an agent of
the Operating Partnership for purpose of soliciting purchases of the Securities
from the Operating Partnership by others. The Operating Partnership may from
time to time offer Securities for sale otherwise than through an Agent;
PROVIDED, HOWEVER, that so long as this Agreement shall be in effect the
Operating Partnership shall not solicit offers to purchase Securities through
any other agent without amending this Agreement to appoint such other agent an
additional Agent hereunder on the same terms and conditions as provided herein
for the Agents and without giving the Agents prior notice of such appointment
(and each Agent hereby consents to any such amendment subject only to receipt
of prior notice thereof). In the absence of such an amendment, the Operating
Partnership may accept offers to purchase Securities from or through an agent
other than an Agent, PROVIDED that (i) the Operating Partnership shall not have
solicited such offers, (ii) the Operating Partnership and such agent shall have
executed an agreement with respect to such purchases having terms and
conditions (including, without limitation, commission rates) with respect to
such purchases substantially the same as the terms and conditions that would
apply to such purchases under this Agreement if such agent was an Agent (which
may be accomplished by incorporating by reference in such agreement the terms
and conditions of this Agreement) and (iii) the Operating Partnership shall
provide the Agents with a copy of such agreement promptly following the
execution thereof.
(b) SALE OF SECURITIES. The Operating Partnership shall not sell
or approve the solicitation of purchases of Securities in excess of the amount
which shall be authorized by the Operating Partnership from time to time or in
excess of the aggregate initial offering price of Securities registered
pursuant to the Registration Statement. The Agents shall have no
responsibility for maintaining records with respect to the aggregate initial
offering price of Securities sold, or of otherwise monitoring the availability
of Securities for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any
obligation to purchase Securities from the Operating Partnership as principal.
However, absent an agreement between an Agent and the Operating Partnership
that such Agent shall be acting solely as an agent for the Operating
Partnership, such Agent shall be deemed to be acting as principal in connection
with any offering of Securities by the Operating Partnership through such
Agent. Accordingly, the Agents, individually or in a syndicate, may agree from
time to time to purchase Securities from the Operating Partnership as principal
for resale to investors and other purchasers determined by such Agent or
Agents. Any such purchase of Securities from the Operating Partnership by an
Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the
Operating Partnership, such Agent, acting solely as agent for the Operating
Partnership and not as principal, will solicit offers for the purchase of the
Securities. Such Agent will communicate to the Operating Partnership, orally,
each offer to purchase Securities solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of
Securities, in whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein. The Operating Partnership may accept
or reject any proposed purchase of Securities, in whole or in part. Such Agent
shall make reasonable efforts to assist the Operating Partnership in obtaining
performance by each purchaser whose offer to purchase Securities has been
solicited by it on an agency basis and accepted by the Operating Partnership.
Such Agent shall not have any liability to the Operating Partnership in the
event that any such purchase is not consummated for any reason. If the
Operating Partnership shall default on its obligation to deliver Securities to
a purchaser whose offer has been solicited by such Agent on an agency basis and
accepted by the Operating Partnership, the Operating Partnership shall (i) hold
such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Operating Partnership and (ii) pay to such Agent
any commission to which it would otherwise be entitled absent such default.
(e) RELIANCE. The Operating Partnership and the Agents agree
that any Securities purchased by one or more Agents as principal shall be
purchased, and any Securities the placement of which one or more Agents
arranges as an agent of the Operating Partnership shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Transaction Entities (as hereinafter defined) contained herein and on
the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES BY THE TRANSACTION ENTITIES.
(a) The Operating Partnership, Simon DeBartolo Group, Inc., a
Maryland corporation, sole general partner of the Guarantor and a general
partner of the Operating Partnership (the "Company"), SD Property Group, Inc.
(formerly DeBartolo Realty Corporation ("DeBartolo")), an Ohio corporation and
the managing general partner of the Operating Partnership ("SD Property", and
together with the Company, the "General Partners", and collectively with the
Company and the Partnerships, the "Transaction Entities") and the Guarantor
represent and warrant, jointly and severally, to each Agent, as of the date
hereof, as of the date of each acceptance by the Operating Partnership of an
offer for the purchase of Securities (whether to such Agent as principal or
through such Agent as agent), as of the date of each delivery of Securities
(whether to such Agent as principal or through such Agent as agent) (the date
of each such delivery to such Agent as principal is referred to herein as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rate or formula
applicable to the Securities or similar changes)(each of the times referenced
above is referred to herein as a "Representation Date"), as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Partnerships meet the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Transaction Entities, 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 Transaction Entities, threatened
by the Commission or the state securities authority of any jurisdiction.
In addition, the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the most recent Annual Report on Form 10-K of
any of the Company, the Operating Partnership and the Guarantor with the
Commission (the "Form 10-Ks")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus and at each Representation Date, the
Prospectus and any amendments and supplements thereto did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If the Partnerships elect to rely upon Rule 434 of the 1933 Act
Regulations, the Partnerships will comply with the requirements of Rule
434. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Partnerships in writing by
any Agent expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement which
constitutes the Trustees' Statement of Eligibility under the 1939 Act
(the "Form T-1").
Each preliminary prospectus and Prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933
Act and the 1933 Act Regulations and, if applicable, each preliminary
prospectus and the Prospectus delivered to the Agents for use in
connection with the offering of the Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of the Securities, the Partnerships
have complied or will comply with the requirements of Rule 111 under the
1933 Act Regulations relating to the payment of filing fees therefor.
(2) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date
hereof, at the date of the Prospectus, and at each Representation Date,
or during the period in which a prospectus is required to be delivered,
did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Partnerships in writing by any Agent expressly for use in the
Registration Statement or the Prospectus or to that part of the
Registration Statement which constitutes the Form T-1.
(3) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) FINANCIAL STATEMENTS. The financial statements
included, or incorporated by reference, in the Registration Statement and
the Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the respective
entity or entities or group presented therein at the respective dates
indicated and the statement of operations, stockholders' equity and cash
flows of such entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included, or incorporated by reference, in the Registration Statement and
the Prospectus present fairly, in accordance with GAAP, the information
required to be stated therein. The selected financial data, the summary
financial information and other financial information and data included,
or incorporated by reference, in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included, or incorporated
by reference, in the Registration Statement and the Prospectus. In
addition, any pro forma financial information and the related notes
thereto included, or incorporated by reference, in the Registration
Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines and the guidelines of the American Institute of Certified
Public Accountants ("AICPA") with respect to pro forma information and
have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. All historical
financial statements and information and all pro forma financial
statements and information required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations are included, or
incorporated by reference, in the Registration Statement and the
Prospectus.
(5) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, the Partnerships, SD Property, 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
Simon Property Group (Delaware), Inc. and Jefferson Simon Property, Inc.
(collectively, the "Reit Subs") or any subsidiary of the Operating
Partnership (other than any Property Partnership (as defined below)) not
listed among the foregoing entities, (the Company, the Partnerships, SD
Property, 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 shares of the Company's common stock, par value $0.0001
per share (the "Common Stock"), the Class B Common Stock and Class C
Common Stock (each as defined below) in amounts per share that are
consistent with past practice, and except for regular quarterly
distributions of the required distributions with respect to the shares of
the Company's Series A and B Preferred Stock, par value $0.0001 per
share, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, (E) except
for distributions in amounts per unit of the Operating Partnership that
are consistent with past practices, there has been no distribution of any
kind declared, paid or made by either of the Partnerships on any of its
respective general, limited and/or preferred partnership interests, and
(F) 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) 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 Stock, the exchange of partnership interests in (a) the
Operating Partnership ("OP Units") or (b) SPG, L.P. ("LP Units" and
together with the OP Units, the "Units"), or upon the exchange of shares
of Class B Common Stock, par value $0.0001 per share (the "Class B Common
Stock"), or upon the exchange of Class C Common Stock, par value $0.0001
per share (the "Class C Common Stock"), 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 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. All of the
issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable,
and have been offered and sold in compliance with all applicable laws
(including without limitation, federal or state securities laws).
(7) GOOD STANDING OF THE OPERATING PARTNERSHIP. The
Operating Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with the requisite power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good standing
in each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. SD Property is the
managing general partner of the Operating Partnership and the Company is
a general partner of the Operating Partnership. The amended and restated
agreement of limited partnership of the Operating Partnership (the "OP
Partnership Agreement") is in full force and effect in the form in which
it was incorporated by reference as an exhibit to the Registration
Statement, except for subsequent amendments relating to the admission of
new partners to the Operating Partnership.
(8) GOOD STANDING OF SPG, LP. SPG, LP is duly organized
and validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with the requisite power and authority to
own, lease and operate its properties, to conduct the business in which
it is engaged and proposes to engage as described in the Prospectus and
to enter into and perform its obligations under this Agreement. SPG, LP
is duly qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or registration
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. The Company is the
sole general partner of SPG, L.P. The amended and restated agreement of
limited partnership of SPG, L.P. (the "SPG, L.P. Partnership Agreement")
is in full force and effect in the form in which it was filed as an
exhibit to the Company's Registration Statement on Form S-4 (No. 333-
06933), except for subsequent amendments relating to the admission of new
partners to SPG, L.P.
(9) GOOD STANDING OF SIMON DEBARTOLO ENTITIES. Each of the
Simon DeBartolo Entities other than the Partnerships has been duly
organized and is validly existing as a corporation, limited partnership,
limited liability company or other entity, as the case may be, in good
standing under the laws of the state of its jurisdiction of incorporation
or organization, as the case may be, with the requisite power and
authority to own, lease and operate its properties, and to conduct the
business in which it is engaged or proposes to engage as described in the
Prospectus. Each such entity is duly qualified or registered as a
foreign corporation, limited partnership or limited liability company or
other entity, as the case may be, to transact business and is in good
standing in each jurisdiction in which such qualification or registration
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock or other equity interests of each
such entity has been duly authorized and validly issued and is fully paid
and non-assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state
securities laws) and are owned by the Company, the Management Companies
or the Partnerships, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any capital
stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or any other securities of
such entities, except as disclosed in the Prospectus. No such shares of
capital stock or other equity interests of such entities were issued in
violation of preemptive or other similar rights arising by operation of
law, under the charter or bylaws or such entity or under any agreement to
which any Simon DeBartolo Entity is a party.
(10) GOOD STANDING OF PROPERTY PARTNERSHIPS. Each of the
Property Partnerships is duly organized and validly existing as a limited
or general partnership, as the case may be, in good standing under the
laws of its respective jurisdiction of formation. Each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged. Each of the partnership agreements of the Property Partnerships
is in full force and effect. Each of the Property Partnerships is duly
qualified or registered as a foreign partnership to transact business and
is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(11) AUTHORIZATION OF SPG, LP PARTNERS' EQUITY. All the
issued and outstanding units of general, limited and/or preferred partner
interests of SPG, LP ("SPG, LP partners' equity") have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities laws).
There are no outstanding securities convertible into or exchangeable for
any units of SPG, LP partners' equity and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
units of SPG, LP partners' equity.
(12) AUTHORIZATION OF SECURITIES. The Notes and the related
Guarantee have been duly authorized by all necessary action by the Boards
of Directors of the General Partners, as applicable, and, when the
variable terms of the Notes have been established by the authorized
officers of the General Partners to whom such authority has been
delegated and the Notes and the Guarantee have been executed and
authenticated in the manner provided for in the Indenture and delivered
by the Operating Partnership pursuant to this Agreement and any
applicable Pricing Supplement against payment of the consideration
therefor, (a) the Notes and the Guarantee will constitute valid and
legally binding, unsecured obligations of the Partnerships, enforceable
against the Partnerships in accordance with their terms, except as the
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, (ii) by general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and (iii) except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Notes and
the Guarantee denominated other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States; and (b)
each registered holder of Notes will be entitled to the benefits of the
Indenture. The Notes and the Guarantee are or will be in the form
contemplated by the Indenture. The Notes, when issued, rank and will
rank on a parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or
that may be incurred thereafter, except that the Notes will be
effectively subordinate to the prior claims of each secured mortgage
lender to any specific Portfolio Property which secures such lender's
mortgage and any claims of creditors of Joint Venture Properties.
(13) AUTHORIZATION OF THE INDENTURE. The Indenture has
been, or prior to the issuance of the Notes and the related Guarantee
thereunder will have been, duly authorized, executed and delivered by the
Partnerships and, upon such authorization, execution and delivery, will
constitute a valid and legally binding agreement of the Partnerships,
enforceable against the Partnerships, as applicable, in accordance with
its terms, except as the enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally, (ii) by general
equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law), (iii) requirements that a claim with
respect to any debt securities issued under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (iv) governmental authority to limit, delay or prohibit
the making of payments outside the United States. The Indenture has been
duly qualified under the 1939 Act and conforms, in all material respects,
to the descriptions thereof contained in the Prospectus.
(14) DESCRIPTIONS OF THE SECURITIES. The Indenture and the
Securities, as of the date of the Prospectus conform, and, when issued
and delivered in accordance with the terms of this Agreement, the
Indenture and the applicable Pricing Supplement will conform, in all
material respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement and will comply with all applicable legal requirements.
(15) AUTHORIZATION OF THIS AGREEMENT. This Agreement has
been duly authorized, executed and delivered by each of the Transaction
Entities, to the extent each is a party thereto, and assuming due
authorization, execution and delivery by the Agents, is a valid and
legally binding agreement of each of the Transaction Entities, to the
extent each is a party thereto.
(16) ABSENCE OF DEFAULTS AND CONFLICTS. None of the Simon
DeBartolo Entities or any Property Partnership is in violation of the
provisions 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 Agreement, the Indenture, the Securities and any
other agreement or instrument entered into or issued or to be entered
into or issued by any of the Transaction Entities 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 Securities and the use of the
proceeds from the sale of the Securities as described under the caption
"Use of Proceeds") and compliance by each of the Transaction Entities
with its obligations hereunder and thereunder, and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets, properties or operations of
the Operating Partnership or any other Simon DeBartolo Entity or any
Property Partnership pursuant to, any Agreements and Instruments, except
for such conflicts, breaches, defaults, Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the respective partnership agreement and certificate of limited
partnership of the Partnerships or the organizational documents of any
other Simon DeBartolo Entity or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership, any other Simon DeBartolo Entity or any
Property Partnership or any of their assets, properties or operations,
except for such violations that would not have a Material Adverse Effect.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a material portion of such
indebtedness by the Operating Partnership, any other Simon DeBartolo
Entity or any Property Partnership.
(17) ABSENCE OF LABOR DISPUTE. Except as otherwise
described or incorporated by reference in the Registration Statement and
the Prospectus, no labor dispute with the employees of the Operating
Partnership or any other Simon DeBartolo Entity or any Property
Partnership exists or, to the knowledge of the Transaction Entities, is
imminent, and the Transaction Entities are not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which dispute or disturbance, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(18) 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 Transaction Entities threatened against or affecting the
Operating Partnership, any other Simon DeBartolo Entity thereof, or any
Property Partnership or any officer or director of the Operating
Partnership which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated or incorporated by
reference 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 Agreement or the Indenture or the
transactions contemplated herein or therein. The aggregate of all
pending legal or governmental proceedings to which the Operating
Partnership or any other Simon DeBartolo Entity, or any Property
Partnership is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to their business, could not reasonably be expected
to result in a Material Adverse Effect.
(19) 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 except as described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein.
(20) REIT QUALIFICATION. At all times since January 1, 1994
the Company has been, and upon the sale of any 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
current 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.
(21) INVESTMENT COMPANY ACT. Each of the Operating
Partnership, the other Simon DeBartolo Entities and the Property
Partnerships is not, and upon the issuance and sale of the 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").
(22) INTELLECTUAL PROPERTY. To the knowledge of the
Transaction Entities, none of the Simon DeBartolo Entities or the
Property Partnerships is required to own, possess or obtain the consent
of any holder of any Material 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.
(23) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the
performance by each of the Transaction Entities of its obligations under
this Agreement or the Indenture or in connection with the transactions
contemplated under this Agreement or the Indenture, except such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws or under the by-laws and
rules of the National Association of Securities Dealers, Inc. (the
"NASD").
(24) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and the other Simon DeBartolo Entities and each Property
Partnership possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except for
such Governmental Licenses, the failure to obtain would not, singly or in
the aggregate, result in a Material Adverse Effect. The Operating
Partnership and the other Simon DeBartolo Entities and each Property
Partnership are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in
a Material Adverse Effect. Neither the Operating Partnership nor any of
the other Simon DeBartolo Entities nor any Property Partnership has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(25) TITLE TO PROPERTY. The Operating Partnership, the
other Simon DeBartolo Entities and the Property Partnerships have good
and marketable title to the Portfolio Properties and all other assets
owned by them free and clear of Liens, except (A) as otherwise stated in
the Registration Statement and the Prospectus, or referred to in any
title policy for such Portfolio Property, or (B) those which do not,
singly or in the aggregate, Materially (i) affect the value of such
property or (ii) interfere with the use made and proposed to be made of
such property by the Operating Partnership, any other Simon DeBartolo
Entity or any Property Partnership. All leases and subleases under which
the Operating Partnership, any other Simon DeBartolo Entity or any
Property Partnerships hold properties are in full force and effect,
except for such which would not have a Material Adverse Effect. Neither
the Operating Partnership, the other Simon DeBartolo Entities nor the
Property Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the rights of the
Operating Partnership, any other Simon DeBartolo Entity or the Property
Partnerships under any material leases or subleases, or affecting or
questioning the rights of the Operating Partnership, such other Simon
DeBartolo Entity or the Property Partnerships of the continued possession
of the leased or subleased premises under any such lease or sublease,
other than claims that would not have a Material Adverse Effect. All
liens, charges, encumbrances, claims or restrictions on or affecting any
of the Portfolio Properties and the assets of any Simon DeBartolo Entity
or any Property Partnership which are required to be disclosed in the
Prospectus are disclosed therein. None of the Simon DeBartolo Entities,
the Property Partnerships or any tenant of any of the Portfolio
Properties is in default under any of the ground leases (as lessee) or
space leases (as lessor or lessee, as the case may be) relating to, or
any of the mortgages or other security documents or other agreements
encumbering or otherwise recorded against, the Portfolio Properties, and
none of the Transaction Entities 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 Partnerships or any Property Partnership, as lessor, leases its
Portfolio Property, has an option or right of first refusal to purchase
the premises demised under such lease, the exercise of which would have a
Material Adverse Effect. Each of the Portfolio Properties complies with
all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Portfolio Properties), except for such failures
to comply that would not in the aggregate have a Material Adverse Effect.
None of the Transaction Entities 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.
(26) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Operating Partnership, any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree of judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Operating Partnership, the other Simon
DeBartolo Entities and the Property Partnerships have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental
Law against the Operating Partnership, any of the other Simon DeBartolo
Entities or the Property Partnerships and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Operating Partnership, any of the other Simon DeBartolo Entities or
any Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(27) 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.
(28) 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.
(29) COMPLIANCE WITH CUBA ACT. The Company and the
Operating Partnership have complied with, and each 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.
(30) INVESTMENT GRADE RATING. The Securities will have an
investment grade rating from two or more nationally recognized
statistical rating organizations at each applicable Representation Date.
Further, the Medium-Term Note Program under which the Securities are
issued (the "Program"), as well as the Securities, are rated Baa1 by
Moody's Investors Service, Inc. ("Moody's"), BBB by Standard & Poor's
Ratings Service ("S&P"), and BBB+ by Fitch Investors Services, L.P.
("Fitch"), or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(31) 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.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any
officer of the Operating Partnership or any authorized representative of either
of the Company, SPG, L.P. and SD Property and delivered to any Agent or to
counsel for the Agents in connection with an offering of the Securities shall
be deemed a representation and warranty by such entity or person, as the case
may be, to each Agent 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 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Securities purchased from the
Operating Partnership by the Agents, individually or in a syndicate, as
principal shall be made in accordance with terms agreed upon between such Agent
or Agents and the Operating Partnership (which terms, unless otherwise agreed,
shall, to the extent applicable, include those terms specified in EXHIBIT A
hereto and be agreed upon orally, with written confirmation prepared by such
Agent or Agents and mailed to the Operating Partnership). An Agent's
commitment to purchase Securities as principal shall be deemed to have been
made on the basis of the representations and warranties of the Transaction
Entities herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires, references herein to
"this Agreement" shall include the applicable agreement of one or more Agents
to purchase Securities from the Operating Partnership as principal. Each
purchase of Securities, unless otherwise agreed, shall be at a discount from
the principal amount of each such Note equivalent to the applicable commission
set forth in SCHEDULE A hereto. The Agents may engage the services of any
other broker or dealer in connection with the resale of the Securities
purchased by them as principal and may allow all or any portion of the discount
received from the Operating Partnership in connection with such purchases to
such brokers and dealers. At the time of each purchase of Securities from the
Partnerships by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the stand-off agreement, officers' certificate,
opinions of counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c)
and 7(d) hereof. If the Operating Partnership and two or more Agents enter
into an agreement pursuant to which such Agents agree to purchase Securities
from the Operating Partnership as principal and one or more of such Agents
shall fail at the Settlement Date to purchase the Securities which it or they
are obligated to purchase (the "Defaulted Notes"), then the nondefaulting
Agents shall have the right, within 24 hours thereafter, to make arrangements
for one of them or one or more other Agents or underwriters to purchase all,
but not less than all, of the Defaulted Notes in such amounts as may be agreed
upon and upon the terms herein set forth; provided, however, that if such
arrangements shall not have been completed within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Notes
does not exceed 10% of the aggregate principal amount of Securities
to be so purchased by all of such Agents on the Settlement Date,
the nondefaulting Agents shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions
that their respective initial underwriting obligations bear to the
underwriting obligations of all nondefaulting Agents; or
(2) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Securities to be
so purchased by all of such Agents on the Settlement Date, such
agreement shall terminate without liability on the part of any
nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Operating Partnership shall have the right to
postpone the Settlement Date 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.
(b) SOLICITATIONS AS AGENT. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Operating Partnership and an Agent, such Agent,
as an agent of the Operating Partnership, will use its reasonable efforts to
solicit offers to purchase the Securities upon the terms and conditions set
forth herein and in the Prospectus. The Agents are not authorized to appoint
sub-agents with respect to Securities sold through them as agent. All
Securities sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Operating Partnership and
such Agent.
The Operating Partnership reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Securities
through an Agent, as an agent of the Operating Partnership, commencing at any
time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Operating Partnership, such Agent will suspend
solicitation of offers to purchase the Securities from the Operating
Partnership until such time as the Operating Partnership has advised such Agent
that such solicitation may be resumed.
The Operating Partnership agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Security sold by the Operating Partnership as a result of a
solicitation made by such Agent as set forth in SCHEDULE A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate
or formula, maturity date and other terms of the Securities (as applicable)
specified in EXHIBIT A hereto shall be agreed upon by the Operating Partnership
and the applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with
each sale of Securities. Except as may be otherwise specified in the
applicable Pricing Supplement, the Securities will be issued in denominations
of U.S. $1,000 or any larger amount that is an integral multiple of U.S.
$1,000. Administrative procedures with respect to the issuance and sale of
Securities shall be agreed upon from time to time by the Operating Partnership,
the Agents and the Trustee (the "Procedures"). The Agents and the Operating
Partnership agree to perform, and the Operating Partnership agrees to cause the
Trustee to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE TRANSACTION ENTITIES.
Each of the Transaction Entities covenants with each Agent as
follows:
(a) NOTICE OF CERTAIN EVENTS. The Partnerships will notify the
Agents immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any amendment or supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) the receipt of any comments
from the Commission with respect to the Registration Statement or the
Prospectus, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose and (vi) any change in the rating assigned by
any nationally recognized statistical rating organization to the Program or any
debt securities of the Operating Partnership or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any debt securities of the Operating Partnership, or the withdrawal
by any nationally recognized statistical rating organization of its rating of
the Program or any such debt securities. The Partnerships will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Partnerships will
give Merrill Lynch, on behalf of the Agents, advance notice of their intention
to file or prepare any additional registration statement with respect to the
registration of additional Securities, any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations)
or any amendment or supplement to the Prospectus whether by filing of documents
pursuant to the 1934 Act or the 1933 Act or otherwise, and will furnish to
Merrill Lynch, on behalf of the Agents, copies of any such amendment or
supplement or other documents proposed to be filed or used a reasonable time in
advance of such proposed filing or use, as the case may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Partnerships will deliver to the Agents and to counsel for the Agents without
charge as many signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agents or counsel to the Agents reasonably
request. The Partnerships will furnish to the Agents and to counsel for the
Agents without charge as many copies of the Prospectus (as amended or
supplemented) as the Agents or counsel to the Agents reasonably request so long
as the Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Securities. The Registration Statement
and each amendment thereto and the Prospectus and any amendments or supplements
thereto furnished to the Agents or counsel to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Partnerships will
prepare, with respect to any Securities to be sold to or through one or more
Agents pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by the Agents. The Operating
Partnership will deliver such Pricing Supplement no later than 11:00 a.m., New
York City time, on the business day following the date of the Operating
Partnership's acceptance of the offer for the purchase of such Securities and
will file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act
not later than the close of business of the Commission on the fifth business
day after the date on which such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS - MATERIAL CHANGES. Except as
otherwise provided in subsection (l) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Partnerships, to amend or supplement the Prospectus in order that the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be necessary in the
opinion of either such counsel, 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 if it shall be
necessary, in the opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Partnerships
shall give immediate notice, confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Securities in their capacity as agents
and to cease sales of any Securities they may then own as principal, and the
Partnerships will promptly prepare and file such amendment to the Registration
Statement or supplement to the Prospectus, subject to Section 4(b) hereof,
whether by filing documents pursuant to the 1934 Act or the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such requirements
and the Operating Partnership will furnish to the Agents, without charge, such
number of copies of such amendment or supplement as the Agents may reasonably
request. In addition, the Partnerships will comply with the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of each offering of Securities.
(f) PROSPECTUS REVISIONS - PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Partnerships with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Partnerships shall
furnish such information to the Agents, confirmed in writing, and shall cause
the Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) PROSPECTUS REVISIONS - AUDITED FINANCIAL INFORMATION. Except
as otherwise provided in subsection (l) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Partnerships for the preceding fiscal year, the Partnerships shall furnish such
information to the Agents, confirmed in writing, and shall cause the
Registration Statement and the Prospectus to be amended or supplemented, as the
case may be, whether by the filing of documents pursuant to the 1934 Act or the
1933 Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Partnerships will make generally
available to their security holders as soon as practicable, but not later than
90 days after the close of the period covered thereby, an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering each twelve month
period beginning, in each case, not later than the first day of the Operating
Partnership's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to each sale of
Securities.
(i) BLUE SKY QUALIFICATIONS. The Partnerships will use their
best efforts, in cooperation with the Agents, to qualify the Securities for
offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions of the United States as
the Agents may designate, as applicable, and will maintain such qualifications
in effect for as long as may be required for the distribution of the
Securities; PROVIDED, HOWEVER, that neither Partnership shall be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The
Partnerships will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been qualified as above
provided. The Partnerships will promptly advise the Agents of the receipt by
the Partnerships of any notification with respect to the suspension of the
qualification of the Securities for sale in any such state or jurisdiction or
the initiating or threatening of any proceeding for such purpose.
(j) REPORTING REQUIREMENTS. During the term of this Agreement,
the Partnerships will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) STAND-OFF AGREEMENT. If required pursuant to the terms of
any agreement entered into between one or more Agents acting as principal and
the Operating Partnership, between the date of the agreement to purchase such
Securities from the Operating Partnership and the Settlement Date with respect
to such purchase, the Operating Partnership will not, without the prior written
consent of such Agent or Agents, offer or sell, issue, grant any option for the
sale of, or enter into any agreement to sell, or otherwise dispose of, any debt
securities of the Operating Partnership (other than the Securities that are to
be sold pursuant to such agreement and commercial paper in the ordinary course
of business). This agreement of the Operating Partnership shall herein be
referred to as the "Stand-Off Agreement."
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Partnerships shall
not be required to comply with the provisions of subsection (e), (f) or (g) of
this Section during any period from the time (i) the Agents shall have
suspended solicitation of offers to purchase the Securities in their capacity
as agents pursuant to a request from the Operating Partnership and (ii) no
Agent shall then hold any Securities purchased as principal pursuant hereto,
until the time the Operating Partnership shall determine that solicitation of
offers to purchase the Securities should be resumed or an Agent shall
subsequently purchase Securities from the Operating Partnership as principal.
(m) USE OF PROCEEDS. The Operating Partnership will use the net
proceeds received by it from the issuance and sale of the Securities in the
manner specified in the Prospectus.
(n) QUALIFICATION AS REAL ESTATE INVESTMENT TRUST. The Company
will use its best efforts to continue to meet the requirements to qualify as a
"real estate investment trust" under the Code for the taxable year in which
sales of the Securities are to occur, unless otherwise specified in the
Prospectus.
(o) RATINGS. The Partnerships will take all reasonable action
necessary to enable two or more of S&P, Moody's, Fitch or any other nationally
recognized statistical rating organization selected by the Agents to provide
their respective credit ratings of the Program as specified in Section 2(a)(30)
hereto.
SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of one or more Agents to purchase Securities as
principal and to solicit offers to purchase the Securities as an agent of the
Operating Partnership, and the obligations of any purchasers of the Securities
sold through an Agent as agent, will be subject to the accuracy of the
representations and warranties of the Transaction Entities herein contained and
to the accuracy of the statements of the officers or authorized representatives
of the Partnerships or any other Simon DeBartolo Entity, made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Transaction Entities of all its covenants, agreements and
other obligations herein contained and to the following additional conditions
precedent:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act; no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agents; and no state securities authority of any
jurisdiction shall have suspended the qualification or registration of the
Securities for offering or sale in such jurisdiction and no proceedings for
that purpose shall have been instituted or shall be pending or threatened.
(b) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to counsel for the Agents:
(1) OPINION OF COUNSEL FOR THE TRANSACTION ENTITIES. At
the date hereof, the Agents shall have received the favorable opinions,
dated as of the date hereof, of Baker & Daniels, special securities
counsel for the Transaction Entities, Piper & Marbury, LLP, special
Maryland counsel for the Transaction Entities, Vorys, Sater, Seymour and
Pease, special Ohio counsel to the Transaction Entities and James M.
Barkley, the General Counsel of the Transaction Entities or such other
counsel as is designated by the Operating Partnership in form and
substance satisfactory to counsel for the Agents, to the effect set forth
in Exhibits B-1, B-2, B-3 and B-4 hereto, respectively, or to such
further effect as counsel to the Agents may reasonably request.
(2) OPINION OF COUNSEL FOR THE AGENTS. At the date hereof,
the Agents shall have received the favorable opinion, dated as of the
date hereof, of Rogers & Wells, counsel for the Agents, or such other
counsel as may be designated by the Agents, with respect to the matters
set forth in (1) of Exhibit B-2 hereto, (2) (with respect to the first
clause only), (3) (with respect to the first clause only), (4) (with
respect to SD Property only and with respect to the first clause only)
and (8) (with respect to the first two clauses only) of Exhibit B-4
hereto, (1), (6), (7), (8) and the last three paragraphs of Exhibit B-1
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 the Agents. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers or authorized
representatives of the Partnerships and the other Simon DeBartolo
Entities and certificates of public officials.
(c) OFFICER'S CERTIFICATE. At the date hereof, the Agents shall
have received a certificate of (x) the Chief Executive Officer, President or a
Vice President and of the chief financial officer or chief accounting officer
of the Company for itself, as a general partner of the Operating Partnership
and as the sole general partner of Guarantor and (y) the Chief Executive
Officer, President or a Vice-President of and the chief financial or accounting
officer of SD Property, for itself and as managing general partner of the
Operating Partnership, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Prospectus
or since the date of any agreement by one or more Agents to purchase Securities
as principal, or since the date of any applicable Pricing Supplement there has
not been any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Partnerships
and the other Simon DeBartolo Entities considered as one enterprise, whether or
not arising in the ordinary course of business, (ii) the representations and
warranties of the Transaction Entities contained in Section 2 hereof are true
and correct with the same force and effect as though expressly made at and as
of the date of such certificate, (iii) the Transaction Entities have performed
or complied with all agreements and satisfied all conditions on their part to
be performed or satisfied at or prior to the date of such certificate, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or, to the best of such officer's knowledge, are threatened by the
Commission. As used in this Section 5(c), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or Agents for use
in confirming sales of the Securities.
(d) COMFORT LETTER OF ARTHUR ANDERSEN LLP. On the date hereof,
and at each Settlement Date, the Agents shall have received a letter from
Arthur Andersen LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect set forth in EXHIBIT
C hereto.
(e) RATINGS. At the Settlement Date and at any relevant
Representation Date, the Securities shall have at least the ratings as
specified in Section (2)(a)(30) hereto, and the Partnerships shall have
delivered to the Agents evidence satisfactory to the Agents, confirming
that the Securities have such ratings. Since the time of acceptance by
the Operating Partnership of any offer to purchase a Note, there shall
not have occurred a downgrading in the rating assigned to the Program or
any other debt securities of the Operating Partnership or any of the
Company's, or Guarantor'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 Program or any of the Company's,
Guarantor's or the Operating Partnership's other securities.
(f) NO OBJECTION. If the Registration Statement or an offering
of 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.
(g) Intentionally Omitted.
(h) ADDITIONAL DOCUMENTS. On the date hereof and on each
Settlement Date, counsel to the Agents shall have been furnished with
such documents and opinions as such counsel may reasonably require for
the purpose of enabling such counsel to pass upon the issuance and sale
of Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Partnerships in connection
with the issuance and sale of Securities as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the
Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Operating
Partnership at any time and any such termination shall be without liability of
any party to any other party, except that the covenant regarding provision of
an earnings statement set forth in Section 4(h) hereof, the provisions
concerning payment of expenses under Section 10 hereof, the indemnity and
contribution agreement set forth in Sections 8 and 9 hereof, the provisions
concerning the representations, warranties and agreements to survive the
delivery set forth in Section 11 hereof, the provisions relating to governing
law set forth in Section 15 and the provisions relating to parties set forth in
Section 14 hereof shall remain in effect; provided, however, that an Agent's
termination of this Agreement shall terminate this Agreement only as between
such Agent and the Transaction Entities.
SECTION 6. DELIVERY OF AND PAYMENT FOR SECURITIES SOLD THROUGH AN AGENT.
Delivery of Securities sold through an Agent as agent shall be made
by the Operating Partnership to such Agent for the account of any purchaser
only against payment therefor in immediately available funds. In the event
that a purchaser shall fail either to accept delivery of or to make payment for
a Note on the date fixed for settlement, such Agent shall promptly notify the
Operating Partnership and deliver such Note to the Operating Partnership and,
if such Agent has theretofore paid the Operating Partnership for such Note, the
Operating Partnership will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Operating Partnership will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Operating Partnership's account.
SECTION 7. ADDITIONAL COVENANTS OF THE TRANSACTION ENTITIES.
Each of the Transaction Entities further covenants and agrees with
each Agent as follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by the Operating Partnership of an offer for the purchase of
Securities (whether to one or more Agents as principal or through an Agent as
agent), and each delivery of Securities (whether to one or more Agents as
principal or through an Agent as agent), shall be deemed to be an affirmation
that the representations and warranties of the Transaction Entities contained
in this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to such Agent or Agents or to
the purchaser or its agent, as the case may be, of the Securities relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the
Securities or similar changes, and other than by an amendment or supplement
which relates exclusively to the issuance of securities other than the
Securities), (ii) there is filed with the Commission any document incorporated
by reference into the Prospectus (other than any Current Report on Form 8-K,
unless the Agents shall otherwise specify), (iii) (if required in connection
with the purchase of Securities by one or more Agents as principal) the
Operating Partnership sells Securities to one or more Agents as principal or
(iv) the Operating Partnership issues and sells Securities in a form not
previously certified to the Agents by the Partnerships, the Partnerships shall
furnish or cause to be furnished to the Agent(s) forthwith a certificate dated
the date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(c) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate (it being understood that, in the case
of clause (iii) above, any such certificate shall also include a certification
that there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Simon DeBartolo Entities considered as one enterprise since the date of the
agreement by such Agent(s) to purchase Securities from the Operating
Partnership as principal).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the
Securities or similar changes or solely for the inclusion of additional
financial information, and other than by an amendment or supplement which
relates exclusively to the issuance of securities other than the Securities),
(ii) there is filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K, unless the
Agents shall otherwise specify), (iii) (if required in connection with the
purchase of Securities by one or more Agents as principal) the Operating
Partnership sells Securities to one or more Agents as principal, or (iv) the
Operating Partnership issues and sells Securities in a form not previously
certified to the Agents by the Partnerships, the Partnerships shall furnish or
cause to be furnished forthwith to the Agent(s) and to counsel to the Agents
the written opinions of the various counsel to the Transaction Entities, or
other counsel satisfactory to the Agent(s), dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent(s), of the same tenor as the opinions referred to (x)
in the case of clauses (i), (ii) (with respect to the Annual Report on Form 10-
K) and (iii) above, in Exhibits B-1, B-2, B-3 and B-4 hereof and (y) in the
case of clause (ii) above (with respect to all documents so filed, except for
the 10-K), in Exhibits B-1 (Items 1, 2, 5, 6, 7, 9 and the last three
paragraphs thereof) and B-4, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agent(s) with a letter
substantially to the effect that the Agent(s) may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information (other than by an amendment or
supplement which relates exclusively to the issuance of securities other than
the Securities), (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus which contains additional
financial information (other than any Current Report on Form 8-K relating
exclusively to supplemental information or earnings releases, each in
connection with quarterly or annual financial results of the Company or either
of the Partnerships), or (iii) (if required in connection with the purchase of
Securities by one or more Agents as principal) the Operating Partnership sells
Securities to one or more Agents as principal, the Partnerships shall cause
Arthur Andersen LLP forthwith to furnish to the Agent(s) a letter, dated the
date of effectiveness of such amendment, supplement or document with the
Commission, or the date of such sale, as the case may be, in form satisfactory
to the Agent(s), of the same tenor as the letter referred to in Section 5(d)
hereof but modified to relate to the Registration Statement and Prospectus as
amended and supplemented to the date of such letter, and with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company or the
Partnerships.
(e) SUBSTANTIALLY CONTEMPORANEOUS FILINGS. In any case where two
or more of the Transaction Entities contemporaneously file with the Commission
documents incorporated by reference into the Prospectus (e.g., the filing of
Annual Reports on Form 10-K), then it shall not be necessary for separate
certificates, opinions and comfort letters to be delivered pursuant to this
Section 7 upon each such filing, and a single set of certificates, opinions and
comfort letters, each dated the date of the latest such filing, shall suffice.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). The Transaction Entities
agree, jointly and severally, to indemnify and hold harmless each Agent
and each person, if any, who controls any Agent 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 an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information filed
with the Commission pursuant to Rule 430A or Rule 434 of the 1933 Act
Regulations (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
an untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 8(d) below) any such settlement is effected with the written
consent of the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
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 an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Agent expressly for use 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).
(b) INDEMNIFICATION OF THE TRANSACTION ENTITIES, DIRECTORS AND
OFFICERS. Each Agent severally agrees to indemnify and hold harmless the
Transaction Entities, each of the General Partners' directors, each of the
General Partners' officers who signed the Registration Statement (or signs any
amendment thereto), and each person, if any, who controls the Transaction
Entities 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 Section 8(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Operating Partnership by
such Agent expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 8(a) above, counsel to the indemnified parties shall be
selected by the applicable Agent(s), and, in the case of parties indemnified
pursuant to Section 8(b) hereof, counsel to the indemnified parties shall be
selected by the Operating Partnership. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 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 8(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 9. CONTRIBUTION.
If the indemnification provided for in Section 8 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 Transaction Entities, on the one hand, and
the applicable Agent(s), on the other hand, from the offering of the Securities
that were the subject of the claim for indemnification 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 Transaction Entities,
on the one hand, and the applicable Agent(s), on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Transaction Entities, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Securities that were the subject of the claim for
indemnification shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Securities (before deducting
expenses) received by the Operating Partnership and the total discount or
commission received by each applicable Agent, 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
Securities as set forth on such cover.
The relative fault of the Transaction Entities, on the one hand, and the
Agents, 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 Transaction Entities or by the Agents and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Transaction Entities and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the applicable Agent(s) 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 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 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 9, no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering
of the Securities that were the subject of the claim for indemnification
exceeds the amount of any damages which such Agent 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. In addition,
in connection with an offering of Securities purchased from the Operating
Partnership by two or more Agents as principal, the respective obligations of
such Agents to contribute pursuant to this Section 9 are several, and not
joint, in proportion to the aggregate principal amount of Securities that each
such Agent has agreed to purchase from the Operating Partnership.
For purposes of this Section 9, each person, if any, who controls an
Agent 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 Agent, and each
director of the General Partners, each officer of the General Partners who
signed the Registration Statement (or signs any amendment thereto), and each
person, if any, who controls the Transaction Entities 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 Transaction Entities.
SECTION 10. PAYMENT OF EXPENSES.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the
Registration Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing, printing, delivery and reproduction
of this Agreement;
(c) The preparation, printing, issuance and delivery of the
Securities, including any fees and expenses relating to the eligibility and
issuance of Securities in book-entry form and the cost of obtaining CUSIP or
other identification numbers for the Securities;
(d) The fees and disbursements of the Operating Partnership's
accountants and counsel, of the Trustee and its counsel, and of any calculation
agent or exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the Program and
incurred from time to time in connection with the transactions contemplated
hereby (including the cost of providing any CUSIP or other identification
numbers for the Securities);
(f) The qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Securities;
(h) The preparation, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by S&P, Moody's, Fitch and any other
nationally recognized statistical rating organization for the rating of the
Program and the Securities;
(j) The fees and expenses incurred in connection with any listing
of Securities on a securities exchange;
(k) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the NASD;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Operating Partnership; and
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements, contained in this
Agreement or in certificates, of the Partnerships or authorized representatives
of each of the Transaction Entities submitted pursuant hereto or thereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Transaction Entities, and shall survive each delivery of
and payment for any of the Securities.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Securities as principal)
may be terminated for any reason, at any time by either the Partnerships or an
Agent, as to itself, upon the giving of 30 days' written notice of such
termination to the other party hereto; provided, however, that the Operating
Partnership may, if it so elects, terminate this Agreement as between itself
and one, some or all of the Agents by specifying the Agents with respect to
which this Agreement is to be terminated in the written notice of termination;
and provided, further, that any Agent may immediately terminate this Agreement
as between itself, the Operating Partnership and the Agents, if despite such
Agent's reasonable objection, the Operating Partnership files with the
Commission any document, notice of which filing is required to be given to such
Agent pursuant to Section 4(b) hereof.
(b) TERMINATION OF AGREEMENT TO PURCHASE SECURITIES AS PRINCIPAL.
The applicable Agent(s) may terminate any agreement hereunder by such Agent(s)
to purchase Securities as principal, immediately upon notice to the
Partnerships, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Operating Partnership and the other Simon
DeBartolo Entities considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or, if such
Securities are denominated and/or payable in, or indexed to, one or more
foreign or composite currencies, in the international financial markets, or any
outbreak of hostilities or escalation thereof or other national or
international calamity or crisis the effect of which is such as to make it, in
the judgment of such Agent(s), impracticable to market the Securities or
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of any of the Transaction Entities has been suspended or limited by
the Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium shall have been declared by either Federal, New York,
Delaware or Maryland authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies in which the Securities are denominated or
payable, or (iv) if the rating assigned by any nationally recognized
statistical rating organization to the Program, any debt securities of the
Operating Partnership or any of the Company's, Guarantor's or the Operating
Partnership's other securities as of the date of such agreement shall have been
lowered or withdrawn since that date or if any such rating organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Program or any debt securities of the
Operating Partnership or any of the Company's, Guarantor's or the Operating
Partnerships other securities, or (v) if there shall have come to the attention
of such Agent(s) any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at the time of such delivery, not misleading. As
used in this Section 12(b), the term "Prospectus" means the Prospectus in the
form first provided to the applicable Agent(s) for use in confirming sales of
the related Securities.
(c) TERMINATION OF AGREEMENT AS TO GUARANTOR. At such time as
the Guarantor's obligations under the Indenture terminate in accordance with
Section 1706 of the Indenture, all of the Guarantor's obligations under this
Agreement shall terminate, all representations and warranties contained in this
Agreement or in any certificate delivered pursuant hereto with respect to the
Guarantor or the Guarantee shall terminate, and any requirement thereafter for
the delivery of any certificates, opinions, comfort letters or other documents,
insofar as the same relate to the Guarantor or the Guarantee, shall terminate.
(d) GENERAL. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any
Agent shall own any Securities purchased by it as principal with the intention
of reselling them or (b) an offer to purchase any of the Securities has been
accepted by the Operating Partnership but the time of delivery to the purchaser
or his agent of the Note or Securities relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Securities are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(h) hereof, the provisions of Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand, by
mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to any of the Simon DeBartolo Entities:
Simon DeBartolo Group, L.P.
National City Center
115 West Washington Street
Suite 15 East
Indianapolis, Indiana 46204
Attention: David Simon
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone: 212-648-0818
Fax: (212) 449-2234
Chase Securities Inc.
270 Park Avenue - 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: 212-834-4421
Fax: 212-834-6081
Lehman Brothers Inc.
3 World Financial Center - 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone: 212-526-2040
Fax: 212-528-1718
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Attention: Medium-Term Note Desk
Telephone: 212-648-0591
Fax: 212-648-5907
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: 212-761-2000
Fax: 212-761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway
34th Floor
New York, New York 10036
Attention: Peter Cooper, Investment Banking Information
Center
Telephone: 212-761-8385
Fax: 212-761-0260
NationsBanc Capital Markets, Inc.
100 N. Tryon Street - 11th Floor
Charlotte, North Carolina 28255
Attention: MTN Department
Telephone: 704-386-6616
Fax: 704-388-9939
Salomon Brothers Inc
Seven World Trade Center - 42nd Floor
New York, New York 10048
Attention: Martha D. Bailey, Vice President
Telephone: 212-783-5897
Fax: 212-783-2274
UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Attention: Albert Rabil, Managing Director
Telephone: 212-821-6772
Fax: 212-821-3943
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. PARTIES.
This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in Sections 8 and 9 hereof and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and 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 Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Operating Partnership a
counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between the Agents, the General Partners and each of
the Partnerships in accordance with its terms.
Very truly yours,
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By:
Name: David Simon
Title: Chief Executive Officer
SIMON DEBARTOLO GROUP, INC.
By:
Name: David Simon
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By:
Name: David Simon
Title: Chief Executive Officer
SD PROPERTY GROUP, INC.
By:
Name: David Simon
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: ________________________________________
Name:
Title: Authorized Signatory
CHASE SECURITIES INC.
By: ________________________________________
Name:
Title: Authorized Signatory
J.P. MORGAN SECURITIES INC.
By: ________________________________________
Name:
Title: Authorized Signatory
LEHMAN BROTHERS INC.
By: ________________________________________
Name:
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: ________________________________________
Name:
Title: Authorized Signatory
NATIONSBANC CAPITAL MARKETS, INC.
By: ________________________________________
Name:
Title: Authorized Signatory
SALOMON BROTHERS INC
By: ________________________________________
Name:
Title: Authorized Signatory
UBS SECURITIES LLC
By: ________________________________________
Name:
Title: Authorized Signatory
EXHIBIT A
PRICING TERMS
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of
Securities.
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
LIBOR Reuters
LIBOR Telerate
Designated LIBOR Currency:
Designated LIBOR Page:
Reuters Page: _______
Telerate: _______
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
Weekly Average
Monthly Average
Designated CMT Maturity Index:
Interest Calculation:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Period:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Repayment Price: __%
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Exchange Rate Agent:
Additional/Other Terms:
Also, in connection with the purchase of Securities from the Company by one or
more Agents as principal, agreement as to whether the following will be
required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder, the Operating
Partnership shall pay the applicable Agent, on a discount basis, a commission
for the sale of each Note equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
MATURITY RANGES PERCENT OF
PRINCIPAL AMOUNT
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .700
From 20 years to 30 years .750
Greater than 30 years..............................*
* As agreed to by the Operating Partnership and the applicable Agent at the time of sale.
Exhibit B-1
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL SECURITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
(1) At the time the Registration Statement became effective, and on the
date hereof, the Registration Statement and the Prospectus, excluding (a) the
documents incorporated by reference therein, (b) the financial statements and
supporting schedules included and other financial data that are therein and (c)
the Trustee's Statement of Eligibility on Form T-1 (the "T-1"), and each
amendment or supplement to the Registration Statement and Prospectus complied
as to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(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 1934 Act, and the rules and
regulations of the Commission thereunder.
(3) The information in the Prospectus Supplement under "Description of
Notes" and "Certain United States Federal Income Tax Considerations" and in the
base Prospectus dated November 21, 1996, under "The Operating Partnership,"
"The Merger" and "Description of Debt Securities" and any description of the
Securities included therein, and such other information in the Prospectus
Supplement or in any Annual Report on Form 10-K of the Company, Operating
Partnership and/or SPG, LP as may be agreed upon from time to time by the
Partnerships and the Agents, to the extent that it purports to summarize
matters of Federal or Indiana law, descriptions of Federal or Indiana statutes,
rules or regulations, summaries of legal matters governed by Federal or Indiana
law, the Transaction Entities' organizational documents or legal proceedings,
or legal conclusions governed by Federal or Indiana law, has been reviewed by
such counsel, is correct and presents fairly the information required to be
disclosed therein in all material respects.
(4) The Partnerships satisfy all conditions and requirements for filing
the Registration Statement on Form S-3 under the 1933 Act and 1933 Act
Regulations.
(5) None of the Simon DeBartolo Entities or any Property Partnership is
required to be registered as an investment company under the 1940 Act.
(6) The Notes have been duly authorized by all necessary action by the
Board of Directors of SD Property as the managing general partner of the
Operating Partnership for offer, issuance, sale and delivery to the Agents
pursuant to the Distribution Agreement and the Indenture and, when the variable
terms of the Notes have been established by the authorized officers of SD
Property (as the managing general partner of the Operating Partnership) to whom
such authority has been delegated and the Notes and the Guarantee have been
executed and authenticated in the manner provided for in the Indenture and
delivered by the Operating Partnership pursuant to the Distribution Agreement
against payment of the consideration therefor, (i) the Notes will constitute
valid and legally binding obligations of the Operating Partnership enforceable
against the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable principles,
and except further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Notes denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States, and (C) the
enforceability of forum selection clauses in the federal courts, and (ii) each
holder of Notes will be entitled to the benefits of, the Indenture. The form
of the Notes to be issued has been authorized in accordance with the Indenture.
(At any time when further Board action is required prior to the issuance and
sale of any part of the $300,000,000 principal amount of the Notes, such
counsel may appropriately limit its opinion.)
(7) The Guarantee under the Indenture has been duly authorized by the
Company, as the sole general partner of the Guarantor and, when the variable
terms of the Notes have been established by the authorized officers of SD
Property (as the managing general partner of the Operating Partnership) to whom
such authority has been delegated and the Notes and the Guarantee have been
executed and authenticated in the manner provided for in the Indenture and
delivered by the Operating Partnership pursuant to the Distribution Agreement
against payment of the consideration therefor and the Guarantee is endorsed
thereon in the manner provided for in the Indenture, the Guarantee will
constitute a valid and legally binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally, or by
general equitable principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to the Guarantee of any
Securities denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law, (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States, (C) the enforceability of forum
selection clauses in the federal courts, and (D) any provision in the Guarantee
purporting to preserve and maintain the liability of any party thereto despite
the fact that the guaranteed debt is unenforceable due to illegality. (At any
time when further Board action is required prior to the issuance and sale of
any part of the $300,000,000 principal amount of the Notes, such counsel may
appropriately limit its opinion.)
(8) The Distribution Agreement and the Indenture were duly and validly
authorized, executed and delivered by the Transaction Entities, to the extent
they are parties thereto.
(9) Commencing with the Company's taxable year beginning January 1,
1994, and ending on August 9, 1996, the Company (as Simon Property Group, Inc.)
has been organized in conformity with the requirements for qualification and
taxation as a "real estate investment trust" under the Code. Commencing August
9, 1996, the Company (as Simon DeBartolo Group, Inc.) has been organized in
conformity with the requirements for qualification and taxation as a "real
estate investment trust" under the Code.
At the Agents' request, Baker & Daniels shall also confirm to the Agents
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 Transaction Entities and the independent public
accountants for the Partnerships and the Company at which the contents of the
Registration Statement and the Prospectus and related matters were discussed.
On the basis of such participation and review, but without independent
verification by such counsel of, and without assuming any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that would lead
such counsel to believe that the Registration Statement (except for financial
statements and schedules and other financial data included therein and for the
Form T-1, as to which such counsel makes no statement), on the date hereof or
at the time any post-effective amendment to the Registration Statement became
effective or at the date of the applicable Pricing Supplement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and the schedules and other financial data
included therein and for the Form T-1, as to which such counsel makes no
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland and Ohio, upon the opinion of
Piper & Marbury and Vorys, Sater, Seymour and Pease, respectively, special
Maryland and Ohio counsel, respectively, to the Transaction Entities (which
opinion shall be dated and furnished to the Agents at the date hereof, shall be
satisfactory in form and substance to counsel for the Agents and shall
expressly state that the counsel for the Agents may rely on such opinions as if
it were addressed to them), and (B), as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Partnerships and public officials.
Exhibit B-2
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
(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 Distribution Agreement and
the Indenture.
(3) The issued and outstanding shares of capital stock of the Company
are as set forth on Schedule A attached hereto. The issued and outstanding
shares of capital stock of the Company have been duly authorized and validly
issued by the Company, 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, Class C Common Stock or Series A Preferred Stock. To the
knowledge of such counsel, except for OP Units, shares of Class B Common Stock,
Class C Common Stock and Series A Preferred 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 Distribution Agreement and the Indenture, were duly and validly
authorized by the Company, on behalf of itself and as general partner of
Guarantor, the proper officers of the Company have been duly authorized by the
Company on behalf of itself and as general partner of Guarantor, to execute and
deliver the Distribution Agreement and the Indenture, and, assuming they have
been executed and delivered by any of such officers, the Distribution Agreement
and the Indenture are duly and validly executed and delivered by the Company,
on behalf of itself and as general partner of Guarantor.
(5) The execution, delivery and performance of the Distribution
Agreement and the Indenture by the Company on its own behalf or as general
partner of Guarantor, as the case may be, and the consummation of the
transactions contemplated in the Distribution Agreement and the Indenture and
compliance by the Company with its 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; (ii) any applicable law, statute, rule,
regulation of Maryland; or (iii) to such counsel's knowledge, any judgment,
order, writ or decree of any Maryland court or governmental entity 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.
(6) The information 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 "", and such other information in the
Prospectus Supplement and the 10-K as may be agreed upon from time to time by
the Partnerships and the Agents 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.
(7) The Guarantee by Guarantor of the obligations of the Operating
Partnership under the Indenture has been duly authorized by the Company, in its
capacity as the general partner of Guarantor.
Exhibit B-3
FORM OF OPINION OF THE TRANSACTION ENTITIES'
SPECIAL OHIO COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
(1) The Notes, having the benefit of the Guarantee, have been duly
authorized for issuance and sale pursuant to the Agreement and the Indenture.
(2) Each of the Agreement and the Indenture has been duly and validly
authorized by SD Property on behalf of itself and on behalf of the Operating
Partnership in its capacity as the managing general partner thereof (to the
extent each is a party thereto), the proper officers of SD Property have been
duly authorized on behalf of itself and on behalf of the Operating Partnership,
in its capacity as the managing general partner thereof, to execute and deliver
each of the Agreement and the Indenture, and assuming they have been executed
and delivered by any of such officer, each of the Agreement and the Indenture
are duly and validly executed and delivered by SD Property on behalf of itself
and on behalf of the Operating Partnership in its capacity as the managing
general partner thereof.
Exhibit B-4
FORM OF OPINION OF THE TRANSACTION ENTITIES' GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
(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 Distribution Agreement and the Indenture and is duly
qualified or registered as a foreign limited partnership to transact business
and is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect. The OP
Partnership Agreement has been duly and validly authorized, executed and
delivered by the parties thereto and is a valid and binding agreement,
enforceable against the parties thereto in accordance with its terms, except as
such enforceability may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or similar laws
affecting creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except as rights to indemnity thereunder may be limited
by applicable law.
(3) Guarantor 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 Distribution Agreement and the Indenture and is duly qualified or
registered as a foreign limited partnership to transact business and is in good
standing in each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the units of
Guarantor partners' equity have been duly authorized and are validly issued,
fully paid and non-assessable and have been offered and sold or exchanged in
compliance with all applicable laws of the United States and the Delaware
Revised Uniform Limited Partnership Act and none of such units of Guarantor
partners' equity was issued in violation of preemptive or other similar rights
of any unitholder of Guarantor. The SPG, LP Partnership Agreement has been
duly and validly authorized, executed and delivered by the parties thereto and
is a valid and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except as rights to indemnity
thereunder may be limited by applicable law.
(4) Each Simon DeBartolo Entity other than the 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 to
own, lease and operate its properties and to conduct the business in which it
is engaged or proposes to engage as described in the Prospectus and is duly
qualified or registered as a foreign corporation, limited partnership or other
legal entity, as the case may be, to transact business and is in good standing
in each jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register or to be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or other equity interests of each Simon DeBartolo
Entity other than the 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, directly or
through subsidiaries, in each case, free and clear of any Liens. There are no
outstanding securities convertible into or exchangeable for any capital stock
or other equity interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares of
such capital stock or any other securities of such entities. None of the
outstanding shares of capital stock or other equity interests of such entity
was issued in violation of preemptive or other similar rights of any security
holder of such entity.
(5) Each of the Property Partnerships is duly organized and validly
existing as a limited or general partnership, as the case may be, in good
standing under the laws of its respective jurisdiction of formation, with the
requisite power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged and proposes to engage as described
in the Prospectus. Each Property Partnership is duly qualified or registered
as a foreign partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of ownership
or leasing of property or the conduct of business, except where the failure to
so qualify or register would not have a Material Adverse Effect. The general
or limited partnership agreement of each of the Property Partnerships has been
duly and validly authorized, executed and delivered by the parties thereto and
is a valid and binding agreement, enforceable against the parties thereto in
accordance with its terms, except as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except as rights to indemnity
thereunder may be limited by applicable law.
(6) The Notes have been duly authorized by all necessary action by the
Board of Directors of SD Property as the managing general partner of the
Operating Partnership for offer, issuance, sale and delivery to or through the
Agents pursuant to the Distribution Agreement and the Indenture and, when the
variable terms of the Notes have been established by the authorized officers of
SD Property (as the managing general partner of the Operating Partnership) to
whom such authority has been delegated and the Notes and the Guarantee have
been executed and authenticated in the manner provided for in the Indenture and
delivered by the Operating Partnership pursuant to the Distribution Agreement
against payment of the consideration therefor, (i) the Notes will constitute
valid and legally binding obligations of the Operating Partnership enforceable
against the Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable principles,
and except further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Notes denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, (B) governmental authority to limit,
delay or prohibit the making of payments outside the United States, and (C) the
enforceability of forum selection clauses in the federal courts, and (ii) each
holder of Notes will be entitled to the benefits of the Indenture. The form of
the Notes to be issued has been authorized in accordance with the Indenture.
(At any time when further Board action is required prior to the issuance and
sale of any part of the $300,000,000 principal amount of the Notes, such
counsel may appropriately limit its opinion.)
(7) The Guarantee under the Indenture has been duly authorized by the
Company, as the sole general partner of the Guarantor and, when the variable
terms of the Notes have been established by the authorized officers of SD
Property (as the managing general partner of the Operating Partnership) to whom
such authority has been delegated and the Notes and the Guarantee have been
executed as provided for in the Indenture and delivered by the Operating
Partnership pursuant to the Distribution Agreement, against payment of the
consideration therefor and the Guarantee is endorsed thereon in the manner
provided for in the Indenture, the Guarantee will constitute a valid and
legally binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally, or by general equitable
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to the Guarantee of any Securities
denominated other than in U.S. dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law,
(B) governmental authority to limit, delay or prohibit the making of payments
outside the United States, (C) the enforceability of forum selection clauses in
the federal courts, and (D) any provision in the Guarantee purporting to
preserve and maintain the liability of any party thereto despite the fact that
the guaranteed debt is unenforceable due to illegality. (At any time when
further Board action is required prior to the issuance and sale of any part of
the $300,000,000 principal amount of the Notes, such counsel may appropriately
limit its opinion.)
(8) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Transaction Entities and
(assuming due authorization, execution and delivery thereof by the applicable
Trustee) constitutes a valid and legally binding agreement of the Transaction
Entities, enforceable against the Transaction Entities in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to the Guarantee of any Securities denominated other than in
U.S. dollars (or a foreign currency or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental authority
to limit, delay or prohibit the making of payments outside the United States.
(9) The Indenture and the Notes, in the forms certified on the date
hereof and the Guarantee being sold pursuant to the Indenture each conform, in
all material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form contemplated by the Indenture.
(10) The obligations of Guarantor under the Indenture have been duly
authorized by the Company, in its capacity as the sole general partner of
Guarantor.
(11) Neither the Operating Partnership nor any of the other Simon
DeBartolo Entities nor any Property Partnership is in violation of its charter,
by-laws, partnership agreement, or other organizational document, as the case
may be, and no default by the Operating Partnership or any other Simon
DeBartolo Entity or any Property Partnership exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement or the 10-K, except in each case
for violations or defaults which in the aggregate are not reasonably expected
to result in a Material Adverse Effect.
(12) The Distribution Agreement has been duly authorized, executed and
delivered by the Transaction Entities to the extent they are parties thereto.
(13) The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Securities and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Transaction Entities in connection with the transactions contemplated in the
Prospectus, and the consummation of the transactions contemplated thereby and
in the Prospectus and the compliance by the Company with its obligations
thereunder 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 Transaction Entities 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 Transaction
Entities or any Property Partnership is subject, nor will such action result in
any violation of the provisions of the charter, by-laws, partnership agreement
or other organizational document of the Operating Partnership, any other Simon
DeBartolo Entity or any Property Partnership or any applicable laws, statutes,
rules or regulations of the United States or any jurisdiction of incorporation
or formation of any of the Transaction Entities or any Property Partnership or
any judgment, order, writ or decree binding upon the Operating Partnership, any
other Simon DeBartolo Entity or any Property Partnership, which judgement,
order, writ or decree, is known to such counsel, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Operating Partnership, any other Simon DeBartolo Entity or any Property
Partnership or any of their assets, properties or operations, except for such
conflicts, breaches, violations, defaults, events or Liens that would not
result in a Material Adverse Effect.
(14) 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 Notes and the Guarantee to the Agents under the Distribution
Agreement and the Indenture, except as may be required under the 1933 Act, the
1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, or the by-laws
and rules of the NASD (as to which such counsel expresses no opinion) or state
securities laws (as to which such counsel expresses no opinion), or such as
have been obtained.
(15) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or threatened, against or affecting the Operating Partnership or any
other Simon DeBartolo Entity or any Property Partnership thereof which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated or incorporated by reference therein), or which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets,
properties or operations of the Transaction Entities, the performance by the
Transaction Entities of their obligations under the Distribution Agreement, the
Indenture or the Securities or the consummation of the transactions
contemplated in the Prospectus.
(16) All descriptions in the Registration Statement and the Prospectus
of contacts and other documents to which the Operating Partnership or any other
Simon DeBartolo Entity is a party are accurate in all material respects. To
the best knowledge and information of such counsel, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto by the 1933 Act
Regulations, and the descriptions thereof or references thereto are correct in
all material respects.
(17) 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.
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER
PURSUANT TO SECTION 5(d)
[LETTERHEAD OF ARTHUR ANDERSEN]
________ __,199_
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated J.P. Morgan & Co.
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
SALOMON BROTHERS INC
UBS SECURITIES LLC
c/o Merrill Lynch & Co.
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
This letter is written at the request of Simon DeBartolo Group, Inc ("SDG" or
the "Company"). We have audited the consolidated balance sheets of SDG and
subsidiaries as of December 31, 199_ and 199_, and the related consolidated
statements of operations, owners' equity and cash flows for each of the two
years in the periods ended December 31, 199_ and 199_, and for the period from
inception of operations (December 20, 1993) to December 31, 1993 and the
combined statements of operations, owners' deficit and cash flow of Simon
Property Group, the predecessor to Simon Property Group, L.P. ("SPG, LP"), for
the period from January 1, 1993 to December 19, 1993, and the related financial
statement schedule as of December 31, 1995, all included in SDG's Annual Report
on Form 10-K for the year ended December 31, 199_, as amended, and incorporated
by reference in the Registration Statement No. 333-11491 on Form S-3 filed by
Simon DeBartolo Group, L.P., a majority-owned subsidiary of SDG, (the
"Operating Partnership") and SPG, LP under the Securities Act of 1933 (the
Act); and we have also audited the consolidated balance sheets of SPG, LP, the
predecessor of the Operating Partnership, and subsidiaries as of December 31,
199_ and 199_, and the related consolidated statements of operations, partners'
equity and cash flows for each of the two years in the periods ended December
31, 199_ and 199_, and for the period from inception of operations (December
20, 1993) to December 31, 1993 and the combined statements of operations,
owners' deficit and cash flow of Simon Property Group, the predecessor to SPG,
LP, for the period from January 1, 1993 to December 19, 1993, and the related
financial statement schedule as of December 31, 199_, all included in the
Registration Statement No. 333-11491 on Form S-3 filed by the Operating
Partnership and SPG, LP under the Act; our reports with respect to SDG and SPG,
LP are also incorporated by reference and/or included in that Registration
Statement, as amended on November 21, 1996, and the Prospectus Supplement
________ __, 199_. The Registration Statement and the Prospectus Supplement
are herein referred to as the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to SDG,
the Operating Partnership, and SPG, LP within the meaning of
the Act and the applicable published rules and regulations
thereunder.
2. In our opinion, the financial statements and schedules
audited by us and incorporated by reference and/or included
in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Securities Exchange Act of 1934 and the
related published rules and regulations.
3. We have not audited any financial statements of SDG or SPG,
LP as of any date or for any period subsequent to December
31, 199_; although we have conducted audits of SDG and SPG,
LP for the year ended December 31, 199_, the purpose (and
therefore the scope) of the audits was to enable us to
express our opinion on the consolidated financial statements
as of December 31, 199_, and for the year then ended, but not
on the consolidated financial statements for any interim
period within that year. Therefore, we are unable to and do
not express any opinions: (i) on the unaudited consolidated
and condensed balance sheet as of _________ __, 199_, and the
unaudited consolidated condensed balance sheet as of
_________ __, 199_, and the unaudited consolidated condensed
statements of operations, owners' equity and cash flows for
the [three-month and] nine-month periods ended _________ __,
199_ and 199_, included in SDG's quarterly report on Form 10-
Q for the quarter ended _________ __, 199_, as amended,
incorporated by reference in the Registration Statement or in
the financial position, results of operations or cash flows
as of any date or for any period subsequent to December 31,
199_, (ii) on the unaudited consolidated condensed balance
sheet as of _________ __, 199_, and the unaudited
consolidated condensed statements of operations, partners'
equity and cash flows for the nine-month periods ended
_________ __, 199_ and 199_, included in SPG, LP's quarterly
report on Form 10-Q for the quarter ended _________ __, 199_,
as amended, incorporated by reference and included in the
Registration Statement or on the financial position, results
of operations or cash flows as of any date or for any period
subsequent to December 31, 199_ or (iii) on the unaudited
consolidated condensed balance sheet as of _________ __,
199_, and the unaudited consolidated condensed statements of
operations, partners' equity and cash flows for the nine-
month periods ended _________ __, 199_ and 199_, of the
Operating Partnership included in the Registration Statement
or on the financial position, results of operations or cash
flows as of any date or for any period.
4. For purposes of this letter we have read the 199_ minutes of
meetings of the Board of Directors, Shareholders and Audit
and Compensation Committees of the Company's Board of
Directors, read the written consents of the Company's Board
of Directors and the Executive Committee of the Company's
Board of Directors and the minutes of SD Property Group,
Inc.'s ("SD Property") Board of Directors, as set forth in
the minute books at ________ __, 199_, officials of the
Company and SD Property having advised us that the minutes of
all such meetings through that date were set forth therein,
and have carried out other procedures to ________ __, 199_,
as follows (our work did not extend to November 26, 1996):
a. With respect to the nine-month periods ended _________
__, 199_ and 199_, for SDG, the Operating Partnership
and SPG, LP we have -
(i) Performed the procedures specified by the
American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited
consolidated condensed financial statements for
these periods, described in 3, included in: (1)
SDG's quarterly report on Form 10-Q for the
quarter ended _________ __, 199_, as amended,
incorporated by reference in the Registration
Statement, (2) SPG, LP's quarterly report on Form
10-Q for the quarter ended _________ __, 199_, as
amended, incorporated by reference and included
in the Registration Statement and (3) the
unaudited consolidated condensed balance sheet of
the Operating Partnership as of _________ __,
199_, and the unaudited consolidated condensed
statements of operations, partners' equity, and
cash flows of the Operating Partnership for the
nine-month periods ended _________ __, 199_ and
199_, included in the Registration Statement.
(ii) Inquired of certain officials of the Company and
SD Property who have responsibility for financial
and accounting matters whether the unaudited
consolidated condensed financial statements
referred to in 4.(a)(i) comply as to form in all
material respects with the applicable accounting
requirements of the Securities Exchange Act of
1934 as it applies to Form 10-Q and the related
published rules and regulations.
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Also, they
would not necessarily reveal matters of significance with respect
to the comments in the following paragraph. Accordingly, we make
no representations regarding the sufficiency of the foregoing
procedures for your purposes. Officials of the Company and SD
Property have advised us that no such financial statements as of
any date or for any period subsequent to _________ __, 199_, were
available.
5. Nothing came to our attention as a result of the foregoing
procedures, however, that caused us to believe that:
(i) Any material modifications should be made to the
unaudited consolidated condensed financial statements
described in 3, incorporated by reference and/or
included in the Registration Statement, for them to be
in conformity with generally accepted accounting
principles.
(ii) The unaudited consolidated condensed financial
statements described in 3 do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 as
it applies to Form 10-Q and the related published rules
and regulations.
6. As mentioned in 4, Company and SD Property officials have
advised us that no financial statements (for SDG, the
Operating Partnership, or SPG, LP) as of any date or for any
period subsequent to _________ __, 199_, are available;
accordingly, the procedures carried out by us with respect to
changes in financial statement items after _________ __,
199_, have, of necessity, been even more limited than those
with respect to the period referred to in 4. We have
inquired of certain officials of the Company and SD Property
who have responsibility for financial and accounting matters
regarding whether (a) at ________ __, 199_, there was any
change in the capital stock or partners' equity, or any
increase in mortgages and other notes payable, or any
decreases in net assets as compared with amount shown on the
_________ __, 199_, unaudited consolidated condensed balance
sheets, incorporated by reference or included in the
Registration Statement, or (b) for the period from _________
__, 199_ to ________ __, 199_ there were any decreases, as
compared with the corresponding period in the preceding year,
in revenues, net income, or funds from operations. On the
basis of these inquiries and our reading of the minutes as
described in 4, nothing came to our attention that caused us
to believe there was any such change, increase or decrease,
except in all instances for changes, increases or decreases,
that the Registration Statement, including documents
incorporated by reference therein, discloses have occurred or
may occur. Management of the Company and SD Property have
represented to us that complete data is not available with
regard to operating results including revenues, net income or
funds from operations for the period from _______ _, 199_ to
________ __, 199_, or net assets and mortgages and other
notes payable at ________ __, 199_, and therefore, management
is unable to represent whether there have been any decreases
in revenues, net income or funds from operations during the
period _______ _, 199_ to ________ __, 199_, as compared to
the same period in the preceding period or any decrease in
net assets or any increases in mortgages and other notes
payable at ________ __, 199_, as compared to _________ __,
199_, except in all instances for changes, increases or
decreases that the Registration Statement, including
documents incorporated by reference therein, discloses have
occurred or may occur.
7. At your request, we have -
(a) Read the unaudited pro forma combined condensed balance
sheet as of _________ __, 199_, of the Operating
Partnership, and the unaudited pro forma combined
condensed statements of operations for the year ended
________ __, 199_, and the nine-month period ended
_________ __, 199_, of the Operating Partnership
included in the Registration Statement.
(b) Inquired of certain officials of the Company and SD
Property who have responsibility for financial and
accounting matters about -
(i) The basis for their determination of the pro
forma adjustments, and
(ii) Whether the unaudited pro forma combined
condensed financial statements referred to in 7a.
comply as to form in all material respects with
the applicable accounting requirements of rule
11-02 of Regulation S-X.
(c) Proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in
the unaudited pro forma combined condensed financial
statements.
The foregoing procedures are substantially less in scope than
an examination, the objective of which is the expression of
an opinion on management's assumptions, the pro forma
adjustments, and the application of those adjustments to
historical financial information. Accordingly, we do not
express such an opinion. The foregoing procedures would not
necessarily reveal matters of significance with respect to
the comments in the following paragraph. Accordingly, we
make no representation about the sufficiency of such
procedures for your purposes.
8. Nothing came to our attention as a result of the procedures
specified in paragraph 7, however, that caused us to believe
that the unaudited pro forma combined condensed financial
statements referred to in 7a., included in the Registration
Statement, do not comply as to form in all material respects
with the applicable accounting requirements of rule 11-02 of
Regulation S-X and that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements. Had we performed additional
procedures or had we made an examination of the pro forma
combined condensed financial statements, other matters might
have come to our attention that would have been reported to
you.
9. For purposes of this letter, we have also read the items
identified by you on the attached copy of the Registration
Statement, SDG's Annual Report on Form 10-K for the year
ended ________ __, 199_, as amended, SDG's quarterly report
on Form 10-Q for the nine-month period ended _________ __,
199_, as amended, SDG's Prospectus/Joint Proxy Statement
dated June 28, 1996, and SPG, LP's Annual Report on Form 10-K
for the year ended ________ __, 199_, as amended, and have
performed the following procedures, which were applied as
indicated with respect to the symbols explained below:
A Compared to or recalculated from the audited
financial statements or notes thereto included in
SDG's or SPG, LP's Annual Report on Form 10-K for
the year ended ________ __, 199_, each as
amended, and found the amounts or percentages to
be in agreement.
Q Compared to or recalculated from the unaudited
consolidated condensed financial statements or
notes thereto included in SDG's or SPG, LP's
quarterly report on Form 10-Q for the nine-month
period ended September 30, 1996, each as amended,
and found the amounts or percentages to be in
agreement.
M Verified arithmetical accuracy.
P Compared to or recalculated from unaudited
internal schedules (worksheets) or reports
prepared by Company and SD personnel and found
the amounts or percentages to be in agreement.
Amounts were rounded to the nearest whole dollar
or percentage where applicable.
F Compared to or recalculated from the unaudited
pro forma combined condensed financial statements
or notes thereto included in the Registration
Statement, and found the amounts to be in
agreement.
10. Our audits of the financial statements for the periods
referred to in the introductory paragraph of this letter
comprised audit tests and procedures deemed necessary for the
purpose of expressing an opinion on such financial statements
taken as a whole. For none of the periods referred to
therein nor any other period did we perform audit tests for
the purposes of expressing an opinion on individual balances
or accounts or summaries of selected transactions such as
those enumerated above and, accordingly, we express no
opinion thereon.
11. It should be understood that our work with respect to the
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included in SDG's report on Form
10-K for the year ended ________ __, 199_, as amended, report
on Form 10-Q for the nine-month period ended _________ __,
199_, as amended, incorporated by reference in the
Registration Statement, and SPG, LP's report on Form 10-K for
the year ended ________ __, 199_, as amended, and report on
Form 10-Q for the nine-month period ended _________ __, 199_,
as amended, incorporated by reference and included in the
Registration Statement, and the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" of
the Operating Partnership included in the Registration
Statement was limited to applying the procedures stated above
and thus we make no representations regarding the adequacy of
disclosure or, other than with respect to the noted results
of the specified procedures applied, the accuracy of the
discussion contained therein or whether any facts have been
omitted.
12. It should be understood that we make no representations
regarding questions of legal interpretation or regarding the
sufficiency of your purposes of the procedures enumerated in
the preceding paragraphs, also, such procedures would not
necessarily reveal any material misstatement of the amounts,
or percentages referred to above. Further, we have addressed
ourselves solely to the foregoing data as set forth, or
incorporated by reference, in the Registration Statement and
make no representations regarding the adequacy of the
disclosure or regarding whether any material facts have been
omitted.
13. This letter is solely for the information of the addressees
and to assist the underwriters in conducting and documenting
their investigation of the affairs of the Company and
subsidiaries in connection with the offering of the
securities covered by the Registration Statement, and it is
not to be used, circulated, quoted, or otherwise referred to
within or without the underwriting group for any other
purpose, including but not limited to the registration,
purchase, or sale of securities, nor is it to be filed with
or referred to in whole or in part in the Registration
Statement or any other document, except that reference may be
made to it in the underwriting agreement or in any list of
closing documents pertaining to the offering of the
securities covered by the Registration Statement.
ARTHUR ANDERSEN LLP
EXECUTION COPY
SIMON DEBARTOLO GROUP, L.P.
ISSUER
AND
SIMON PROPERTY GROUP, L.P.
GUARANTOR
TO
THE CHASE MANHATTAN BANK
TRUSTEE
____________________
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MAY 15, 1997
____________________
FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
AMONG
SIMON DEBARTOLO GROUP, L.P.
SIMON PROPERTY GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
THIRD SUPPLEMENTAL INDENTURE, dated as of May 15, 1997, among
SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the "Issuer"
or the "Operating Partnership"), having its principal offices at National
City Center, 115 West Washington Street, Suite 15 East, Indianapolis,
Indiana 46204, SIMON PROPERTY GROUP, L.P., a Delaware limited partnership
(the "Guarantor") having its principal offices at National City Center, 115
West Washington Street, Suite 15 East, Indianapolis, Indiana 46204 and THE
CHASE MANHATTAN BANK, a New York banking corporation, as trustee (the
"Trustee"), having its Corporate Trust Office at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of November 26, 1996, to the Trustee to
issue from time to time for its lawful purposes debt securities evidencing
its unsecured and unsubordinated indebtedness issued under the Original
Indenture;
WHEREAS, the Guarantor executed and delivered the Original
Indenture to the Trustee to guarantee the due and punctual payment of
principal of, premium, if any, interest on, and any other amounts with
respect to, each series of debt securities evidencing the unsecured and
unsubordinated indebtedness of the Issuer, issued under the Original
Indenture, when and as the same shall become due and payable, whether on an
interest payment date, a maturity date, on redemption, by declaration of
acceleration or otherwise;
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its
debt securities, which shall be guaranteed by the Guarantor, and establish
the form and terms and conditions thereof;
WHEREAS, the Issuer intends by this Third Supplemental Indenture
(i) to create a series of debt securities, to be issued from time to time,
in an aggregate principal amount not to exceed $300,000,000, entitled
"Medium-Term Notes Due Nine Months or More From Date of Issue" (the
"Notes"); and (ii) to establish the form and the terms and conditions of
such Notes;
WHEREAS, the Guarantor intends by this Third Supplemental
Indenture to guarantee the due and punctual payment of principal of,
premium, if any, interest on, and any other amounts with respect to, the
Notes, when and as the same shall become due and payable, whether on an
interest payment date, a maturity date, on redemption, by declaration of
acceleration or otherwise (the "Guarantee");
WHEREAS, the Board of Directors of SD Property Group, Inc., the
managing general partner of the Issuer (the "General Partner"), has
approved the creation of the Notes and the forms, terms and conditions
thereof;
WHEREAS, the Board of Directors of Simon DeBartolo Group, Inc.,
the sole general partner of the Guarantor, has approved the creation of the
Guarantee and the forms, terms and conditions thereof; and
WHEREAS, all actions required to be taken under the Original
Indenture with respect to this Third Supplemental Indenture have been
taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORMS AND TERMS AND
CONDITIONS OF THE NOTES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Third
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. Certain terms, used
principally in Article Two of this Third Supplemental Indenture, are
defined in that Article. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the
plural forms of the terms defined:
"FIXED RATE NOTES" means the Issuer's Fixed Rate Notes due nine
months or more from date of issue, a form of which is attached hereto as
EXHIBIT A.
"FLOATING RATE NOTES" means the Issuer's Floating Rate Notes due
nine months or more from date of issue, a form of which is attached hereto
as EXHIBIT B.
"INDENTURE" means the Original Indenture as supplemented by this
Third Supplemental Indenture.
"PRICING SUPPLEMENT" means a pricing supplement to the
Prospectus, dated November 21, 1996, as supplemented by the Prospectus
Supplement, dated May 15, 1997, setting forth the terms of the applicable
Notes.
SECTION 1.02 CREATION OF THE NOTES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as a
separate series of its Securities issued pursuant to the Indenture. The
Notes shall be issued from time to time in an aggregate principal amount
not to exceed $300,000,000.
SECTION 1.03 FORM OF THE NOTES. Each Note will be issued in
fully registered book-entry form or in certificated form, as specified in
the applicable Pricing Supplement. The Fixed Rate Notes shall be
substantially in the form of EXHIBIT A attached hereto and the Floating
Rate Notes shall be substantially in the form of EXHIBIT B attached hereto.
SECTION 1.04 TERMS AND CONDITIONS OF THE NOTES. The Notes shall
be governed by all the terms and conditions of the Indenture, including,
without limitation, the terms and conditions set forth in the forms of Note
referred to in Section 1.03 above, as the same may be supplemented or, to
the extent allowed by the Indenture, modified by the additional or
different terms and conditions established from time to time with respect
to the Notes either in Board Resolutions of the General Partner or by
action of authorized officers of the General Partner and, in either such
case, such additional or different terms and conditions shall be set forth
in the Notes and the related Pricing Supplement. All such terms and
conditions set forth in such Notes and in such Pricing Supplement are
incorporated by reference into this Third Supplemental Indenture. In
addition, the provisions of Article 14, and the Guarantee provisions of
Article 17 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
COVENANTS FOR BENEFIT OF HOLDERS OF NOTES.
SECTION 2.01 COVENANTS FOR BENEFIT OF HOLDERS OF NOTES. The
Operating Partnership covenants and agrees, for the benefit of the Holders
of the Notes, as follows:
(A) LIMITATIONS ON INCURRENCE OF DEBT. The Operating
Partnership will not, and will not permit any Subsidiary to,
incur any Debt (as defined below), other than intercompany
debt (representing Debt to which the only parties are the
Company, the Operating Partnership and any of their
Subsidiaries (but only so long as such Debt is held solely
by any of the Company, the Operating Partnership and any
Subsidiary) that is subordinate in right of payment to the
Notes), if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal
amount of all outstanding Debt would be greater than 60% of
the sum of (i) the Operating Partnership's Adjusted Total
Assets (as defined below) as of the end of the fiscal
quarter prior to the incurrence of such additional Debt and
(ii) any increase in Adjusted Total Assets from the end of
such quarter including, without limitation, any pro forma
increase from the application of the proceeds of such
additional Debt.
In addition to the foregoing limitation on the incurrence of
Debt, the Operating Partnership will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, pledge,
encumbrance or security interest of any kind upon any of the property of
the Operating Partnership or any Subsidiary ("Secured Debt"), whether owned
at the date of the Indenture or thereafter acquired, if, immediately after
giving effect to the incurrence of such additional Secured Debt, the
aggregate principal amount of all outstanding Secured Debt is greater than
55% of the sum of (i) the Operating Partnership's Adjusted Total Assets as
of the end of the fiscal quarter prior to the incurrence of such additional
Secured Debt and (ii) any increase in Adjusted Total Assets from the end of
such quarter including, without limitation, any pro forma increase from the
application of the proceeds of such additional Secured Debt.
In addition to the foregoing limitations on the incurrence of
Debt, the Operating Partnership will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Annualized EBITDA After
Minority Interest to Interest Expense (in each case as defined below) for
the period consisting of the four consecutive fiscal quarters most recently
ended prior to the date on which such additional Debt is to be incurred
shall have been less than 1.75 to 1 on a pro forma basis after giving
effect to the incurrence of such Debt and to the application of the
proceeds therefrom, and calculated on the assumption that (i) such Debt and
any other Debt incurred since the first day of such four-quarter period had
been incurred, and the proceeds therefrom had been applied (to whatever
purposes such proceeds had been applied as of the date of calculation of
such ratio), at the beginning of such period, (ii) any other Debt that has
been repaid or retired since the first day of such four-quarter period had
been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such
Debt during such period), (iii) any income earned as a result of any assets
having been placed in service since the end of such four-quarter period had
been earned, on an annualized basis, during such period, and (iv) in the
case of any acquisition or disposition by the Operating Partnership, any
Subsidiary or any unconsolidated joint venture in which the Operating
Partnership or any Subsidiary owns an interest, of any assets since the
first day of such four-quarter period, including, without limitation, by
merger, stock purchase or sale, or asset purchase or sale, such acquisition
or disposition and any related repayment of Debt had occurred as of the
first day of such period with the appropriate adjustments with respect to
such acquisition or disposition being included in such pro forma
calculation.
For purposes of the foregoing provisions regarding the
limitations on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Operating Partnership, its Subsidiaries and by any
unconsolidated joint venture, whenever the Operating Partnership, any
Subsidiary, or any unconsolidated joint venture, as the case may be, shall
create, assume, guarantee or otherwise become liable in respect thereof.
(B) MAINTENANCE OF UNENCUMBERED ASSETS. The Operating
Partnership is required to maintain Unencumbered Assets (as
defined below) of not less than 150% of the aggregate
outstanding principal amount of the Unsecured Debt (as
defined below) of the Operating Partnership.
(C) JUDGMENTS. The Issuer will indemnify the Holder of any Note
against any loss incurred by such Holder as a result of any
judgment or order being given or made for any amount due
under such Note and such judgment or order requiring payment
in a currency or composite currency (the "Judgment
Currency") other than the Specified Currency, and as a
result of any variation between (i) the rate of exchange at
which the Specified Currency amount is converted into the
Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which the Holder of such
Note, on the date of payment of such judgment or order, is
able to purchase the Specified Currency with the amount of
the Judgment Currency actually received by such Holder, as
the case may be.
Section 2.02 DEFINITIONS. As used in this Article Two, the
following terms shall have the following meanings:
"ADJUSTED TOTAL ASSETS" as of any date means the sum of (i) the
amount determined by multiplying the sum of the shares of common stock of
the Company (as defined below) issued in the initial public offering of the
Company (the "IPO") and the units of the Operating Partnership not held by
the Company outstanding on the date of the IPO, by $22.25 (the "IPO
Price"), (ii) the principal amount of the outstanding consolidated debt of
the Company on the date of the IPO, less any portion applicable to minority
interests, (iii) the Operating Partnership's allocable portion, based on
its ownership interest, of outstanding indebtedness of unconsolidated joint
ventures on the date of the IPO, (iv) the purchase price or cost of any
real estate assets acquired (including the value, at the time of such
acquisition, of any units of the Operating Partnership or shares of common
stock of the Company issued in connection therewith) or developed after the
IPO by the Operating Partnership or any Subsidiary, less any portion
attributable to minority interests, plus the Operating Partnership's
allocable portion, based on its ownership interest, of the purchase price
or cost of any real estate assets acquired or developed after the IPO by
any unconsolidated joint venture, (v) the value of the Merger (as defined
in the Issuer's Prospectus, dated November 21, 1996) compiled as the sum of
(a) the purchase price including all related closing costs and (b) the
value of all outstanding indebtedness less any portion attributable to
minority interests, including the Operating Partnership's allocable
portion, based on its ownership interest, of outstanding indebtedness of
unconsolidated joint ventures at the Merger date, and (vi) working capital
of the Operating Partnership; subject, however, to reduction by the amount
of the proceeds of any real estate assets disposed of after the IPO by the
Operating Partnership or any Subsidiary, less any portion applicable to
minority interests, and by the Operating Partnership's allocable portion,
based on its ownership interest, of the proceeds of any real estate assets
disposed of after the IPO by unconsolidated joint ventures.
"ANNUALIZED EBITDA" means earnings before interest, taxes,
depreciation and amortization for all properties with other adjustments as
are necessary to exclude the effect of items classified as extraordinary
items in accordance with generally accepted accounting principles, adjusted
to reflect the assumption that (i) any income earned as a result of any
assets having been placed in service since the end of such period had been
earned, on an annualized basis, during such period, and (ii) in the case of
any acquisition or disposition by the Operating Partnership, any Subsidiary
or any unconsolidated joint venture in which the Operating Partnership or
any Subsidiary owns an interest, of any assets since the first day of such
period, such acquisition or disposition and any related repayment of Debt
had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition.
"ANNUALIZED EBITDA AFTER MINORITY INTEREST" means Annualized
EBITDA after distributions to third party joint venture partners.
"COMPANY" means Simon DeBartolo Group, Inc., a Maryland
corporation and a general partner of the Operating Partnership and the sole
general partner of the Guarantor.
"DEBT" means any indebtedness of the Operating Partnership and
its Subsidiaries on a consolidated basis, less any portion attributable to
minority interests, plus the Operating Partnership's allocable portion,
based on its ownership interest, of indebtedness of unconsolidated joint
ventures, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, as determined in accordance with
generally accepted accounting principles, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Operating Partnership or any Subsidiary
directly, or indirectly through unconsolidated joint ventures, as
determined in accordance with generally accepted accounting principles,
(iii) reimbursement obligations, contingent or otherwise, in connection
with any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable and
(iv) any lease of property by the Operating Partnership or any Subsidiary
as lessee which is reflected in the Operating Partnership's consolidated
balance sheet as a capitalized lease or any lease of property by an
unconsolidated joint venture as lessee which is reflected in such joint
venture's balance sheet as a capitalized lease, in each case, in accordance
with generally accepted accounting principles; provided, that Debt also
includes, to the extent not otherwise included, any obligation by the
Operating Partnership or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise, items of indebtedness of another Person
(other than the Operating Partnership or any Subsidiary) described in
clauses (i) through (iv) above (or, in the case of any such obligation made
jointly with another Person, the Operating Partnership's or Subsidiary's
allocable portion of such obligation based on its ownership interest in the
related real estate assets).
"INTEREST EXPENSE" includes the Operating Partnership's pro rata
share of joint venture interest expense and is reduced by amortization of
debt issuance costs.
"SPECIFIED CURRENCY" means, with respect to any Note, the
currency or composite currency in which such Note is denominated (or, if
such currency or composite currency is no longer legal tender for the
payment of public and private debts, such other currency or composite
currency of the relevant country which is then legal tender for the payment
of such debts).
"UNENCUMBERED ANNUALIZED EBITDA AFTER MINORITY INTEREST" means
Annualized EBITDA After Minority Interest less any portion thereof
attributable to assets serving as collateral for Secured Debt.
"UNENCUMBERED ASSETS" as of any date shall be equal to Adjusted
Total Assets as of such date multiplied by a fraction, the numerator of
which is Unencumbered Annualized EBITDA After Minority Interest and the
denominator of which is Annualized EBITDA After Minority Interest.
"UNSECURED DEBT" means Debt which is not secured by any mortgage,
lien, pledge, encumbrance or security interest of any kind.
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of
this Third Supplemental Indenture or the due execution thereof by the
Issuer. The recitals of fact contained herein shall be taken as the
statements solely of the Issuer and the Guarantor, and the Trustee assumes
no responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Third
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and as supplemented and modified
hereby, the Original Indenture is in all respects ratified and confirmed,
and the Original Indenture and this Third Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Third Supplemental Indenture by the Issuer and Guarantor
shall bind their successors and assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of
the provisions contained in this Third Supplemental Indenture shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Third Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State
of New York. This Third Supplemental Indenture is subject to the
provisions of the Trust Indenture Act of 1939, as amended that are required
to be part of this Third Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Third Supplemental Indenture
may be executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the date first above
written.
SIMON DEBARTOLO GROUP, L.P.
By: SD Property Group, Inc.,
its managing general partner
By: _________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: _________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By: _________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. (1)
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE
OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF
SUCH SUCCESSOR. (2)
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
REGISTERED REGISTERED
NO. FXR - [__________] PRINCIPAL AMOUNT
CUSIP NO. [_________] $[ ]
SIMON DEBARTOLO GROUP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE: %
STATED MATURITY DATE:
INTEREST PAYMENT DATE(S):
[ ] _______ and _______
[ ] Other:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE: %
ANNUAL REDEMPTION PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S):
REPAYMENT PRICE: %
[ ] CHECK IF A DISCOUNT NOTE:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral
[ ] Other: multiples thereof
[ ] Other:
ISSUE PRICE: EXCHANGE RATE AGENT:
OTHER/ADDITIONAL PROVISIONS: ADDENDUM ATTACHED
[ ] Yes
[ ] No
SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
its registered assigns, the principal sum of $______________ on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date,
each as defined on the reverse hereof or upon any declaration of
acceleration) (each such Stated Maturity Date, Redemption Date, Repayment
Date or declaration of acceleration being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at the Interest Rate per annum specified above,
until the principal hereof is paid or duly made available for payment. The
Issuer will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; PROVIDED, HOWEVER, that if the
Original Issue Date occurs between a Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date next succeeding the Original Issue Date to
the Holder of this Note on the Record Date with respect to such second
Interest Payment Date. Interest on this Note will be computed on the basis
of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered in the Security Register
applicable to this Note at the close of business on the fifteenth calendar
day (whether or not a Business Day, as defined below) immediately preceding
such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER, that
interest payable on the Maturity Date will be payable to the Person to whom
the principal hereof and premium, if any, hereon shall be payable. Any
such interest not so punctually paid or duly provided for ("Defaulted
Interest") will forthwith cease to be payable to the Holder on any Record
Date, and shall be paid to the Person in whose name this Note is registered
in the Security Register applicable to this Note at the close of business
on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this Note by the Trustee not
less than 10 calendar days prior to such Special Record Date or may be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided for in the Indenture.
Payments of principal of, premium, if any, and interest in respect of
this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to
any applicable Repayment Date, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, or at such other
paying agency in the Borough of Manhattan, The City of New York which is
maintained by the Trustee where Notes may be presented for payment,
registration of transfer or exchange, and where notices to or demands upon
the Issuer or Simon Property Group, L.P. (the "Guarantor") in respect of
the Notes or the Indenture may be made, as the Issuer may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment
will be made by wire transfer of immediately available funds to an account
with a bank designated by the Holder hereof at least 15 calendar days prior
to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of
the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register maintained at the aforementioned office of
the Trustee; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if
the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate
principal amount of Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate
wire transfer instructions have been received in writing by the Trustee not
less than 15 calendar days prior to such Interest Payment Date. Any such
wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be,
to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the
Specified Currency is other than United States dollars and any payment is
to be made in the Specified Currency in accordance with the provisions
hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in
the Principal Financial Center (as defined below) of the country issuing
the Specified Currency (or, in the case of European Currency Units ("ECU"),
is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on
which payments in ECU cannot be settled in the international interbank
market). "Principal Financial Center" means the capital city of the
country issuing the Specified Currency (except as described in the
immediately preceding sentence with respect to ECUs) except that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU's, the
"Principal Financial Center" shall be The City of New York, Sydney,
Toronto, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Issuer is obligated to make payment of principal of, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if
the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such
payment is legal tender for the payment of such debts). If the Specified
Currency is other than United States dollars, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above
into United States dollars for payment to the Holder of this Note;
PROVIDED, HOWEVER, that the Holder of this Note may elect to receive such
amounts in such Specified Currency pursuant to the provisions set forth
below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or
a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Issuer for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the Holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency unless the Specified Currency is not available due to
the imposition of exchange controls or other circumstances beyond the
control of the Issuer.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by facsimile transmission. The Holder
of this Note may elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal, premium,
if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Issuer, the Issuer will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars on
the basis of the Market Exchange Rate (as defined below) computed by the
Exchange Rate Agent on the second Business Day prior to such payment date
or, if such Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate or as otherwise specified on
the face hereof. The "Market Exchange Rate" for the Specified Currency
means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by
(or if not so certified, as otherwise determined by) the Federal Reserve
Bank of New York. Any payment made under such circumstances in United
States dollars will not constitute an Event of Default.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, then the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency computed by the Exchange Rate Agent on the second
Business Day prior to such payment date or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified
on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of
Authentication and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the
terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
MEDIUM-TERM NOTE
(FIXED RATE)
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996, as amended,
modified or supplemented from time to time, (herein called the
"Indenture"), duly executed and delivered by the Issuer and the Guarantor
to The Chase Manhattan Bank, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including,
without limitation, the Third Supplemental Indenture, dated as of May 15,
1997, among the Issuer, the Guarantor and the Trustee) reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer, the Guarantor
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or the minimum Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on written notice given to the
Holder of this Note no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture.
If no Initial Redemption Date is set forth on the face hereof, this Note
may not be redeemed prior to Maturity. The "Redemption Price", if any,
shall initially be the Initial Redemption Percentage specified on the face
hereof, if any, multiplied by the unpaid principal amount of this Note to
be redeemed. The Initial Redemption Percentage, if any, shall decline at
each anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as
this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). If an Optional
Repayment Date is not set forth on the face hereof, this Note will not be
repayable at the option of the Holder hereof prior to Maturity. For this
Note to be repaid, this Note must be received, together with the form
hereon entitled "Option to Elect Repayment" duly completed, by the Trustee
at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the Holder hereof upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the Holder of this Note in the event of redemption,
repayment or acceleration of maturity will be equal to the sum of (1) the
Issue Price, if any, specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any
redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable), if any, and (2) any unpaid interest on this Note
accrued from the Original Issue Date to the Redemption Date, Repayment Date
or date of acceleration of maturity, as the case may be. The difference
between the Issue Price and 100% of the principal amount of this Note is
referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant. The constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period
between Interest Payment Dates (with ratable accruals within a compounding
period), a constant coupon rate equal to the initial interest rate
applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for
an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, shall occur and be continuing, the principal
amount of the Notes may be declared accelerated and thereupon become due
and payable in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Indenture contains provisions permitting the Issuer, the Guarantor
and the Trustee, with the consent of the Holders of not less than a
majority of the aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security so affected, (i) change
the Stated Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or any
premium payable upon the redemption or acceleration thereof, or adversely
affect any right of repayment at the option of the Holder of any Security,
or change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which, the
principal of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof, or (ii) reduce the aforesaid
percentage of Securities the Holders of which are required to consent to
any such supplemental indenture, or (iii) reduce the percentage of
Securities the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of
certain defaults and consequences thereunder or to reduce the quorum or
voting requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or in the
rights of Holders of the Securities. The Indenture also permits the
Holders of a majority in principal amount of the Outstanding Securities of
any series (or, in the case of certain defaults or Events of Defaults, all
series of Securities), on behalf of the Holders of all the Securities of
such series (or all of the Securities, as the case may be), to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange
heretofore or in lieu hereof, irrespective of whether or not notation of
such consent or waiver is made upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer or the
Guarantor, as the case may be, which is absolute and unconditional, to pay
principal, premium, if any, and interest in respect of this Note at the
times, places and rate or formula, and in the coin or currency, herein
prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for
the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under
the Securities, or for the payment or performance of any obligation under,
or for any claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general, including SD
Property Group, Inc., or such partner's assets or against any principal,
shareholder, officer, director, trustee or employee of such partner. It is
expressly understood that the sole remedies under the Securities and the
Indenture or under any other document with respect to the Securities,
against such parties with respect to such amounts, obligations or claims
shall be against the Issuer.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Issuer upon surrender of this Note for
registration of transfer at the office or agency of the Trustee in any
place where the principal hereof and any premium or interest hereon are
payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
at the office or agency of the Issuer in the Borough of Manhattan, the City
of New York, in the manner and subject to the limitations provided in the
Indenture but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Holder in whose name this Note is
registered as the absolute owner thereof for all purposes, whether or not
this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and neither the Issuer, the Guarantor, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and this Note, including the validity hereof, shall be
governed by and construed in accordance with the laws of the State of New
York and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise be required by mandatory provisions of
law.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this Note.
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under the
Indenture, dated as of November 26, 1996, duly executed and delivered by
Simon DeBartolo Group, L.P. (the "Issuer") and the Guarantor, to The Chase
Manhattan Bank, as Trustee (as the same may be amended or supplemented from
time to time, the "Indenture"), and referred to in the Security upon which
this notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the "Guarantee") (a) the
payment of principal of, premium, if any, interest on (including post-
petition interest in any proceeding under any federal or state law or
regulation relating to any Bankruptcy Law whether or not an allowed claim
in such proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the Issuer
under the Indenture and the Security; when and as the same shall become due
and payable, whether at Maturity, on redemption, by declaration of
acceleration or otherwise (all of the foregoing being hereinafter
collectively called the "Guaranteed Obligations"), in accordance with the
terms of the Security and the Indenture and (ii) has agreed to pay all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the Security
pursuant to this Guarantee and the Indenture are expressly set forth in
Article 17 of the Indenture and reference is hereby made to such Indenture
for the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect until the termination thereof under Section 1706 of the Indenture or
until the principal of and interest on the Security and all other
Guaranteed Obligations shall have been paid in full. If at any time any
payment of the principal of, or interest on, the Security or any other
payment in respect of any Guaranteed Obligation is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, the Guarantor's obligations
hereunder and under the Guarantee with respect to such payment shall be
reinstated as though such payment had been due but not made at such time,
and Article 17 of the Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the obligations of the
Guarantor under the Indenture shall terminate at such time the Guarantor
merges or consolidates with the Issuer or at such other time as the Issuer
acquires all of the assets and partnership interests of the Guarantor.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or
otherwise, for the payment of any sums due under the Security, including,
without limitation, the principal of, premium, if any, or interest payable
under the Security, or for the payment or performance of any obligation
under, or for any claim based on, the Indenture or otherwise in respect
thereof, against any partner of the Guarantor, whether limited or general,
including Simon DeBartolo Group, Inc., or such partner's assets or against
any principal, shareholder, officer, director, trustee or employee of such
partner. It is expressly understood that the sole remedies under the
Guarantee and the Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such amounts,
obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to the Security until the certificate of
authentication on such Security shall have been signed by or on behalf of
the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE INCORPORATED HEREIN
BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
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 right of under Uniform Gifts to Minors
survivorship and not as tenants Act___________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|_______________________________|________________________________
_________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
__________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing __________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated:_____________________ ___________________________________
____________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more
than 60 nor less than 30 calendar days prior to the Repayment Date, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder
elects to have repaid and specify the denomination or denominations (which
shall be an Authorized Denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
Principal Amount
to be Repaid: $
Notice: The signature(s) on this
Date: Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatsoever.
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. (1)
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE
OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF
SUCH SUCCESSOR.(2)
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
REGISTERED REGISTERED
NO. FLR - [__________] PRINCIPAL AMOUNT
CUSIP NO. [_________] $[ ]
SIMON DEBARTOLO GROUP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Designated LIBOR Currency: [ ] Weekly Average
[ ] Designated LIBOR Page: [ ] Monthly Average
[ ] Reuters Page: ______ Designated CMT Maturity Index:
[ ] Telerate Page: ______
INITIAL INTEREST RATE: %
INITIAL INTEREST RESET DATE:
INTEREST RESET PERIOD:
INTEREST RESET DATE(S):
INTEREST PAYMENT DATE(S):
INDEX MATURITY:
SPREAD (PLUS OR MINUS):
SPREAD MULTIPLIER:
MINIMUM INTEREST RATE: %
MAXIMUM INTEREST RATE: %
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE: %
ANNUAL REDEMPTION PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S):
REPAYMENT PRICE: %
INTEREST CALCULATION: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note
from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the
period
Fixed Interest Rate: % from to .
[ ] Discount Note Issue Price: % Applicable Interest Rate
Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral
multiples thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT: ISSUE PRICE:
CALCULATION AGENT: AGENT'S DISCOUNT OR COMMISSION:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
SIMON DEBARTOLO GROUP, L.P., a Delaware limited partnership (the
"Issuer", which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
its registered assigns, the principal sum of $_______________ , on the
Stated Maturity Date specified above (or any Redemption Date or Repayment
Date, each as defined on the reverse hereof or upon any declaration of
acceleration) (each such Stated Maturity Date, Redemption Date, Repayment
Date or declaration of acceleration being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above
and thereafter at a rate determined in accordance with the provisions
specified above and on the reverse hereof with respect to one or more
Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment. The Issuer will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an "Interest
Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity
Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between a
Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
next succeeding the Original Issue Date to the Holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered in the Security Register
applicable to this Note at the close of business on the fifteenth calendar
day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date");
PROVIDED, HOWEVER, that interest payable on the Maturity Date will be
payable to the Person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to
the Holder on any Record Date, and shall be paid to the Person in whose
name this Note is registered in the Security Register applicable to this
Note at the close of business on a special record date (the "Special Record
Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the
Holder of this Note by the Trustee not less than 10 calendar days prior to
such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by
such exchange, all as more fully provided for in the Indenture.
Payments of principal of, premium, if any, and interest in respect of
this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to
any applicable Repayment Date, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, or at such other
paying agency in the Borough of Manhattan, The City of New York, which is
maintained by the Trustee where Notes may be presented for payment,
registration of transfer or exchange, and where notices to or demands upon
the Issuer or Simon Property Group, L.P. (the "Guarantor") in respect of
the Notes or the Indenture may be made, as the Issuer may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment
will be made by wire transfer of immediately available funds to an account
with a bank designated by the Holder hereof at least 15 calendar days prior
to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of
the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register maintained at the aforementioned office of
the Trustee; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if
the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate
principal amount of Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate
wire transfer instructions have been received in writing by the Trustee not
less than 15 calendar days prior to such Interest Payment Date. Any such
wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day, and if the Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day, each
with the same force and effect as if made on the date such payment was due,
and no interest shall accrue with respect to such payment for the period
from and after such Interest Payment Date or the Maturity Date, as the case
may be, to the date of such payment on the next succeeding Business Day.
The Issuer is obligated to make payment of principal of, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if
the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such
payment is legal tender for the payment of such debts). If the Specified
Currency is other than United States dollars, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above
into United States dollars for payment to the Holder of this Note;
PROVIDED, HOWEVER, that the Holder of this Note may elect to receive such
amounts in such Specified Currency pursuant to the provisions set forth
below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or
a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Issuer for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the Holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency unless the Specified Currency is not available due to
the imposition of exchange controls or other circumstances beyond the
control of the Issuer.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by facsimile transmission. The Holder
of this Note may elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal, premium,
if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Issuer, the Issuer will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars on
the basis of the Market Exchange Rate (as defined below) computed by the
Exchange Rate Agent on the second Business Day prior to such payment date,
or, if such Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate or as otherwise specified on
the face hereof. The "Market Exchange Rate" for the Specified Currency
means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by
(or if not so certified, as otherwise determined by) the Federal Reserve
Bank of New York. Any payment made under such circumstances in United
States dollars will not constitute an Event of Default.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, then the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency computed by the Exchange Rate Agent on the second
Business Day prior to such payment date or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified
on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of
Authentication and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the
terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed manually or by facsimile by its authorized officers.
Dated:
SIMON DEBARTOLO GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
[REVERSE OF NOTE]
SIMON DEBARTOLO GROUP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996, as amended,
modified or supplemented from time to time, (herein called the
"Indenture"), duly executed and delivered by the Issuer and the Guarantor
to The Chase Manhattan Bank, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including,
without limitation, the Third Supplemental Indenture, dated as of May 15,
1997, among the Issuer, the Guarantor and the Trustee) reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer, the Guarantor
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or the minimum Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on written notice given to the
Holder of this Note no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture.
If no Initial Redemption Date is set forth on the face hereof, this Note
may not be redeemed prior to Maturity. The "Redemption Price", if any,
shall initially be the Initial Redemption Percentage specified on the face
hereof, if any, multiplied by the unpaid principal amount of this Note to
be redeemed. The Initial Redemption Percentage, if any, shall decline at
each anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as
this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). If an Optional
Repayment Date is not set forth on the face hereof, this Note will not be
repayable at the option of the Holder hereof prior to Maturity. For this
Note to be repaid, this Note must be received, together with the form
hereon entitled "Option to Elect Repayment" duly completed, by the Trustee
at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the Holder hereof upon the presentation and surrender hereof.
If the Interest Calculation of this Note is specified on the face
hereof as a Discount Note, the amount payable to the Holder of this Note in
the event of redemption, repayment or acceleration of maturity of this Note
will be equal to the sum of (1) the Issue Price, if any, specified on the
face hereof (increased by any accruals of the Discount, as defined below)
and, in the event of any redemption of this Note (if applicable),
multiplied by the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable), if any, and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause an assumed yield
on the Note to be constant. The assumed constant yield will be calculated
using a 30-day month, 360-day year convention, a compounding period that,
except for the Initial Period (as defined below), corresponds to the
shortest period between Interest Payment Dates (with ratable accruals
within a compounding period), a constant coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount
of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will
be divided into a regular compounding period and a short period, with the
short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Calculation of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse
Floating Rate Note", or as having an Addendum attached or having
"Other/Additional Provisions" apply, in each case relating to a
different interest rate formula, this Note shall be designated as a
"Regular Floating Rate Note" and, except as set forth below or on the
face hereof, shall bear interest at the rate determined by reference
to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the interest
rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Calculation of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except as set
forth below or on the face hereof, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date; PROVIDED, HOWEVER, that
(y) the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate and (z) the interest rate in effect for the
period commencing on the Fixed Rate Commencement Date specified on the
face hereof to the Maturity Date shall be the Fixed Interest Rate
specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If the Interest Calculation of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then, except as
set forth below or on the face hereof, this Note shall bear interest
at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any; PROVIDED, HOWEVER, that, unless otherwise specified on the face
hereof, the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each
Interest Reset Date; PROVIDED, HOWEVER, that the interest rate in
effect for the period, if any, from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect
to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above or on the face
hereof, the interest rate in effect on each day shall be (i) if such day is
an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest
Reset Date or (ii) if such day is not an Interest Reset Date, the interest
rate determined as of the Interest Determination Date immediately preceding
the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business
Day. In addition, if the Treasury Rate is an applicable Interest Rate
Basis and the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the
Specified Currency is other than United States dollars and any payment is
to be made in the Specified Currency in accordance with the provisions
hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in
the Principal Financial Center (as defined below) of the country issuing
the Specified Currency (or, in the case of European Currency Units ("ECU"),
is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on
which payments in ECU cannot be settled in the international interbank
market); PROVIDED, FURTHER, that if LIBOR is an applicable Interest Rate
Basis on this Note, such day is also a London Business Day (as defined
below). "London Business Day" means any day on which dealings in the
Designated LIBOR Currency (as defined below) are transacted in the London
interbank market. "Principal Financial Center" means (i) the capital city
of the country issuing the Specified Currency (except as described above
with respect to ECUs) or (ii) the capital city of the country to which the
Designated LIBOR Currency, if applicable, relates (or, in the case of ECU,
Luxembourg), except, in each case, that with respect to United States
dollars, Canadian dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU's, the "Principal Financial
Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above), Zurich and
Luxembourg, respectively.
The interest rate applicable to each Interest Reset Period (as
specified on the face hereof) commencing on the related Interest Reset Date
will be the rate determined by the Calculation Agent as of the applicable
Interest Determination Date and calculated on or prior to the Calculation
Date (as hereinafter defined), except with respect to LIBOR and the
Eleventh District Cost of Funds Rate, which will be calculated on such
Interest Determination Date. The "Interest Determination Date" with
respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds
Rate shall be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall
be the second London Business Day immediately preceding the applicable
Interest Reset Date, unless the Designated LIBOR Currency is British pounds
sterling, in which case the "Interest Determination Date" will be the
applicable Interest Reset Date. The "Interest Determination Date" with
respect to the Treasury Rate shall be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as
defined below) are normally auctioned (Treasury Bills are normally sold at
an auction held on Monday of each week, unless that day is a legal holiday,
in which case the auction is normally held on the following Tuesday, except
that such auction may be held on the preceding Friday); PROVIDED, HOWEVER,
that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the Interest Determination Date shall be
such preceding Friday; PROVIDED, FURTHER, that if the Interest
Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date shall be postponed to the next succeeding Business
Day. If the interest rate of this Note is determined with reference to two
or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent
Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face
hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" or any
successor publication ("H.15(519)") under the heading "CDs (Secondary
Market)", or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date (as defined below), the rate on such CD Rate
Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30
P.M. Quotations for United States Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit". If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate Interest Determination
Date will be calculated by the Calculation Agent specified on the face
hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United
States dollar certificates of deposit in The City of New York selected by
the Calculation Agent after consultation with the Issuer for negotiable
United States dollar certificates of deposit of major United States money
market banks with a remaining maturity closest to the Index Maturity in an
amount that is representative for a single transaction in that market at
that time; PROVIDED, HOWEVER, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate determined as of such CD Rate Interest Determination Date will be the
CD Rate in effect on such CD Rate Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M.", under the
column for the Designated CMT Maturity Index (as defined below) for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the weekly or the monthly average, as applicable for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page or is not
displayed by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such CMT Rate Interest Determination Date will
be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no longer
published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate on the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based
on the arithmetic mean of the secondary market closing offer side prices as
of approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent
after consultation with the Issuer and eliminating the highest quotation
(or, in the event of quotation equality, one of the highest) and the lowest
quotation (or, in the event of quotation equality, one of the lowest)), for
the most recently issued direct noncallable fixed rate obligations of the
United States ("Treasury Notes") with an original maturity of approximately
the Designated CMT Maturity Index and a remaining term to maturity of not
less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations,
the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market closing offer side prices as
of approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent after
consultation with the Issuer and eliminating the highest quotation (or, in
the event of quotation equality, one of the highest) and the lowest
quotation (or, in the event of quotation equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the
next highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of
at least U.S. $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; PROVIDED,
HOWEVER, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined
as of such CMT Rate Interest Determination Date will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent will obtain from five Reference
Dealers quotations for the Treasury Note with the shorter remaining term to
maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on that service for
the purpose of displaying Treasury Constant Maturities as reported in
H.15(519)) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519). If no such page is specified on the face hereof,
the Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial
Paper Rate shall be determined as of the applicable Interest Determination
Date (a "Commercial Paper Rate Interest Determination Date") as the Money
Market Yield (as defined below) on such date of the rate for commercial
paper having the Index Maturity as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00
P.M., New York City time, on the applicable Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date will be the Money Market Yield of the rate for commercial paper having
the Index Maturity as published in Composite Quotations under the heading
"Commercial Paper" (with an Index Maturity of one month or three months
being deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be
the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent after consultation
with the Issuer for commercial paper having the Index Maturity placed for
an industrial issuer whose bond rating is "AA", or the equivalent from a
nationally recognized statistical rating organization; PROVIDED, HOWEVER,
that if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial
Paper Rate in effect on such Commercial Paper Rate Interest Determination
Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
------D x 360------
Money Market Yield = x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the Interest Period for which interest is
being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of
Funds Rate, the Eleventh District Cost of Funds Rate shall be determined as
of the applicable Interest Determination Date (an "Eleventh District Cost
of Funds Rate Interest Determination Date") as the rate equal to the
monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh District
Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding such
Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such
Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination
Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds
Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date") as the rate on such
date for United States dollar federal funds as published in H.15(519) under
the heading "Federal Funds (Effective)" or, if not published by 3:00 P.M.,
New York City time, on the Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate". If such rate is not published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on the related Calculation Date, then the Federal Funds Rate on such
Federal Funds Interest Determination Date shall be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent after consultation with the Issuer, prior
to 9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date; PROVIDED, HOWEVER, that if the brokers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate determined as of such Federal Funds Rate Interest
Determination Date will be the Federal Funds Rate in effect on such Federal
Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the
face hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as
of the applicable Interest Determination Date (a "LIBOR Interest
Determination Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate will be used) for deposits in the Designated LIBOR
Currency having the Index Maturity, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page (as defined below) as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified on the face hereof, or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified on the face hereof as the method
for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity, commencing on the applicable Interest
Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two
such offered rates appear, or if no such rate appears, as applicable, LIBOR
on such LIBOR Interest Determination Date shall be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent after consultation with the Issuer to provide the
Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in the Designated LIBOR Currency in such market at such
time. If at least two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, then LIBOR
on such LIBOR Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent
after consultation with the Issuer for loans in the Designated LIBOR
Currency to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time; PROVIDED, HOWEVER,
that if the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no
such currency or composite currency is specified on the face hereof, the
Designated LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuters Monitor Money Rates Service (or
any successor service) for the purpose of displaying the London interbank
rates of major banks for the Designated LIBOR Currency, or (b) if "LIBOR
Telerate" is specified on the face hereof or neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Jones Telerate Service (or any
successor service) for the purpose of displaying the London interbank rates
of major banks for the Designated LIBOR Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on
the face hereto as the Prime Rate, the Prime Rate shall be determined as of
the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan". If such rate is not
published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Prime Rate Interest Page
Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 for such Prime Rate Interest Determination Date, the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the
Calculation Agent after consultation with the Issuer. If fewer than four
such quotations are so provided, the Prime Rate shall be the arithmetic
mean of four prime rates quoted on the basis of the actual number of days
in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York
by the major money center banks, if any, that have provided such quotations
and by as many substitute banks or trust companies necessary in order to
obtain such four prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent after
consultation with the Issuer to provide such rate or rates; PROVIDED,
HOWEVER, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be
the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
TREASURY RATE. If an Interest Rate Basis for this Note is specified
on the face hereof as the Treasury Rate, the Treasury Rate shall be
determined as of the applicable Interest Determination Date (a "Treasury
Rate Interest Determination Date") as the rate from the auction held on
such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity, as such rate is published in H.15(519) under the heading
"Treasury bills-auction average (investment)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity are not reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is
held, then the Treasury Rate shall be calculated by the Calculation Agent
and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent after consultation
with the Issuer, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity; PROVIDED, HOWEVER, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury
Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law
of general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable,
pertaining to any Interest Determination Date shall be the earlier of (i)
the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the
Business Day immediately preceding the applicable Interest Payment Date or
the Maturity Date, as the case may be. At the request of the Holder
hereof, the Calculation Agent will provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate
that will become effective as a result of a determination made for the next
succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated
for each day in the applicable Interest Period. Unless otherwise specified
as the Day Count Convention on the face hereof, the interest factor for
each such date shall be computed by dividing the interest rate applicable
to such day by 360 if the CD Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime
Rate is an applicable Interest Rate Basis or by the actual number of days
in the year if the CMT Rate or the Treasury Rate is an applicable Interest
Rate Basis. Unless otherwise specified as the Day Count Convention on the
face hereof, the interest factor for this Note, if the interest rate is
calculated with reference to two or more Interest Rate Bases, shall be
calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards, and all amounts
used in or resulting from such calculation on this Note shall be rounded,
in the case of United States dollars, to the nearest cent or, in the case
of a Specified Currency other than United States dollars, to the nearest
unit (with one-half cent or unit being rounded upwards).
If an Event of Default, shall occur and be continuing, the principal
amount of the Notes may be declared accelerated and thereupon become due
and payable in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Indenture contains provisions permitting the Issuer, the Guarantor
and the Trustee, with the consent of the Holders of not less than a
majority of the aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security so affected, (i) change
the Stated Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or any
premium payable upon the redemption or acceleration thereof, or adversely
affect any right of repayment at the option of the Holder of any Security,
or change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which, the
principal of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof, or (ii) reduce the aforesaid
percentage of Securities the Holders of which are required to consent to
any such supplemental indenture, or (iii) reduce the percentage of
Securities the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of
certain defaults and consequences thereunder or to reduce the quorum or
voting requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or in the
rights of Holders of the Securities. The Indenture also permits the
Holders of a majority in principal amount of the Outstanding Securities of
any series (or, in the case of certain defaults or Events of Defaults, all
series of Securities), on behalf of the Holders of all the Securities of
such series (or all of the Securities, as the case may be), to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, irrespective of whether or not notation of such consent
or waiver is made upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula,
and in the coin or currency, herein prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for
the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under
the Securities, or for the payment or performance of any obligation under,
or for any claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general, including SD
Property Group, Inc., or such partner's assets or against any principal,
shareholder, officer, director, trustee or employee of such partner. It is
expressly understood that the sole remedies under the Securities and the
Indenture or under any other document with respect to the Securities,
against such parties with respect to such amounts, obligations or claims
shall be against the Issuer.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Issuer upon surrender of this Note for
registration of transfer at the office or agency of the Issuer in any place
where the principal hereof and any premium or interest hereon are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed
by, the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
at the office or agency of the Trustee in the Borough of Manhattan, the
City of New York, in the manner and subject to the limitations provided in
the Indenture but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Holder in whose name this Note is
registered as the absolute owner thereof for all purposes, whether or not
this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and neither the Issuer, the Guarantor, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and this Note, including the validity hereof, shall be
governed by and construed in accordance with the laws of the State of New
York and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of
law.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this Note.
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under the
Indenture, dated as of November 26, 1996, duly executed and delivered by
Simon DeBartolo Group, L.P. (the "Issuer") and the Guarantor, to The Chase
Manhattan Bank, as Trustee (as the same may be amended or supplemented from
time to time, the "Indenture"), and referred to in the Security upon which
this notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the "Guarantee") (a) the
payment of principal of, premium, if any, interest on (including post-
petition interest in any proceeding under any federal or state law or
regulation relating to any Bankruptcy Law whether or not an allowed claim
in such proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the Issuer
under the Indenture and the Security; when and as the same shall become due
and payable, whether at Maturity, on redemption, by declaration of
acceleration or otherwise (all of the foregoing being hereinafter
collectively called the "Guaranteed Obligations"), in accordance with the
terms of the Security and the Indenture and (ii) has agreed to pay all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the Security
pursuant to this Guarantee and the Indenture are expressly set forth in
Article 17 of the Indenture and reference is hereby made to such Indenture
for the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect until the termination thereof under Section 1706 of the Indenture or
until the principal of and interest on the Security and all other
Guaranteed Obligations shall have been paid in full. If at any time any
payment of the principal of, or interest on, the Security or any other
payment in respect of any Guaranteed Obligation is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, the Guarantor's obligations
hereunder and under the Guarantee with respect to such payment shall be
reinstated as though such payment had been due but not made at such time,
and Article 17 of the Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the obligations of the
Guarantor under the Indenture shall terminate at such time the Guarantor
merges or consolidates with the Issuer or at such other time as the Issuer
acquires all of the assets and partnership interests of the Guarantor.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or
otherwise, for the payment of any sums due under the Security, including,
without limitation, the principal of, premium, if any, or interest payable
under the Security, or for the payment or performance of any obligation
under, or for any claim based on, the Indenture or otherwise in respect
thereof, against any partner of the Guarantor, whether limited or general,
including Simon DeBartolo Group, Inc., or such partner's assets or against
any principal, shareholder, officer, director, trustee or employee of such
partner. It is expressly understood that the sole remedies under the
Guarantee and the Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such amounts,
obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to the Security until the certificate of
authentication on such Security shall have been signed by or on behalf of
the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE INCORPORATED HEREIN
BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Simon DeBartolo Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in commonUNIF GIFT MIN ACT - ______
Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants withunder Uniform Gifts to Minors
right of survivorship
and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|__________________________|_____________________________________
________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated:_____________________ __________________________________
___________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more
than 60 nor less than 30 calendar days prior to the Repayment Date, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder
elects to have repaid and specify the denomination or denominations (which
shall be an Authorized Denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
Principal Amount
to be Repaid: $
Notice: The signature(s) on
Date: this Option to Elect Repayment must
correspond with the
name(s) as written upon the face of this
Note in every
particular, without alteration
or enlargement or any change
whatsoever.
May 15, 1997
Simon DeBartolo Group, L.P.
Simon Property Group, L.P
115 West Washington Street
Indianapolis, Indiana 46204
Re: Medium-Term Notes Due Nine
MONTHS OR MORE FROM DATE OF ISSUE
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, L.P., a
Delaware limited partnership (the "Issuer"), and Simon Property Group,
L.P., a Delaware limited partnership (the "Guarantor"), in connection with
the issuance and sale by the Issuer of up to $300,000,000 aggregate
principal amount of the Issuer's Medium-Term Notes due nine months or more
from date of issue (the "Notes"), including the preparation and/or review
of:
(a) The joint Registration Statement on Form S-3, Registration
No. 333-11491, of the Issuer and the Guarantor (the "Registration
Statement"), and the Prospectus constituting a part thereof, dated
November 21, 1996, relating to the issuance from time to time of up to
$750,000,000 aggregate principal amount of debt securities of the
Issuer pursuant to Rule 415 promulgated under the Securities Act of
1933, as amended (the "1933 Act");
(b) The Prospectus Supplement, dated May 15, 1997, to the above-
mentioned Prospectus relating to the Notes and filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule
424 promulgated under the 1933 Act (the "Prospectus Supplement"); and
(c) The Indenture, dated as of November 26, 1996, among the
Issuer, the
Guarantor, and The Chase Manhattan Bank, as trustee (the "Trustee), as
supplemented
with respect to the Notes by the Third Supplemental Indenture, dated as of
May 15, 1997, among the Issuer, the Guarantor and the Trustee (the
"Indenture").
For purposes of this opinion, we have examined originals or
copies, identified to our satisfaction, of such documents, corporate
records, instruments and other relevant materials as we deemed advisable,
and have made such examination of statutes and decisions and reviewed such
questions of law as we have considered necessary or appropriate. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies, and the authenticity of the originals
of such copies. As to facts material to this opinion, we have relied upon
certificates, statements or representations of public officials, of
officers and representatives of the Issuer, the Guarantor and of others,
without any independent verification thereof.
The laws covered by the opinions expressed herein are limited to
the laws of the State of Indiana and the Delaware Revised Uniform Limited
Partnership Act.
On the basis of and subject to the foregoing, we are of the
opinion that:
1. Each of the Issuer and the Guarantor is existing as a
limited partnership under the laws of the State of Delaware.
2. The Notes in an aggregate principal amount of up to
$100,000,000 (the "Authorized Amount") have been duly authorized by all
necessary action by the Board of Directors of SD Property Group, Inc., an
Ohio corporation, as the managing general partner of the Issuer ("SD
Property"), for offer, issuance, sale and delivery pursuant to the
Indenture and, when the variable terms of the Notes have been established
by the authorized officers of SD Property (as the managing general partner
of the Issuer) to whom such authority has been delegated and the Notes and
the related Guarantee (as defined in the Indenture) have been executed and
authenticated in the manner provided for in the Indenture and delivered by
the Issuer to the purchasers thereof against payment of the consideration
therefor, the Notes will constitute valid and legally binding obligations
of the Issuer, enforceable against the Issuer in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium
or other similar laws relating to or affecting creditors' rights generally
or by general equitable principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law, (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States, and (C) the enforceability of
forum selection clauses in the federal courts. The opinions set forth in
this paragraph 2 with respect to the Notes are qualified, in each instance,
by the limitation that the aggregate principal amount of Notes so offered,
issued, sold and delivered may not exceed the Authorized Amount without
further action by the Board of Directors of SD Property. No opinion is
expressed herein with respect to any Notes in an aggregate principal amount
in excess of the Authorized Amount.
3. The Guarantee under the Indenture has been duly authorized
by Simon DeBartolo Group, Inc., a Maryland corporation, as the sole general
partner of the Guarantor (the "Company), and, when the variable terms of
the Notes in an aggregate principal amount of up to the Authorized Amount
have been established by the authorized officers of SD Property (as the
managing general partner of the Issuer) to whom such authority has been
delegated and the Notes and the Guarantee have been executed and
authenticated in the manner provided for in the Indenture and delivered by
the Issuer to the purchasers thereof against payment of the consideration
therefor and the Guarantee is endorsed thereon in the manner provided for
in the Indenture, the Guarantee will constitute a valid and legally binding
obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting creditors' rights
generally, or by general equitable principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim with
respect to the Guarantee of any Securities denominated other than in U.S.
dollars (or a foreign currency or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law, (B) governmental authority
to limit, delay or prohibit the making of payments outside the United
States, (C) the enforceability of forum selection clauses in the federal
courts, and (D) any provision in the Guarantee purporting to preserve and
maintain the liability of any party thereto despite the fact that the
guaranteed debt is unenforceable due to illegality. The opinions set forth
in this paragraph 3 with respect to the Guarantee are qualified, in each
instance, by the limitation that the aggregate principal amount of Notes
guaranteed by the Guarantor may not exceed the Authorized Amount without
further action by the Board of Directors of the Company. No opinion is
expressed herein with respect to any Notes (and the related Guarantee) in
an aggregate principal amount in excess of the Authorized Amount.
In giving this opinion, we have, with your permission, relied as
to matters
involving the application of the laws of Maryland and Ohio, upon the
opinions of Piper & Marbury L.L.P. and Vorys, Sater, Seymour and Pease,
respectively, special Maryland and Ohio counsel, respectively, to the
Issuer and the Guarantor, copies of which opinions have been delivered to
you.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus Supplement. In giving such consent, we do not
admit that we come within the category of persons whose consent is required
under Section 7 of the 1933 Act or the rules or regulations of the
Commission thereunder.
Yours very truly,
/s/ BAKER & DANIELS
May 15, 1997
Simon DeBartolo Group, L.P.
Simon Property Group, L.P
115 West Washington Street
Indianapolis, Indiana 46204
Re: Medium-Term Notes Due Nine
MONTHS OR MORE FROM DATE OF ISSUE
Ladies and Gentlemen:
We have acted as counsel for Simon DeBartolo Group, L.P., a
Delaware limited partnership (the "Issuer"), and Simon Property Group,
L.P., a Delaware limited partnership (the "Guarantor"), in connection with
the issuance and sale by the Issuer of up to $300,000,000 aggregate
principal amount of the Issuer's Medium-Term Notes due nine months or more
from date of issue (the "Notes"), including the preparation and/or review
of:
(a) The joint Registration Statement on Form S-3, Registration
No. 333-11491, of the Issuer and the Guarantor (the "Registration
Statement"), and the Prospectus constituting a part thereof, dated
November 21, 1996, relating to the issuance from time to time of up to
$750,000,000 aggregate principal amount of debt securities of the
Issuer pursuant to Rule 415 promulgated under the Securities Act of
1933, as amended (the "1933 Act");
(b) The Prospectus Supplement, dated May 15, 1997, to the above-
mentioned Prospectus relating to the Notes and filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule
424 promulgated under the 1933 Act (the "Prospectus Supplement").
You have requested our opinion regarding certain federal income
tax matters in connection with the offering of the Notes. The terms of the
Notes are described in the Prospectus Supplement.
We are of the opinion that the information set forth in the
Prospectus Supplement under the caption "CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSIDERATIONS" is an accurate summary of the United States
federal income tax consequences purported to be described therein, all
based on laws, regulations, rulings and decisions in effect on the date
hereof.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus Supplement. In giving such consent, we do not
admit that we come within the category of persons whose consent is required
under Section 7 of the 1933 Act or the rules or regulations of the
Commission thereunder.
Yours very truly,
/s/ BAKER & DANIELS
