EXECUTION COPY
XXXXX XXXXXXXXX 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
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CHASE SECURITIES INC.
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
SALOMON BROTHERS INC
UBS SECURITIES LLC
c/x Xxxxxxx Xxxxx & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
Xxxxx XxXxxxxxx Group, L.P., a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Chase Securities Inc.,
X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx & 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 ("XXXXX").
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, Xxxxx XxXxxxxxx 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 XxXxxxxxx Realty Corporation ("XxXxxxxxx")), 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 XXXXX, 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"), XxXxxxxxx 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 Xxxxxxxxx Xxxxx 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
"Xxxxx XxXxxxxxx Entities" and individually as a "Xxxxx XxXxxxxxx
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 Xxxxx XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx Entities or in the
partnership interests of either of the Partnerships or any Property
Partnership, or any increase in the indebtedness of the Xxxxx XxXxxxxxx
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 XXXXX XXXXXXXXX ENTITIES. Each of the
Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx
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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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, XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx
Entity or any Property Partnership. All leases and subleases under which
the Operating Partnership, any other Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx Entity or the Property
Partnerships under any material leases or subleases, or affecting or
questioning the rights of the Operating Partnership, such other Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx Entity
or any Property Partnership which are required to be disclosed in the
Prospectus are disclosed therein. None of the Xxxxx XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx
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 Xxxxx XxXxxxxxx Entities or
any Property Partnership relating to any Hazardous Materials or the
violation of any Environmental Laws.
(27) TAX RETURNS. Each of the Xxxxx XxXxxxxxx 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
Xxxxx XxXxxxxxx Entity or any Property Partnership and none of them nor
any of their directors, officers or employees is connected with any Xxxxx
XxXxxxxxx 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
Xxxxx'x 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 Xxxxxxx Xxxxx, 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
Xxxxxxx Xxxxx, 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 XXXXX, 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, Xxxxx'x, 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 Xxxxx XxXxxxxxx 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 Xxxxx & Xxxxxxx, special securities
counsel for the Transaction Entities, Piper & Marbury, LLP, special
Maryland counsel for the Transaction Entities, Xxxxx, Xxxxx, Xxxxxxx and
Xxxxx, special Ohio counsel to the Transaction Entities and Xxxxx X.
Xxxxxxx, 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 Xxxxxx & Xxxxx, 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 Xxxxx XxXxxxxxx
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 Xxxxx XxXxxxxxx 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 XXXXXX XXXXXXXX LLP. On the date hereof,
and at each Settlement Date, the Agents shall have received a letter from
Xxxxxx Xxxxxxxx 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
Xxxxx XxXxxxxxx 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
Xxxxxx Xxxxxxxx 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, Xxxxx'x, 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 Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx Entities:
Xxxxx XxXxxxxxx Group, L.P.
National City Center
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone: 000-000-0000
Fax: (000) 000-0000
Chase Securities Inc.
000 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telephone: 000-000-0000
Fax: 000-000-0000
Xxxxxx Brothers Inc.
3 World Financial Center - 12th Floor
New York, New York 10285
Attention: Medium-Term Note Department
Telephone: 000-000-0000
Fax: 000-000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
Attention: Medium-Term Note Desk
Telephone: 000-000-0000
Fax: 000-000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10036
Attention: Manager - Continuously Offered Products
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Investment Banking Information
Center
Telephone: 000-000-0000
Fax: 000-000-0000
NationsBanc Capital Markets, Inc.
000 X. Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: MTN Department
Telephone: 000-000-0000
Fax: 000-000-0000
Salomon Brothers Inc
Seven World Trade Center - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Vice President
Telephone: 000-000-0000
Fax: 000-000-0000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0026
Attention: Xxxxxx Xxxxx, Managing Director
Telephone: 000-000-0000
Fax: 000-000-0000
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,
XXXXX XXXXXXXXX GROUP, L.P.
By: SD Property Group, Inc.,
Managing General Partner
By:
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
XXXXX XXXXXXXXX GROUP, INC.
By:
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
SIMON PROPERTY GROUP, L.P.
By: Xxxxx XxXxxxxxx Group, Inc.,
General Partner
By:
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
SD PROPERTY GROUP, INC.
By:
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: ________________________________________
Name:
Title: Authorized Signatory
CHASE SECURITIES INC.
By: ________________________________________
Name:
Title: Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By: ________________________________________
Name:
Title: Authorized Signatory
XXXXXX BROTHERS INC.
By: ________________________________________
Name:
Title: Authorized Signatory
XXXXXX XXXXXXX & 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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, Xxxxx & Xxxxxxx 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
Xxxxx & Marbury and Xxxxx, Xxxxx, Xxxxxxx and Xxxxx, 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 xxxxxxx.
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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx
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 Xxxxx
XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx
XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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 Xxxxx XxXxxxxxx 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
Xxxxx XxXxxxxxx 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 XXXXXX XXXXXXXX]
________ __,199_
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated X.X. Xxxxxx & Co.
XXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
SALOMON BROTHERS INC
UBS SECURITIES LLC
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
This letter is written at the request of Xxxxx XxXxxxxxx 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 Xxxxx 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
Xxxxx XxXxxxxxx 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.
XXXXXX XXXXXXXX LLP
